KANTA BHATNAGAR, J. - (1.) THE appellants along with six others (since acquitted) were tried by the learned Sessions Judge, Bhilwara, for the charges of abduction of Smt. Ladu and causing injuries to her, her brother and parents. The learned Sessions Judge held the appellants guilty for the offence under Sections 366, 147, 325/149, 323 and 323/149 I.P.C. By the judgment dated 3 -1 -77, the learned Sessions Judge sentenced all the appellants for the offence under Section 147 I.P.C. to one year's rigorous imprisonment. For the offence under Section 366 I.P.C. they all were sentenced to three years rigorous imprisonment and a fine of Rs. 200/ -, in default to further undergo two months rigorous imprisonment. For the offence under Section 325/149 I.P.C. they were sentenced to two years rigorous imprisonment and a fine of Rs. 100/ -, in default to further undergo one month's simple imprisonment. Appellant Uchab was sentenced to six months rigorous imprisonment for the offence under Section 23 I.P.C. The other five appellants were sentenced to one month's simple imprisonment for the offence under Section 323/149 I.P.C. The substantive sentences for the various defences were ordered to run concurrently. Being aggrieved by their conviction and sentences the appellants have preferred this appeal in this Court.
(2.) SUCCINCTLY narrated the prosecution case leading to the trial of the appellants and the present appeal is as under: Ekling (P.W. 3) had married his son Devilal with Smt. Prem, sister of appellant Ramprasad and Ramgopal five or six years back. In exchange of it Ekling agreed to give in marriage his daughter Smt. Ladu (P.W. 1) to appellant Ramprasad. The betrothal ceremony in consequence to this promise was performed. Subsequently relations between Motilal, father of Ramprasad and Ekling, father of Smt. Ladu became strained and Ekling and his wife Smt. Bali (P.W.2) gave their daughter Ladu in marriage to someone else. Motilal, father of Ramprasad appellant, therefore detained his daughter Smt. Prem at his house. It is alleged that on 11 -8 -74 at 7.30 a.m., the six appellants, armed with lathis, entered the house of Ekling and gave a beating to him and his wife Smt. Bali and his son Rameshwar (P.W. 5). Then the appellant forcibly took Smt. Ladu from her house and took her in the jeep to the house of appellant Ramkuwar at village Chouki. They tried to perform the marriage ceremony with Ramprasad but the girl did not agree and was given a beating. Thereafter, she was taken to village Nimbhahera and was kept at the house of Shanker Brahmin for three days. On 11 -8 -74 Devilal, brother of Smt. Ladu expired. Dulesingh Pagaria was sent to lodge the report regarding the death of Devilal. He went to police station Bigod on the same day and informed P.W. 4 Sri Krishna, Head Constable, Incharge of that police station. Sri Krishna went to the house of Ekling. There he came to know about the incident of abduction of Smt. Ladu. He prepared the report Ex. P. 1 and sent it to police station Bigod for registering the case. Sri Krishna inspected the site and prepared the site inspection memo Ex. P. 2 and site plan Ex. P. 3. He got the postmortem examination of Devilal conducted. The report of the post mortem examination disclosed that Devilal had died on account of poisoning. Four or five days after the occurrence maternal uncle of Smt. Ladu went with the police to Nimbahera and recovered her. Dr. Surendra Kumar Lodha (P.W. 11) examined the prosecutrix for her age. The same Doctor had examined Rameshwar on 12 -8 -74, Smt. Bali and Ekling on 14 -8 -74. The Doctor noted two simple injuries on the person of Rameshwar, three simple and one grievous injury on the person of Smt. Bali and five simple injuries on the person of Ekling. After necessary investigation in the case, charge -sheet against these appellants along with six others was filed in the court of the Munsif and Judicial Magistrate, Mandalgarh. The learned Magistrate finding a prima facie case exclusively triable by the court of sessions committed all the accused to the court of sessions to stand their trial. The learned Sessions Judge proceeded with the trial. Prosecution examined 11 witnesses in all Appellant Ramprasad alias Ramgopal and Hiralal in their statements under Section 313 Cr. P.C. stated that Devilal deceased, brother of Smt. Ladu had sent Smt. Ladu with them and told them that he would come and perform the marriage ceremony. That there was a quarrel between Devilal and his family members. Because of Devilal's death, this false case has been concocted. Accused Manga, Uchablal, Khaba, Kalyan and Ramkuwar stated about the assemblage of the Panchayat and the false implication of the accused in the matter because they had participated in the panchayat. All the accused denied the various allegations levelled against them. Two witnesses were examined from the defence side to substantiate the plea taken by the accused in their statements. The learned Sessions Judge held the prosecution case established and passed the judgment under appeal.
(3.) I heard Shri Bhim Raj Purohit, learned Counsel for the appellants and Mr. M.C. Bhati, learned Public Prosecutor for the State and gave my anxious consideration to the material on record. Mr. Purohit assailed the findings of the learned trial Judge on a number of grounds. It has been strenuously contended by him that prosecution has not come with clean hands. That, the important circumstance of the death of Devilal on the day of the alleged occurrence itself and the investigating officer having not been examined to state as to what investigation was made in that concern and with what result, throws doubt on the prosecution case and lends support to the defence case that Smt. Ladu was willingly sent by her brother Devilal for being married to Ramprasad and on the death of Devilal in a quarrel between him and his parants, this case has been conceded. Regarding the finding of age of the prosecutrix, the contention of Mr. Purohit is that prosecution has not succeeded in proving that the girl could not have been in any case above 18 years of age. Dealing with the injuries noted by the Doctor on the person of Smt. Ladu, her parents and her brother Rameshwar, the argument advanced is that they might have been caused in the course of quarrel between Devilal and her family members. About the alleged grievous injury of Smt. Bali, the fracture of fifth metacorpal bone, Mr. Purohit submitted that in the absence of any x -ray, the injury can not be said to be grievous in nature. According to the learned Counsel failure on the part of the prosecution to examine the investigating officer coupled with the inordinate, unexplained delay in sending the First Information Report to the concerned Magistrate and the inconsistent statements of prosecution witnesses are sufficient to shatter the prosecution case and the conviction can not be said to be justified.;