Crl.A. 121/2007 BEFORE THE HON’BLE MR JUSTICE B D AGARWAL This appeal is directed against the Judgment and Order dated 17. 05.2007, passed by the learned Assistant Sessions Judge, Lakhimpur at North Lakh impur, in Sessions Case No. 30 (N) of 2006. By this impugned Judgment, the appel lant has been convicted both under Sections 366 and 376 of the Indian Penal Code and he has been given concurrent sentence of 7 (seven) years RI and also to pay a fine of Rs. 1,000/-, with default sentence of 3 (three) months RI for his off ences. 2. Heard Sri S S Sharma, learned Senior Counsel for the appellant a s well as Sri B S Sinha, learned Additional Public Prosecutor for the State of A ssam. I have also gone through the impugned Judgment and the evidence on record. 3. The evidence discloses that the victim girl was a student of Cla ss - VII at the relevant time. At the same time, the victim girl has admitted t hat she had plucked twice in her school once in Class-V and next in Class VII. I n this way, in due course the victim would have been a student of Class - X. 4. As per the medical evidence, the victim girl was below 18 years. With regard to sexual assault the medical opinion is that the hymen of the girl was found torn and the vagina was admitting one finger. Having regard to all th ese aspects, the learned trial Judge has held that although the girl was above 1 6 years she was below 18 years of age. In view of the fact that the victim would have been a student of Class - X in a rural area, the age determined by the tri al Court cannot be said to be imaginary. 5. As per Section 366 IPC, if a girl of less than 18 years is entic ed away without the consent of her guardian it amounts to kidnapping. Since the victim was below 18 years of age, her eloping with the accused voluntarily will have no impact on the conviction of the appellant under Section 366 IPC. 6. It is true that under Section 375 IPC, if a person commits sexua l intercourse with a girl of 16 years and above with her consent, it does not am ount to rape. However, in the case before me, the victim girl has reiterated tha t she was subjected to sexual intercourse against her will. Similarly with regar d to her taking away from the village, the victim has deposed that she was forci bly taken away in a car by the accused and subjected to sexual intercourse under threat. 7. Hence, the conviction of the appellant under Sections 366 and 37 6 IPC is hereby upheld. 8. With regard to the sentence, the learned counsel for the appella nt submitted that the appellant is a married person. Besides this, it was conten ded that the conduct of the girl in moving from place to place and staying with the accused in a hotel, an inference can be drawn that she was a consenting part y and, if not, the quantum of sentence deserves to be interfered with. 9. From the evidence of the victim girl, it is apparent that the gi rl moved with the appellant in a car from Lakhimpur to a place in Arunachal Prad esh and stayed there for 5 (five) days and thereafter, they travelled together t o a long distance and stayed in a hotel in West Bengal (Coochbihar) for 4 (four) days. Besides this, the victim girl has also admitted that while going to Iajul i in Arunachal Pradesh the vehicle was checked by the inter-State Police and the re also, she did not raise any alarm. 10. Keeping in mind this conduct of the victim girl, the substantive sentence is reduced to 5 (five) years rigorous imprisonment. It is made clear t hat this sentence is concurrent for both the offences under Section 366 and 376 IPC. However, the amount of fine awarded by the trial Court is maintained. Perio d of detention already undergone during investigation and trial shall be set off under Section 428 of the Code of Criminal Procedure. 11. In the result, the appeal is dismissed, subject to modification in the sentence. 12. The Registry is directed to return the LCRs along with a copy of this Judgment to the Court of learned Assistant Sessions Judge, Lakhimpur, imme diately. On receipt of the Judgment, the learned trial Court shall issue modifie d custody warrants.