The court considered the age of the prosecutrix and lack of parental consent in the case of kidnapping, and reduced the appellant's sentence based on the time already spent in custody.

Judgment

N.K. Gupta, J.;-

1. The appellant has preferred this appeal against the judgment dated 21.8.2000 passed by the learned First Additional Sessions Judge, Sidhi in S.T. No. 129/1999, whereby the appellant was convicted for the offence punishable under section 363 of IPC and sentenced for 3 years' rigorous imprisonment with fine of Rs. 5,000/-. In default of payment of fine, 6 months' rigorous imprisonment was also directed in addition. The prosecution's case, in short, is that, on 16.3.1999, at about 8-9 p.m., the prosecutrix (P.W.5) was sitting in her house. Her parents went to Khalihan. The appellant came to the house of the prosecutrix and told her to accompany him. Initially, the prosecutrix refused to go with him. Thereafter, the appellant convince her to go with him and thereafter, the appellant took her to his house. He took a sum of Rs. 500/- from his father and then, he took the prosecutrix to a temple. Thereafter, he took her to village Chadwahi and thereafter to village Jayant. At village Jayant, the appellant committed rape upon the prosecutrix and he kept her in a hut. On third day, some witnesses reached at the spot, where the appellant kept the prosecutrix and therefore, the prosecutrix as well as the appellant were brought to the Police station Behri, District Sidhi, where the complainant Samaylal, father of the prosecutrix had already lodged an FIR. The prosecutrix was directed for her medico legal examination and ossification test. The appellant was also directed for his medico legal examination. After due investigation, a charge-sheet was filed before the Additional Chief Judicial Magistrate, Sidhi, who committed the case to the Sessions Court and ultimately, it was transferred to the First Additional Sessions Judge, Sidhi.

2. The appellant abjured his guilt. He did not take any specific plea in the case but, he has stated that he was falsely implicated in the matter. However, in defence Buddhu (D.W.1) was examined.

3. On considering the evidence adduced by the parties, the learned First Additional Sessions Judge, acquitted the appellant from the charges of offence punishable under sections 366 and 376(1) of the IPC but, convicted him for the offence punishable under section 363 of IPC and sentenced him as mentioned above.

4. I have heard the learned counsel for the parties.

5. The learned counsel for the appellant has submitted that the appellant was a young youth of 25 years of age at the time of the incident. She took the prosecutrix due to love affair. The prosecutrix was a consenting party and therefore, the appellant was acquitted from the charges of offence punishable under section 376 and 366 of IPC. He was convicted for the offence punishable under section 363 of IPC on technical grounds. The appellant remained in the custody for 361 days during the trial and for few days during the appeal. Under such circumstances, he remained in the custody for one year approximately. Looking to the age of the appellant and consent of the prosecutrix, whereas the appellant has faced the trial and appeal for the last 13 years, it is prayed by the learned counsel for the appellant that the appellant may not be sent to the jail again.

6. On the other hand, the learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct and therefore, there is no need to make any change in this appeal.

7. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it appears that the appellant does not press the appeal on merits. Only concentration has been directed on the sentence passed against the appellant. However, case of the appellant may be considered on merits in a concise manner. It is true that the prosecutrix was a consenting party but, she was found to be 15 to 16 years of age in the ossification test done by Dr. Kalpana Ravi (P.W.7). Dr. Kalpana Ravi has stated in her cross-examination that th