- (1.) This appeal has been filed by the accused appellants against the judgment and order dated 7-9-1982 passed by the learned Sessions Judge, Udaipur, by which : 1. he acquitted the accused Varda of the offence under S. 376, IPC and further acquitted two other accused Jarnail Singh and Kalu Maharaj of the offence under S. 366, IPC, but 2. convicted accused appellants Varda and Hariya under S. 366, IPC and sentenced each of them to two years Rigorous Imprisonment and a fine of Rs. 200/-, in default of payment of fine, to further undergo for two months R.I.
(2.) It arises in the following circumstances :- P.W. 7 Udailal lodged an oral report Ex. P/11 on 25-7-1980 in the Police Station Mavli District Udaipur to PW. 10 Umar Khan with the allegations that his son Chunni Lal was married with Mst. Kailash, P.W. 6 (prosecutrix) before 6-7 years back and since then she has been living as the wife of his son. On 23-7-1980, he went to Tarawat and in the house, his son and Mst. Kailash, P.W. 6 and his another daughter P.W. 1 Kamla were there. On 24-7-1980 when he returned back, he found her daughter alone and he asked about P.W. 6 Mst. Kailash from her. She told to P.W. 7 Udailal that one Pappu came to the house and he told to P.W. 6 Mst. Kailash that her father is ill and she has been called by her father and upon this, P.W. 6 Mst. Kailash went with Pappu. On being enquired, it was told by Kasiram that he was told by Arjun and Narayan, P.W. 2 that accused Varda was taking her on his bicycle and Pappu, Hariya and Kalu were also there. In the report, the age of PW. 6 Mst. Kailash has been stated to be 17 years and thus, accused persons have abducted P.W. 6 Mst. Kailash. Upon this, police registered a case and started investigation and on 25-7-1980 through Ex. P/10, P.W. 6 Mst. Kailash was recovered from the hotel at Udaipur from the possession of the accused Varda and, thereafter, the police submitted a challan against four accused persons in the Court of Magistrate and against accused Pappu in the Children Court. The learned Sessions Judge framed charges against accused appellant Varda for the offence under Ss. 366 and 376, IPC and against three accused persons Hariya. Jarnail Singh and Kalu for the offence under S. 366, IPC. All the accused denied charges and claimed trial. In all, 12 witnesses were examined by the prosecution and, thereafter, statements of accused persons under S. 313, Cr. P.C. were recorded. The learned Sessions Judge vide his judgment and order dated 7-9-1982 acquitted accused Jarnail Singh and Kalu for the offence under S. 366, IPC and also acquitted accused Varda of the charge under S. 376, IPC, but convicted and sentenced accused Varda and Hariya for the offence under S. 366, IPC, as stated above. Against the said judgment and order dated 7-9-1982, the present appeal has been filed by the accused appellants.
(3.) In this appeal, it has been argued by the learned counsel for the accused appellants :- 1. That there is an overwhelming material on record to show that PW. 6 Mst. Kailash accompanied the accused persons on her own will or otherwise to say that the prosecution has failed to establish that P.W. 6 Mst. Kailash was taken out of lawful guardianship and she was abducted with the intention to marry her or to compel her to deduce to illicit intercourse. 2.That since accused appellant Varda has been acquitted of the charge under S. 376, IPC, the charge under S. 366, IPC against him also goes off. ;