STATE Vs. TARACHAND

JUDGEMENT

(1.) DILLOBAI alias Kadoribai (P. W. 1), a minor of 15 years, resided with her parents at village Badkheda. Tarachand (Respondent) was on visiting terms with this family. He was accused, of having kidnapped Dillobai on the night between the 26th and the 27th November 1961. Badriprasad (P. W. 2), father of Dillobai, lodged a report on the 29th informing that the girl was missing and that he suspected Tarachand. On the 5th January 1962, she was recovered from Raja Gokuldas Dharamshala, Jabalpur. Her statement, which she made soon after her rescue, was that Tarachand used to give her all kinds of temptations when he visited her house and on the night of the 26th November, be took her away on a bicycle. One after another, she was taken to different places by Tarachand, his father, Bhaiyalal, and Cbampibai, a cousin of Bhaiyalal. She was kept in the said Dharamshala of Jabalpur for three days before she was rescued and during those three days Tarachand had carnal knowledge of her. Tarachand was prosecuted for the offences under Section 366 and 376 of the Penal Code; Bhaiyalal and Champibai both under Sections 366 and 376, read with Section 109 of the same Code. The 2nd Additional Sessions Judge, Jabalpur, acquitted them. The State has preferred this appeal against the acquittal of Tarachand.

(2.) THE trial Judge has found that Dillobai is below the age of 18 years. That finding has not been challenged before us. Dr. K. D. Gupta (P. W. 13), who X -rayed Dillobai, was of the opinion that she was above 14 years and below 161/2 years in age. Whether or not she was below 16 years is material only for the offence under Section 376 of the Penal Code.

(3.) THE learned trial Judge has found himself unable to believe that Tarachand took the girl out of the lawful guardianship of her father. It is remarked by him that she made one statement at one stage of the proceedings and a different statement at another stage. To the police her version was that when she came out of her house on that night, the accused Tarachand forcibly took her away on a bicycle by gagging her mouth and tying her hands. (We do not find in her police statement, Ex. D -2, marked A, anything about tying her hands as the trial Judge says). In the trial Court she said that she willingly accompanied him on his bicycle because of his inducements and not because of force or compulsion: