Judgment

UNTWALIA, J.:- This is an appeal by special leave from the judgment of the High Court of Madhya Pradesh confirming that of the trial Judge, whereby the appellant was convicted under Sections 366 and 367 (sic 376) of the Indian Penal Code with imposition of 3 years and one years rigorous imprisonments respectively. The sentences were directed to run concurrently.

2. The prosecution case at the trial was that Shakuntala, P. W. 35 was a minor girl of about 14 or 15 years of age at the time of the occurrence in the year 1969. Her father had died a few years ago. She was living with her widowed mother and with her brother Jagdish, P. W. I. Her mother was running a small hotel which was at a short distance from their house. The appellant was about 36 or 37 years of age and was a widower having two children from his first wife. Appellant started making overtures to Shakuntala, which was not liked by Jagdish. After Jagdish had gone to his shop on 28th September, 1969, at about 9.00 p. m. the appellant is said to have kidnapped Shakuntala from the lawful guardianship of her mother. It is alleged that he kidnapped her under threat of causing hurt to her with a knife. It is further stated that the appellant took Shakuntala to various places in Madhya Pradesh and Rajasthan and was roaming with her for a period of about a month and a half, During this period the appellant is said to have committed rape on her. The defence of the appellant was that he had committed no offence, Shakuntala was a major girl of about 18 or 19 years of age, She was in love with him. They were betrothed and were to be married with the consent of the mother and other relations. Only the brother, Jugdish, was objecting to this. The appellant had never committed any rape on Shakuntala. Trial Court as also the High Court found that the girl was 14 or 15 years of age at the time of the occurrence and, therefore, both the charges were established against the appellant on the evidence of the prosecution witnesses.

3. First we shall deal with the charge under S. 366 of the Indian Penal Code found proved against the appellant. In relation to this charge, we shall assume in favour of the prosecution that Shakuntala was below 18 years of age; but then, two ingredients further must be established; (i) that she was kidnapped or abducted from the custody of her lawful guardian, and (ii) that she was kidnapped, or abducted with the intention of compelling her to marry any person against her will or in order that she may be forced or seduced to illicit sexual intercourse. According to the evidence of the mother Sohan Bai, P. W. 5 as also that of Shakuntalal herself, it is clear to us that she was taken away by the appellant with the consent of the mother. The story of the girl that she was taken away under threats is not believable in view of the number of letters Exh. P series, which were written to Lalta Prasad by her before the incident in question and which she was forced to admit that all these letters were written by her. We have been taken through some of these letters and the trend of these letters written at a point of time when there was no question of kidnapping, abduction or rape, clearly shows that the girl was immensely in love with the appellant. She was betrothed to him and had almost accepted him as her husband, although she was not till then married to him. In the background of the facts stated in those various letters, it is difficult to believe that the girl was kidnapped or abducted under fear of causing hurt to her. It is clear to us that she went with Lalta Prasad of her free will and with the consent of her mother, as her prospective marriage with Lalta was not liked by her brother Jagdish.

4. We are conscious of the fact that P. W. 5 Sohanbai was allowed to be cross-examined by the State counsel because whatever she had said in Court goes a long way against her statement before the police said to have been given during the course of the investigatio