JUDGMENT :

MANJIVE SHUKLA, J.

1. Heard Mr. Avinash Srivastava, learned counsel appearing for the appellant and Mr. Balram Singh, learned Additional Government Advocate appearing for the State.

2. Appellant through this criminal appeal has challenged the judgment and order dated 28.11.2001 passed by 11th Additional Sessions Judge, Faizabad in Sessions Trial No. 90/93 whereby the appellant has been convicted for offence punishable under Section 376 IPC and has been sentenced for rigorous imprisonment of 10 years with fine of Rs.5,000/-with rider that in the event of failure to deposit the amount of fine, he will undergo six months’ rigorous imprisonment.

3. Complainant (brother of the victim) lodged an FIR in Police Station Tarun, District Faizabad which was registered as Case Crime No. 218 of 1992 under Section 363/366 IPC. The complainant in the aforesaid FIR has stated that accused appellant son of Suryabhan Pandey and Rohit Kumar Pandey son of Ram Bahor Pandey, residents of Village Vidyapur Gayaspur, P.S. Tarun, District Faizabad had enticed his sister and thereby took her away. The complainant in the FIR has further stated that his sister is aged about 14 years and is a minor. In the FIR, it has further been stated that his sister had also taken away cash and jewellery with her. The complainant in the FIR has said that he tried to search out his sister but she is untraceable, therefore the First Information Report be lodged and the police may search out his sister.

4. After lodging of the aforesaid FIR, the police of the concerned police station started investigation. On 5.1.1993 at about 7 p.m. in presence of witnesses Madan Mohan Mishra and Mohd. Junaid Khan, the police found that the victim was going on the road near the south Kabristan of village Saidpur towards village Pandey Ka Purwa and thereafter she was questioned and her bag was searched out, then it was found that jewellery was in the bag. The recovery memo was prepared and the victim after medical examination was handed over to her father.

5. The police after completing the investigation submitted charge sheet against accused appellant under Sections 363, 366, 376 IPC and against accused Rohit Kumar Pandey under Section 363/34 and 366/34 IPC.

6. The trial court framed charges against accused appellant under Sections 363, 366, 376 IPC and against accused Rohit Kumar Pandey under Sections 363/34 and 366/34 IPC. During trial, testimony of PW-1 (brother of the victim), PW-2 (victim), PW-3 Dr. Meera Srivastava, PW-4 Dr. D.R. Bhuwan and PW-5 Sub Inspector M.L. Khan was recorded.

7. Thereafter, statements of both the accused were recorded under Section 313 CrPC.

8. PW-1 (brother of the victim) in his testimony recorded during trial has deposed that in the night of 2/3.11.1992 he was sleeping outside his house and his sister was sleeping inside the house. When he woke up in the night and went inside the house, he found that his sister was not there and at that time it was about 2.30 a.m. in the night. PW-1 in his testimony has further deposed that the age of his sister was 14 years and he tried to search out his sister but she could not be traced. He has further stated that accused Rohit Kumar Pandey and accused appellant are the residents of his village and both used to come to his house and also used to talk to his sister. He also deposed that he had instructed them not to talk to his sister. He said that when his sister could not be traced out, then he became confident that Rohit and accused appellant had enticed his sister and further his sister along with her had also taken away Rs.200/-cash and jewellery. When his sister could not be traced out, then on the next day he went to the police station and lodged the FIR. He has also said that at the time of incident his mother and father were not present in the house as his mother had gone to Ayodhya and his father was in Surat on his service.

9. PW-1 complainant in his cross examination has deposed that at the time of incident h