BABLOO Vs. STATE

JUDGEMENT

(1.) BY this appeal the appellant challenges the judgment whereby he has been convicted for offences punishable under Sections 366 and 376, IPC and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months and seven years and a fine of Rs. 2,000/- and in default to further undergo rigorous imprisonment for one year respectively for the two offences.

(2.) AS per the prosecution case, on 5th June, 2000. at about 6 p.m., the appellant went to the house of the prosecutrix and told her that her father had met with an accident and on hearing the same, she accompanied the appellant to the place where he confined her in a jhuggi. He expressed his desire to marry her but, the prosecutrix told him that she could not marry him, without the permission of her father. It is alleged that the appellant committed rape on her in the jhuggi, where she was kept by him. It is further the case of the prosecution that the accused took the prosecutrix to the zoo on 15 June, 2000 where her father, mother and aunt met them and got the appellant apprehended by the police. In the meantime, the brother of the prosecutrix lodged FIR at PS. Kalyan Puri about her missing on the 15th June, 2000. The prosecutrix and the appellant were medically examined. The statement of the prosecutrix was recorded under Section 164, CrPC before the learned Metropolitan Magistrate wherein she stated that the appellant used to threaten her, confined her in the jhuggi and raped her every night, contrary to her wishes. When the appellant took her to the zoo, her mother, father and police were already present there and the appellant was apprehended by them. After completion of investigation, a charge- sheet was filed. After recording the statement of the witnesses and examining the accused under Section 313, Cr. P.C. the learned Trial Court convicted him for the above mentioned offences and sentenced him as aforesaid.

(3.) IN the alternative, it is contended that from the evidence on record, at best that can be adduced is that, it is a case of elopement and the girl went with the appellant of her own free will and consent. It is urged that though this plea of consent had not been taken by the appellant during the trial, however, in view of the decision rendered by the Hon'ble Supreme Court in Pratap Misra and Ors. v. State of Orissa, AIR 1977 SC 1307, this plea can be taken even at the appellate stage.