- (1.) THIS is an appeal by the accused Hira, Kalu and Modu against a judgment of the Sessions Judge, Bundi dated 12th November, 1949 by which he has convicted them of an offence under section 366, Penal Code, and sentenced them each to undergo 9 months' rigorous imprisonment.
(2.) THE facts of the case, as alleged by the prosecution, are that Hardeva of Urasi, the husband of Mst. Dhanni aged 20 years, died about 10 years before the date of occurrence. Since then she had been living with her brother Ramchandra in Balopura. Mst. Dhanni went to pay a condolence visit to a relative of hers to Padampura from where while she was returning to her village on 13th September, 1948 with three other women she was waylaid and forcibly taken away by the three appellants and Jagannath, who was the elder brother of Dhanni's husband and Chandra with the intention of compelling her to marry Chandra against her will. It was further alleged that she was at first taken to the house of Hira from where Chandra took her to his house and had sexual intercourse with her. It was also stated that Mst. Dhanni somehow managed to escape from the house of Chandra. A first information report was lodged by Ramchandra, the brother of Dhanni, on 7th September, 1948 at noon at Thana Deh upon which a case was registered and investigation started. THE three appellants along with Chandra and Jagannath were challaned under section 366, Penal Code, before the First Class Magistrate Nenua who after holding a preliminary inquiry committed them to the Sessions Judge, Bundi, to take their trial for the said offence. During the course of the trial Jagannath died and Chandra also expired as a result of certain injuries which he received in a fight which took place in respect of some land. THE appellants pleaded not guilty and they stated that on the day of occurrence while they were returning from Bansi they met Chandra and Jagannath on the way who offered them a smoke and consequently they stopped there for sometime and Mst. Dhanni, Mst. Keli and Gendi also arrived there and began to talk with Jagannath and Chandra whereupon they left the place. THE Sessions Judge held that the appellants were guilty of a technical offence under section 366, Penal Code and sentenced them as stated above. In this appeal it has been argued by the learned counsel for the appellants that there is no evidence of the appellants having abducted Mst. Dhanni and even if it is held to be proved that the appellants abducted Dhanni there is no evidence that they did so with the intention requisite for constituting an offence under section 366, Penal Code. It may be observed that so far as the prosecution evidence goes it is proved beyond doubt that Mst. Dhanni was abducted by the three appellants. Even if Mst. Dhanni be regarded as an interested witness there is the evidence of the other two women, namely, Keli and Gendi, who were present at the time of the occurrence. There is no good reason for disbelieving their evidence, It is stressed by the learned counsel for the appellants that as only the name of Chandra appears in the first information report the case against the appellants should be regarded as a concocted one. But as the first information report was lodged by Ramchandra, the brother of Mst. Dhanni, who was not present at the time of the occurrence the absence of the names of the appellants in the F. I. R. is no reason for disbelieving the testimony of eye-witnesses. The first objection, therefore, fails. As regards the second point it may be noted that mere abduction is in itself no offence (vide A. I. R. 1933 Peshawar 69), It is only when a person abducts a woman with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse that he commits an offence under the first part of section 366 Penal Code. In the absence of the aforesaid intent! or knowledge no offence under the said section can be committed. In cases of forcible abduction there can seldom be direct evidence as to the actual intention of the abductor. Intention or knowledge in such cases is a matter of inference from the circumstances of the case and the subsequent conduct of the accused after the abduction has taken place (vide A. I. R. 1930 Lah. 163 and 29 Cr. L. J. 643 and A. I. R. 1938 Lah. 474 ). In this case the learned Sessions Judge has arrived at the conclusion that all the three appellants at the time of abducting Dhanni had reason to believe that she would be forced to undergo Nata with Chandra, but this inference so far as the two appellants, Kalu and Modu are concerned, does not seem to be justified. The only evidence against these two persons is that at the instance of Jagannath who was the elder brother of the husband of Mst. Dhanni they forcibly took Dhanni with them. As Jagannath was a near relative of Dhanni, it was quite possible that they carried out the bidding of Jagannath without knowing that she would be compelled to do Nata with Chandra against her will. Chandra, Jagannath and Mst. Dhanni are Minas by caste while Modu and Kalu are Gujars by caste. Mst. Dhanni herself in her statement has not made any such allegation against these two appellants from which it might be inferred that they abducted her with the above mentioned intention or knowledge. As such these two appellants are entitled to the benefit of the doubt. The case of Hira appellant however appears to be different from that of the other two appellants. From the statement of Mst. Gendi it is evident that Hira caught hold of the hands of Dhanni and forced her to proceed and Keli has also stated that when Gendi intervened, Hira remonstrated saying that she was their person. Mst. Dhanni was taken to the house of Hira and it was from his house that Chandra subsequently took her to his house. From this fact also it is clear that Hira at the time of abducting Dhanni did so either intending to compel her to have Nata with Chandra or having knowledge that she was likely to be compelled to do so. In the circumstances he cannot escape from the consequences of his act. He, therefore, appears to be rightly convicted by the trial Court. The sentence passed against him, however, in view of the circumstances of the case appears to be rather severe and a sentence of 3 months' rigorous imprisonment would meet the ends of justice in this case. In the result the appeal of Modu and Kalu is accepted and their convictions and sentences are set aside. The appeal of Hira is partly allowed and his sentence is reduced as indicated above. He shall surrender to his bail to serve out the remaining portion of the sentence. .;