SOBHAGMAL JAIN, J. - (1.) THIS appeal is directed against the judgment dated July 29, 1988, of the Additional Sessions Judge No. 1, Udaipur, convicting and sentencing the appllant for the offence under Section 376 IPC to 7 years R. I. and a fine of Rs. 200/- and in default of payment of fine to 3 months further R. I. ; under Section 363 IPC to two years R. I. and a fine of rs. 200/- and in default of payment of fine 3 months further R. I. and under Section 366 IPC 3 years R. I. and a fine of Rs. 200/- and in default of payment of fine to 3 months R. I. All the sentences have been directed to run concurrently.
(2.) THE occurrence took place at village Gandoli in December, 1986 about 12 days prior to the filing of the first information report at the police station Dabok at Fatta on Jan. 6, 1987. As per the prosecution case Smt. Mangi on the date of occurrence was at her mothers house when the accused approached on her and to her that she was wanted at Dabok by her mother. She believed the accused and left the house in his company. THE prosecution case further was that the accused took her to various places and committed sexual intercourse with her. THE First Information Report of the occurrence was lodged by Fatta her father on 6. 1. 87 at the police station Dabok on which a case under Section 363, 366 and 380 IPC was registered and investigation started. After investigation the accused was challened and then committed to the Court of Sessions for trial for the offence under Section 376, 363 and 366 IPC. After trial the Sessions Judge has convicted and sentenced the accused as aforesaid. Aggrieved, the accused has filed the present appeal. The appeal was filed through Jail and the accused was unrepresented, therefore an Amicus Curiae was appointed to assist him. I have heard Shri M. C. Bishnoi, Amicus Curiae, for the accused and Smt. Sumitra Chauhan, Public Prosecutor for the State. The statement of Smt. Mangi was read-over to me. According to the Doctor the age of Smt. Mangi was 17-18 years. The learned Sessions Judge has held that she was 17 years of age when the occurrence took place. I do not find any infirmity in the finding of the learned Sessions Judge about the age of the girl and I, therefore, affirm the same. The question for consideration in this appeal, however, is whether Mst. Mangi was a consenting party. The reasons given by Mst. Mangi for accompanying the accused on the date of occurrence were that the accused told her that she was wanted by her mother at Dabok. This part of her statement is belied by the evidence of her mother Smt. Champa, who has stated that when Mangi was taken away by the accused she was sitting in the 'bara' of her own house at Gandoli. This shows that Mst. Mangi did not accompany the accused on being told by him that she was wanted by her mother at Dabok. Her mother Smt. Champa was in he 'bara' in village Gandoli and there was no question of the accused telling Mst. Mangi that she was wanted by her mother at Dabok. According to Mangi herself, she met her uncle on the way but did not make any complaint to him. She did not even mention that she was going to Dabok as she was wanted by her mother there. Smt. Mangi travelled in the bus. There also she did not mention to any one that she was being taken by the accused against her wishes. All the circumstances are indicative of the fact that Smt. Mangi had accompanied the accused on her own willingness, and was a consenting party to the act of sexual intercourse committing with her by the accused. It is difficult to hold that the accused committed sexual intercourse with her without her consent. As she was not proved to be below the age of 16 years the offence under Section 376 IPC is not made out against the accused and his conviction for the same cannot be sustained. As regards the offence under section 366 I. P. C. , as per the evidence of the doctor Mst. Mangi was below 18 years of age. Her consent, therefore, for the offence under section 366 I. P. C. was of no consequences. The offence under section 366 I. P. C. is fully made out against the accused. The sentence awarded to the accused for the said offence also does not seem to be excessive. In view of his conviction & sentence for the offence under section 366 I. P. C no separate sentence under section 363 I. P. C. needs to be passed.
(3.) ACCORDINGLY, the appeal is partly allowed. The conviction and sentence of the appellant for the offence under section 376 I. P. C. is set aside but the conviction and sentence of the appellant recorded by the learned Sessions Judge for the offence under section 366 I. P. C is maintained. No separate sentence for the offence under section 363 I. P. C is passed against the appellant. The judgment of the Additional Sessions Judge shall stand modified accordingly. .;