JUDGMENT :

M. R. Verma, J. –

1. Since both these appeals arise out of the same judgment dated 8.8.2003, passed by the learned Sessions Judge, Kinnaur at Rampur, therefore, are being disposed of by this common judgment.

2. The accused/appellant Nek Ram (hereafter referred to as the accused') who has preferred Criminal Appeal No. 597 of 2003, has been convicted under Section 363, 366 and 376 of the Indian Penal Code and has been sentenced to imprisonment for seven years and fine of Rs. 10,000/- and in default of payment of fine, to undergo further imprisonment for one year on each count and accused appellant Amin Chand (hereafter referred to as `the accused) who has preferred Criminal Appeal No. 598 of 2003, has been convicted under Sections 212 and 368 of the Indian Penal Code and has been sentenced to imprisonment for three years and fine of Rs. 5,000/- and in default of payment of fine, to imprisonment for six months under Section 212 of the Indian Penal Code, and to imprisonment for seven years and fine of Rs. 10,000/- and in default of payment of fine to further imprisonment for one year under Section 368 of the Indian Penal Code.

3. The case of prosecution, in brief, is that the prosecutrix (PW-1) is the daughter of Ram Krishan (PW-2) a resident of village Darkali. Prior to the [occurrence, on 29.7.2000 the prosecutrix, was studying in 6m standard in High School. Darkali and was in the care and custody of PW-2. On 29.7.2000 when PW-2 returned from the orchard, the prosecutrix was found missing from the house. It was [found that she had gone to wash the clothes at the tap but did not return. During efforts to find out the prosecutrix, PW-2 was informed by one Dhani Ram of village Darkali that the accused had kidnapped the prosecutrix but their whereabouts were not known. The matter was reported to the police and FIR Ext. PW-2/A came into being at Police Station Rampur and the investigation followed. The prosecutrix was traced and recovered on 9.8.2000 from the house of accused Amin Chand vide memo. Ext. PW-2/B and was sent for medical examination. She was medically examined by Dr. Ganga Rawat (PW-9) who on such examination issued the MLC Ext. PW-9/A observing that no marks of violence were found on the person of the prosecutrix and opined that she was habitual of sexual intercourse. At the time of her medical examination, Salwar, shirt and underwear of the prosecutrix were taken in possession, sealed and handed over to the police by PW-9 After arrest, accused Nek Chand was also got medically examined from PW-9 who issued MLC Ext. PW-9/B about such examination opining that there was nothing to suggest that the accused was incapable of performing sexual intercourse. His shirt was also taken in possession, preserved and handed over to the police by PW-9. The prosecutrix is her statement made allegations of repeated acts of rape on her by the accused, therefore, offence under Section 376 of the Indian Penal Code was also added to the crime committed by the accused. During the investigation it was also found that accused Amin Chand harboured/concealed accused Nek Ram in his house in village Khanash knowing that he had committed the offences of kidnapping and rape. It was also found that accused Amin Chand had concealed or kept confinement the prosecutrix (PW-1). The investigating officer obtained the School Leaving Certificate of the prosecutrix Ext. PW-3/A and the age certificate from the Panchayat Ext. PW-5/A, both of which show the date of birth of the prosecutrix as 8.5.1986. The wearing apparels of the prosecutrix and accused Nek Ram, which were handed over to the police by PW-9, were sent for chemical analysis and as per the report Ext. PW-7/A, nothing incriminating was found on such wearing apparels except that human semen was found on the underwear Ext. P-3 of the prosecutrix. On being satisfied of the commission of the crime by the accused persons, the officer Incharge of the concerned Police Station submitted a charge-sh