M.C.JAIN, J. - (1.) THE State has preferred this appeal against the judgment and order dated 15-11-1980 passed by Sri B. N. Srivastava, the then I Additional Sessions Judge, Gorakhpur in S. T. No. 168 of 1978. The sole accused respondent Jalal Ahmad alias Ashraf Jalal has been acquitted of the charges of S.363, S.366 and S.376, IPC. He absconded during the pendency of the appeal and Shri R. B. Sharma, Advocate was appointed as amicus curiae under order dated 28-2-2005 to argue the appeal on his behalf. We have heard Sri K. P. Shukla, learned A.G.A. from the side of the State and the said amicus curiae for the sole accused - respondent. The record has been summoned which we have perused carefully.
(2.) THE background facts may be related shortly so far as they are necessary for the decision of the appeal. Prosecutrix Km. Sushila PW - 3 was the eldest daughter of Ram Naresh Prasad PW - 1 from whose house at a distance of about two furlongs towards north the accused resided. The accused Jalal Ahmad alias Ashraf Jalal often visited and used to sit at the dispensary of one Dr. Shukla situated near the house of the complainant. At a little distance from the house of complainant towards west Chhunni Devi Kanya Junior High School was situated where Km. Sushila was a student of class VII. She had gone there as usual at about 10 O' clock on the fateful day of the incident 25-8-1977. She was aged about 12 years. The mother of the prosecutrix was unwell preceding the day of the incident. During the lunch recess on 25-8-1977, the prosecutrix had come out of the school building to take her lunch or some eatables when the accused - respondent met her and told her that her mother was unwell and she should return back to her home after giving an application to leave the school. An application for permission was given by her to the Principal, whereafter she came out of the school building. In order to quench her thirst, she asked for water which was brought to her by the accused. After drinking water, she engaged a rickshaw to return to her home and the accused also seated himself on the rickshaw with her. Soon after drinking water, she swooned in a state of unconsciousness from which she recovered next day in the morning. Regaining her consciousness she found herself in a khaprail house. The accused was also present there. She learnt from him that the house was in Bhairahwa (Nepal). Her requests to him for being restored to her parents went unheeded. She was detained there for about 28 days. The accused discussed for her sale with his friends. During the period of her captivity, she was ravished by the accused three or four times. Because of her kidnapping, she had failed to return to her home on the day of the incident in question - 25-8-1977. Her father, Ram Naresh Prasad after some inquiries learnt that she was seen being taken away by the accused from her School at about 2.00 p.m. He made efforts to trace them out. He submitted report Ext. Ka 3 at 11.30 p.m. on 25-8-1977 at Police Station Cantt., District Gorakhpur. On his report, a case was registered. Investigation was taken up by S. I. Shiv Nath Tiwari PW - 8. He made attempts to trace out the accused, who was named in the F.I.R., but to no effect. He informed the neighbouring Police Stations about the disappearance of the prosecutrix.
(3.) IT was on 22-9-1977 that the prosecutrix Km. Sushila PW - 3, after her detention at Bhairahwa, was taken by the accused to Sonauli some time in the evening (Sonauli being at a distance of 9 kms. from Bhairahwa). At Sonauli, there was some altercation between them on the road near the temple of Shantoshi Mata. In the meantime, on receiving some information from the informer, S. I. Incharge Vashishtha Mishra PW - 5 of the Police Outpost. Sonauli (Police Station Nautnawa - border of Nepal) with some constables and two public witnesses inclusive of Naseebdar Khan PW - 7 rushed to the temple and noticed that a boy and a girl were talking each other nearby the temple. He accosted them and learnt that they were the wanted persons. Arresting the accused, he recovered Km. Sushila from his possession. Both of them were taken to the Police Station, Nautanawa, reaching there at 8.45 p.m.;