JUDGMENT :

SANJAY KUMAR JAISWAL, J.

1. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 29.11.2003 passed by the learned Sessions Judge, Durg, District Durg (C.G.) in Sessions Trial No. 102 of 2003 whereby, the learned Sessions Judge, convicted the appellants and sentenced them as under:

2. The case of the prosecution is that on 31.01.2003, on the pretext of marriage, appellant No. 1-Santosh Yadav took the minor prosecutrix (PW-4) in a train from Durg Railway Station to the house of co-accused/Sagar at Tatanagar, in which appellant No. 2-Chhotu @ Jai Singh assisted him, where appellant Santosh Yadav repeatedly committed sexual intercourse with the prosecutrix for 12 days. Later on, the appellant Santosh Yadav brought the prosecutrix back to Durg and missing report of prosecutrix was lodged. Thereafter, the Police lodged the First Information Report, investigated the matter and charged sheet was filed against the appellants.

3. In order to prove its case, prosecution has examined as many as 14 witnesses. The appellants adjured their guilt and in their statements recorded under section 313 of Cr.P.C. they stated that they are innocent and have been falsely implicated in the case. In defence, accused persons were examined only one witness.

4. The trial Court acquitted the co-accused Sagar Yadav for the offence punishable under Section 368 of IPC considering the evidence presented by the parties. Appellant Santosh Yadav was acquitted for the offence punishable under Sections 376 and 493 of IPC. Both the appellants were acquitted for the offence punishable under Section 366/34 of IPC and both of them were convicted and sentenced as shown in paragraph-1 of the judgment, against which, this appeal has been presented.

5. Learned counsel for the appellant submits that prosecutrix (PW-4) was not taken away by instigation of the appellants and she left the house from her own free will. He further submits that prosecution has failed to establish that prosecutrix was below 18 years of age on the date of occurrence, hence, offence of kidnapping is not made out. To buttress his submission, he placed reliance in case of S. Varadarajan vs. State of Madras, AIR 1965 SC 942.

6. Per contra, learned counsel for the State opposes the appeal and supported the impugned judgment. He submits that finding of trial Court is based on proper appreciation of mar-shelling of evidence and the same is not liable to be interfered with while invoking the jurisdiction of appeal.

7. I have heard learned counsel appearing for both the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection.

8. First of all, if we look at the statement of prosecutrix (PW-4), she stated that when she returning from tuition due to stomach pain, appellant Santosh and Chhotu met her near railway gate, then, they asked her to walk with them and she came to Durg railway station with them. She left with appellant Santosh to Tata by train at 11.30 AM, where she stayed at Sagar's house for about 12 days. She returned back to Titurdih, Durg with appellant Santosh. Appellant Santosh and his father took her to Chikhli in same night and from where, she came back to her village. During this period, several times, appellant committed sexual intercourse with her. She did not