The appellate court found insufficient evidence to support the conviction for kidnapping and rape, determining that the prosecutrix willingly accompanied the appellants.

1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 30-4-98 passed by the Additional Sessions Judge, Janjgir, the then District Bilaspur, M.P. (now C.G.) in Sessions Trial No. 256/94 whereby and whereunder after holding the appellants guilty for abducting / kidnapping prosecutrix (PW 4) (name not mentioned) to compel her to marry with . appellant Ashok and also committing gang rape, convicted them under S.366, S.376(2)(g) of the Indian Penal Code (for short ' IPC ') and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.1000/-, in default of payment of fine, to further undergo simple imprisonment for six months; and rigorous imprisonment for 10 years and to pay fine of Rs.2000/-, in default of payment of fine, to further undergo simple imprisonment for one year, respectively, to each of the appellants, with a direction to run the sentences concurrently.

2. Convcition is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality.

3. As per case of the prosecution, the prosecutrix (PW 4) came to her aunt's house as a guest at village Devlapath (Kudhri). On 28-3-94, at about 7.20 pm, the prosecutrix (PW 4) was returning to her aunt's house from opposite field after attending the call of nature. Both the appellants met her and told her that her brother met with an accident as he fell down from a tree and he is in need of water. Both the appellants took her to the house of appellant Seth @ Ramdayal. When she asked for water, they told her that water is inside the room. When she entered the room, appellant Seth @ Ramdayal bolted the room from outside. Appellant Ashok was inside the room. He pressed her neck and threatened her, then she become unconscious. When she regained her consciousness, she found her clothes open and the appellant committed rape with her at night. Both the appellants covered her eyes and mouth and took her forcibly to some other village of their relative. There also appellant Ashok committed intercourse on the pretext of offer of marriage at village Hathnevra. Relatives of appellant Ashok came they took prosecutrix with them in a jeep and left her at her paternal house on 30-3-94 night. They offered marriage of the prosecutrix (PW 4) with appelant Ashok and promised them that they will come after 8-10 days. When the relatives of appellant Ashok did not turn up, the prosecutrix (PW 4) along with her father went to Police Station Champa and informed about the incident. When the prosecutrix was not traceable on the date of incident, on the next date report of missing person was lodged. The police of Champa after inquiry in the said missing report and after the statement given by the proseuctrix regarding act committed by the accused / appellant, on 13-4-94 lodged First Information Report as Ext. P13 and registered the crime against both the appellants for the offence under S.363/34, 376(2)(g) of the IPC vide Crime No. 82/94. After registration of First Information Report, sport map was prepared vide Ext. P12. After obtaining necessary permission, the prosecutrix was sent for medical examination. Dr. S. Birthare (PW 5) examined the prosecutrix and noticed no external or internal injuries, but the contusion mark of 2 x 2cm at the sacral region noticed, hymen ruptured, tenderness in vagina and intercourse has been done. The doctor gave his report vide Ext. P5. The investigating officer seized the clothes of the prosecutrix vide Ext. P1 and undergarment of the prosecutrix was seized vide Ext. P3. For evidence of date of birth of the prosecutrix (PW 4)