- (1.) C. A. Rahim, J. This Appeal has been directed against the conviction and sentence passed by the II Addl. Sessions Judge, Shahjahanpur, on 12-9-1979. The appellant was convicted under Section 363, IPC and sentenced him to suffer R. I. for four years.
(2.) THE prosecution case is that on 17-12-1977 the appellant came to the house of the complainant and told him that his Mummy had called Chameli, the victim girl. So Chameli accompanied the appellant and proceeded to the west of the house where there is a grove and a canal. On the way accused Ram Chandra, Kali Charan and Ram Raj joined them. PW-2 Babu Ram and Mata Din saw them to go together. When Chameli did not return to the house, Munshi (PW-1) father of Chameli went in her search but he did not find his daughter in the house of Rama, Mummy of the appellant. Babu Ram (PW-2) and Mata Din told him that they saw his daughter going with the appellant and other. THE complainant searched for his daughter for about a week but could not trace her and on 12-12-1977 lodged an F. l. R. Chameli was kept in the house of Rama during the night and the next day she was taken to the house of Prem Raj where from she was taken by the appellant to Shahjahanpur and kept her in his house for a day. THE appellani then took her to village Bahadurpur, District Fatehgarh and kept her in the house of his Behnoi for 4-5 days wherefrom she was recovered by police. THE victim girl was sent for medical examination which was done by PW-5 Dr. M. Agarwal on 23-12-1977. PW-6 B. D. Saxena did the X-ray of the joints of the victim girl and Dr, Agarwal prepared the report. According to the report she was aged about 16 years. No definite opinion regarding rape can be given as the girl was used to sexual-inter course. THE investiga tion was done. A charge-sheet under Sec tions 363 and 376, IPC was filed against the appellants and others. During trial six witnesses were ex amined on behalf of the prosecution. Ac cused Lala Ram examined himself as D. W. 1. PW-1 Munshi, the complainant and father of the victim girl, who proved the taking of the girl on pretext by the appel lant. He has also proved the F. l. R. PW-2 Babu Ram saw the girl in the company of the appellant and others and reported the matter to the complainant. PW-4 is the victim girl PW-5 is the Doctor who examined the victim girl PW-6 Dr. B. D. Saxena is the X-ray Technician. PW-3 Karma Prasad is the Head Clerk who registered the case and prepared a chik report. In this the I. O. has not been ex amined. The appellant in his examination as D. W. 1 has denied the incident. He has stated that he went to his brother-in-law's house where he saw the victim girl. She went there voluntarily and did not return even they tried to do so. The police came there after 3-4 days and arrested him. The learned Judge relying on the evidence and materials on the record convicted and sen tenced the appellant in the aforesaid man ner. The trial Judge acquiitcd the appellant under Section 376, IPC with a view that she was 16 or 16-1/2 years of age and being a consenting party, no offence of rape was committed by the appellant. The learned Counsel Sri Brijesh Sahai, appearing for the appellant, has submitted that there was delay in lodging the F. l. R. The occurrence took place on 17-12-1977 and the F. l. R. lodged on 24-12-1977. The prosecution case is that after she was taken out on 17-7-1977 she did not return till the night. Thereafter her father searched for her. At that time witnesses Babu Ram and Mata Din told him towards the evening of the next day that his daughter was seen in the company of Lala Ram appellant and others. There after he searched in all probable places but could not find her and thereafter he lodged an F. I. R. The conduct of the complainant seems to be usual and if about a week's time elapsed for search of his daughter in the neighbouring villages and in all pos sible places it cannot be said that the delay was deliberate and in order to implicate him. The name of the appellant transpired on the next day when the complainant met with Babu Ram and Mata Din. The said fact has been corroborated by PW-2 Babu Ram and it is further corroborated from the admitted fact that the police recovered the victim girl from the brother-in-law's house of the appellant. He was also found there and arrested. So I do not consider that the delay caused in lodging the F. I. R. has prejudiced the accused-appellant in anyway.
(3.) THE learned Counsel has argued at length stating that the girl was major for which the charge under Section 361, IPC cannot be sustained, since the trial Judge held that she was a consenting party. The charge was framed under Sec tion 363, I. P. C against the appellant and he was also convicted under that section, Section 361, IPC is definition of kidnapping from lawful guardianship. It speaks that if a girl under 18 years of age is taken or enticed away out of keeping of the lawful guardian without the consent of the guar dian, is said lo kidnap such girl from the lawful guardianship.;