Ganesh and Others vs The State of Rajasthan

N.L. Tibrewal, J.—This a joint appeal by all the accused appeallnts against the judgment dated June 29, 1979 of learned Addl, Sessions Judge, Udaipur, in Sessions Case No. 77/78 by which he convicted and sentenced the appellant as under:

u/s 366/149 IPC, three years'' R.I. and a fine of Rs.500/-. In default of payment of fine to further undergo simple imprisonment for three months;

u/s 323 and 323/149 IPC three months ''R.I;

u/s 448 IPC Six months ''R.I. and a fine of Rs. 200/- each. In default of payment of fine simple Imprisonment for two weeks;

u/s 148 IPC Six months'' Rule 1 and a fine of Rs. 1001-each. In default of payment of fine to undergo simple imprisonment for two weeks.

The prosecution case is that Mst. Tulsi, D/o Narain Lal was at the house of Narain Lal when the accused persons arc said to have forcibily abducted her. It is alleged that PW/3 Smt. Chaini was present in the house and she was also assaulted, when she tried to resist. The prosecution case is that betrothel (sagai) of Mst, Tulsi had taken place with the appellant Ganesh, but she was married to one Pema. On account of this, Smt. Tulsi is said to have been adbucted. The report of the incident was lodged on March 25, 1978 at 7.00 A.M. by PW/1 Narain.

After registration of the case, Mst. Tulsi is said to have been recovered on 27.3.78 from the house of accused petitioner Ghasi, vide recovery memo Ex. P/4. She was medically examined by the Medical Jurist, to ascertain her age and the injuries. The Dr. gave the report Ex. P/8 and as per the said report the age of Mst. Tulsi was above 16 years but below 18 years. This report has been admitted by the accused.

The police, after completion of the, investigation, submitted a charge sheet against all the five appellants who were tried in the court of learned Additional Sessions Judge, Udaipur. The learned Additional Sessions Judge, after completion of the trial, convicted and sentenced the appellants as aforesaid.

During the trial, prosecution examined eight witnesses. The accused denied their participation in the incident. However, the plea of the accused persons was that marriage of Mst. Tulsi had taken place with the appellant Ganesh only 15 days prior to the incident and she was sent to her in-laws'' house with the consent of her parents.

In defence, three witnesses were examined.

Out of the prosecution witnesses, P.W. 1 Narain is the informant as well as the father of Mst. Tulsi. He is not an eyewitnesses of the incident but according to his statement when he returned from the Mavli, he was informed by His wife'' that the appellant Ganesh and Ghasi, along with 5-6 persons forcibly kidnapped Mst. TULSI. He also gave the age of Mst. Tulsi as 14-15 years. He further stated that the marriage of Tulsi had taken place with Pema and this marriage had taken place three months prior to the incident. This witness admitted that the engagement of Tulsi had taken place with the appellant Ganesh but subsequently, the marriage could not be materialised and the relation was broken by him, as it was disclosed subsequently that the mother of Ganesh is Jat by caste. He further admitted that he does not know any person of village SurtaKheda, except the appellant Ghasi.

PW/2 is Mst. Tulsi, who is said to have been abducted by the accused persons. She stated that she was married to Pema S/o Khuma. After her marriage, She came to her father''s house, from where she was taken by the persons of village Surta Kheda. She had named the appellants Ganesh, Ghasi, Chalurbhuj and Hema. She further stated that after taking her to the house of the appellant Ganesh, she was confined to a room and was not allowed to move freely. She futher admitted that prior to the incident she did not know any person and she had not seen even Ganesh appellant, prior to the incident. She further stated that the other accused persons were also seen by her for the first time-on the day of the incident. She also admitted that the house of her father is surrounded by the house of other persons, including that of Uda. Manga, Bhanwariya and Ganesha She further stated that she was rescued from the appellants from a room which was locked from outside.

PW/3,Smt. Chaini, is the mother of Mst. Tulsi. She only names Ganesh appellant as the person who had come to her house along with 5 or 6 other persons. She further stated that when she resisted in forcibly taking of her daughter, she was given a lathi blow by the appellant Ganesh, She was confronted with her Police statement A to B of Ex. D/1, in which she has alleged that she was assaulted by all the accused persons But this witness has denied the said statement. She also admitted that she did not know the appellants Ganesh and Ghasi, prior to the incident. Then the learned trial court has made a note at the end of her statement that this witness was avoiding to mention the persons.

PW/4 Ganesh is said to be a neighbour who came to the house of Narain, after hearing the noise. He gave out the name of Ganesh and Ghasi only as the persons who had forcibly abducting Mst. Tulsi.

In cross-examination, he admitted that he did not see the appellant Ghasi at the time of the incident. He also admitted that he did not know the appellant Ganesh prior to the incident. He further stated that prior to the identification parade he had seen the accused persons.

These are the only eyewitnesses who have been examined by the prosecution, in support of the prosecution case.

A bare perusal of-these statements go to show that there are material contradiction in the statement of these witnesses as to who were the persons who had actually abducted Smt. Till It is further note-worthy that none of these, witnesses had identified any of the accused person in the court.

From the aforesaid statement the learned Counsel for the appellant submitted that it is not established beyond reasonable doubt that the accused appellants had abducted Mst. Tulsi. He further submitted that Mst. Tulsi was a major girl as the doctor had opined her age in between 16 to 18 year vide Ex. P/8 and this possibility cannot be ruled out that she might be above 18 years of age. According to him, there is not evidence on the record to prove the ingredients of Section 366 IPC and the offence u/s 366 IPC is not made out. He further submitted that either the incident did not take place in this manner as stated by the prosecution or it was a simple case of taking away of Mst. Tulsi to express anger, as she was married to Pema inspite of the betrothel with the appellant Ganesh.

Contrary to this, the learned Public Prosecutor supported the judgment of the trial court.

I have referred the statements of the eyewitnesses and from the statements it is very difficult to hold that all the accused appellants had participated in abducting Smt. Tulsi. It is note worthy that from the statements of the witnesses it appear that none of them knew any of the appellants from-before. It is further note-worthy that none of the witnesses has identified any of the accused appellants in the court. In the absence of identifying the accused persons in the court, to be the miscreants, in the abduction of Mst. Tulsi, the evidence of identification parade, is not relevant to connect the crime, as the said evidence is not substantive evidence. Further, from the statements of Mst. Tulsi and other witnesses it does not appear that the abduction of Mst. Tulsi was for any of the purposes mentioned in Section 366 IPC. Mst. Tulsi has simply stated that she was taken and was kept in a room which was locked from outside. She has no where stated that any of the appellants tried to compel her to marry with the appellant Ganesh or to have sexual intercourse against her wishes.

It is also noteworthy that the incident is of the year 1978. Unless and until the participation of the accused persons in the abduction of Mst. Tulsi is proved, beyond reasonable doubt, and unless it is further proved that abduction of Mst. Tulsi was for any of the purposes mentioned in Section 366 IPG,;I do not think it proper to maintain the conviction of any of the appellants.

Consequently, I allow this appeal. The conviction and sentences of the appellants, as recorded By the learned trial court are set aside. They are acquitted from all the charges. They are on bail and need not surrender.