(1.) 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 Sections 366 and 376, I.P.C. The High Court acquitted him of the offence under Section 376. I.P.C. but maintained his conviction and sentence under S. 366, I. P. C.
(2.) According to the prosecution case, the offence under S. 366, I.P.C. took place on January 16, 1967 and the offence of rape with which he was charged was committed on the night between the 16th and 17th January, 1967. As observed by the High Court, the background which led to the culmination resulting in the commission of the offences leading to the appellant's trial has been traced by Mohini, the victim of the offences, in the prosecution version, to the latter part of the year 1965. The appellant, an industrialist, had a factory at Bunder Road for manufacturing oil engines and adjoining the factory was his residential bungalow. During the bombardment of Jamnagar by Pakistan in 1965, Mohini's parents came to reside temporarily at Dhrol near Jamnagar. The appellant came to be introduced to that family and on December 18, 1965, which was Mohini's birth-day, the appellant presented her with a parker pen. It may be pointed out that Mohini was at that time a school-going girl below 15 years of age. She kept the pen for about 2 or 3 days, but at the instance of her mother, returned it to the appellant. Thereafter, the appellant went to Baroda in his car and he took with him, Mohini, her father Liladhar Jivraj, his manager Tribhovandas, Malti, daughter of Tribhovandas, who was about 12 years old and Harish, a younger brother of Malati. At Baroda, the appellant negotiated some transaction with regard to the purchase of some land for the purpose of installing a factory there. It appears that there was some kind of impression created in the mind of Mohini's father that he would be employed by the appellant as a manager of the factory to be installed at Baroda. The party spent a night at Baroda and next morning started on their return journey to Jamnagar. During Christmas of 1965 the appellant had a trip to Bombay and during this trip also he took with him, the same party, viz., Mohini, her father, Tribhovandas and Tribhovandas' daughter and son. In Bombay they stayed in Metropolitan Hotel for 2 nights. According to the prosecution story it was during these two nights that Mohini, Malati and the appellant slept in one room, whereas Mohini's father, Malati's father and Harish slept in another room. On these two nights the appellant is stated to have had sexual intercourse with Mohini. During this trip to Bombay the appellant is also said to have purchased two skirts and waist bands for Mohini and Malati. After their return to Jamnagar, according to the prosecution story, the appellant had sexual intercourse with Mohini once in the month of March, 1965 when she had gone to the appellant's residential bungalow at about 7-00 P.M. Indeed, Mohini used to visit the appellant's place of and on. During the summer vacation in 1965 the appellant had a trip to Mahabaleshwar in his car. On this occasion, along with Mohini he took her two parents as well as also his own daughter Rekha. On their way to Mahabaleshwar, they stopped at Bombay for two days. After staying at Mahabaleshwar for two days, on their return journey they again halted at Bombay for a night, and then proceeded to Mount Abu. At Mount Abu they stayed for one day and all of them slept in one room. At about 3.00 a.m. when Mohini's mother got up for going to bath-room and switched on the light, she noticed that the appellant was sleeping by Mohini's side with his hand on her head. Mohini's mother restrained herself and did not speak about what she had seen because the appellant had requested her not to do so. Next morning, the party went to Ambaji from where they returned to Jamnagar. At Jamnagar Mohini's mother informed her husband about what she had seen during the night at Mount Abu. Mohini's father got annoyed and rebuked Mohini. Her mother also warned her against repetition of such conduct. Mohini apologised. The appellant, on coming to know of the feelings of Mohini's parents, told her father that Mohini was just like his own daughter Rekha to him and that he would even go to Dattatraya temple and swear by God to that effect. The appellant is stated to have actually taken Mohini's father, Mohini and Rekha to Dattatraya temple in Jamnagar and placing his hands on the heads of Mohini and Rekha swore that they were his daughters. Even after this incident in Dattatraya temple, the appellant once met Mohini when she was returning from her school and took her to his own bungalow in his car. There, he had sexual intercourse with her. It seems that Mohini's parents came to know about this incident and they rebuked her. Mohini's parents also started taking precaution of not sending her alone to the school. From July, 1966 onwards either the maid-servant or Mohini's mother herself would accompany her to the school. The appellant is stated to have made an effort to contact Mohini during this period. He called her at his house on Saturday, September 24, 1966. Mohini's mother having Come to know of this behaviour on the part of the appellant, wrote to him a letter dated September 26, 1966 requesting him to desist from his activities of trying to contact Mohini. Apparently, after this letter there was no contact between Mohini and the appellant in Jamnagar. In October, 1966, however, Mohini had gone to Ahmedabad in school camp and there the appellant contacted her and took her out for a joy ride in company with two of her girl friends. Thereafter, in the months of November and December, 1966 nothing particular seems to have happened. According to the appellant, however, during those two months Mohini had written letters to him complaining of ill-treatment by her parents and expressing her desire to leave her parents' house. We would refer to these letters a little later. Early in January, 1967, the appellant is alleged to have told Mohini to come to his bungalow. On January 16, 1967, Mohini started for her school with a school book and two exercise books, in the company of her mother Narmada who had to go to court for some work. Upto the Court premises, they both went together where Smt. Narmada stayed on and Mohini proceeded to her school. Instead of going to her school she apparently went to the appellant's factory, according to a previous arrangement. There the appellant met her and took her inside his motor garage. From there she was taken to the attached room and made to write two or three letters on his dictation. She did so while sitting on two tyres. These letters were stated to have been addressed to her father, to the District Superintendent of Police of Jamnagar, and to the appellant himself. These letters contained complaints of ill-treatment of Mohini by her father and mother and information about the fact that she was leaving for Bombay after taking Rs. 250/- from the appellant. According to the postal stamps, these letters appeared to have been cleared from the post office at 2.30 p.m. on January 16, 1967. Thereafter, according to the prosecution version, Mohini was made by the appellant to sit in the dicky of his car which was taken to some place, Mohini remaining in the dicky for some hours. She was then taken to the office of his factory at mid-night and there he had sexual intercourse with her against her will. After the sexual intercourse, there was some sound of motor car entering the compound whereupon the appellant took her inside the cellar in the office and asked her to sit there. After about an hour the appellant came and took her from the cellar to his garage where she was again made to remain in the dicky. It appears that the following morning the appellant told Mohini that he was called to the police station. He went there in his car with Mohini in the dicky and then he and the policeman came back to his bungalow. The policeman went inside the bungalow and the appellant parked the car in his garage. He took Mohini out of the dicky and told her to go to the inner room of the garage. This inner room had four doors. One of them opened on the main road and another in the garage. Feeling thirsty' Mohini went out in the garden and saw a Mali working there whom she asked for water. It appears that at about 6.30 p.m the appellant came to the inner-room and promised to bring some food, water and clothes for Mohini, telling her to wait for him in that room. After some time, he returned with food, water and clothes. Mohini changed her clothes, washed her face and started taking her meal. While doing so, she felt that some motor car had come into the compound. The appellant told her that police had come and, therefore, she must leave through the back door and go to the road-side directing her to go towards Gandhinagar and wait there for him. Leaving her food unfinished, Mohini went out and waited near Gandhi Nagar at a distance of about one furlong from the appellant's garage. It was here that she was traced by the Police Sub Inspector Chaudhary who came there with the appellant in the latter's car at about 9.00 P.M. From the dicky of the appellant's motor car, one bedding and some clothes belonging to Mohini, viz, skirt, blouse, nicker and petti-coat were found. These clothes were wet. Her school books and two exercise books were also found there. In the inner room of the garage was found unfinished food and utensils which bore the name of the appellant. Mohini was sent for medical examination by the Lady Medical Officer, but the Medical Officer did not find any symptoms of forcible sexual intercourse.
(3.) Turning now to the scene at the house of Mohini's parents, after her mother Smt. Narmada finished with the court work, she returned to her house. They had a visitor Dinkerrai from Rajkot. While they were all at home some school girls informed Mohini's mother that Mohini had not gone to the school that day. Smt. Narmada at once suspected the appellant and therefore went to his house along with Dinkerrai. On enquiry from the appellent, he expressed his ignorance about Mohini's whereabouts. He, however, admitted that she had come to him for money but had gone away after taking Rs. 250/- from him. This according to him had happened between 4 and 5.30 P. M. on that day viz. January 16, 1967. Mohini's father then lodged complaint with the police at about 7.20 p.m. on that very day. The Police Sub Inspector visited the appellant's bungalow in the night between 16th and 17th of January and searched the bungalow but did not find Mohini there. Thereafter, the Sub Inspector again went to the appellant's bungalow on the morning of the 17th January and attached some letters and other papers produced by the appellant. He also went to the appellant's office and inspected the books of account for the purpose of verifying whether there was any entry about the payment of Rs. 250/- to Mohini. Meanwhile, Mohini's father Liladhar received a letter bearing post mark dated 16-1-67 which was produced by him before the Police Sub Inspector. On the night of 17th January, Police Sub Inspector Chaudhary went to the appellant's bungalow and it was this time that Mohini heard the sound of a motor car and left the garage at the instance of the appellant leaving unfinished the food she was eating. In the inner room, next to the garage, were found Mohini's clothes. a lady's purse, one comb, 2 plastic buckets full of water, one lantern and some other articles. From the dicky of the appellant's car on search were also found skirt, one blouse, a petticoat and one book and two exercise books as already noticed. All these articles belonged to Mohini. This in brief is the prosecution story.