Amitava Roy, J. - (1.) IN challenge is the judgment and order dated 23.10.1989 passed by the learned Additional Sessions Judge, Dholpur, in Sessions Case No. 120/1986 convicting the appellants under sections 366 and 368 IPC and sentencing each of them to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5000/ - on each count and in default of payment to suffer rigorous imprisonment for further one year. I have heard Mr. B.K. Sharma, learned counsel appearing for the appellants and Mr. Javed Choudhary, learned Public Prosecutor.
(2.) A F.I.R. was lodged by the prosecutrix Sheela to the effect that she was a widow staying with her parents and that one Narendra (co accused with the appellants) was her uncle by relation. About twenty five days before lodging of the F.I.R., said Narendra offered to take her to a nearby hotel to take tea and she obliged. Thereafter, as represented by him, to visit Agra to take a glimpse of the Taj Mahal, she accompanied him. On reaching Agra, Narendra kept her in his sister's house for twenty one days, whereafter to return home, they came to Agra Railway Station. According to the prosecutrix, Narendra met three other persons there and after conversing with them, they together travelled from Agra to Dholpur, whereafter she was kept in a hut. When she asked as to why she had been brought there, she was threatened and was told that she would be sold as a prostitute. The prosecutrix alleged further that thereafter, she was kept in the hut for two days, in course of which Narendra committed rape on her twice. She was recovered by the police thereafter. A case was registered under sections 366, 368 and 376 IPC against the appellants and Narendra, who eventually did abscond and trial commenced against them (appellants) under sections 366 & 368 IPC, having denied the charge to that effect. At the trial, the prosecution examined several witnesses including the victim Sheela, PW 2. In her testimony, the prosecutrix stated as narrated in the F.I.R. She however did not attribute any role to the appellants in the matter of any inducement to her and in categorical terms stated that they did not reside in the hut. After her recovery, her statement u/s. 164 Cr.P.C. was recorded, in course whereof, she did not state that the appellants had threatened or intimidated her. On completion of recording of the statements of the prosecution witnesses, the statements of the appellants under section 313 Cr.P.C. were recorded and they denied the charge in toto. They did not adduce any evidence in defence.
(3.) LEARNED counsel for the appellants has argued that as it is more than evident from the testimony of the prosecutrix Sheela that it was said Narendra, who allegedly had brought her on the pretext of showing Taj Mahal at Agra and that the appellants had neither any role in the process either at that point of time or thereafter, the learned trial Court had grossly erred in law and on facts in recording conviction against them under sections 366 and 368 IPC. As the prosecutrix was a major & a married woman and that at no point of time, she had complained of having been abducted or wrongfully confined, the prosecution had utterly failed to prove the charge against the appellants and they ought to be acquitted, he urged. Learned counsel argued further that in view of categorical statement of the prosecutrix that the accused appellants had neither induced nor threatened her in any manner, their complicity in the alleged occurrence of abduction and wrongful confinement is not proved.;