R.A. Jahagirdar, J.
1. 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 209 of the Indian Penal Code is incorrect because the offence under section 366 is a larger one embracing the offence under section 209. 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 tuitions 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 showed that there was any inducement on the part of the accused. Going through the judgment of the learned trial judge, I find that this grievance of Mr. Gavnekar is fully justified. I have, therefore, with the assistance of Mr. Gavnekar, gone through the documentary evidence and also through the oral evidence which is on record.
6. In her deposition before the Court, Namrata, the prosecutrix, has mentioned that she had come in contact with the accused in the Yeshwant Classes and that they had developed love for each other. She mentions in the earlier part of her deposition that the accused assured her that he would marry her. He also assured her that he would keep her with his parents. According to her deposition, on 14th of March, 1979 she was called by the accused but she did not respond as her friends were with her. On the same day, according to her, the accused met her at about 2.30 p.m. Thereafter he started talking to her about marriage and about his family members. He forced her to go with him. First she was reluctant to, but ultimately she agreed to do so. On 16th of March, 1979, after the send-off function in her school was over, he told her that was a propitious time to leave. He advised her to come as early as possible and that she should take as many articles as possible from her house. The meeting place was fixed at Shalimar Stop. Accordingly, she went there from which place the accused took her to somebody's house which later turned out to be house of one Mirabai, examined as P. W. 5. She has mentioned specifically as follows regarding her stay in that house :---
'Accused No. 1 told her that I am Ruparel's sister, come from Satara. At night I stayed in that house. On the next day, early in the morning accused No. 1 and his friend Ruparel came there.'
Thereafter they went to several places ultimately to land in Bombay in the house of the uncle of the accused. She has mentioned that accused had sexual intercourse with her in the house at Nasik and also in the house of his uncle at Bombay. I will return to this evidence a little later when I discuss the evidence with reference to the offence punishable under section 376 of the Indian Penal Code.
7. In the cross-examination, various letters which have been written by her were brought to her notice and she has admitted that she had written all those letters. Only in the case of one letter she mentioned that it was written under pressure from the accused. If one goes through the correspondence of this girl of tender years, but of an intelligence which is more than average, one cannot remain but impressed by the eagerness which she has displayed in going with the accused. It is really unfortunate that the learned trial Judge did not apply his mind to this evidence at all before recording a finding under section 366 of the Indian Penal Code. On 8th of March, 1979, that is about eight days before the incident took place, she has written a letter to the accused wherein she has mentioned that there was a proposal being discussed in her house of her getting married to some other boy. This letter discloses that Namrata was firmly resisting the proposal which has mooted by her parents. Because of the resistance she was beaten by her mother. That she was unhappy in her house and was totally opposed to the proposal for marriage which was being considered by her parents, is thus clearly established on the basis of this letter, which is at Exhibit 38P/1.
8. That the girl was being ill-treated by her parents is further established from another letter, dated 5th of February, 1979, which is at Exhibit 32P/2. In this letter she has also mentioned an incident which had taken place wherein the accused had been called to the house of Namrata's parents and he himself swore that he would no longer see Namrata. This promise was given by him to Namrata's mother. Nor can one ignore the letter dated 26th of February, 1979, which is at Exhibit 38P/4 wherein again the details of the ill-treatment given to Namrata by her parents have been vividly described. On 2nd of March, 1979 Namrata has written another letter to the accused wherein she has chided the letter for neglecting her. If we read this letter little bit carefully, it gives an impression that the accused was in fact showing indifference to her or at least was cool in his relations with her. This may be because he had earlier been called by Namrata's mother who had most extracted a promise from him that he would no longer see her daughter.
9. What is most important is the letter at Exhibit 11. This letter is written by her to her parents and she has mentioned therein that the plans which were being pursued by her parents about her future had come to her knowledge and that being disgusted with the same she is leaving the house an deciding her own fate. She has also mentioned that she has considered her decision fully. She mentions about some bond which had been given by her parents. Probably she is referring to a promise. Remaining them of this promise, she advises her parents not to go in search of her and not to report the matter to the police. She has also mentioned therein that she is leaving the house not for the purpose of returning. This was her firm determination and this was her oath which her parents were asked to note.
10. No evidence has been produced on behalf of the prosecution to indicate in the remotest manner that the accused had, at any time, given any inducement or enticement to the prosecutrix which prepared her mind to leave her parental house. It is true that the law throws a cloak of protection around minor girls and any person dealing with a minor girl does so at his own risk. Neverthless, as the learned Sessions Judge himself has pointed out, Namrata is a girl of unusual intelligence. If this is so and if her action is to be considered in the light of the letters which admittedly she has written, then that action indicates that she was getting disgusted with what she regarded as her parents' ill-considered action and, therefore, she decided to leave the house. Merely because she met the accused at a particular place, it cannot be said that the accused had a tryst with her at that particular place and, therefore, had enticed her away form her lawful guardian.
11. Even after the incident, there is another letter written by Namrata, which is at Exhibit 20-A. In this letter she swears her love for the accused and renews her loyalty and love to him in the name of a goddess and Babasaheb Ambedkar. This letter is one of the longest written by her to the accused and from every line of the letter oozes her affection and love for the accused. It should be noted that this letter is written within 20 days after the accused was arrested. In the absence of any other evidence to suggest that the accused had induced the prosecutrix to leave her parental house, I am reluctant to uphold the finding of the learned Sessions Judge under section 366 of the Indian Penal Code. The trial has taken place nearly two years after the incident and during all this period the prosecutrix was in her parents' company. Despite this, the evidence given by her in the Court is hesitant, is half hearted and discloses a concealed reluctance on her part to depose against the accused. In this state of the evidence, therefore, I am satisfied that the prosecution has failed to prove that the accused induced or enticed or in any other way prepared the mind of the prosecutrix to leave her parental house. The conviction under section 366 of the Indian Penal Code, therefore, will have to be set aside.
12. Coming to the conviction under section 376 of the Indian Penal Code, it has been argued by Mr. Gavnekar that if the prosecution evidence discloses that Namrata had sexual intercourse, it does not disclose that the sexual intercourse was indulged in by the accused in the manner and on the days in which Namrata says it was done. For example, he drew my attention to the deposition of Namrata in the examination-in-chief itself wherein she has mentioned that on the evening of 16th March, 1979 the accused took her to some house, which houses as I have already mentioned above, turned out to be the house of one Mirabai, and told her that Namrata was his friend Ruparel's sister. She has mentioned that at night she stayed in that house and on the next morning the accused and his friend Ruparel came there. Later, however, in paragraph 5 of her deposition she has mentioned that the accused had sexual intercourse with her twice, once in the house at Nasik and again at Bombay. Proceeding further, we notice that she has, in clear-cut terms made the following admission in paragraph 10 of her deposition :---
'It is true that Shashikant (accused) left for his house on that night and I slept in the house of that lady. It is true that Ashok Ruparel came to that house on the following morning.'
It is impossible to reconcile these three statements to which I have made reference above, except by holding that on the night between 16th and 17th of March, 1979 the accused could not have has sexual intercourse with Namrata in the house of Mirabai. A proper reading of this evidence shows that the accused left the house of Mirabai on 16th March and came back to pick up her again in the morning of 17th. The prosecution, therefore, has failed to prove that any sexual intercourse took place on the night of 16th and 17th March, 1979.
13. Namrata has mentioned that the accused had one more sexual intercourse with her in the house of his uncle at Bombay. That is in paragraph 5 of her deposition. But in a subsequent paragraph, namely paragraph 10, she has mentioned as follows :---
'It is true that I was sleeping in a separate room from the room of Shashikant and other members in that house during those 5/6 days.'
This also seems probable, because the maternal uncle of the accused could not have easily countenanced that his nephew should come with a girl who was minor and sleep with her in the same room. Evidence shows that the parents of the accused themselves were not very happy and that they came to Bombay to collect the accused and to take him back to Nasik.
14. Mr. Gangakhedkar, the learned Public Prosecutor, however, protests that there is evidence in the testimony of the Mirabai to suggest that the accused and Namrata stayed in her house the whole night and the whole of the next day. Mirabai's testimony is in the following terms :---
'They had come in the evening time and left in the next evening.'
I am reluctant to interpret Mirabai''s testimony to mean that the accused and Namrata stayed in the same room throughout the night. What she has mentioned is that, they came in the evening time and left in the next evening, which does not necessarily mean that throughout the period of stay both the accused and the prosecutrix were together. It is true that a suggestion was made in the cross-examination that the girl alone stayed in that room during the night and that the accused had left and that suggestion has been denied by her. But I cannot forget the deposition of the girl herself which, read with her admission in the cross-examination, does not establish that the accused took any liberty with her on the night between 16th and 17th March, 1979. Mr. Gangakhedkar also insists that the prosecution evidence clearly shows that the accused has had sexual intercourse with the girl. A girl of less than 16 years has left her parental house for the first time on 16th of March, 1979. Thereafter, she has continuously been in the company of the accused and returned to her parental house on 23rd of March, 1979. On 24th she has been examined by the doctor and if, at that time she is found to have had sexual intercourse, the inference that the accused alone is responsible for it, is, according to Mr. Gangakhedkar, inevitable. I disagree. The prosecution is bound to prove the commission of the offence which it says has taken place. The prosecution cannot put an alternate case. It is not for the Court to reconstruct the happenings or the incidents on the basis of the evidence and then hold that the accused is guilty in one particular manner and not in the manner alleged by the prosecution. It may be that sexual intercourse could have taken place even before 16th of March, 1979. What is necessary for convicting the accused is that the sexual intercourse took place in the manner alleged by the prosecution and that it was the accused who had sexual intercourse with Namrata. This, the prosecution has failed to prove on the evidence produced by it.
15. In the result, Criminal Revision Application No. 780 of 1981 is allowed. The notice of enhancement given in Criminal Revision Application No. 350 of 1981 is discharged. The order of conviction and sentence recorded by the learned additional Session Judge of Nasik in Sessions Case No. 76 of 1981 is set aside. The accused is acquitted of the offences with which he had been charged.
Bail bond of the accused stands cancelled.
Final, if paid, shall be refunded.