DHOKAIRAM AND ANR. Vs. STATE

JUDGEMENT

(1.) This appeal is against the judgment dated 15.4.1976 of Additional Sessions Judge, Jodhpur whereby the appellants were convicted and sentenced rigorous imprisonment for two years and a fine of Rs. 100.00, in default to undergo further rigorous imprisonment for one month under section 366 I.P.C.

(2.) Briefly stated the facts as alleged by the prosecution were these. Moomli daughter of Chautharam was married to Bhanwaria son of Bhakharji of village Pinch. A year before the incident Bhanwaria expired. Moomli however, was not released from the marriage in the customary way. On 3.3.1973 at about 5 in the morning Moomli was at the house of her parents. The appellants with two more persons came there in a car. Chautharam father of Moomli and Sukhji his relative were sleeping in a room in the upper storey of his house. Moomli, her younger sister and mother were sleeping in the ground floor. It is further alleged by the prosecution that Moomli was taken away by force by the appellants. Chautharam and Sukhji heard an alarm and they saw Moomli was being taken away in the car. Moomli at that time was wearing various ornaments. Chautharam along with Sukhji Manglaram and Keraram took a tractor and chased them. They could not over take the appellants and, therefore, came to Jodhpur. In the evening Chautharam made a written report Ex.P.l before the Additional Superintendent of Police, Jodhpur. S.H.O. Police station Luni was directed to register a case under sections 366 and p I.P.C. The investigation was however, conducted by Pritam Singh, S.H.O. police station Jhanwar. It further transpires that Jogaram and Harlal also chased the appellants and found them with Moomli at the dhani of Dhanji. The appellants on seeing them ran away and Moomli was rescued by Jogaram and Harlal. They brought her to Jodhpur. Moomli since then is living with her in-laws. After completing the investigation, a charge sheet was filed before Munsif and Judicial Magistrate, First Class, Jodhpur, District Jodhpur, who committed the case. It was not disputed before the learned Additional Sessions Judge that age of Moomli was above 18 years. It was observed by the learned Judge that there was no dispute between the parties that Moomli was major. However, the learned Sessions Judge disbelieved the defence that Moomli went away of her own accord with the connivance of her parents with the appellants and thereafter for some reasons the appellants were falsely implicated. The learned Additional Sessions Judge believed Moomli and her parents and came to the conclusion that Moomli was abducted.

(3.) I have heard the learned counsel for the appellants and the learned Public Prosecutor and perused the record of the case carefully. It is strenuously argued by the learned counsel for the appellants that certain circumstances overwhelmingly lead to an inference that in all probability Moomli was not abducted and she was taken away by the appellants with her consent and the connivance of her parents. My attention was drawn to various circumstances in this regard and the infirmities in the prosecution case. On the other hand the learned Public Prosecutor supported the judgment of the trial court. At this stage I may read the statement of PW 1 Moomli. She stated that she was married with Bhanwaria deceased. After his death she was living with her parents. Sukhram is the father-in-law of her younger sister. On the date of incident she was sleeping in a room. In another room in the ground floor her mother and younger brother and sister were sleeping. Her father Chautharam and Sukhji were sleeping in the upper storey. Appellants Dhokalia and Bhanwaria came there. Bhanwaria gagged her and she could not cry. By force they made her enter into a car and then her mother cried. Her father and Sukhji came down. Appellants namely Dhokalia and Bhanwaria are her relations and she know them since before. Dhokalia told her that she would be compelled to marry him. She was taken in the car to the house of Dhokalia in village Dholi and from there to the dhani of Dhanji. They were not permitted to stay there so they went away to another dhani. One of the co-accused Dhania (acquitted) came there and said that they were being chased and therefore, take her away. She was asked to ride on a mare but she refused. Then Harlal, Sukhram and Jogji came there and they asked that she be handed over to them. Dhokalia had a lathi and Bhanwaria, a hockey with them. They rescued her from the appellants and took her to Jodhpur. In the cross examination she admitted that now she has been married with Sukhji, the younger brother of her deceased husband. At Jodhpur she was handed over to her in laws. After the incident she never had the occasion to meet her parents, She in the first instance refused to marry the younger brother of her deceased Husband but was compelled to do so by her father-in-law. While she was asked to ride the mare, she fell down and received a few injuries. She also deposed to a fight between the appellants and her rescuers.She admitted that she know Gorakh and Delva but they were not with the appellants at the time of abduction. They met her at the house of Dhokalia but she made no complaint to them though they were her relations. She denied this suggestion that she had a love affair with Dhokalia.