(1.) IS is an appeal by the State. The respondent, who at the time of occurrence was aged 20 years, was convicted by the trial Court under sections 366 and 376 IPC and sentenced to five years' R.I. under each count. The sentences were directed to run concurrently. He preferred an appeal to the High Court. The High Court set aside the convictions and sentences awarded against him and accordingly allowed the appeal. Hence, the present appeal.
(2.) THE prosecutrix Madhubala, PW 7, who according to the prosecution was aged about 15 years at the time of occurrence, was residing with her parents PWs 1 and 5 at Devar Hippargi Village. She is the fifth daughter of PWs 1 and 5 and her four elder sisters were already married. Her elder brother was residing at Davanagere and her younger sister PW 2 was also residing along with PWs 1 and 5. PW 1 originally belonged to Rajasthan.
(3.) MEANWHILE PW 5, who did not find her daughter, PW 7 at home, asked PW 2 to search for PW 7. In the evening PW 1 returned and coming to know that the accused had kidnapped her, gave a complaint. Then ultimately on some information they went to Gulbarga. There PW 1 found PW 7 in a room of Mohan Lodge but the accused was not there. According to the prosecution PW 7 told him that the accused had gone to Bijapur taking her ornaments. PW 1 brought PW 7 to Bijapur and then took her to Devar Hipparagi. The police took some articles from her possession and sent her for medical examination. The Doctor, PW 20 did not notice any external injuries nor any injuries on her private parts. The Doctor found that the hymen was ruptured which only showed that PW 7 had intercourse and the Doctor also opined that PW 7 was accustomed to intercourse since along. The accused was arrested on January 29, 1977 at Bijapur. After completion of the investigation, the charge -sheet was laid. The accused in his statement stated that he was arrested on January 15, 1977 at Devar Hippargi itself and the police took his watch, ring, chain and necklace etc. which belonged to him and they did not belong to PW 7. He also pleaded that PW 1, who owed him Rs 6,000, has falsely implicated him. He produced one birth extract and one transfer certificate pertaining to PW 7. The trial Court mainly relying on the evidence of PW 7 convicted the accused under section 376 IPC for the offence of rape. In respect of the offence under section 366 IPC, the trial Court relying on the evidence of the Doctor who examined PW 7 regarding the age and also on a transfer certificate issued by the school, held that she was below 16 years of age and therefore taking or enticing her away attracted the provisions of section 366 IPC and accordingly convicted the accused. The trial Court also held that at the time of commission of offence of rape, she was below 16 years of age and therefore the act committed by the accused amounted to rape irrespective of the fact whether there was consent or not.