S.S. Dewan, J. - (1.) BANARSI Dass on his conviction under section 366, Indian Penal Code, and sentence of 6 months rigorous imprisonment, has come up in appeal. He is said to have on the night intervening January 15/16 -1 -1973 at village Isharpur, abducted Kumari Pali, aged 16/17 years, with the intent that she might be seduced to illicit intercourse. His co -accused, Puran and Shrimati Lila Devi have been acquitted.
(2.) THE prosecution story briefly runs as undar: - - On the night intervening January 15/16 -1 -1973, Kumari Palo slept inside a Chhan near her residential house in village Isharpur. At about 3 A. M., Banarsi Dass, accused awakened her and told her that her buffalo had been let loose. She came out and found her buffalo underneath the nearby Neem tree. Banarsi Dass took her in his grips and gagged her mouth with his hands. Puran and Smt. Lila Devi helped Banarsi Dass in forcibly taking Kumari Palo outside, the village abadi. She was told that in case, she raised alarm, she would be killed. All the three accused and Kumari Palo boarded a train at about 5 A.M. for Yamunanagar. Smt. Lila Devi accused continued her journey while the aforesaid two accused and the prosecutrix got down from the train at Yamunanagar. Kumari Palo was brought in a rickshaw near a culvert on Jagadhri -Saharanpur road in the area of village Fatehpur. Banarsi Dass took her to a nearby pit and committed sexual intercourse with her against her will. Thereafter, they boarded a taxi from village Chilkana and reached Saharanpur where they passed the night in a hotel. Banarsi Dass took her to Nahan by a taxi and from there, she was taken to Chandigarh and Panchkula where they stayed for about 12 days. They stayed at Patiala for about 20 days. From Patiala, she was taken to Jammu where she was kept by the accused for about 4 months. Both of them then came to Yamunanagar by train and set out on foot towards village Bhauji. They were detected on the night intervening June 30, 1973 and July 1, 1973 by S.I. Mohan Singh of Police Station Saddar, Yamunanagar at the bridge of village Damla. The accused was arrested and Kumari Palo was recover -ed. Puran and Lila Devi, accused, were arrested by H.C. Ram Singh on February 26, 1973. On the completion of the investigation the accused were challenged and committed. The learned Sessions Judge acquitted Puran and Smt. Lila but convicted and sentenced Banarsi Dass as indicated above. Feeling aggrieved by the judgment of the learned Sessions Judge, Banarsi Dass has come up in appeal. Kumari Palo had been medically examined by Dr. (Mrs.) Rukmani Garg (P.W. 1) on 1st July 1973 at 6.35 P.M. She found no mark of injury on any part of her body. Hymen was fully torn. Vagina admitted two fingers. Uterus was of hypertrophied size. According to her she had two months of amenorrhea.
(3.) REGARDING the occurrence, we have mainly the evidence of Kumari Palo (P.W. 7). According to her, the appellant awakened her at about 3 A.M. and told her that her buffalio had been let loose. She came out of her house and found her buffalo underneath the Neem tree. The witness maintained that with the help of Puran and Shmt. Lila, the appellant forcibly took her to different places and kept her for about 6 months. She added that the appellant had been committing sexual intercourse with her. S.I. Mohan Singh recovered her from the possession of the appellant. She claimed that the appellant threatened her not to talk to anybody. The trial Court found the story as given by the prosecturix to be not true so far as the allegation of threat was concerned. It was observed that the prosecutrix could have easily raised an alarm and made complaint regarding her abduction by the appellant. From the facts that the prosecutrix did not raise hue and cry at any stage it was concluded that she was a consenting party and had willingly gone with the appellant and was also a consenting party to the sexual intercourse committed by him. The trial court acquitted the appellant for the offence under section 376, Indian Penal Code.;