(PER AJAI LAMBA, J)

1. Deshraj, Son of Sipahi Lal has filed the appeal in challenge to judgment of conviction and order of Sentence, both dated 30.7.2014. The said appellant has been convicted for committing offence under Sections 363, 366, and 376 Indian Penal Code. The appellant has been sentenced to undergo imprisonment for three years and pay fine Rs.1000/- for committing offence under Section 363 Indian Penal Code; undergo imprisonment for five years and pay fine Rs.2,000/- for committing offence under Section 366 Indian Penal Code, and undergo rigorous imprisonment for ten years and pay fine Rs.10,000/- for committing offence under Section 376 Indian Penal Code. It has further been directed that in case fine is recovered, Rs.5000/- be remitted to the victim of offence.

(i) Perusal of the impugned judgment of conviction indicates that co-accused, Dharmendra Verma has been acquitted of the charges.

2. Amicus Curiae Shri Jalaj Kumar Gupta, Advocate has appeared for the appellant and has given able assistance to the court. Shri Chandra Shekhar Pandey, Additional Government Advocate has appeared for the State/prosecution.

3. Learned counsel for the appellant has vehemently argued that if a reference is made to the entire evidence, it becomes evident that the prosecutrix had attained age of majority on the date of incident. In this regard, the trial court has erred in facts and in law in wrongly interpreting the evidence. The only conclusive evidence in regard to age of the prosecutrix is the statement of the Doctor and her medical examination report.

(i) The other contention of learned counsel for the appellant is that conduct of the prosecutrix as is made evident by herself in her deposition as P.W.3, read with the circumstances under which she was recovered clearly depict that she had consensual relations with Deshraj, the appellant. She had neither been induced nor coerced to go with him. The plea of being under the spell of black magic/Dawa bhabhoot/ Dua bhabhoot is an afterthought. There is no evidence of administering any intoxicant to the prosecutrix and keeping her intoxicated for the entire period while she stayed with the appellant. In such circumstances, neither offence under Section 363 Indian Penal Code has been committed nor under Section 366 and Section 376 Indian Penal Code.

4. Learned counsel for the State to the contrary has argued that the judgment rendered by the trial court is based on evidence and does not call for interference.

5. It appears that Nand Kishore filed complaint exhibited as Ka-1 dated 2.4.2010 with the allegation that he is resident of Malauli, Police Station Gosaiganj, Lucknow. On 29.3.2010 at about 3.00 p.m. his daughter ''F' aged 14 years had been enticed away by Deshraj, son of Sipahi Lal, aged 25 years resident of Ichchhapur, District Sitapur who works on Annpurna Brick field, Malauli(brick kiln).

(i) It has further been stated in the complaint that the complainant came to know of the incident on returning home; and till the date of lodging the report had been looking for his daughter who could not be traced.

6. In view of the complaint Exh ka-1, formal First Information Report Exh. Ka-10 was registered as Crime No.166 of 2010, under Sections 363, 366 Indian Penal Code, Police Station Gosaiganj (First Information Report No.121 of 2010) on 2.4.2010 at 2.30 p.m in regard to the incident of 29.3.2010.

7. It appears that the victim ''F' was recovered on 12.4.2010. Recovery memo is available on record as Exh. Ka-2.

(i) In Exh. Ka-2, it has been stated that in the presence of witnesses and Sub Inspector Shri Musafir Prasad, Constable Shailendra Singh, Female Constable Sarla Devi, complainant Nand Kishore, mother of the victim Shayama Devi, the victim was recovered from the doorway of the house of Deshraj (appellant), son of Sipahi Lal. On asking the name, the victim disclosed her particulars. The time of recovery is stated to be 22.45 hours (10.45 p.m.) on 12.4.2010.

8. Document Exh. Ka-4 is