S.C. Agrawal, J
1. This appeal has been filed by the appellants Ram Bharose, Harphool, Man Singh and Badna against the judgment dated 16th June, 1977 passed by the Sessions Judge, Bharatpur in Sessions Case No. 84/76. In the sessions case aforesaid appellant Ram Bharose was prosecuted on charges under Sections 327, 363/ 336, 392/394, 376 and 379, IPC. The other three appellants viz , Harphool Mansingh and Badna, were prosecuted on charges under Sections 327, 363/366 and 392 and 392/394 IPC. The Sessions Judge has convicted the appellants under Sections 323 and 366 IPC, and has acquitted them of all other charges. Appellant Ram Bharose has been sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 100/- under Section 366 TPC and to rigorous imprisonment for six months under Section 325 IPC. The other three appellants have been sentenced to rigorous imprisonment for two years and to pay a fine of Rs. 100/- each under Section 66 IPC and to rigorous imprisonment for six months under Section 323 IPC.
2. The case of the prosecution is that on 1st March 1975 at about l.30 to 2 p.m. Ramdas PW 1 and his sister Rajjo PW 2, left their house at Paharpur for going to Paprera. While they were passing through the jungle near Kheria and Samari at about 7.30pm. the four appellants came and surrounded them and assaulted both of them. As a result of the injuries sustained by them both Ram Das and Rajjo became unconscious and Rajjo was carried away by the appellants. Ramdas regained consciousness at about 4 a.m. and returned to his village and informed his father about the incident and thereafter a report (Ex. P. 1) was lodged at police station Roopbas on 2nd March, 1975 at 9.5 a.m. In the said report it was stated that Ramdas. and Rajjo were going to buy buffalos & that Ramdas was carrying Rs. 500/-with him and that Rajjo was having, on her person, a gold chain weighing 1 1/2 tolas, gold earrings weighing 1 tola, gold rings weighing two tolas and one wrist watch. In the report it was also stated Kamdas was also having a wrist watch on his person and that his wrist watch and the sum of Rs. 500/-were removed from his person. On the basis of the said report, a case under Sections 366/379 and 323 IPC was registered. The injuries found on the person of Ramdas were examined by Dr. S.L. Agrawal, Medical Officer, Primary Health Centre, Roopbas on 2nd March, 1975 at 7 a.m. vide injury report Ex. P. 10. The investigation of the case was conducted by head constable Mehar Singh PW 6 who was Incharge of police station Roopbas at the time. Meharsingh went to the scene of occurrence and recovered one shoe and broken pieces of glass bangles from the scene vide seizure memo (Ex. P. 6). Rajjo is said to have been recovered from, the house of appellant Ram Bharose by Keshariya, the father of Rajjo, and was produced odors the police and a recovery memo (Ex. P.7) about the said recovery was prepared on 7th March, 1975 at 30 p.m. Thereafter Rajjo was medically examined. by Dr. S.L. Agrawal on 8th March 1975 and certain injuries were found on her person vide injury report (Ex P. 9). In the aforesaid report Dr. Agrawal has stated that the age of Rajjo was above 18 years and trie injuries were of about 7 days duration. Dr. Agrawal also opined that no definite opinion could be given about rape till the receipt of the report from the chemical examiner. After completing the investigation the police submitted a challan against the appellants before the Munsif-cum-Judicial Magistrate, Bayana, and the appellants were committed to the court of Sessions for trial on the charges mentioned above.
3. The prosecution, in support of its case, examined seven witnesses out of whom Ramdas PW 1 and Mst. Rajjo PW 2 are the eye witnesses of the occurrence. The appellants, in their statements recorded under Section 313 Cr.P.C. pleaded not guilty and submitted that they bad been falsely implicated.
4. The Sessions Judge has held that on the basis of the evidence of Ramdas PW 1 and Rajjo PW 2 it was established that all the four appellants had surrounded both of them and had assaulted them with a view to abduct Rajjo and that Rajjo was abducted with a view that she may be forcibly married to Ram Bharose or she may be forced to have sexual intercourse with him. The Sessions Judge, therefore, convicted the appellants for the offence under Sections 366 and 323 IPC. The Sessions Judge, was however, of the view that the prosecution had failed to establish beyond reasonable doubt its case about removal of the ornaments from the person of Rajjo by the appellants or the removal of the wrist watch and the sum of Rs. .100/-from the person of Ramdas PW 1. The Sessions Judge was also of the view that the prosecution has failed to establish that Rajjo was raped by appellant Ram Bharose. The Sessions Judge, therefore, acquitted appellant Ram Bhorese of charges under Sections 392/394, 376 and 379 IPC and acquitted the other appellants of the charges under Sections 327, 363, 392/394 IPC Being aggrieved by their Conviction for the offences aforesaid and the sentences imposed on them, the appellants have filed this appeal.
5. I have heard Shri S. K. Goyal, the learned counsel for the appellants, and the learned Public Prosecutor and I have also carefully perused the record.
6. Ramdas PW 1 has deposed that while he and Rajjo were passing through the jungle near Kheria and Samari at 7.30 p.m. the appellants and one Lachari surrounded them and that the appellants were armed with lathis and knife and that appellants Ram Bharose caught hold of him and asked them where they were going and when they said that they were going to meet there niece, Kara Bharose caused injuries with the knife on the thumb as well as the mouth of the witness and other four persons inflicted injuries with lathis and as a result of the said injuries he became unconscious and that the assailants left him there and took away his sister Rajjo with them. Ramdas has also stated that he was wearing a wrist watch on his hand and that the same was removed and the bag which contained Rs. 300/- in cash was also taken away by the accused person. During the course of cross examination the said witness was confronted with his statement (Ex.D1) recorded before the police under Section 161 Cr. P. C. wherein he had stated that Ram Bharose had inflicted injuries on his person with a lathi and that the sum of Rs. 500/- was lying in his pocket.
7. Rajjo PW 2 has stated that while she and Ramdas were going, at about 7.30 p.m., they were surrounded by seven persons including the appellants and that apart from the appellants the other three persons were Lachari Ram Swaroop and Shibbo. She has also stated that Shibbo was armed with a knife and the other six persons were armed with lathis and that Shibbo had indicted the injuries on the person of her brother with the knife and Where after Lachari had inflicted 2-3 lathi blows on his person. According to Rajjo none of the other accused persons took part in the assault She has also stated that Shibbo and appellant Ram Bharose threw stones towards her and as a result of the injury sustained by her she became unconscious. She has also stated that she had with her a bag containing a sum of Rs. 500/-. According to this witness all the seven accused persons lifted her and carried her to a wheat held of Ram Bharose and that one of her shoes and a shoe of appellant Ram Bharose were left on the scene and the bag was also left there She has also staled that she regained consciousness at night and at that time all the accused persons were present there and appellant Ram Bharose and accused. Shibbo removed the ornaments from her person and appellant Ram Bharose also removed her wrist watch. She has, however, stated that her watch was not amongst the watches which were shown to her in the court. She has further stated that at about 6 a.m. the five accused persons other than appellant Ram Bharose and accused Shibbo left the scene and after they had gone away, appellant Ram Bharose committed rape with her and at about 3 p.m. she was taken to the house of Ram Bharose where she was kept forcibly for eight days till her father came to take here away.
8. The evidence of Ramdas PW 1 and Rajjo PW 2 shows that both are consistent that appellant Ram Bharose was one of the members of the party which had surrounded Ramdas and Rajjo and had assaulted them and had taken away Rajjo from the scene of the occurrence. The evidence of Rajjo also shows that she was kept in the house of Ram Bharose against her will and that after 8 days she was taken away from the house of Ram Bharose by her father and other persons. The fact that Rajjo was recovered from the house of Ram Bharose is also established from the evidence of Ramjilal PW 4.
9. From the evidence aforesaid it is established that appellant Ram Bharose was one of the accused persons who had surrounded Ramdas and Rajjo in the jungle near Kheria and Samari at about 7 p.m. and that Ram Bharose had assaulted Ramdas as well as Rajjo and further that Ram Bharose was the person responsible for removing Rajjo and keeping her in his house against her will. Although the Sessions Judge has found that the case of the prosecution that rape had been committed on Rajjo by Ram Bharose had not been proved beyond reasonable doubt, but on the basis of the evidence of Rajjo it can be said that appellant Ram Bharose had abducted Rajjo against her will in order that she may be forced or seduced to illicit intercourse. In the circumstances appellant Ram Bharose has been rightly convicted by the Sessions Judge for the offence under Sections 366 and 323 IPC and I find no reason to Interfare with the same. It may be observed that the Sessions Judge while imposing the sentence of fine of Rs. 100/- for the offence under Section 368 IPC has not given any direction about the sentence of imprisonment to be undergone by the said appellant in the payment of fine. I would uphold the sentence awarded by the Sessions Judge with the further direction that in the event of default in payment of the fine of Rs. 100/- imposed under Section 366 IPC, the appellant Ram Bharose will undergo rigorous imprisonment for a further period of three months.
10. In so far as the other three appellants are concerned, I find that Rajjo in her statement has not assigned any specific role to them. Rajjo has deposed that the injuries on the person of her brother ware inflected by Lachari and Shibbo and no other person had taken part in the assault, and that injuries on her person were caused by Ram Bharose and Shibbo by throwing stones. In view of the statement of Rajjo it cannot be said that the prosecution has established beyond reasonable doubt that appellant Harphool, Man Singh and Badna had caused any injury on the person of Ramdas and Rajjo. The conviction of the aforesaid appellants under Section 323 IPC cannot, therefore, be sustained.
11. As regards the conviction of these appellants for the offence under Section 366 IPC, it may be observed that Rajjo has deposed that these three appellants had left the scene of the occurrence at about 6 a.m. and after they had gone, Ram Bharose had committed rape or. her and subsequently she was taken away to the house of Ram Bharose. There is nothing in the statement of Rajjo to show that these three appellants had taken any part in forcing Rajjo to have sexual intercourse with Ram Bharose, or that they had forcibly removed her to the house of Ram Bharose. In the circumstances, I am of the opinion that the prosecution has failed to establish that these three appellants were guilty of offence under Section 366 IPC. The conviction of these appellants for the offence under Section 366 IPC cannot also, therefore, be sustained.
12. In the result, the appeal is partly allowed. The conviction of appellant Ram Bharose for the offence under Section 366 & 323 IPC & the sentence imposed on him by the Sessions Judge for the aforesaid offence is maintained, and it is directed that in the event of nonpayment of the fine of Rs. 100/- that has been imposed on him, the appellant Ram Bharose shall undergo rigorous imprisonment for a further period of three months. The conviction of appellants Harphool, Mansingh and Badna in respect of offences under Sections 366 and 323 IPC and the sentences imposed on them for the said offences are set aside.