( 1 ) APPELLANT Mishrilal has been convicted under Sections 366 and 376 I. P. C. and sentenced to rigorous imprisonment for five years and seven years respectively.

( 2 ) AFTER hearing the learned counsels for both the sides and after careful scrutiny of the evidence on record this Court is of the opinion that the conviction of the appellant for the aforesaid offence is not sustainable. Krishnabai (P. W. 3) is the prosecutrix. She is a married woman. She has been found to be more than 18 years of age by the trial Court. She has deposed that she was in village Dhanwada where her husband Gulabdas (P. W. 5) had come to learn the work of tailoring with his mousa Anokhilal (P. W. 4 ). She was alone in the house on the date of incident as her husband had gone to work as labourer in a field in the same village. Accused Mishrilal came to her house and represented to her that her mother is seriously ill mid if she wants to see her face alive she must accompany him. Her mother is living in village Sodalpur. She left with the accused without informing anyone in village Dhanwada that she is going with the accused. They reached Harda and stayed in a hotel. The accused took the prosecutrix next day to village Nemawar and there the accused told her that now she will have to do what he says. He took her to a nearby forest and had sexual intercourse with her. They stayed there for seven days. Someone was bringing food for them in the forest. Then he took her in village Nagawa and kept her there for 3-4 days. He had sexual intercourse with her in village Nagawa also. In cross-examination she has stated that during her stay with the accused for about 15 days she did not complain to anyone that the accused has abducted her and is having sexual intercourse with her. She has further admitted that she was sleeping with the accused in the night under a tree. She used to cook food with the accused. Her husband reached near her after searching her and then she came back with him. She lodged the report Ex. P-3 on 15-8-1988 in which the date of incident has been described as 1-8-1988. A perusal of the deposition sheet of Krishnabai (P. W. 3) shows that the accused took her to different places with her consent. The story of wrongful representation or fraud by the accused appears to have been coined at a later stage.

( 3 ) ANOKHILAL (P. W. 4) has deposed that he returned to his house in the evening and he was told by Gulabdas (P. W. 5) that his wife has been taken away by the accused by making a representation that her mother is seriously ill. It must be borne in mind that according to Krishnabai (P. W. 3) she did not tell in the village before leaving with the accused that she was going with him and therefore it is intriguing how Gulabdas (P. W. 5) came to know that the accused has taken his wife by making a wrongful representation. Gulabdas (P. W. 5) has deposed that accused Mishrilal used to come to his house before the date of incident. He was related to his wife. He does not know for how long there was illicit relationship between the accused and his wife.

( 4 ) FROM the evidence discussed above this is more probable that the accused took the prosecutrix with him with her consent and he had sexual intercourse with her. In such a situation the charges under Sections 366 and 376 I. P. C. are not established against the accused.

( 5 ) THIS appeal is allowed. The conviction and sentence are set aside and the appellant is acquitted of the charges under Sections 366 and 376 I. P. C. Appeal allowed.

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