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Criminal Appeal No. 337 of 1969, decided on 4th August, 1972.

‑‑‑ S: 373‑Admittedly accused and girl found together by Police but nothing further to indicate accused having any intention to employ her for prostitution or detain her for illicit intercourse or for any unlawful or immoral purpose‑Girl being taken to various places and on several occasions having opportunity to make complaint to persons coming across during journey but no complaint ever made by her‑Conviction and sentence set aside, in circum stances.

I. A. Hashmi for Appellant.

Habibur Rashid for A.‑G. for the State.

Date of hearing : 4th August, 1972.

This is an appeal against the Judgment of the learned Sessions Judge, Nawabsbah, convicting the appellant for an offence under section.373, P. P. C. and sentencing him to undergo R. I. for 3 years and pay a fine of Rs. 1,000 or in default to undergo R. I. for one year.

Mst. Khurshid aged about 17 years is daughter of Altahditto and Msr. Fatima. Sometimes she resided with her parents and sometimes with her uncle Akbar who was living at a distance of about 30 miles. Tajuddin and Siddik lived near the house of her uncle. Mst. Khurshid and Tajuddin contracted illicit connections and they stealthily left on 30th April, 1967 as they pro posed to marry each other. However, no marriage took place and Tajuddin kept her in Chak No. 5 for about 8 days and they used to have sexual intercourse. Then she was taken to some other place and handed to the present appellant and he himself left. Abdul Ghafoor also committed sexual intercourse with her against her will and after 3 days stay he promised to take her back to her parents. They got into the train and on the way he informed her that he had paid Rs. 800 to Tajuddin and unless that amount was received back by him he would not return her to her parents. They got down at Padidan railway station, somewhere at night. They borrowed a cot from Behram Chowkidar and passed the night in the musafirkhana. In the morning they left and were resting at some spot when Mr. Mohammad Akram A. S. I P. acting on some spy information went to that spot and secured both of them in presence of mashirs, on 11th May, 1967. After usual investigation the applicant and Tajuddin were challaned:

On the assessment of the evidence the learned Sessions Judge acquitted Tajuddin while convicted the appellant. An attempt was made to show that the girl was minor below 16 years of age but the learned Sessions Judge did not accept this evidence and he was of the opinion that the girl was aged more than 16 years at the time when she eloped. He also did not accept the evidence of the girl that she had been forcibly taken away or had been raped either by Tajuddin or by the appellant. According to him it was a simple case of elopement with the consent of the girl as she had contracted illicit connections with Tajuddin and they intend ed to marry. With regard to the appellant he was of the view that since according to the evidence of the girl, the appellant had bought the girl for Rs. 800 and he was unable to explain the presence of the girl with him at the spot from where they were secured by the A. S. I. P. a presumption arose that she had been taken into possession and kept by the appellant for one of the three purposes, viz. prostitution illicit intercourse or any unlawful or immoral purpose.

The counsel for the appellant is absent and I have gone through the evidence with the assistance of the learned counsel for the State. On the appraisal of the evidence I am of the view that the prosecution has failed to make out a case against the appellant which may be free from doubt. The learned Sessions Judge had solely relied upon the evidence of the girl but in view of the falsity of her evidence no reliance can be placed upon her evidence without any corroboration. The only corroboration which is sought is that the girl and the appellant were found‑together. The burden was upon the prosecution to establish the intention of the appellant and in this the prosecution has completely failed. It was said by the girl that although the appellant offered to take her back to her parents but subsequently changed his mind and stated that unless he was paid Rs. 800 which he had paid to Tajuddin he would not take her back to her parents. This bare statement of the girl cannot be believed. She had made allegations that she had been raped by Tajuddin and the appellant but she had made no' such allegation to her uncle when she appeared before her. Even accepting the allegation of the girl that the appellant was not prepared to take her back to her parents till he was paid an amount of Rs. 800 this would not show that the appellant had any intention to A employ her for prostitution or detain her for illicit intercourse or any unlawful or immoral purpose. She was not being taken to the various places without her consent. On several occasions she had the opportunity to make complaints to the persons whom she came across during the journey but no complaint was made by her. The evidence of the chowkidar Behram shows that in the morning before be got up from sleep he found both of them missing. With regard to intention there must be reliable and cogent evidence and no conviction can be based on mere conjectures and surmises. At any rate, the case is not free from doubt.

In the result, I allow the appeal and set aside the conviction and sentence of the appellant and acquit him. He is on bail. His bail bonds are discharged.

Appeal allowed

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