CHHANGANI, J. - (1.) THE Sessions Judge, Bhilwara, tried the four appellants Narain, Jamnalal, Mannalal and Magna of offences under secs. 366, 325 read with sec. 34, 323 and 452, I. P. C. , and by his order dated 3rd of December, 1965, convicted them as follows Narain Singh. . . 366/511, 451 and 323 I. P. c Magna. . . 366/511, 451 325 and 323 I. P. C. Mannalal. . . 366/511,451. . . I. P. C. Jamnalal. . . 366/511, 45. 1, 323 I. P. C. He awarded the following sentences for these offences Narain Singh 366/511 I. P. C. 9 months R. I. Jamnalal Mannalal 451 I. P. C. 3 months R. I. Magna Magna 325 I. P. C. 6 months R. I. and Rs. 200/ - fine in default 2 months R. I. Narain Singh Magna 323 I. P. C. Rs. 200/ - fine, in default 2 months R. I. Jamnalal
(2.) THE prosecution case may be briefly stated as follows Mst. Bali, prosecution witness No. 5, was initially married to the accused Maganlal, Jat of Hurda. THE prosecution suggests that Maganlal and the members of his family did not behave properly with Mst. Bali and turned her out of the house. It is further alleged that some time in June, 1963, she contracted a second 'nata -marriage' with Moola Jat of Anandipura, THE prosecution story further is that on 20th September, 1963, the four appellants went in a jeep -car to the house of Moola with the intention of abducting Mst. Bali. THEy were armed with lathis. All the four appellants entered the guwari of Moola. Mst. Bali at that time was preparing meals in a room used as a kitchen. Maganlal entered into the room and brought her out of the room. THE other three appellants joined Maganlal at a later stage and all of them began to drag her so as to place her on the jeep car. She raised an alarm. On her cries Moti P. W. 6 uncle of Moola, Madhu, Mst. Saru, Mst. Sodara, Balu, Chhagna and others collected and intervened. It is further alleged that on the intervention of these persons the accused -appellants gave beating to some of them. During the incident, Balu, Chhagna and Mst. Bali received two injuries each while Moti received five injuries, Gokulnath Ugma received three injuries each. One of the injuries suffered by Moti was described as a grievous injury. Similarly, one of the injuries received by Mst. Bali was also described as grievous one. Mst. Bali could avail of the opportunity to run away and take shelter behind the granary in the house of Moti. Many people of the village collected and eventually the appellants went away without taking Mst. Bali with them. THE first information report of the occurrence was lodged with the Police Station, Gulab Pura, on that very day at 10 A. M. A case was registered and investigation was commenced. After usual investigation the accused -appellants were challaned in the court of a Magistrate who after enquiry, committed them to the court of session. The accused pleaded not guilty and claimed trial. The prosecution examined 14 witnesses to prove its case. The accused when examined under sec. 342 Cr. P. C. denied their guilt and came forward with a counter version. According to the defence version, on 20th September, 1963, accused Narain Singh and Manna Lal reached Bijainagar in the morning. They had an idea of searching mica area and for that purpose sought the help of accused Maganlal who met them there. When the three accused -persons were leaving Bijainagar in the jeep car Maganlal was informed of the death of his relation at Anandipura and, therefore, they thought it proper to pay a condolence visit to Anandipura. They went to the accused Jamna Lal's house, It may be mentioned here that some relation of Jamnalal had died and Maganlal accused undertook a condolence visit to Anandipura in that connection. They had tea at Jamnalal's house and when they were starting towards mica area, somebody suggested to accused Maganlal that he might settle the dispute (divorce) money (Jhagada money) in respect of the divorce of his wife Mst. Bali. Maganlal and Nirain Singh then went with those persons to the house of Kajod. A sum of Rs. 500/ -was offered to Maganlal but he refused to accept the money. The defence story further is that on his refusal to accept money Moti suggested that Maganlal should be killed and the persons assembled there began to belabour Maganlal. Accused Narain Singh intervened. He was also severely beaten. He received a number of injuries including fracture of his collar bone. Accused Magan Lal escaped and went to the house of Jamnalal. The assailants chased him there. Jamnalal did not allow Maganlal to be belaboured there. The suggestion of the accused is that they had been falsely implicated by the prosecution witnesses to cover their own act of high -handedness against them. The further suggestion is that Jamnalal was implicated because he provided protection to Maganlal. The defence examined three witnesses in support of its case. The learned Sessions Judge framed the following points for determination (1) Whether the accused persons or any of them on 20. 9. 63 abducted Mst. Bali wife of Moola? (2) Whether the accused persons having a common intention caused grievous injuries to Moti and Balu and simple injuries to Balu, Chhagana, Moti, Mst. Bali, Ugma, Madhu, Gokal, Mst. Saru and Sodara? (3) Whether the accused persons on 20. 9. 63 having made preparation for causing hurt to any person or for assaulting any persons committed house trespass in respect of the houses of Moola and Moti? (4) What offence, if any, has been committed and by which of the accused persons and what punishment is deserved by the offender? After considering the rival versions and the evidence led in support of the rival versions, the Sessions Judge accepted the prosecution version and rejected the defence version. He found that the presence of all the four accused persons in the guwari of Mst. Bali and Moti and Chhagna was well established. He also held that the first accused Maganlal entered the room where Mst. Bali was preparing meals and dragged her out and then the other accused persons also dragged her and tried to take her to the jeep car. He further held that the accused persons chased Mst. Bali in the adjoining guwari also and when the inmates of those guwaris intervened and wanted to rescue Mst. Bali they were also belaboured by the accused -appellants. The learned Sessions Judge also held proved that Maganlal had divorced Mst. Bali and that she had contracted a valid nata -marriage with Moola and consequently the accused -appellant had no right to abduct Mst. Bali. According to the learned counsel, however, there was no completed offence under sec. 366, I. P. C. because the accused -appellants could not succeed in taking away Mst. Bali with them. He accordingly held them guilty for an offence under sec. 366 read with sec. 511, I. P. C. This is the finding of the Sessions Judge on point No. 1. Dealing With point No. 2, the learned Sessions Judge held that Mst. Bali received only one grievous injury and the rest of the injuries suffered by the prosecution witnesses were all simple. He also held that the provisions of sec. 34, I. P. C. , could not be attracted to the facts of the case and the various accused would be, therefore responsible for their individual acts. He thus found Maganlal guilty under secs. 323 and 323, I. P. C. , Narain Singh and Jamnalal under sec. 323 I. P. C. As regards Mannalal, he discussed the evidence of the various witnesses and concluded that Mannalal's participation in the beating of the various prosecution witnesses is not established. Dealing with the third point, the Sessions Judge held that ingredients of sec. 452, I. P. C. were not made out and the accused could be held guilty only under sec. 451, I. P. C. On these findings, he recorded convictions and sentences as detailed above. In this appeal, the lamed counsel for the appellants did not place any reliance upon the defence evidence. On the other hand, he did not rely upon the defence version to any appreciable extent. He conceded that the main prosecution case may be held proved subject to certain minor modifications. The main contentions of the learned counsel for the appellants are two: (a) That there is no satisfactory proof that any divorce was given by Maganlal accused to Mst. Bali. Consequently, Maganlal continued to be the husband of Mst. Bali and as such, he and his associates could not be held guilty of the offence under Sec. 366, Indian Penal Code, even though they took steps to forcibly take Mst. Bali with them. (b) That with the failure of this charge the accused -appellants could not also be held guilty for the offence under sec. 451, Indian Penal Code, inasmuch as they could not be said to have committed house trespass in order to commit any offence. It may be mentioned incidentally that the learned counsel did not challenge the convictions of the appellants under sec. 325 and 323, Indian Penal Code. The first point which requires determination in the present appeal is; whether there is a satisfactory proof of any divorce given by Maganlal accused to Mst. Bali. Before, however, examining the factual position it will be proper to consider the legal position in this behalf. It may be atonce mentioned that Hindu religion and sentiment has given special sanctity to the marriage ties. So far as the higher castes are concerned, Hindu Law did not recognise any divorce. Says Manu, neither by sale nor desertion can a wife be relieved from her husband. The rigour with which this principle was applied to the higher castes was of course released in a case of what were treated as lower castes. In case of some such caste customary divorce began to be recognised. Even so, for a proper proof of divorce it will be necessary to insist that a caste custom should be alleged and a proper -divorce in accordance with that custom should be satisfactorily established. In (Gendalu) Narayan vs. Emperor (1) Walsh, J. had an occasion to consider the validity of a second marriage during the life time of the first husband and the learned Judge made the following important observations: " Custom of second marriage during the lifetime of the first husband and without the first marriage being annulled by divorce or in some formal manner recognised by caste usage equivalent to divorce (the mere wish of the woman against that of her husband being insufficient) is an offence under Sec. 494. " It has been suggested by the learned counsel for the State that abandonment by the husband in the present case should be treated as an act equivalent to an act of divorce and he relied upon some observations made in Gopikrishna Kasaudhan vs. Mst. Jaggo (2 ). It is true that in the Privy Council case abandonment by the husband was treated as amounting to divorce. The facts of that case were, however, very peculiar. In that case Mst. Jaggo was initially married to Baijnath. After Baijnath's death she contracted a second marriage with his brother Sheonath. Sheonath had another wife who disliked the advent of a rival. There were consequently quarrels between the two wives, and the husband Sheonath eventually abandoned the second wife Mst. Jaggo in order to put an end to the trouble. Mst. Jaggo then married Nikku Lal and Srikrishna was born of this marriage. A dispute arose as to the property of Nikkulal between Gopikrishna a legitimate son of Nikkulal by another wife, and Shrikrishna, the son born to Mst. Jaggo during her marriage with Nikkulal. In those circumstances, abandonment by Sheonath to Mst. Jaggo was treated as equivalent to divorce and the marriage of Mst. Jaggo with Nikkulal was considered valid. This decision, however, cannot be treated as an authority that abandonment by the husband per -se should operate as a divorce. The same view has been taken in many cases and it is unnecessary to multiply the authorities. I need only quote a few observations from Raghavaehariar's Hindu Law: " If a wife could leave her husband whenever she pleased and without any forms or justification whatever, the marriage tie to which ordinarily a special sanctity is lent by the Hindu religion and sentiment, will have absolutely no force at all, and the intercourse of the sexes, in a caste in which such a state of society was allowed, would reduce its members to the level of the beasts of the field to the standing disgrace and mortification of a community which had been very justifiably priding itself on its moral civilisation and culture. " Let us now judge the present case in the light of the principle enunciated above. Mst. Bali, who is the principal witness in the case, has made a statement which may be referred to in a little detail. She says that after marriage Maganlal and she could not live in the agreement and, therefore, Maganlal deserted her. He told her that if she was keen to remain his wife she should obtain Rs. 2,000/ -from her father for him. Her father declined to pay Rs. 2000/ - to her husband. Maganlal thereupon turned her out of the house. She further stated that three months before the present incident she contracted second marriage with Moola. She is also stated to have sworn an affidavit on 31. 8. 63 before the City Magistrate in this connection. She admitted in cross examination that 5 -10 days before the incident Moola's father Kajor and one Rewata went to the accused Maganlal to settle the controversy over the 'jhagra -money', but Maganlal and his cousin brother Sukhdeo beat them with the result that Kajor's hand was broken. Maganlal declined to accept any jhagra -money. She also suggested that after the incident she had succeeded in obtaining a divorce deed and the jhagra -money had been paid. Assuming that the case to which the parties belong, recognise customary divorce, still her statement does not indicate the requirement of the custom relating to the divorce. She does not say in express terms that she was divorced in accordance with valid custom. The facts that attempts were made to pay the jhagra money to Maganlal and that he was not prepared to accept the money appear to suggest that there was no completed divorce with his consent. At any rate, the statement of Mst. Bali cannot be accepted as a satisfactory proof of divorce. Her claim stands completely falsified by the affidavit Ex. P -14 which she swore on 31. 8. 63, only 20 days before the incident. In that affidavit she recited in the first instance that her husband and his relations did not behave properly with her and they turned her out. She then proceeded to state that as a result of the improper treatment meted to her she went to her parents and began to live with them. Her further version in the affidavit is that her father being unable to maintain her she began to work for Moola in order to make her livelihood. She further stated that "she understood her interest very well and began working for Moola of her own free will and that her husband, father -in -law and mother -in -law and other relations shall have no right to interfere with her working for Moola. " She also stated that "she was swearing the affidavit so that her husband and other relations may not institute any case against her. " This affidavit clearly shows that she had not been divorced and that she continued to treat Maganlal as her husband. This affidavit has been referred by Mst. Bali in her own statement. It is unfortunate that the Sessions Judge did not properly appreciate the implications of this affidavit and held that Mst. Bali had contracted a second marriage with Moola. This affidavit is entirely inconsistent with a suggestion of Mst. Bali having contracted a second marriage with Moola. The Sessions Judge committed a further error where he proceeded to say that the second marriage by itself operated as a divorce. The view taken by the Sessions Judge is not correct in view of the principles laid down in Pirmohammad Kukaji vs. The State of Madhya Pradesh (3 ). In that case Dixit, J. as he then was, observed that the fact that wife was given away in nata -marriage does not lead to the conclusion that her marriage with the husband has been validly and legally dissolved. This Madhya Pradesh case was quoted before the learned Sessions Judge but he held it inapplicable to the facts of the present case. I am unable to agree with the Sessions Judge on this point. As stated earlier, there is no evidence to show that divorce was given by Maganlal in accordance with any caste custom and went wrong in holding divorce established merely upon the so called alleged second marriage of Mst. Bali with Moola. In holding that a divorce had been proved and that the principle of Pirmohammad Kukaji vs. The State of Madhya Pradesh (3) was inapplicable, he relied upon the statements of the accused. Says the learned Judge, "in my opinion, because of the admission of fact on this point by the accused himself, the answer to the contention of the defence is crystal clear. " At a later stage the learned Judge said, "it might be stated here that accused Jamnalal has also admitted this position that before 3 months of the occurrence Mst. Bali had contracted nata -marriage with Moola and came to be his wife. " (6) This brings me to the consideration of the statement of the accused. 9. Maganlal's examination under sec. 342, Criminal P. C. shows that the first question put to the accused was in these terms: loky& 'kgknr gs fd ih -MCY;w 5 eq - ckyh dh vksjr Fkha exj cdqos ds rhu eghus ifgys ;g vkufun;k xkwo ds ewyk ds ;gka ukrs vkbz Fkha tokc& ;g lgh gsa A critical examination of the question shows that the question is not at all satisfactory. The question is a composite one. This, however, need not be given much importance. The main difficulty in the question is that the learned Judge did not at all refer to any divorce given by Maganlal to Mst. Bali. In these circumstances, I cannot accept that the accused should be deemed to have accepted that he had given a valid divorce and that the alleged second marriage of Mst. Bali with Moola was legally valid. It is also worthy of note that the story of divorce is falsified by Ex. P. 14 the affidavit of Mst. Bali. It is well settled law that the object of an examination under sec. 342, Criminal P. C. is only to enable the accused to explain any evidence or circumstance appearing against him. It follows that if there is no evidence or circumstance against the accused it is not open to a court to put questions to the accused and to utilise those answers for filling in the gaps of the prosecution case. In my opinion, the learned Sessions Judge went wrong in holding the divorce proved by referring to the question put to the accused and the answers given by him. The same reasoning applies to the statement of Jamnalal and I may further add that the statement of Jamnalal cannot in any way be binding upon Maganlal. (7) From what has been said above, it follows that there is no proof that Maganlal gave divorce to Mst. Bali and that her alleged marriage with Moola succeeded in dissolving the marriage. It follows that Maganlal therefore continued to be the husband of Mst. Bali. That being so, he or his associates could not be held guilty of the offence under sec. 366, Indian Penal Code, even if they by force attmp -ted to compel his wife to go and live with him as. Maganlal's wife (See Pirmohammad Kukaji vs. The State of Madhya Pradesh -supra ). Of course, Mst. Bali had suggested that the accused -appellants gave a threat that they would take her away and sell her to some body but this part of the story is hardly convincing and cannot be accepted. (8) The result following from the above discussion is that the prosecution has failed to prove that Maganlal had divorced Mst. Bali and consequently, he and his associates while compelling her by force to leave the house of Moola and go with them, cannot be held guilty under sec. 366, Indian Penal Code. Conviction of the appellants under sec. 366 read with sec. 511, Indian Penal Code, is not correct and deserves to be set aside. (9) There is also force in the second contention of Mr. Kistoormal that when the alleged abduction of Mst. Bali by the accused -appellants cannot be treated as an offence the accused cannot be said to have entered into the house in order to commit the offence. Conviction of the appellants under sec. 451, Indian Penal Code, also is not sound and is also to be set aside. (10) No other point was argued before me. (11) In the result, the appeal is partially accepted and convictions of the appellants under sec. 366 read with sec. 511 and 451, Indian Penal Code, are set aside. Convictions of Maganlal under secs. 325 and 323 and of Jamnalal and Narain Singh under sec. 323, Indian Penal Code are maintained. Narain Singh and Jamna Lal have already undergone imprisonment exceeding three months. For the offence under sec. 323 they have been sentenced to a fine of Rs. 200/ - each. In these circumstances, it will be proper if the sentence already undergone by them be considered sufficient. The sentence of fine is also set aside. The sentences passed against Maganlal under secs. 323 and 325 are maintained. He is on bail. The judgment may be certified to the Sessions Judge for its enforcement and for sending the appellant Maganlal to jail to undergo the sentences maintained by this Court. Mannalal is on bail. He need not surrender as he stands acquitted of all the offences. Narain Singh and Jamnalal shall be released, if not required, in connection with any other case. . ;