JUDGMENT :

1. The appellants by way of this appeal have challenged the judgment of conviction dated 28.08.2002 passed by the Fifth Additional Sessions Judge (FTC), Surajpur District Surguja (C.G.) in Sessions Trial No. 417/1996 whereby and whereunder, they have been convicted and sentenced as under :-

2. In brief, the prosecution story is that the prosecutrix on the date of incident was a student of class 8th and her age was below 16 years, Before the date of incident the accused appellant – Thakur used to visit her house to seduce her on the pretext of marriage and providing service at Balwadi. On the date of incident appellant No. 1 along with appellant No. 2 after seducing the prosecutrix has taken her to the house of Dakhal Sai on the moped where he has committed rape on her for 12 days. The uncle of the prosecutrix PW-7 had searched her in the village, thereafter, he informed to father of the prosecutrix PW-1 about the incident. Then it was revealed that prosecutrix is in the house of accused Thakur Ram. The father of the prosecutrix lodged FIR on 21.05.1996 at Police Station Premnagar (Ex.P/1). On 21.05.1996 during investigation it was revealed that prosecutrix was found with the accused. The seizure memo Ex.P/15 to this effect was prepared. The prosecutrix was sent to medical examination and after usual investigation, the prosecution has submitted final report for commission of offence under Sections 363, 366 and 373 IPC before the concerning Judicial Magistrate, who committed the matter to the learned District Judge, Surguja which was subsequently transferred to learned Fifth Additional Sessions Judge, Surajpur.

3. The prosecution to bring home the guilt of the appellants has examined the witnesses namely Shivpal Sai (PW/1) Purshottam (PW/2) Sukhram (PW/3) Baijnath (PW/4) Dr. Amrit Lal Soni (PW/5) Dr. Snehlata Kujur (PW/6) Budhman (PW/7) Kushalsingh (PW/8) Smt. Jagmania Bai (PW/9) Smt. Bandano Bai (PW/10) Dhirsai (PW/11), prosecutrix (PW/12) Nandudas (PW/13) Ku. Satilobai (PW/14) N.B. Singh, I.O. (PW/15) and exhibited documents FIR dated 21.05.1996 (Ex.P/1), consent letter (Ex.P/2) Supurdnama (Ex.P/3) Seizure memo (Ex.P/4 – EX/8), letter to Civil Surgeon for examination of the accused (Ex.P/9) report of medical examination of accused (Ex.P/9) request for medical examination of clothes of accused (Ex.P/10-A) opinion of the doctor (Ex.P/10), medical examination of the prosecutrix (Ex.P/11) opinion of Doctor (Ex.P/12) statement of Kushalram (Ex.P/13) statement of prosecutrix (Ex.P/14) Najri Naksa (Ex.P/16) letter to SDO for medical examination of the prosecutrix (Ex.P/17) request for medical examination of prosecutrix (Ex.P/18), application for examination of clothes of the prosecutrix request for medical examination of prosecutrix (Ex.P/19) arrest memo request for medical examination of prosecutrix (Ex.P/20-21) seizure memo (Ex.P/22) report of forensic laboratory Sagar (Ex.P/23). The appellants were examined under Section 313 CrP.C. wherein they pleaded innocence and false implication. Prosecutio exhibited documents statement of prosecutrix’s father (Ex.D/1) statement of prosecutrix’s uncle (Ex.D/2) and statement of prosecutrix (Ex.D/3).

4. The learned trial Court while appreciating the evidence and material on record has given its finding at page 9 that the prosecution has seized the mark-sheet of prosecutrix and Dakhil Kharij register through seizure memo Ex.P/4 and Ex.P/5 but these documents have not been exhibited, therefore, it is not proved that on the date of incident the age of the proscutrix is below 18, as such it cannot be presumed that the prosecutrix whose age is below 18 was kidnapped from the lawful guardianship of her father, as such, offence under Section 363 is not proved beyond