Judgment

SARKARIA, J.:- This appeal is directed against a judgment, dated August 8, 1974, of the High Court of Patna. The material facts are as follows:

2. Saraswati, one of the daughters of Jagarnath (P. W. 4) is married to Debnandan of village Bahera, Police Station Milao, District Patna. Ganga Prasad, who was accused 1 in the trial court, is the elder brother of Debnandan, and Kameshwar accused 2 is his nephew. Bhatani Devi, who was accused 4 in the trial court, is the sister of Debnandan and Ganga Prasad. Bishnudayal, who was accused 3 and is now the appellant before us, is the husband of Bhatani Devi, Bishnudayal is a resident of village Lawapur, Police Station Mahnar, District Muzaffarpur. Bishnudayal and Bhatani Devi have no issue. Jagarnaths younger daughter, Sumitra (P. W. 9) is unmarried.

3. On May 19, 1967, there was a puja in the house of Jagarnath (P. W. 4). He had invited a good many persons including the accused, Ganga Prasad and Kameshwar Prasad. Bishnudayal and his wife, Bhatani Devi, were also invitees at the puja. Saraswati Devi, the elder daughter of Jagarnath could not go and be present there on account of her illness. on May 20, 1967, after the puja when the guests were preparing to depart for their respective villages, a request was made on their behalf that Sumitra (P. W. 9) should be sent to village Bahera to look after her ailing sister, Saraswati, as the latter had to be taken to Patna for treatment. Taken in by this misrepresentation and the assurance held out by Ganga Prasad, the acquitted accused, that the younger daughter Sumitra would be sent back within a week, Jagarnath allowed Sumitra to go with the accused persons to village Bahera. Thereafter, he received a letter from the accused stating that Saraswati Devi, who was suffering from mental ailment had considerably improved on account of the care taken by Sumitra. The complainant Jagarnath awaited the return of Sumitra for more than a week, but she was not sent back. Worried, he wrote two letters to Ganga Prasad accused, requesting him to send the girl back. He received no reply. Jagarnath thereupon went to village Bahera, but did not find his daughter there. There, he learnt from two persons who were among those who had attended the puja at his house, that his daughter, Sumitra had been married to Bishnudayal appellant. When Jagarnath protested, they said that they had done so and he was at liberty to take whatever action he liked. Thereafter Jagarnath on June 10, 1967, lodged a report at Police Station. Sahebganj at 4-30 p. m., alleging that the four named accused had kidnapped his daughter, to Sedna or forced his daughter to have illicit intercourse with Bishnudayal. The Station House Officer, Parasnath Mishra (P. W. 15) went to the house of Jagarnath, informant and seized some letters. On June 24, 1967, the investigating Police Officer, in the presence of P. W. 16 and P. W. 17, recovered the girl, Sumitra from the house of the appellant.

4. The Additional Sessions Judge convicted Ganga Prasad under Sections 366 and 376/109, Penal Code and sentenced him to four years rigorous imprisonment on each count. He convicted Bishnudayal appellant under Sections 376 and 366, Penal Code, and sentenced him to five years rigorous imprisonment on the first count and four years rigorous imprisonment under Section 366 of the Code. Kameshwar Prasad accused was also convicted under Sections 366, 376/ 109 and 366A of the Code and sentenced to four years, rigorous imprisonment. Bhatani Devi accused 4, was acquitted.

5. A learned single Judge of the High Court accepted the appeal of Ganga Prasad and Kameshwar Prasad and acquitted them. He, however, maintained the conviction and sentence of Bishnudayal under Section 376, but set aside his conviction under Section 366, Penal Code. Hence, this appeal by Bishnudayal.

6. The prosecution case hinged around these questions. Whether the prosecutrix (P. W. 9) was subjected to sexual intercourse against her will or consent? W