K.S.Garewal, J.

1. Rajesh has filed this appeal against the judgment of the learned Additional Sessions Judge, Hissar dated July 14, 1990 whereby he was convicted under Section 366 I.P.C. because he abducted/induced Suhila Devi (d.o.b. December 21, 1971) who was below 18 on November 8, 1989. However, since she was above 16, Rajesh was acquitted of the charge under Section 376 I.P.C.

2. Quite frankly there is a dichotomy in the provisions of the Penal Code which makes it an offence to induce a girl under 18 years of age with the intention to seduce her to illicit intercourse but the actual act of intercourse punishable under Section 376 I.P.C. would be an offence only if the girl was below 16.

3. The factual matrix of this case is that Sushila Devi (PW-7) was daughter of Balwant Singh (PW-8), a Class IV employee at Civil Hospital, Hansi. Rajeshs mother and co-accused Rani was also a Class-IV employee at the same hospital. Both families lived in adjoining Government accommodation on the hospital premises. Sushila Devi and Rajeshs sister Manju were friends. A few days before the occurrence Rani had gone to Sushila Devis house and told her that if she was not being treated properly in her house, she should marry Rajesh and she would be looked after well.

4. On November 7, 1989 Sushila Devis brother Anil fell ill and was admitted in Civil Hospital, Hansi. On November 8, 1989 Sushila Devis mother went to the hospital to look after her son while her father had gone to attend his duties. At 10 A.M. Rajesh and his friend Raju came to their house. Rajesh asked Sushila Devi to accompany him as her mother had called her to the hospital. Sushila Devi went along with Rajesh but instead of being taken to the hospital, she was taken by Rajesh and Raju on a rickshaw to the Bus Stand and from there in a bus to Rohtak. Rajesh and Raju also threatened her with knives. At Rohtak she was taken to a room near the railway line, where she was kept on the nights of 8, 9 and 10 November, 1989 and on all three nights Rajesh raped her.

5. On November 11, 1989 Raju informed Rajesh that Sushila Devis father had come to Rohtak with the police and was looking for them. He advised them to change their hiding place. Thereafter, Rajesh and Raju took Sushila Devi in a hired van to Kalinga where they spent the night. On the morning of November 12, Sushila Devi was again taken back to Rohtak and later some relatives took them to Police Station, Rohtak and got them arrested under Section 109 Cr.P.C.

6. On November 13 they were both produced before a Magistrate and released on bail. On November 14, they returned to Hansi where they were apprehended by the police. Sushila Devi was medico-legally examined by Dr. Urmil Khetarwal (PW-1) who found no mark of violence on her face, breast and inner portion of thighs but there was swelling of labia majora and labia minora. Hymen was found torn and was bleeding/painful on touch. Clothes, underwear, vaginal swabs and pubic hair were taken into possession.

7. After conclusion of investigation the accused were sent up for trial. Rajesh was charged under Sections 366 and 376 I.P.C. to which he pleaded not guilty and claimed to be tried. It may not be necessary to mention the case against Raju and Rani because they were acquitted.

8. The learned trial Judge accepted that Sushila Devis date of birth was December 21, 1971, therefore, on the date of her abduction she was six weeks short of her 18th birthday.

9. The learned trial Judge acquitted Rajesh for the offence of rape by holding that it was a case of consensual intercourse but convicted him for abduction because he felt that Rajesh had seduced Sushila Devi to illicit intercourse. What was licit for rape became illicit for abduction. This indeed is a serious contradiction in terms.

10. Sushila Devi had not been compelled, had not been kidnapped or nor abducted, had not been forced/nor seduced into illicit intercourse. Sushila Devi had agreed to accompany Rajesh and they