TYAGI, J.—These are two matters arising out of the judgment of the learned Addl. Sessions Judge, Jodhpur dated 8th January, 1963. D. B. Criminal Appeal No. 54 of 1963 is the appeal filed by accused Babulal against his conviction under sec. 363 Indian Penal Code and sentence of two months simple imprisonment and a fine of Rs. 90/-, or in default to further undergo simple imprisonment for fifteen days. D. B. Criminal Revision No. 142 of 1963 is the revision filed by the state for the enhancement of the sentence of Babulal.

2. Learned counsel for the appellant has assailed the impugned judgment only on two grounds. (1) that the learned judge has recorded his finding about the age of girl on the basis of the documents which were inadmissible in evidence, and (2) that in view of the circumstances alleged to have been established by the prosecution no offence under sec. 363 Indian Penal Code is made out against the appellant as Mst. Laksmi had left her fathers house temporarily. It will be advisable to set out in brief the prosecution story which runs as follows.

3. Lakshmi, a minor girl aged about 15 years, used to reside at Chandpole Mohalla in the city of Jodhpur with her father Khanchand. On 8.10.61 Mst. Lakshmi left her fathers house at 6 A.M. to bring milk from the market but as the milk was not available at normal rates at the Chand Pole, she proceeded towards Khanda Falsa. When she reached the turning of Phulerao-ki-Ghati, Babulal appellant met her and enquired from her as to where she was going. When he came to know that she was going to purchase milk from Khanda Falsa, he told her that he was also going to that side for the same purpose and, therefore, he requested her to accompany him on his cycle. It is alleged that Lakshmi, at first, hesitated to go with him on his bicycle but When he told her that her father had directed him to take her to Khanda Falsa, she believed the accused and agreed to go with him on his cycle. When the accused reached Khanda Falsa she asked him to leave her there but the accused insisted that she must proceed to Siwanchi Gate where she is likely to get milk at cheaper rate. On reaching Siwanchi Gate, Babulal took Lakshmi against her will in the house of his friend Man Mohan and threatened her with a knife. It is further alleged that Babulal left Lakshmi in that house and joined her again at 6 P.M. and remained with her in the night in a room where he is said to have committed rape on her. During the night she was told that she would be taken to the court next morning where she shall have to swear an affidavit to the effect that she was 19 years of age and that she had left her house and gone with Babulal of her own free will with a view to marry him. Next morning Babulal procured Sari, petticoat and blouse from the wife of Man Mohan and after changing her clothes, Lakshmi was taken in a Tonga to the court precinct where she met a lawyer who prepared on affidavit for her and got the same duly verified by the Railway Magistrate. Thereafter Lakshmi was taken back to the house of Man Mohan and it was at about 9.30 in the night that Babulal took her to the Railway bridge where, according to the prosecution, Lakshmi entreated Babulal to take her back to her fathers house, and it was, therefore, at midnight that Babulal left her near the house of her father and directed her to convey him that in the eye of law she was married to Babulal and that her father should now perform the marriage in accordance with the customary rites.

4. In the meanwhile, when Lakshmi did not return to her home on 8.10.1961 her father started a search for her and somewhere in the afternoon he came to know from prosecution witnesses Daulatram and Tejraj that Lakshmi was seen going with the appellant on his cycle. At 5 P. M. Khanchand lodged a report at the city Police Station. On the 9th when Lakshmi came back, the Police was informed by Khan Chand. A case was, therefore, registered under secs. 366 and 376 Indian Penal Code agains

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