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(i) The victim stated that about 25-26 days back Deshraj took her from the village to Sitapur and from Sitapur to Ichcchapur. They stayed in the same village for 20-25 days. Deshraj committed rape on her 5-6 times. The victim did not notice this because she was under spell of Dawa Babhut(Black Magic). Kallu, wife of kallu Renu, Dharmendra, Gita and Aditiya Mishra were also involved in doing black magic. Black magic was done in the village of the victim, also by the mother of Deshraj whereupon the victim could not think straight. She has further stated that she wanted to go in the company of her mother.

(ii) From the circumstances emerging on perusal of the recovery memo, it is evident that the prosecutrix was not confined in the house of the appellant, rather was found sleeping in the doorway of the house of the appellant, without there being any restriction on her liberty.

44. A reference to the statement of the prosecutrix recorded under Section 164 Criminal Procedure Code as noticed above, would indicate that the prosecutrix ''F' stated that about 25-26 days back the appellant took her from the village to Sitapur and from Sitapur to Ichchhapur. They stayed in the same village for about 20-25 days. Deshraj raped her 5-6 times. The prosecutrix ''F' did not notice this because she was under spell of ''Dawa-Bhabhut'. Names of other family members of the appellant have been given as being involved in doing black magic/Dawa Bhabhut. On account of black magic, the prosecutrix ''F' could not think straight.

(i) We have taken judicial notice of the allegation that the prosecutrix ''F' was brought under spell of black magic/dawa bhabhoot by Kallu, Renu wife of Kallu, Dharmendra, Geeta, Aditya Mishra. Charge sheet was filed only against Dharmendra and the appellant. Dharmendra has been acquitted. The judgment of acquittal qua Dharmendra has not been challenged. It shows that even the prosecuting agency has accepted that no such black magic was exercised upon the prosecutrix. It has been accepted by the prosecution that Dharmendra had not conspired with the appellant.

(I) Learned Counsel for the prosecution has also not been able to justify the explanation of the prosecutrix of Dua Bhabut/Dawa Bhabhut as sufficient to justify her conduct in going with the appellant and staying with him for over two weeks.

56. This Court is required to consider whether the plea of the prosecutrix that she was subjected to black magic is an acceptable explanation or not.

57. As a court of law, this Court cannot accept the doing of Dua Bhabut/Dawa Bhabut/ Black Magic as an explanation for the conduct of the prosecutrix. The excuse and the justification for the conduct of the victim in going with the accused in various modes of public transport and staying with him for over two weeks without any resistance, as given by her, is absurd, fantastic, fanciful, fictional and imaginative, of which no judicial notice can be taken in law.