JUDGMENT - R.K. BATTA, J.:---The applicants have been charge sheeted along with other co-accused for offences under sections 363, 366, 376 read with 34 of I.P.C. An application for discharge was filed by the applicants on two grounds namely (i) the Court has no jurisdiction to try the applicants since offence of rape alleged against them took place at Jabalpur that is to say outside the jurisdiction of Sessions Judge, Nagpur, where charge-sheet was filed; and (ii) the conduct of the prosecutrix shows that she was consenting party throughout and since her radiological age is shown as 16 years at the time of incident, no offence of rape can be said to have been made out by the applicants. This application was rejected by the learned Extra Joint District Judge and Additional Sessions Judge, Nagpur vide order dated 17-07-1997, which is subject matter of challenge in these revisions.

2. The prosecution case, in brief, is that, on or about 24-10-1995, one Alankar, who is reported to be absconding, kidnapped the prosecutrix from Nagpur on the pretext of modelling and took her to Jabalpur. There she was kept in various hotels, large number of boys had raped on her. In the meantime, her mother had lodged a missing report and ultimately the prosecutrix was found loitering in Nagpur near Hotel Upvan, near her house and was caught by the Police. She was sent for medical examination on 21-11-1995. The medical examination revealed that she used to have sexual intercourse and her radiological age was about 16 years. After carrying out investigation, the Police had charge sheeted four accused and three were shown as absconding. The applicants are the ones who are shown absconding. Besides this, though accused Alankar is not shown absconding in Column No. 2 of the charge-sheet, yet he is stated to be absconding in Column No. 5 of the charge-sheet.

3. Learned Senior Counsel Shri C.P. Sen argued Criminal Revision Application No. 114 of 1997. Learned Advocate Shri Uday Dastane for the applicant in Criminal Revision Application No. 134 of 1997 adopted the arguments advanced by Shri C.P. Sen, Senior Counsel. Learned A.P.P. Shri A.G. Mujumdar argued on behalf of the State in both the revision applications.

4. The main contention urged by the learned Senior Counsel for the applicant is that kidnapping was completed at Nagpur and no consequence of this offence of kidnapping had taken place at Jabalpur, and since the alleged rape had taken place at Jabalpur, the applicant cannot be tried at Nagpur. According to him, section 179 of the Criminal Procedure Code is not attracted to the facts and circumstances of the case. In support of his submission, he has placed reliance on (Emperor v. Mohanlal Aditram)1, reported in A.I.R. 1928 Bombay 475(2); (In re Jivandas Savchand)2, reported in A.I.R. 1930 Bombay 490; (Kashi Ram Mehta v. Emperor)3, reported in A.I.R. 1934 Allahabad 499 (F.B.); (State v. Tavara Naika)4, reported in A.I.R. 1959 Mysore 193; (The State v. Sri Lal and others)5, reported in 1971 Cri.L.J. 141; and (Jagan Nath and another v. State of Haryana)6, reported in 1983 Cri.L.J. 1574. On the question of applicability of section 223(d) (old corresponding section 239(d)), reliance has been placed on (Babulal Chaukhani v. King Emperor)7, reported in A.I.R. 1938 Privy Council 130; (The State of Andhra Pradesh v. Cheemalapati Ganeswara Rao and another)8, reported in A.I.R. 1963 S.C. 1850. Rulings on scope and ambit of section 34 of I.P.C. have also been placed before me. It is also urged that alternatively on merits it is a case of consent and the prosecution of the applicants is ill founded.

5. On the other hand, learned A.P.P. has urged that the date of birth of the prosecutrix is 14-08-1980 and when the incident took place, the prosecutrix was only 15 years and as such the question of consent does not arise. Learned A.P.P. has urged that the offences, with which the applicants are charged, have been committed in the course of same transaction which start

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