Mudholkar, J.

[1] The three appellants Motiram, Kisan and Budhram were tried Jointly before the 2nd Additional Sessions Judge, Amravati, appellants Motiram and Kisan of offences Under Sections 366, 376 and 342, IPC and the appellant Budhram of an offence Under Section 368, IPC Each of the former was convicted of the offences for which he was tried and sentenced to rigorous imprisonment for three years in respect of the offences Under Sections 366 and 376 each and to rigorous imprisonment for four months in respect of the offence Under Section 342, IPC The sentences were ordered to run concurrently. Budhram was convicted of the offence Under Section 368, IPC and sentenced to undergo rigorous imprisonment for six months.

[2] The relevant facts are briefly these: One Smt. Ashabi, a married woman, left her husband's house at Bombay and. came voluntarily to Amravati along with her friend Ramcharan who was In service at Bombay and whose relatives lived in Wadali, a suburb of Amravati. After keeping Ashabi with his relatives Ramcharan returned to Bombay.

[3] According to the prosecution, on 6-7-1952 Motiram and Kisan, who are police constables, went to Jagannath, the uncle of Ramcharan, where Ashabi was living. They pretended that they had a warrant for the arrest of Ashabi and that they had come to take her to the police station. Smt. Jagrani, wife of Jagannath, requested them to take no action for two or three days by which time she hoped that Ramcharan whom she had asked telegraphically to come would return to Amravati. The two constables are said to have accepted a sum Of Rs. 15/- from Jagrani but despite that to have again visited the house of Jagannath in the evening and taken away Ashabi with them. It is said that on the pretext of taking her to the police station they first took her to the Amravati railway station in a tonga, from there in a rickshaw to Badnera, brought her back by train to Amravati and then took her in a tonga from the railway station to the circuit house. At the circuit house each of the appellants Motiram and Kisan had sexual intercourse with her in one of the room against her will and then kept her there the whole night and almost the whole day. It Is further said that sometime after midday on the 7th the room in which Ashabi was confined was locked up by Budhram who was at that time the care-taker of the circuit house. It may be mentioned that this man is related to the accused Kisan.

[4] The case was tried with the aid of a jury in respect of the offences Under Sections 366, 368 and 376, I. P. 0. , the verdict of the jury was accepted by the learned Additional Sessions Judge and therefore in the absence of any error of law or misdirection by the Judge the verdict of the jury will have to be accepted. The offence Under Section 342, IPC was tried with the aid of assessors.

[5] I will say at the outset that the conviction of the appellants Motiram and Kisan Under Section 376, IPC is bad in law and cannot be sustained. It is in evidence and is accepted before me that Ashabi is over 18 years of age. No doubt she says that Motiram and Kisan had sexual intercourse with her against her will but the Jury when questioned by the learned Additional Sessions Judge stated that these two persons 'put her in fear of warrant from Bombay and so seduced and had sexual intercourse with her. ' The answer given by the jury clearly indicates that Ashabi did ultimately give her consent to the intercourse as she was afraid that she would be arrested and sent away to Bombay. No doubt, the consent of a woman to a sexual intercourse obtained by putting her In fear of death or of hurt Is no defence to an accused person but in the present case the fear to which Ashabi was subjected was according to the jury neither of death nor of hurt. It Is true that consent was obtained by fraud but as observed by Wills J. in ? 'the Queen v. Clarence' (1888) 22 QBD 23 at p. 27 (A) That consent obtained by fraud Is no consent at all Is not tru