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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 18 of 1970.

Appeal by special leave from the judgment and order dated December 15, 1969 of the Gujarat High Court in Criminal Appeal No. 827 of 1967.

R. H. Dhebar and S. K. Dholakia, for the appellant. R. L. Kohli and S. P. Navar, for the respondent.

The Judgment of the Court was delivered by DUA, J. This appeal by special leave is directed against the judgment and order of the Gujarat High Court allowing in part the appellant's appeal from his conviction by the Court of the Sessions Judge, Jamnagar under ss. 366 and 376, I.P.C. The High Court acquitted him of the offence under s. 375, I.P.C. but maintained his conviction and sentence under s. 366, I.P.C.

On the basis of this observation, the trial court held that in the present case, the inducement given by the appellant operated on Mohini's mind to stay in his house and do as he told her to do. The trial court on a consideration of the circumstances of the case and of the subsequent conduct of the appellant came to the definite conclusion that Mohini had gone to the appellant's place at his instance and subsequently taking advantage of that position she was persuaded by the appellant to stay there. The appellant was accordingly held guilty under ss. 366 and 376, I.P.C. Under s. 366, I.P.C., hi was sentenced to rigorous imprisonment for 18 months and under s. 376, I.P.C. to rigorous imprisonment for two years and also to fine of Rs. 5001- and in default, to further rigorous imprisonment for six months. The substantive sentences of imprisonment were to run concurrently.

On appeal by the appellant, the High Court also considered the matter at great length and in a very exhaustive judgment, the appellant's conviction under s. 376 was set aside and he was acquitted of that offence. This acquittal was ordered because the charge being only for sexual intercourse on the night of January 16, 1967, the evidence of Mohini in support of that offence was not accepted as safe and free from all reasonable doubt, in the absence of independent corroboration. In adopting this approach the High Court seems to us to have been somewhat over indulgent, and unduly favourable to the appellant with respect to the offence under s. 376, I.P.C. But there being no appeal against acquittal, we need say nothing more about it. The appellant's conviction for the offence punishable under S. 366, I.P.C. and the sentence for that offence were, however, upheld. The High Court felt that the story of Mohini with regard to the appellant's call about 3 or 4 days before the incident in question was so natural and so highly probable that it felt no hesitation in accepting it. The circumstances preceding the incident were considered by the High Court to be sufficiently telling to lend assurance that it was quite safe to act upon her testimony. Her account was considered to be quite truthful and, therefore, acceptable. Mohini's version that the appellant had told her about 3 or 4 days before the incident of January 16, 1967 that he would keep her permanently at his place provided sufficient temptation to the school-going girl like Mohini to go to the appellant leaving her parental home. This was all the more so because in the past year or so, the appellant had treated Mohini very fondly by taking her out on trips to different places in his own car and had also lavishly given her gifts of articles like costly pens and silver band. The High Court also took into consideration the attitude adopted by Mohini's mother in this connection. She had very discretely warned the appellant in a dignified and respectful language to leave Mohini alone and also expressed her disappointment and unhappiness at the manner in which the appellant used to behave towards Mohini. The High Court considered a part of Mohini's version, as to how she was kept in the dicky of the appellant's car on the 16th and 17th January, 1967, to be improbable and to have been exaggerated by her, but this was considered to be due to the fact that, like a school-girl that she was, she introduced an element of sensation in her story. Her complaint about inter-course on this occasion was not accepted for want of independent corroboration. The medical evidence also suggested that there was no presence of spermatozoa when vaginal swab was examined. It was on this reasoning that the offence under s. 376, I.P.C. as charged was held not to have been proved beyond doubt. The presence of Mohini in the appellant's house and also in his garage on the 16th and 17th January was held by the High Court to be fully established on the record. The version give by Mohini was held to be fully corroborated by the surrounding circumstances of the case and by the recoveries of various articles belonging to her. The High Court also came to the positive conclusion that there was no unreasonable delay on the part of the investigating authorities to record Mohini's statement. The suggestion on behalf of the appellant that various articles belonging to Mobini and the utensils found in the inner room of the appellant's premises were planted, was rejected outright. The High Court in a very well-reasoned judgment with respect to the offence under s, 366, I.P.C. came to the conclusion that the appellant had taken Mohini out of the keeping of her parents (her lawful guardian) with an intention that she may be seduced to illicit inter-course. This is what the High Court observed "Have come in contact with the family of Mohini in about November 1965 the appellant cultivated relationship with them to such an extent that he took Mohini, and her parents out on trips in his car spending lavishly by staying in hotels in Ahmedabad, Bombay, Mahabaleshwar and Mount Abu. He also presented Mohini with a parker pen on 18th De- cember, 1965. Within a few days thereafter he purchased by way of gift to Mohini skirt, silver waist-band which as per unchallenged testimony of Mohini was worth about Rs. 1,2/-. He was actually found by the side of Mohini in Mohini's bed by Mohini's mother at Mount Abu. His con-

As already observed, the appellant was acquitted of the offence under s. 376, I.P.C., but his conviction and sentence under s. 366, I.P.C. was upheld.

In this Court, Shri Dhebar addressed very elaborate arguments and took us through considerable part of the evidence led in the case with the object of showing that the conclusions of the two courts below accepting the evidence led by the prosecution with respect to the charge under s. 366, I.P.C. is wholly untrustworthy and no judicial mind could ever have accepted it. After going through the evidence to which our attention was drawn, we are unable to agree with the appellant's learned counsel. Both the courts below devoted very anxious care to the evidence led in the case and the circumstances and the probabilities inherent in such a situation. They gave to the appellant all possible benefit of the circumstances which could have any reasonable hearing in his favour, but felt constrained to conclude that the appellant was proved beyond reasonable doubt guilty of the offence under s. 366, I. P. C. The appellant's main argument was that it was Mohini who feeling unhappy and perhaps harassed in her parent's house, left it on her own accord and came to the appellant's house for help which he gave out of compassion and sympathy for the helpless girl in distress. Mohini's parents were, according to the counsel, unreasonably harsh on her on account of some. erroneous or imaginary suspicion which they happened to entertain about the appellant's attitude towards their daughter or about the relationship between the two, and that it was primarily her parent's insulting and stern behaviour towards her which induced her to leave her parental home. It was contended on this reasoning that the charge under s. 366, I.P.C. was in the circumstances unsustainable.