FRANCIS HECTOR Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by one Francis Hector, who has been convicted under Secs.376, 366-A, 368 and 363, I.P.C., by the learned Sessions Judge of Mirzapur. The girl concerned in the case is Mt. Atwaria, a Chamarin by caste. Her age, according to the prosecution, is less than 14, but that matter is highly controversial as will appear from the evidence to be discussed later on. For the rest the story for the prosecution is as follows:

(2.) Mt. Atwaria is the daughter of one Sarju by his sagai wife, Mt. Gauri. She was born in Santhal Parganas, where her parents had migrated to earn their livelihood. They were residents of Mirzapur which they visited off and on. They lived in Muhalla Purana Line. Mt. Atwaria was married to one Jethu, who is the adopted son of Thakuri. The latter was in the service of a clergyman as motor driver. Thakuri lived in his master's quarters in the Mission compound at Mirzapur. Sarju died over two years before the occurrence and Mt. Gauri, who was left to earn her own livelihood, went to Gondia in the Central Provinces with her daughter Atwaria and a son. A year before these proceedings began, Mt. Gauri brought her daughter to Mirzapur and left her with Jethu who was living with his adoptive father Thakuri. Mt. Gauri went back to Gondia, and was not apparently in touch with the affairs of her daughter. Thakuri was thrown out of employment and Mt. Atwaria was sent to his native village in the District of Jaunpur. She did not get on well with her husband's adoptive mother and sister. Thakuri brought her to Mirzapur, but Jethu did not care to allow his wife to live with him. The reason that he gives is that he had no accommodation for her. He took her to Purana Line; but as her mother was no longer there, he made her over to Bis Ram, who is her mother's maternal uncle or maternal cousin. Mt. Atwaria stayed with Bis Ram for only two days. The latter sent her away on the pretext, according to Mt. Atwaria, that he could not maintain her. He directed her to go to her nana and nani who lived in Mirzapur Khurd. The nana was not her mother's own father, but one Earn Das, an uncle of some sort. Mt. Atwaria began to live with Earn Das but left him after a few days. She says that she did not get enough to eat at Earn Das's place, while Earn Das who has been examined for the defence, alleges that her character was bad and therefore he did not like her to live in his house. She then began to live in another muhalla called Ghaswali gali, in the house of Ghulam Dastgir, a contractor who was supervising the construction of a building. She was in receipt of wages at the rate of three annas a day. She slept at night in his house with his wife or daughter - at one place she mentions daughter and at another she refers to the woman as his wife. One Mt. Biranjia who lived at a little distance from the house of Ghulam Dastgir and was obviously known to Mt. Atwaria, persuaded her to live in her house. Atwaria continued work under the contractor, but lived with Mt. Biranjia. She once offered to introduce Mt. Atwaria to a man who would make her comfortable, but Atwaria indignantly refused the offer. Not long after words Mt. Atwaria fell ill and did not go to work.

(3.) When she got better, she went to the contractor's house to demand the arrears of her wages. The contractor was away and she was told by someone in the house that he would return in the evening when she should come for her wages. Accordingly she went to the contractor in the evening, but did not find him even then. She was returning to Mt. Biranjia's place, and when she passed through a lane called Chiniahwan Inara, she noticed a car approaching her. She stepped aside, but to her surprise found that the car stopped and a man in the car, who subsequently proved to be Nisar, asked her as to -where she was going. She replied that she was going to her house. Thereupon he said that she had better go with him. She refused. Thereupon his companion who was subsequently found to be a man named Dr. Imtiza forcibly brought her into the car and gaggedher. Nisar threatened to stab her with a knife. Nisar had also a gun with him. The car moved on and eventually brought her to Nisar's residence in Muhalla Sabri. Nisar occupied a set of rooms on the first floor of the gate and buildings adjoining thereto. She was taken upstairs, where she was detained for three months. It is said that she was kept in a small room which had a window, and the only exit used to be locked in the absence of Nisar and the doctor. Both of them are said to have committed rape on Mt. Atwaria. Not long after her arrival she met the present appellant Hector and Bishambhar Nath, who were friends of Nisar and used to visit his house frequently. One evening, while Nisar was downstairs, Hector came up and desired to have sexual intercourse with her. She resisted, but was overpowered by Hector, who threatened to stab her.