- (1.)ON the testimony of P. W. 1 Laxmi prosecutor, the Additional Sessions Judge, Chandrapur, recorded a finding of conviction for the offence punishable under section 363 and 376 of the Indian Penal Code, against the appellant-accused for having on 23/5/1987 kidnapped prosecutor Laxmi from village Bhedoda and committed rape on her at village Pandharpawani. Heard Mr. Daga for the appellant-accused and Mr. Pan de, Assistant Government Pleader for the State. With the assistance of the learned Counsel for both the parties, I have perused the testimony of P. W. 1 Laxmi (prosecutor ). It is Oexplicit that the accused and Laxmi had intimacy prior to the incident. Laxmi was doing labour work in the filed of the accused. On the date of incident accused took Laxmi to his village assuring to marry her. At his residence at Pandharpawani he has repeatedly asserted that he wanted to marry Laxmi. His assertion could not be a false allurement. He repeated his assertion despite the protest of the relation. However, as brought on record, Laxmi at the relevant time was aged about 17 years.
(2.)LAXMI P. W. 1 stated in her deposition that at the night at Pandharpawani, accused had a sexual intercourse with her and this was without consent. She has specifically stated that at that night in the shed she was sleeping with father, mother and sister of the accused. Accused and his father were on the side of gate whereas prosecutor, mother of the accused and sister were on the other side. In this situation, committing sexual intercourse without consent is highly improbable. The finding of conviction for the offence punishable under section 376, I. P. C. , therefore, cannot be sustained.
(3.)HAVING regard to the age of the prosecutor at the relevant time, accused is liable to be punished for the offence punishable under section 363 of the Indian Penal Code. The accused at the relevant time was reported to be aged about 24 years. The pertinent feature of the prosecution is that the accused himself reached prosecutor Laxmi to her village at Bhedoda. Even at that stage, prosecutor Laxmi was not willing to go back to her parents. Having regard to the special feature and the state of affairs, Mr. Daga urged that the accused and Laxmi had an intimate relation and they had a definite design to marry. The Offence to which the accused exposed himself since he did not take consent of her father P. W. 2 Tulsiram. He, therefore, urged that the accused be released on probation under section 360 of the Code. I also heard Mr. Pande on this aspect. I, therefore, pass the following order: -
The appeal is partly allowed. Finding of conviction for the offence punishable under section 376 of the Indian Penal Code is set aside. However, finding of conviction punishable under section 363 of the Indian Penal Code is hereby confirmed. However, the accused is directed to be released on executing a bond under section 360 of the Code, for a period of one year to the satisfaction of the Additional Sessions Judge, Chandrapur. In case of default, he shall suffer a sentence as awarded.
Appeal allowed partly.