MOHINI KAPUR, J. - (1.) TEN persons have come in appeal against the conviction of sentence passed by the Sessions Judge Tonk. All of them have been convicted for the offences under Sections 147 and 366 IPC and they have been sentenced as under: Under Section 366 IPC 3 years R. I. Under Section 147 IPC One year R. I. and a fine of Rs. 100/ -. In default of payment of fine to suffer simple imprisonment for 15 days.
(2.) AT the same time they have been acquitted for the offences under Secs. 323 324, 325, 392 and 376 IPC. Three other accused persons who were also accused have been acquitted. The facts in brief are that PW 11 Kailashi was married to accused Shyam Lal. She was not staying with her husband and according to the prosecution a separation deed was executed and Shyam Lal was paid the money which was due to him. Then on 6. 11. 1978, when Kailashi, her mother Bachi PW 12 and her father Moti Lal PW 13 were returning from village Lavadar after meeting some relatives then 12 accused persons armed with lathis and Kulharies came there and attacked them with a common intention. At that time Jagdish, Kalyan and Sheru came to intervene and they were also beaten along with Motilal, Bachi and Kailashi. It is not necessary to reproduce the details of the blows given by the accused persons because the Sessions Judge has already held that the infliction of these blows had not been proved by cogent evidence and there was no charge with the aid of Section 149 IPC. Kailashi was taken away by the accused persons and detained in the house of Shyamlal. According to her she was kept locked and lateron she was taken towards the forest where her ornaments were removed. Lateron only 4 accused persons remained with her and committed rape upon her. Then when Prem accused took her to a well to bring water then some persons recognised her and took her to the house, of the Sarpanch, who lodged a report with the police. In this manner the girl Kailashi was recovered and case was registered and investigation was made before presenting the challan against 13 accused persons. On the evidence of the prosecution the learned Sessions Judge arrived at the conclusion that there is a custom amongst Nai caste that when a woman goes in a Nata, money is paid to the former husband and that in this case a sum of Rs. 3,750/- was paid to Shyam Lal, who wrote document Ex. P. 11. It was further held that the marriage of Shyam Lal and Kailashi had come to an end and thereafter the appellants formed unlawful assembly and kidnapped Kailashi. On this basis the appellants were convicted for the offence under section 147, and 366 IPC and sentenced as stated above. In this appeal the learned counsel for the appellants has first of all contended that the accused in this case are all from different castes namely; Nai, Gujar, Meena and Mohammadan and actually these persons of different castes had collected in order to persuaded Kailashi to go to the house of her husband. All these persons could not have been the associates of the husband of Kailashi, namely, Shyam Lal and all these persons have been falsely implicated in the ease. The next contention is that the parents of Kailashi were not sending to her husband's house and when Shyam Lal and other insisted this quarrel took place and the appellants were prosecuted.
(3.) THE main contention is that Kailashi was the married wife of Shyam Lal and there is no evidence to show that the marriage had come to an end and in such circumstances taking away of a wife by the husband does not constitute an offence under section 366 IPC. In support of this contention reliance has been placed on Manna Lal V/s State of Rajasthan (1) wherein it has been held that where there is no evidence to prove that husband has divorced his wife his attempting to take away her forcibly does not constitute an offence under section 366 IPC. THE same principle has been upheld in Peer Mohammad Kukaji Vs. THE State of M. P. (2 ). I shall look into evidence with regard to the dissolution of the marriage of Shyam Lal and Kailashi. One document Ex. P. 11 has been produced by PW 13 Moti Lal who is father of the girl Kailashi. This document was not handed over to the police during investigation and was first produced only when Moti was in the witness box at a time when Kailashi and her mother PW 12 Bachi had already been examined. They did not refer to any document executed for purpose of dissolution of marriage. The other witness in this connection is PW 14 Modu, who is the father of Amar Lal with whom Kailashi is said to have contracted marriage (NATA ). PW 15 Deo Karan is the scribe of Ex, P. 11 Modu has stated that he gave Rs. 3750/- to Shyam Lal for getting Kailashi released. None of the Panchs who persuaded to bring an end to the marriage of Shyam Lal and Kailashi have been examined. This private separation or dissolution of marriage is said to have taken place because Kailashi went in Nata to Amar Lal. However, this Amar Lal was a married man and his wife was alive and during the life time of his married wife he could not take another person as his wife even by way of Nata marriage. For purposes of contracting any marriage of any type of a person has to be eligible and the first condition is that he should not have a living spouse. It is for the prosecution to prove the case against the accused beyond all reasonable doubt and when there are circumstances which make the case suspicious then the benefit of doubt is go to accused. In the present case it can be said that it has not been proved that the marriage of Kailashi with Shyam Lal had come to an end in absence of this proof the husband Shyam Lal could take away his wife even by using some force and he would not be guilty of the offence under section 366 IPC. The other appellants have been made a part) to the incident only on account of Shyam Lal and their position cannot be different from that of Shyam Lal. Coming to the facts of the case, it can also be said that PW 19 Chhitar, who is said to be a witness of the recovery of Kailashi alongwith another boy does not want to give out the full version and he has not given out the name of the persons who was found alongwith Kailashi. PW 2, Gopi has admitted that at the time of the incident Shyam Lal was saying that he wanted to take his wife with him but father of Kailashi was not sending her. PW 1 Bheru has also said that Shyam Lal wanted to take Kailashi to his own house. PW 14 Jagdish has admitted that Badri, Ladu, Hazari, Ram Lal and Amba Lal were advocating the case of Shyam Lal and saying that his wife should be sent alongwith him. Except Ladu, the other four persons are appellants before me. This supports the contention of the learned counsel for the appellants that the other accused collected only to persuade the father of Kailashi and send here with Shyam Lal. ;