The prosecution must prove the commission of the offence which it says has taken place. The prosecution cannot put an alternate case.

JUDGMENT - R.A. JAHAGIRDAR, J.:---The petitioner, hereinafter referred to as "the accused" has been convicted by the learned Sessions Judge of Nasik in Sessions Case No. 76 of 1981 for offences punishable under sections 366 and 376 of the Indian Penal Code. He has also been convicted for the offence punishable under section 363 of the Indian Penal Code, though no separate sentence was awarded for the same. Technically, this order of conviction under section 363 of the Indian Penal Code is incorrect because the offence under section 366 is a larger one embracing the offence under section 363. Along with the accused another person named Sulbha was also put up for trial for offences punishable under the same sections, but read with section 34. She has, however, been acquitted. The order of the learned Sessions Judge convicting the accused and acquitting the other accused, Sulbha is of 23rd of October, 1981.

2. Aggrieved by the said order of conviction, the accused has preferred Criminal Revision Application No. 780 of 1981 because the sentence awarded by the learned Sessions Judge is not appealable. This Court has issued a notice of enhancement, which is being treated as Criminal Revision Application No. 350 of 1982.

3. The facts leading to the prosecution have been set out in sufficient details in the judgment of the Court below and it is not necessary for me to refer to the same. However, the prosecution case may be briefly stated. The accused and the prosecutrix, a girl called Namrata, were taking private tutions in a coaching class known as Yeshwant Classes. They came in close contact with each other and, according to the prosecution, the accused promised to marry the prosecutrix, as a result of which she was induced to leave her parental house an 16th of March, 1979. Therefore both the accused and the prosecutrix, says the prosecution, stayed in a house at Nasik, which seems to have been used as a lodging house, and the accused has sexual intercourse with her in that house. Thereafter both the accused and the prosecutrix made their way to Bombay where they stayed with the maternal uncle of the accused upto 23rd of March, 1979. The evidence discloses that on that day the parents of the accused came to Bombay and both the accused and the prosecutrix returned to Nasik, where the accused was put under arrest and later prosecuted for the offences as mentioned above.

4. The defence of the accused was one of total denial. It is not necessary to refer to the defence of accused No. 2 as she has been rightly acquitted by the learned Sessions Judge. The learned Sessions Judge was persuaded to hold that there was an inducement on the part of the accused to the prosecutrix to leave the house of her father and this amounted to an inducement within the meaning of section 361 of the Indian Penal Code and since, subsequently, the accused is shown to have had sexual intercourse with the prosecutrix the offence was brought within the four corners of section 366 of the Indian Penal Code. The girl was, according to the evidence on record, below the age of 16 years and, therefore, though the sexual intercourse might have been committed with her contest, it amounted to a rape within the meaning of section 375 of the Indian Penal Code.

5. Mr. Gavnekar, the learned Advocate appearing for the accused, has contended that the learned trial Judge totally ignored the voluminous documentary evidence which has been brought on record an which, according to Mr. Gavnekar, shows that not only there was no inducement by the accused to the prosecutrix to leave her parental house but, on the other hand, the prosecutrix herself had at all times an intense desire to abandon her parental house. The learned Advocate has made a grievance, and in my opinion with sufficient justification, that the learned Sessions Judge has not considered this voluminous documentary evidence at all while deciding the question as to whether the conduct of the accused and the prosecutrix sho

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