V.G.PALSHIKAR,J. - (1.) THIS appeal is filed by the accused -appellants challenging the judgment dated 7.10.1985 passed by Additional Sessions Judge, Rajsamand in Sessions Case No. 20/84 convicting the appellants under Section 366 I.P.C. to suffer rigorous imprisonment of 3 years and a fine of Rs. 250/ - and in default of payment of fine to further undergo 1 month's rigorous imprisonment, on the grounds mentioned in the memo of appeal and as also canvassed before me.
(2.) WITH the assistance of the learned Counsel for the accused -appellant and learned Public Prosecutor I have scrutinised record and reappreciated the evidence on record. The prosecution story as it emerges from, reappreciation of the evidence of the record is that a complaint was filed in Addl. Chief Judicial Magistrate, Rajsamand on 20.4.1984 by Bholu. S/o Khemji Gujar resident of Bhawa, Police Station Rajsamand against 5 persons namely Bagta, Pema, Laxman, Heera and Heera's wife with the allegation that on 18.4.1984 his daughter Mst. Rukmani was looking after his crops in his field when he and his wife come to house and went back to field they do not find Mst. Rukmani and they inquired about her. On the next day Rama and Naru told them that accused persons were taking her and she was crying. Accused persons wanted to marry her against her will. The complaint was sent for investigation. After inquiry police filed challan against three persons namely Bagta, Pema and Girdhari and in Court a case was committed to Sessions Judge, Rajsamand. After the trial the learned Additional Sessions Judge convicted the accused -appellants Bagta and Pema and acquit Girdhari.
(3.) IT is contended by the learned Counsel for the appellants that even if the entire evidence on record as led by the prosecution is accepted, the prosecution has failed to establish the necessary injury as mentioned in Section 366 IPC to sustain the order of conviction. According to the learned Counsel, in order to sustain a conviction under Section 366 IPC the prosecution must prove either on two possibilities i.e. the abduction took place either to commit forcibly marriage or to commit forcibly intercourse. The entire testimony of PW -1 Rukamani does not disclose any such intention on the part of the accused nor is there any evidence led down by the prosecution to show that the intention of the accused persons was to either forcibly marriage or to forcibly intercourse with the deceased. In the absence of this evidence, the order of conviction cannot be sustained.;