B.K.SHARMA, J. - (1.) THIS is an appeal against the judgment and order dated 17th October, 1980, passed by Sri Jaswant Singh, the then Illrd Additional Sessions Judge, Bijnore in S.T. No. 122 of 1980, State v. Shakeel alias Pappu and Smt. Asgari whereby he convicted the accused appellant Shakeel of the offence under Section 366, I.P.C. and sentenced him to undergo rigorous imprisonment for a period of one year and convicted Smt. Asghari of the offence under Section 368, I.P.C. but in­stead of sending her to jail released her on probation for a period of one year.
(2.) THE prosecution story was that Km. Jannati prosecutrix d/o Gulam Nabi in­formant of this case was aged 14 years on the date of the occurrence, that on 21-3-1979, Gulam Nabi was away from the house and Alijan and Babu real brothers of the prosecutrix were employed in a crusher at Nagina and her mother was also not present at the house and had gone to another house, that at about 11.00 a.m. prosecutrix was going to see her tarseem field that Shakeel accused-appellant and Islamuddin co-accused met her in the way and entised her to go with them, that the accused appellant Shakeel offered to marry her and to keep her well and provide her with clothes and ornaments and by this inducement they took her torasta for Mirthapur where Hameed, P.W. 3 and Ashfaq, P.W. 2 who belonged to her village met them and when they asked Shakeel ac­cused-appellant and his companion as to where they were taking her the accused-appellant Shakeel and his companion Is­lamuddin told them that they are taking her to Barkha where her Khala lived, that however they did not take her to Barkha but took her to a sugarcane field and kept her in sugarcane field in the night and in the morning Shakeel accused-appellant No. 1 took her to his own house where his mother accused-appellant No. 2 was present, that at that time, the father of accused-appellant No. 1 was not present at the house, that Smt. Asghari, accused ap­pellant No. 2 suggested her to marry with Shakeel accused-appellant No. 1. It is also the prosecution story that Shakeel ac­cused-appellant No. 1 used to threaten her with Tawal all along. The prosecution story further is that on the date of occurrence when Gulam Nabi informant came back to his house, his wife told her that the prosecutrix had gone for a walk in the village but has not come back from the previous day, that thereupon he and his sons started making search for the prosecutrix, that the next day in the morn­ing after they came across Ashfaq, P.W. 2 and Hameed, P. W. 3 who told him that they had seen the accused-appellant No. t Shakeel and co-accused Islamuddin taking the prosecutrix with them and that when they had asked them as to where they were taking her, they told them that they were taking her to the house of her Khala, that thereupon the informant went to the police station and lodged an F.I.R. about the occurrence at Police Station Sheohara on 22-3-1979 and 12.15 p.m. Thereupon a case was registered against the accused-ap­pellant Shakeel and Islamuddin under Sections 363/366, I.P.C. Thereafter, the prosecutrix was recovered from the house of Shakeel, accused-appellant No. 1 where Smt. Asghari, accused-appellant No. 2 was present. She was taken to the police sta­tion on 24-3-1979 where the memo about her being recovered and taken to the police station was prepared by the Police. In due course the Investigating Officer arrested both the accused-appellants and submitted a charge-sheet. It is not clear as to what happened to the co-accused-ap-pellant Islamuddin nominated in theF.lR. The prosecutrix was medically ex­amined by Dr. N. Sharma on 24- 3-1979 at 4.30 p.m. at the Women Hospital, Bijnore who found the following general examina­tion: "General Examination - Weight 35 kg. Height 4'9" Teeth 14/14 space for third molar is formed. Par vagina hymen is torn and replaced by old granular legs and is of normal size. Vagini admits one finger easily. There is no injury either external or internal on the private parts. Very thin growth of black hairs present on pubia/Vaginal smear slide is taken and sent to pathol­ogy for microscopic examination for evidence of any sperms. Examination of Sec. Sex Characters - Breast well formed and well developed. Hairs in the axilla are black and scanty".
(3.) THE prosecutrix was referred to District Hospital, Bijnor for X-ray of wrist, elbow and knee joint. The X-ray report reveals the follow­ing report: "Wrist Joint - The epiphysis of lower ends of Radius and Ulna have not fused. Elbow Joint - All the epiphysis around the elbow joint are fused. Knee Joint - The epiphysis of the lower end of femur is in the process of fusion and the epiphysis of upper ends of tibia and fibula are in process of union." ;