Judgment

DUA,.J.:- 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 Mohi