B. R. ARORA, J. - (1.) THESE two appeals are directed against the judgment dt. December 18, 1989, passed by the Sessions Judge, Bhilwara, by which the learned Sessions Judge convicted and sentenced the accused-appellants.
(2.) ACCUSED Ghisu Lal was tried for the offences under Sections 363, 366, 342 and 376 I. P. C. and under Section 4 of the Child Marriage Restraint Act, while the appellant Kamla was tried for the offences under Sections 363, 366 and 342 I. P. C. and Section 4 of the Child Marriage Restraint Act. ACCUSED Ratan Lal, Ram Chandra, Rameshwar, Mst. Ajee and Roopa were, also, tried alongwith the appellants for the offences under Sections 342 and 343 I. P. C. and for the offence under Section 5 of the Child Marriage Restraint Act. The learned Sessions Judge, after trial, acquitted accused Ratan Lal, Ram Chandra, Rameshwar, Smt. Ajee and Roopa of the offences for which they were tried. The learned Sessions Judge, also, acquitted the present two appellants of the offences under Section 342 and 343 I. P. C. but convicted accused Ghisu Lal under Sections 363, 366 and 376 IPC. and Section 4 of the Child Marriage Restraint Act and sentenced him to undergo two years' rigorous imprisonment under Section 363 I. P. C. three years' rigorous imprisonment under Section 366 I. P. C. ten years' rigorous imp:isoment under Section 376 (2) (f) I. P. C. and one months simple imprisonment under Section 4 of the Child Marriage Restraint Act. The learned Sessions Judge, also, imposed a fine of Rs. 100/on each count and in default of payment of fine further to undergo fifteen days' simple imprisonment on each count. Appellant Kamla was convicted for the offences under Sections 363 and 366 I. P. C. and under Section 5 of the Child Marriage Restraint Act and was sentenced to two years simple imprisonment under Section 363 IPC, three years simple imprisonment under Section 326 I. P. C. and one month's simple imprisonment under Section 5 of the Child Marriage Restraint Act. The learned Sessions Judge, also, imposed a fine of Rs. 50/ on each count and in default of payment of fine sentenced her to undergo fifteen days' simple imprisonment on each count. Aggrieved with the judgment dated December 18, 1989, convicting and sentencing the accused, appellants Kamla and Ghisu Lal preferred an appeal through their Advocate, which appeal is registered as S. B. Criminal Appeal No. 9 of 1990. Appellant Ghisu Lal, also preferred an appeal through jail, which was registered as S. B. Criminal (Jail) Appeal No. 18 of 1990. The incident, which led to the prosecution of the appellants alongwith five other co-accused, took place on May 10,1988 One Mst. Shambhu had gone to the onion field of her grand-mother. When she did not return till the evening then her grand-mother. Mst. Aloli went to the field, but Mst. Shambhu was not there in the field. While returning from the field; she was informed by one Ram Chandra and Govind Ram that Shambhudi had been taken away by accused Ghisa and Kamla toward village Danwra. After returning from the field, she informed all the neighbourers regarding this incident. Later on it was found that Mst. Shambhu has been kept in village Kanpura and the accused are intending to sell the girl. The report of this incident was lodged at Police Station, Gulabpura on May 12, 1988 at about 2. 00 p. m. The prosecution, in support of its case, examined five witnesses while the accused, in their defence, examined DW 1 Bhanwar Lal. The nature of evidence, produced by the prosecution, consists of the evidence of PW 1 Shambhudi the prosecutrix, who has stated that she was living with her grand-mother. Accused Kamla asked her that her sister has come from Sapola and she has brought clothes for her. She is in Village Chunnikheda and is calling her. She, thereupon, went with her. Thereafter Kamla and Shisu Lal took her in a bus to Hajiyas. From Hajiyas, she was taken to Fallamata and there a Saptapadi (Dhanman Feri) was performed. After performing the marriage ceremony, in the night accused Ghisa took her in his lap and touched his penis to her vagina, upon which she cried and then Kamla took Shambhudi in her room and she slept with Kamla. In the morning, she was taken to Tambudiya Kheda, where she stayed at the house of Ajee for three days. Thereafter she was taken to Bharaliya by Roopa Khati, where she stayed for one night and was recovered by the police. This witness, in the cross-examination, has admitted that she slept in the room before Ghisa came and took her in his lap. She has, also, admitted in the cross-examination that after her marriage, a Panchayat took place in the village. Her mother and grand-mother were called. Her mother did not come, but her grand-mother was present in the Panchayat. She, has, also, admitted that as Ghisa did not make the payment to her grand-mother, therefore, she had lodged the report to the police. In the Panchayat Ghisa admitted that as the money could not be arranged hence he could not make the payment and said that he will make the payment of the amount after-wards, but her grand-mother was not agreeable to this proposal and said that she had been deceived. Pw 2 Aloli - the grand-mother of the prosecutrix has stated that Shambhudi used to live with her and used to take care of her onion field. When she did not return from the onion field then she searched for her and was informed by Shivji that Kamla has taken Shambhudi with her then she lodged the report and upon her report, the police recovered Shambhudi. In the cross-examination, she has admitted that she lodged the report after three days of the incident. The Panchayat was called for two days but as Ghisu Lal did not make the payment of the agreed sum, therefore, the report was lodged at the Police Station. The members of the Panchayat and the Sarpanch of village Modra, tried for five to six times to persuade Ghisa for making the payment but he was not agreeable to this. She has, also, admitted that before the Panchayat she has stated that she got her grand-daughter married but accused Ghisa is not making payment of the agreed amount. Pw 3 Swaroop Singh has stated that the recovery of the clothes was made in his presence vide Ex. P.
(3.) IN the cross-examination, he has admitted that Aloli her self brought Shambhdi for her marriage and got her married with Ghisa. 7. PW 4 is Mangu Khan, who conducted the investigation and presented the challan. IN the cross-examination, this witness has admitted that Bhanwar Lal Teli was an eye-witness of the occurrence, whose statement was recorded by him and the marriage was performed by Ghanshyam. Pw 5 Govind Ram is the person who had seen the accused taking away Shambhudi on 10-5-1988. He is, also, a witness to Ex. P. 4. From the statements of these witnesses it is, thus, clear that Shambhudi was not taken-away by Kamla or Ghisa, rather she was given in marriage to Ghisa by Aloli herself. This is clear from the statements of Pw 1 Shambhudi, Pw 2 Aloli and Pw 3 Swaroop Singh. Pw 1 Shambhudi herself has admitted in the cross-examination that after her marriage, the Panchayat took place and her grand-mother was called and as Ghisa did not make payment to her grandmother, therefore, the report was lodged by her grand-mother. She has, also, admitted that her grand-mother had said that by deceit the marriage was performed and the accused are not making the payment. Smt. Aloli (Pw 2"), in her cross-examination, has specifically admitted that she disclosed to the Panchayat that she got her grand-daughter married but the accused Ghisa is not making the payment. In the cross-examination, she has stated in the following terms : *** Pw 3 Swaroop Singh, in the cross-examination, has admitted that for the marriage of Shambhudi with Ghisa Shambhudi was brought by her grandmother Smt. Aloli herself. In the cross-examination she stated as under : ;