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Hon'ble Sanjay Harkauli,J.

(PER AJAI LAMBA, J)

1. Deshraj, Son of Sipahi Lal has filed the appeal in challenge to judgment of conviction and order of Sentence, both dated 30.7.2014. The said appellant has been convicted for committing offence under Sections 363, 366, and 376 Indian Penal Code. The appellant has been sentenced to undergo imprisonment for three years and pay fine Rs.1000/- for committing offence under Section 363 Indian Penal Code; undergo imprisonment for five years and pay fine Rs.2,000/- for committing offence under Section 366 Indian Penal Code, and undergo rigorous imprisonment for ten years and pay fine Rs.10,000/- for committing offence under Section 376 Indian Penal Code. It has further been directed that in case fine is recovered, Rs.5000/- be remitted to the victim of offence.

11. On the basis of evidences collected in the course of investigation, charge sheet Exh. Ka-9 was filed for committing offence under Sections 120-B, 363,366,376 Indian Penal Code.

12. After committal of the case, charge was framed for committing offence under Sections 120B Indian Penal Code read with Sections 363, 366 and 376 Indian Penal Code.

13. As noticed above, the appellant accused has been convicted for committing offence punishable under Sections 363, 366 and 376 Indian Penal Code.

(emphasised by us)

21. Section 366 of the Indian Penal Code inheres that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, shall be punished with a sentence, as provided in the provision.

22. So far as Section 376 Indian Penal Code is concerned, the offence of rape has been defined under Section 375 of the Indian Penal Code. For the facts and circumstances of the case Section 376 Indian Penal Code would be attracted if a man commits rape with or without consent when the victim is under eighteen years of age; without consent of the victim; or with her consent when her consent has been obtained under circumstances detailed in Section 375 Indian Penal Code.

60. In the considered opinion of the Court, the statement of P.W.3 the prosecutrix is absurd being fraught with improbabilities, doubt, oddities and, therefore, cannot be relied upon as basis of conviction. The conduct of the prosecutrix in following the appellant at a distance of 2-4 step on a common path for 2 kms where others were also coming and going, yet not raising an alarm reflects tacit consent on the part of the prosecutrix. The conduct of the prosecutrix in travelling in public transport and not raising alarm would naturally invite a conclusion that she was a consenting party. The conduct of the prosecutrix in living in the house of the accused for more than two weeks where she used to cook meals herself reflects her consensual conduct. The house was frequented by the villagers yet the prosecutrix did not raise alarm. The circumstances in which the prosecutrix was recovered viz. sleeping on a cot with the appellant in the doorway indicates her implicit consent to be with the appellant. Right from the time when prosecutrix went with Deshraj till the time she was recovered by the police party, the prosecutrix did not show any unease or distress before any person. Such silence for such a long time invites a conclusion that the prosecutrix of her own free will and accord went with the appellant to his house in public transport , had physical relations with him and lived with him till the time of recovery. In view of such evidence it cannot be held that the appellant committed offence under Section 366 Indian Penal Code, or under Section 376 Indian Penal Code.