1. This jail appeal has been filed by the appellant under section 374 of CrPC, against the judgment dated 3.6.2005, passed by Shri Rameshwar G. Kothe, the Third Additional Sessions Judge, Gwalior in Sessions Trial No.33/2005 whereby the learned trial Court convicted the appellant under sections 366 of IPC and sentenced to undergo 5 years RI with fine of Rs.l,000/- and also convicted the appellant under section 376(1) of IPC and awarded a sentence of RI 10 years with fine of Rs.5,000/-with default stipulations. All the above sentences have been directed to run concurrently.

2. As per the prosecution story, on 28.9.2004 at about 8:15 p.m. in the night, the appellant abducted the prosecutrix from village Sumawali Aam Road, Police Station Behat. It is alleged that the appellant had sexual intercourse with the prosecutrix and took her to various places such as Behat and Gadroli. In all these places, he committed rape on the prosecutrix. Thereafter, on the next date, the appellant-accused took her via Badagaon to Mou District Bhind by truck, where he was arrested.

3. On 3.10.2004, a report of the incident was lodged at Police Station, Behat, District Gwalior. The prosecutrix was recovered and thereafter she was medically examined. The police recorded statements of various witnesses and filed charge-sheet. Trial Court framed charges against the appellant alongwith two other accused persons under sections 366 and 376(1) of IPC. The appellant, in his statement, denied the charges. After recording the evidence trial Court found that the offence is proved against the appellant under sections 366 and 376(1) of IPC and awarded him a sentence of 5 years and 10 years RI respectively with fine of Rs.1,000/- and Rs.5,000/- on each count, whereas the other two accused persons have been acquitted from the offence.

4. Learned counsel for the appellant has submitted that the trial Court has committed an error in convicting the appellant under sections 366 and 376(1) of IPC. The conviction of the appellant is based on the sole testimony of prosecutrix, however, that testimony is not reliable. In support of his contentions, learned counsel relied on the following judgments :

(i) 2001(2) BLJ 89=AIR 2001 Supreme Court 3049 in the matter of Dilip and another v. State of M.P.

(ii) AIR 2003 Supreme Court 2136 in the matter of

Sudhansu Sekhar Sahoo v. State of Orissa and;

(iii) 2007(6) Supreme Court Cases 465 in the matter of

Narayan alias Naran v. State of Rajasthan.

5. Contrary to this learned Public Prosecutor has submitted that there is sufficient evidence against the appellant for his conviction and there is no illegality or irregularity in the impugned judgment warranting interference, hence, appeal is liable to be dismissed.

6. The marg was lodged at the Police Station Behat, District Gwalior on 6.10.2004 by Chandrabhan Singh. It has been mentioned in the marg that one Rajendra s/o Vijay Singh Baghel, resident of Sumawali, Police Station Behat, District Gwalior has lodged a report with regard to missing of Kallo @ Kalabati. On the aforesaid information, a report was registered on marg and after inquiry it was found that Harishchand and Keshav @ Bhindi had forcibly abducted Kallo @ Kalabati and they took her to Gadroli and thereafter to Hanuman Mandir.

7. Prosecutrix (PW1) in her evidence deposed that six months before, she had been going to her in-law's house from Morar Bus Stand along with her nephew Parmal. When Parmal went to drink water, appellant Samar Singh came to her and took her forcibly to his village in a Jeep. There were no other persons in the Jeep along with the appellant. At this stage, the prosecutrix was declared hostile by the Public Prosecutor. She in her deposition contradicted her statement given to the police under section 161 CrPC that Harishchand and Keshav @ Bhindi were in the Jeep. The aforesaid facts have been stated by the prosecutrix in her statement recorded under section 161 of CrPC. She further stated that