Prashant Kumar Agarwal, J. - (1.) The first of these appeals has been preferred by the accused-appellant under Section 374 Cr.P.C. against that part of the judgment and order dated 17.7.1984 passed by the Additional Sessions Judge No. 2 Jaipur City (Jaipur) in Section Case No. 33/83 whereby the learned Trial Court has convicted the appellant for offence under Section 363 I.P.C. and sentenced for rigorous imprisonment of one year and fine of Rs. 200/- and in default thereof to further suffer rigorous imprisonment for one month whereas the State of Rajasthan has filed the appeal under Section 378 Cr.P.C. against that part of the aforesaid judgment whereby the accused has been acquitted for offences under Sections 366 and 376 I.P.C.
(2.) Brie relevant facts for the disposal of the appeals are that a missing report came to be registered on the written report Ex.P-3 filed by the mother (PW-2) of the prosecutrix on 13.8.1983 at Police Station Bani Park, Jaipur wherein it was alleged that prosecutrix (PW-1) aged about 15 years did not return home and all efforts to trace her out have failed. It appears that some efforts were made to trace out the prosecutrix, but without any success. Thereafter, on 16.8.1983, father of the prosecutrix PW-4- Shri Nathu Singh lodged a written report Ex.P-5 before the same Police Station in which apart from other, it was alleged that on enquiry being made it has been taken away by the brother of his former tenant-Shri Sukhdev Sharma namely Shri Shyam Sharma (the accused). It was also alleged that he was not at Jaipur when the incident occurred and he has returned only on 15.8.1983. On the basis of the report, F.I.R. No. 216/1983 for offence under Section 363 I.P.C. was registered against the accused-appellant and investigation commenced. During investigation the prosecutrix was recovered when she was at a railway platform along with the accused, the accused, the accused was arrested, statements of witness were recorded, the prosecutrix and the accused were medically examined and after usual investigation charge-sheet for offences under Sections 363, 366, and 376 I.P.C. was filed against the accused-appellant. Charges for the aforesaid offences were framed and the prosecution produced oral as well as documentary evidence in support thereof. The statement of the appellant was record under Section 313 Cr.P.C. and evidence in defence was also produced. Learned Trial Court after evaluating and appreciating the evidence available on a record passed the impugned judgment and order. Feeling aggrieved, both accused-appellant and the State of Rajasthan have filed the appeals.
(3.) Finding of the Trial Court in brief may be stated as below:- (1) The accused took the prosecutrix along with him to his village, out of the keeping of the lawful guardianship of the father without his consent. This defence theory was disbelieved and rejected that the prosecutrix herself alone went to his village from Jaipur to meet him (2) She at her own will went along with the accused and no force was used by the accused. No deceitful means was also used to induce her to go away along with him. (3) Although it can not be held that the age of the prosecutrix was above eighteen years but there was every possibility that she was of the age of more than sixteen years at the time of the incident. (4) The accused had sexual intercourse with the prosecutrix more than once but it was with her consent. (5) The prosecutrix was habitual to sexual intercourse.;