J.R. Vimadalal, J. -
(1.) This is an appeal filed by the original accused Nos. I and 3 against their convictions by the Additional Sessions Judge, Poona, accused No. 1 being convicted of the substantive offences under Ss. 366 and 376 of the Indian Penal Code, and accused No. 3 being convicted of the offence of abetment of kidnapping under Sec. 366 read with Sec. 109, of the Indian Penal Code. It may be mentioned that accused No. 3 was also charged with the offence of abetment of rape under Sec. 376, read with Sec. 109, of the Indian Penal Code, but he has been acquitted of the same by the trial Court. It may also be mentioned that accused No. 2 was similarly convicted of the offence under Sec. 366, read with Sec. 109 of the Indian Penal Code, but acquitted of the offence under Sec. 376, read with Sec. 109 of the Indian Penal Code. Accused No. 2 has not filed any appeal from her conviction and she is not an appellant before this Court.
(2.) The facts out of which the prosecution case arises are that a married girl named Shalan used to live with husband Shrirang and her mother -in -law Gopabai in a hut at Mangalwar Peth, Poona, the prosecution case being that Shalan was born on October 30, 1955, and was less than 16 years of age at the material time. The prosecution story is that in course of time Shalan became acquainted with some of her neighbours, including accused Nos. 1, 2 and 3, and used to exchange visits with them. According to the prosecution, about two days prior to February 13, 1971, Shalan had been to the house of accused No 2 in order to ask her to accompany Shalan for collecting fire -wood, but when she went inside the house of accused No. 2, accused No. 2 came out and bolted the front door and accused No. 1 entered the hut from the rear and had sexual intercourse with Shalan. That, however, is not the subject -matter of the present case and has been narrated by me only as part of the prosecution story.
(3.) On February 13, 1971, according to the prosecution, Shalan's husband Shrirang left his house for work at Maldhakka in the morning and, after doing her household work, Shalan took the tiffin -carrier for him to his place of work at Maldhakka, but Shrirang was not there, he having gone to Kirkee, and so she returned home with the tiffin -carrier. Thereafter she took her own meals, and then her mother -in -law Gopabai asked her to bring a pot from the house of Gopabai's married daughter and Shalan left the house for that purpose. The prosecution story is that on the way, she met accused No. 2 who asked Shalan to accompany her and took Shalan to a bus -stop, where accused No. 3 lined them, and the two accused took Shalan by bus to the house of watchman Mohite at another village where they all spent tin night after obtaining the consent of the said Mohite. Next day according to the prosecution, accused No. 1 came there with one other person, and after some intervening facts relating to the ornaments of Shalan, to which it is unnecessary to refer for the purposes of the present appeal, according to the prosecution accused No. 1 took Shatan to a railway station and, underneath the railway -bridge, he had sexual intercourse with Shalan, accused Nos. 2 and 3 having left Mohite's house and gone away from there on their own. The prosecution story is that thereafter accused No. 1 took Shalan to Bombay where the two of them lived for about three days at Worli and for about eight days at Andheri, and accused No. 1 then brought Shalan to Poona and, on her request took her to the house of her parents at Ojani. Shalan's father thereupon contacted Shrirang as well as the Police, and accused No, 1 and Shalan were brought by the Police to Pooni on March 10, 1971 and the usual investigation by the Police followed. As a result of that investigation, accused No. 1 was charged with the substantive offences of kidnapping and rape under Ss. 366 and 376 of the Indian Penal Code respectively, and accused Nos. 2 and 3 were charged under Ss. 306 read with Sec. 109 and Sec. 376 read with Sec. 109 of the Indian Penal Code with having abetted accused No. 1 in the commission of both those offences. They were thereafter tried by the learned Additional Sessions Judge, Poona, and were convicted and sentenced on April 21, 1972, as already stated above. From their convictions and the sentences passed upon them, accused Nos. 1 and 3 have preferred the present appeal.;