M. L. SHRIMAL, J. - (1.) THESE two appeals being S. B. Criminal Appeal No. 183 of 1978 and S. B. Criminal Appeal No. 189 of 1978 arise out of the same judgment and relate to the same occurrence and as such they are being disposed of by a common judgment.
(2.) ACCUSED Phoola, Hariram alias Sriram and Suraj Karan (acquitted by the trial court) were prosecuted in the Court of the Additional Sessions Judge, Ajmer, under sections 342, 343 and 366, I. P. C. , for abducting Mst. Durga by deceitful means with an intention to compel her to marry against her wishes and for wrongful confinement for more than three days. Learned Additional Sessions Judge acquitted Suraj Karan, who was tried along with the appellants. He, however, convicted and sentenced accused-appellants Phoola and Hari Ram alias Shri Ram as under: - 1. Phoola u/s 366, IPC 3 years' rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to further suffer 3 months' rigorous imprisonment. u/s 342, IPC 1 month's rigorous imprisonment. 2. Hariram u/s 366, IPC 3 years' rigorous imprisonment and a alias fine of Rs. 500/-, in default of paym-Sriram ent of fine to further suffer 3 months' rigorous imprisonment. u/s 343, IPC 6 months' rigorous imprisonment. The substantive sentences of imprisonment awarded under different counts were ordered to run concurrently. The prosecution case, as disclosed at the trial is that PW 1 Mst. Durga, married wife of Ram Chandra, aged nearly 22 years, was living with her father-in-law at the time of the commission of the offence. On February 18, 1977, PW 1 Mst. Durga, PW 3 Moba and PW 6 Sarwan were working on their fields. Both the accused Hariram alias Sriram and Phoola came to Moba and informed him that Mst. Durga's brother, Amar Chand, had been lying ill in village Tihari and they had been sent by her brother and mother to bring her. As Phoola is a distant nephew of Mst. Durga and Hariram alias Sriram is the prosecutrix's father-in-law's brother-in-law's son, Moba and Mst. Durga were led to believe their statement, which induced and misled Moba to allow Mst. Durga to go with them. Mst. Durga sat on the bicycle of accused Phoola and thereafter she went along with both the accused. Hariram alias Sriram was paddling a separate bicycle. While all the three were leaving the fields, Moba asked them to send the information regarding Amarchand's health. Even after four days having passed, no information reached Moba and as such he went to village Tihari to ascertain the correct position of the facts narrated to him by the accused, where Mst. Durga's mother PW 2 Mst. Jamni informed him that neither her son had been ill nor had anybody been sent for calling Mst. Durga and he was duped. From village Tihari he went to Kekri and met PW 4 Amarchand to inquire from him. The latter also told him that he had been deceived. Thereafter Moba in the company of Amarchand went to village Rambadi, then to villages Tihari, Dandh and Dadiya in search of his daughter-in-law, but failed to locate her. Eventually the searching party came to know that accused Phoola and Hariram alias Sriram had taken away Mst. Durga for an unknown place. Accordingly a written information was filed at the Police Station, Nasirabad, which has been marked Ex. P/l. On the basis of this information the police registered a case and recorded the formal first information report Ex. p/2. The police party along with Mst. Durga's brother came to Ajmer and recovered Mst. Durga from the house of PW 5 Kailash. The recovery memo is Ex. p/3. The police after usual investigation submitted a challan against the above mentioned three accused to the Court of Munsif and Judicial Magistrate, Nasirabad, who committed them for trial to the Court of Sessions Judge, Ajmer. They were ultimately tried by learned Additional Sessions Judge, Ajmer. Both the appellants along with the acquitted accused pleaded not guilty to the charges framed and the prosecution examined seven witnesses in support of their case, out of whom PW 1 Mst. Durga is the prosecutrix; PW 2 Mst. Jamani is her mother; PW 3 Moba is her father-in-law; PW 4 Amar Chand is her brother and PW 5 Kailash is the person from whose house she was recovered. PW 6 Sarwan is her brother and PW 7 Bhanwar Singh is the investigating officer of the case. The accused in their statements recorded under Section 313, Cr. P. C, denied their complicity in the crime. They neither raised any specific defence nor did they examine any witness. Learned Additional Sessions Judge, placing reliance on the statements of PW 1 Mst. Durga, PW 2 Mst. Jamani, PW 3 Moba, PW 4 Amar Chand and PW 6 Sarwan, held that both the accused, namely, Hariram alias Sriram and Phoola by deceitful means abducted Mst. Durga from the field of Moba, On the basis of the statement of Mst. Durga and her recovery from the house of Kailash and the proved circumstances of the case he further held that she was abducted with the intention to marry her against her will and was removed from place to place and confined at different places for more than 3 days. On the basis of the above findings he convicted both the accused and sentenced them as mentioned above. He, however, acquitted the third accused Suraj Karan. Hence these appeals. Learnd Advocates appearing on behalf of the accused-appellants have assailed the judgment of the trial court. The main contention of learned counsel for the appellants is that none of the witnesses is reliable. The prosecutrix is a woman of easy virtues. She has left her earlier husband and has performed Nata marriage with Ram Chandra and there are circumstances to hold that she left the field of her own accord. Learned counsel adds that she was recovered from a house at Ajmer, which was neither under lock and key nor was there any restriction on her movements and as such there is nothing to hold that she was abducted with the intention to marry her against her wishes or seduce to illicit intercourse. Placing reliance on certain contradictions in her statement learned counsel further urged that she had made material improvements in her statement before the Court and no reliance could be placed on the testimony of such a witness. Learned Public Prosecutor appearing for the State has supported the judgment of the trial Court.
(3.) IT is a fact that one of the co-accused namely, Suraj Karan, has been acquitted by the lower Court and the State Government has not come up in appeal. Therefore, the statement of the prosecutrix will have to be examined with care and caution. Learned counsel urged that for a completion of the offence under secs. 362 and 366, IPC, it was necessary that the accused should compel a person to go from any place either by force or by deceitful means Learned counsel urged that in this case it could not be said that deceitful means had been employed for the purpose of inducing the prosecutrix to marry her against her wishes. The prosecutrix was knowing fully well that the accused had taken the bicycles on a road which was not going to lead to village Chandsi and as such if she would not have been a willing party, she would have raised cries then and there. I am unable to agree with this contention. The witness in the same breath stated that she did not raise a cry, because she was told by the accused that her brother was removed to Dandh and the way on which the bicycles were taken was leading to village Dandh. It has also been urged very vehemently that according to the statement of the prosecutrix herself she was removed to be given as a wife to a Jat of village Deopuri, but when she refused to remain with Ramlal Jat, she was taken to Ajmer and thus there was no intention to marry her against her wishes. The contention is though attractive, but it is without any merit. The expression "deceitful means" is wide enough to include the inducing of a girl to leave her father-in law's house on a pretext. "deceit" according to its plain dictionary meaning signifies anything intended to mislead another. It is, really speaking a matter of intention, and even if the promise held out by the accused is fulfilled by him, the question is whether he is acting in a bonafide manner. There is ample evidence on record in the statement of Mst. Durga PW 1, Amarchand PW 4 and Sarwan PW 6 that both the accused approached Moba PW 3, made a misrepresentation to him that Mst. Durga's brother was ill and on this false pretext and inducement Moba allowed Mst. Durga to accompany them. The excuse being false has been amply proved by the statement of PW 2 Mst. Jamani and PW 4 Amar Chand. ;