Kanta Bhatnagar, J.
1. The appellants along with six others (since acquitted) were tried by the learned Sessions Judge, Bhilwara, for the charges of abduction of Smt. Ladu and causing injuries to her, her brother and parents. The learned Sessions Judge held the appellants guilty for the offence under Sections 366, 147, 325/149, 323 and 323/149 I.P.C. By the judgment dated 3-1-77, the learned Sessions Judge sentenced all the appellants for the offence under Section 147 I.P.C. to one year's rigorous imprisonment. For the offence under Section 366 I.P.C. they all were sentenced to three years rigorous imprisonment and a fine of Rs. 200/-, in default to further undergo two months rigorous imprisonment. For the offence under Section 325/149 I.P.C. they were sentenced to two years rigorous imprisonment and a fine of Rs. 100/-, in default to further undergo one month's simple imprisonment. Appellant Uchab was sentenced to six months rigorous imprisonment for the offence under Section 23 I.P.C. The other five appellants were sentenced to one month's simple imprisonment for the offence under Section 323/149 I.P.C. The substantive sentences for the various defences were ordered to run concurrently. Being aggrieved by their conviction and sentences the appellants have preferred this appeal in this Court.
2. Succinctly narrated the prosecution case leading to the trial of the appellants and the present appeal is as under: Ekling (P.W. 3) had married his son Devilal with Smt. Prem, sister of appellant Ramprasad & Ramgopal five or six years back. In exchange of it Ekling agreed to give in marriage his daughter Smt. Ladu (P.W. 1) to appellant Ramprasad. The betrothal ceremony in consequence to this promise was performed. Subsequently relations between Motilal, father of Ramprasad and Ekling, father of Smt. Ladu became strained and Ekling & his wife Smt. Bali (P.W.2) gave their daughter Ladu in marriage to someone else. Motilal, father of Ramprasad appellant, therefore detained his daughter Smt. Prem at his house. It is alleged that on 11-8-74 at 7.30 a.m., the six appellants, armed with lathis, entered the house of Ekling and gave a beating to him and his wife Smt. Bali and his son Rameshwar (P.W. 5). Then the appellant forcibly took Smt. Ladu from her house and took her in the jeep to the house of appellant Ramkuwar at village Chouki. They tried to perform the marriage ceremony with Ramprasad but the girl did not agree and was given a beating. Thereafter, she was taken to village Nimbhahera and was kept at the house of Shanker Brahmin for three days. On 11-8-74 Devilal, brother of Smt. Ladu expired. Dulesingh Pagaria was sent to lodge the report regarding the death of Devilal. He went to police station Bigod on the same day and informed P.W. 4 Sri Krishna, Head Constable, Incharge of that police station. Sri Krishna went to the house of Ekling. There he came to know about the incident of abduction of Smt. Ladu. He prepared the report Ex. P. 1 and sent it to police station Bigod for registering the case. Sri Krishna inspected the site and prepared the site inspection memo Ex. P. 2 and site plan Ex. P. 3. He got the postmortem examination of Devilal conducted. The report of the post mortem examination disclosed that Devilal had died on account of poisoning. Four or five days after the occurrence maternal uncle of Smt. Ladu went with the police to Nimbahera and recovered her. Dr. Surendra Kumar Lodha (P.W. 11) examined the prosecutrix for her age. The same Doctor had examined Rameshwar on 12-8-74, Smt. Bali and Ekling on 14-8-74. The Doctor noted two simple injuries on the person of Rameshwar, three simple and one grievous injury on the person of Smt. Bali and five simple injuries on the person of Ekling. After necessary investigation in the case, charge-sheet against these appellants along with six others was filed in the court of the Munsif & Judicial Magistrate, Mandalgarh. The learned Magistrate finding a prima facie case exclusively triable by the court of sessions committed all the accused to the court of sessions to stand their trial. The learned Sessions Judge proceeded with the trial. Prosecution examined 11 witnesses in all Appellant Ramprasad alias Ramgopal and Hiralal in their statements under Section 313 Cr. P.C. stated that Devilal deceased, brother of Smt. Ladu had sent Smt. Ladu with them and told them that he would come and perform the marriage ceremony. That there was a quarrel between Devilal and his family members. Because of Devilal's death, this false case has been concocted. Accused Manga, Uchablal, Khaba, Kalyan and Ramkuwar stated about the assemblage of the Panchayat and the false implication of the accused in the matter because they had participated in the panchayat. All the accused denied the various allegations levelled against them. Two witnesses were examined from the defence side to substantiate the plea taken by the accused in their statements. The learned Sessions Judge held the prosecution case established and passed the judgment under appeal.
3. I heard Shri Bhim Raj Purohit, learned Counsel for the appellants and Mr. M.C. Bhati, learned Public Prosecutor for the State and gave my anxious consideration to the material on record.
4. Mr. Purohit assailed the findings of the learned trial Judge on a number of grounds. It has been strenuously contended by him that prosecution has not come with clean hands. That, the important circumstance of the death of Devilal on the day of the alleged occurrence itself and the investigating officer having not been examined to state as to what investigation was made in that concern and with what result, throws doubt on the prosecution case and lends support to the defence case that Smt. Ladu was willingly sent by her brother Devilal for being married to Ramprasad and on the death of Devilal in a quarrel between him and his parants, this case has been conceded. Regarding the finding of age of the prosecutrix, the contention of Mr. Purohit is that prosecution has not succeeded in proving that the girl could not have been in any case above 18 years of age. Dealing with the injuries noted by the Doctor on the person of Smt. Ladu, her parents and her brother Rameshwar, the argument advanced is that they might have been caused in the course of quarrel between Devilal and her family members. About the alleged grievous injury of Smt. Bali, the fracture of fifth metacorpal bone, Mr. Purohit submitted that in the absence of any x-ray, the injury can not be said to be grievous in nature. According to the learned Counsel failure on the part of the prosecution to examine the investigating officer coupled with the inordinate, unexplained delay in sending the First Information Report to the concerned Magistrate and the inconsistent statements of prosecution witnesses are sufficient to shatter the prosecution case and the conviction can not be said to be justified.
5. The learned Public Prosecutor met out these arguments by submitting that from the medical evidence as well as the statements of the prosecution witnesses, it has been proved that Ladu was below 18 years of age and that the death of Devilal even though on the day of occurrence itself and whatever be the cause for his death in no way strengthens the defence case. That, the Investigating Officer could not have thrown any light on the prosecution case, and, therefore, his non-examination does not damage the prosecution case.
6. First of all, I will discuss the evidence regarding to the age of the prosecutrix Smt. Ladu. At the time of her statement in the court on 6-9-74 she could not tell her age and the estimate of the court was 20 years. Smt. Bali, mother of the girl has stated her age to be 17-18 years. Dr. Surendra Kumar Lodha had clinically examined Smt. Ladu on 18-8-74 for ascertaining her age. The Doctor on the basis of clinical examination and the number of teeth considered her to be between 16 to 18 years of age. The Doctor advised x-ray of the joints for getting the definite opinion about the age. Dr. Ganga Singh Lodha, who had written Ex. P. 9: the x-ray report, having gone to Iran, Dr. Surendra Singh Lodha proved the x-ray report. He proved Ex.P.9 to be in the hand writing of and signed by Dr. Ganga Singh Lodha. He referred to the opinion of Dr. Ganga Singh Lodha on the x-ray plate Ex. P. 10 to the effect that Smt. Ladu was below 18 years of age.
7. Mr. Purohit referred to the principle enunciated in the case of State of Rajasthan v. Ibrahim 1959 RLW 269, that the evidence of Expert is valuable one when based on technical scientific data. In that case it was observed as under:
The evidence of a medical officer is certainly helpful as an opinion of an expert but in order to enable the court to rely upon such an opinion, it is necessary that such experts should bring their technical scientific knowledge to bear upon the matter which is referred to them for their opinion. It is not sufficient to give some indications which can be observed even by a laywan.
In the present case, Dr. Surendra Kumar Lodha who had clinically examined Smt. Ladu has not given the data for his conclusion. It is not evident who actually took the x-ray. Dr. Surendra Kumar Lodha had only narrated what was written on the x-ray plate, but has not claimed to be an expert. According to Ex. P. 10, as stated by Dr. Surendra Kumar Lodha, the lower ends of radius and ulna have not fused. It is not clear as to whether the x-ray of both the upper extremities was taken or not. It will be profitable in this concern to refer to the opinion of Modi in his treatise Medical Jurisprudence and Toxicology. The learned Author at page 31 of the book (twentith Edition has expreased as under:
In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, and an opinion should be given according to the following table but it must be remembered, that too much reliance should not be placed on this table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricties of development.
The learned Author than opined that the recent work has shown that range of error may be upto three years. The diet, climatic condition and surrounding environment also play an important role in the development of a person and may also affect the fusion of the growth. In the present case the Doctor had x-rayed only one joint of the body and, therefore, I find force in the arguments of the learned Counsel for the appellants that prosecution has not proved beyond doubt that Smt. Ladu was decidedly below 18 years of age at the relevant time.
8. The important point for the consideration, in view of the prosecution evidence and the defence plea, is whether Smt. Ladu was forcibly taken away by the accused or she was sent by her brother Devilal. This is the admitted position that Devilal, brother of the prosecutrix was married to Smt. Prem, sister of Ramprasad appellant. This is also not in dispute that in exchange to that marriage Ekling, father of Smt. Ladu had betrothed her to the appellant Ramprasad and the betrothal ceremony had taken place. Smt. Ladu had also admitted that she had received the clothes and the ornaments from the side of Ramprasad for the engagement. The case of the prosecution is that because of Ekling going back to his promise to marry Smt. Ladu with Ramprasad, Motilal, father of Ramprasad had detained his daughter Smt. Prem, wife of Devilal at his house. The argument of Mr. Purohit is that in such circumstances, Devilal naturally must have been keen to marry his sister to Ramprasad so that his wife Smt. Prem may come to his house. Rameshwar, brother of Smt. Ladu has admitted that Ramprasad's sister married to Devilal, had gone away from his house 12 months prior to the occurrence. It is evident from the prosecution witnesses that there was the Panchayat in connection with the reluctance of Ekling to give his daughter in marriage to Ramprasad. Smt. Bali, mother of the girl has admitted her daughter being betrothed to Ramprasad but she has denied to have sent any 'Lagan' (Invitation for marriage) for Smt. Ladu. She expressed ignorance about the villagers doing so. Babulal (PW 8) who is the brother-in-law of Smt. Ladu, being the husband of her cousin (maternal uncle's daughter) has admitted that a panchayat was called at the village and the 'Lagan' of Smt. Ladu was sent to the house of Ramprasad. The witness then stated that thereafter the ornaments were returned and Ladu was betrothed at village Rainwas. According to Babulal (PW 8) the Lagan was written by his brother. Banshilal (PW 9) another relative of the girl has admitted about the panchayat having assembled in connection with Smt. Ladu's marriage. According to the witness in that panchayat Devilal was made to write the 'Lagan'. The prosecution case about the girl having been married prior to the incident does not stand substantiated. The only evidence on the point is of Smt. Ladu. She has deposed that when at Ramkuwar's well she was asked to marry Ramprasad, she denied on the ground that she had already been married. Ekling does not speak about Smt. Ladu having been married to anybody prior to the occurrence. Smt. Bali also stated about the engagement with Ramprasad and does not speak of the girl being betrothed to anybody else. Babulal (PW 8) speaks about the engagement with somebody at Rainwas but not about the marriage of Smt. Ladu with any one.
9. In this back ground now I will examine whether the defence version about Devilal willingly sending his sister with Ramprasad arid Hiralal and assuring them that he would come and perform the marriage ceremony is at all believable. Banshilal's contention about Devilal writing the 'Lagan' and Babulal's version about the 'Lagan' being sent to Ramprasad shows that there was some decision at the intervention of the panchas regarding the marriage. Devilal being deprived of his wife because of his parent's reluctance to give their daughter in marriage to Ramprasad, brother-in-law Devilal, must have felt aggrieved on the conduct of his parents. The fact of Devilal dying on the same evening has been lightly taken by the prosecution, but in my opinion it was an important factor which, if taken into consideration, would have thrown light on what might have actually happened on the day of the occurrence.
10. Shri Krishna, Head Constable had only sent the First Information Report Ex. P 1 to police station and had inspected the site and prepared the memos to that effect and had recorded statements of Ekling and Smt. Bali. The Sub-Inspector of Police Station Bigod who had taken the charge of the subsequent investigation of the case has not been examined and, therefore, the defence was deprived of an opportunity to know the line of investigation and also to find out as to what was the result of the investigation relating to the death of Devilal in suspicious circumstances. It is note worthy that Shri Krishna has stated that Devilal's post mortem examination was conducted and the opinion according to the post mortem examination was that Devilal had met his death because of taking poison. The Investigating Officer in such circumstance was a material witness in the case and his non-examination has placed the defence in a dis-advantageous position.
11. In the case of Niru Bhagat v. Emperor A.I.R. 1922 Patna 582, their Lordships emphasizing the importance examination of material witnesses were of the opinion that non production of material witnesses like the investigating officer is a serious omission which cannot but throw suspicion on the whole prosecution case.
12. Devilal's death in itself would not have been a circumstance affecting the prosecution case, but in view of the prosecution case that his wife was detained by the father of Ramprasad and Panchayat had taken place in which Devilal wrote the 'Lagan' which was sent to Ramprasad, coupled with the defence plea that it was Devilal who invited Ramprasad and Hiralal and willingly sent Smt. Ladu with them with the assurance that he would perform the marriage ceremony. Devilal's death on the same day assumes importance.
13. A very important circumstance in the case, raising suspicion on the prosecution version is that nobody had cered to lodge information about the alleged abduction of the girl. The occurrence is said to have taken place, in the morning of 11-8-74. Devilal had expired on the same day, but the time of death is not known from the record. Dulesingh Pagaria, person who went to the police station Bigod to inform about the death of Devilal has not been examined and, therefore, what message he was asked to convey at the police station is not known. Shri Krishna, Head Constable, Incharge of the police station had stated that on receiving information about the death of Devilal Brahmin, he had gone to the village Jojva for investigation. He has specifically not stated that about the abduction of the girl told. The witness states that it was after reaching to village Jojva that on inquiry from Ekling, Mst. Bali and Rameshwar, he knew about it and wrote the report Ex. P. 1. Pertinent it is to note that, Rameshwar according to his own version has left the, house prior to his sister being taken away by Ramprasad and others, and had not returned till next day. His giving any information to Shri Krishna on the day of the occurrence regarding the abduction of the sister is therefore not at all believeable. At this point, it may also be noted that Rameshwar had gone to Bigod on the same day, after Ramprasad and others are said to have gone to his house and picked-up quarrel, but he had not lodged any information at police station, Bigod or even at Bhilwara where he had thereafter gone. Rameshwar was a grown-up boy about 20 years at the time and it could be expected of him to seek the help of police if there was any danger to his parents or sister. Smt. Bali does not speak of her having any talk with Shri Krishna head constable, Ekling, father of the girl clearly states that Dulesingh had gone to lodge a report about the death of Devilal and not relating to the girl. He further stated that when the Sub-Inspector reached there at the information of Dulehsingh, he did not narrate to him the occurrence of abduction of the girl.
14. All these circumstances lead to the conclusion that prior to the death of Devilal and the Head Constable reaching the house of Ekling in pursuance of the information by Dulehsingh Pagaria regarding the death of Devilal, nobody had taken care to lodge any information with the police or to assemble the villagers or to chase the miscreantss to rescue the girl from their clutches. What happened of Ex. P. 1 sent by Shri Krishna at police station is not known. It is also not known whether any F.I.R. was chalked out at the police station and whether the information was at all sent to the concerned Magistrate, what to talk of sending it in time.
15. Mr. Purohit has vehemently argued that this is a case of no information at all. According to him, even believing the version of Shri Krishna that Ex. P. 1 was scribed by him and sent to the police station still what happened to thereafter and what steps were taken is not known. Emphasizing the importance of the First Information, Report and its being sent in time to the concerned Magistrate, Mr. Purohit referred to the case of Ishwar Singh v. The State of Uttar Pradesh : 1976CriLJ1883 , wherein the un-explained delay of two days in sending the First Information Report to the Magistrate was held to be non-compliance of the provisions of Section 157 Cr. P.C. and, therefore, damaging to the prosecution case.
16. Evidently the prosecution has not cared to bring true and relevant facts on the record to enable the court to arrive at a correct conclusion.
17. The next point requiring determination is whether the defence version about the displeasure between Devilal and his parents and Devilal willingly sending his sister has legs to stand. Smt. Ladu has stated that she was living at 'Suthepa' with his maternal uncle prior to the occurrence and also living at his father's house at Jojva, for some time. According to witness her brother Devilal had brought her to 'Jojva' on the festival of 'Raksha Bandhan'.
18. All the witnesses examined in the case about the actual occurrence in the house are related and interested in the prosecution. Rameshwar happens to be the brother of the girl. He had left the house immediately after the arrival of Ramprasad and others. Ekling and Bali, parents of Ladu were interested in breaking her betrothal with Ramprasad and so naturally inimical to the accused party. Shahker Puri (PW 7), a neighbourer had neither seen what had happened inside, nor the beating. He had simply stated about the girl being taken by the accused party. Bansilal and Ghisu Lal are said to be there in the house at the time of the incident. Ghisulal had not been examined. Ghisulal is the real cousin (son of maternal uncle) of Smt. Ladu. Witness Babulal happens to be the maternal uncle of that Ghisulal. Thus he also cannot be said to be independent witness. There is of course no specific evidence regarding the quarrel between Devilal and his parents. Smt. Bali and Ekling both have denied at the trial the suggestion of Devilal willingly sending his sister with Ramprasad. Attention of Ekling was drawn to his police statement Ex P 3 recorded by Shri Krishna where at portion 'A to B' he has stated about the quarrel between his wife and son Devilal concerning the girl. The witness denied to have stated so. His attention was also drawn to portion 'C to D', where he has stated that after the occurrence his son Devilal went away from the house and returned after two or three hours. The witness disowned that version also. Version given in the police cannot be taken help of at the trial, but the inconsistencies in the statements of the witness at two stages create suspicion about reliability and credibility of his testimony. The denial of Ekling and Smt. Bali about there being any quarrel between them and the son Devilal can not be believed in view of the subsequent circumstances, that is, Devilal meeting his death that very day and was narrated by Shri Krishna the post mortem report giving out that the death was on account of taking poison. Taking help from these circumstances Mr. Purohit has built up the argument that Devilal inclined to bring his wife Smt. Prem must have sent the 'Lagan' to Ramprasad. That on Ramprasad and Hiralal going to the house of Devilal at his invitation Devilal must have sent his sister with them. That because of his parents objecting to it, Devilal might have assured Ramprasad to perform the marriage after-wards. The learned Counsel further contended that the fact that the quarrel must have taken place between the parents and son is evident from the son bringing his own life to an end on the same day. As the relevant record in that concern is not before the Court it is not known as to what had actually happened, but this conclusion at least can be drawn that the origin of quarrel, even if any, is not what the prosecution witnesses have stated. It so appears that some important factor is concealed and relevant material has been witheld by the prosecution. The defence brought forth from the cross-examination of the prosecution witnesses, the version of the appellants in their statements under Section 313 Cr PC and the statement of Nagji Ram (PW 1) that Panchayat had sent the 'Lagan' of Smt. Ladu for her marriage to Ramprasad and Devilal sending the girl with Ramprasad probablises the defence theory. It is also to be taken note of, that in case where prosecution has failed to establish its case with cogent, convincing evidence, the probable defence story assumes importance and tie Court cannot shut its eyes to those facts on record which lend support to the defence.
19. From the above discussion, the prosecution case about the appellants forcible taking away the girl becomes unbelieveable. The defence version about Devilal sending the girl also finds support from the statement of Smt. Ladu. According to her she was taken to village Chowki to the well of Ramkuwar. Ekling has admitted that Ramkuwar was his brother-in-law. Mr. Purohit's contention is that this fact clearly shows that Devilal directed Ramprasad to keep the girl at the well of his uncle Ramkuwar so that he may perform the marriage ceremony there. The learned Public Prosecutor has laid much emphasis on the statement of Hazari, the driver of the jeep and submitted that he had filed a report Ex P 4 at Bigod police station regarding the girl being taken away forcibly. It is pertinent to note that the Investigating Officer having not been examined, the portions of Ex P 4 which are inconsistent with the statement of the witness at the trial could not be proved and the defence had to suffer for it. Otherwise also the witness could not stand the cross-examination well. He has also stated that if there would have been any noise, he would not have taken t he girl in the vehicle. He has also not stated as to when and with whom he had lodged the information and what had happened of it thereafter. Even assuming for the sake of argument the Hazari had taken the girl and the appellants were there in the vehicle still it does not prove the prosecution case that the girl was forcibly taken away from her husband, nor does the statement in any way damage the defence version that Devilal had willingly sent his sister with Ramprasad. Mr. Purohit has vehemently contended, and I too find force in the argument that when Smt. Ladu was betrothed to Ramprasad; the betrothal ceremony had taken place; the girl had received clothes and ornaments from Ramprasad; the Panchayat had assembled and Devilal wrote and sent the 'Lagan', then Ramprasad going to the house of Devilal was not an offence. As evidence from the circumstances discussed above, there is probability in the defence version that Devilal had sent his sister with Ramprasad and Hiralal. The case of abduction therefore can not be said to be substantiated against the appellants.
20. Coming to injuries of the prosecution witnessess, at the very outset it may be observed that in the absence of any x-ray, it cannot be said that the injury on the finger of Smt. Bali was grievous in nature. There are only two minor abrasions on the person of Rameshwar. Beside the injury on the finger there are only three bruises sustained by Smt. Bali. Similarly except one wound of 2 cm. in length on the finger, the injuries of Ekling are either abraisions or swelling. The injuries of Ladu are very superficial being abrasions and swelling.
21. Mr. Bhati, learned Public Prosecutor has contended that even assuming for the sake of argument that Devilal had invited Ramprasad and Hiralal to his house and sent the girl to the house of Ramkuwar to be married to Ramprasad, still the act of the appellants in causing injuries to Smt. Ladu and her parents and brother makes the appellants liable to punishment for that count. Mr. Purohit's contention on the other hand, is, that, when the prosecution is concealing the real facts, it can not be said with certainty that the injuries were caused at the hands of the appellants and not in a quarrel amongst the prosecution witnesses and deceased Devilal. It has also been argued with force that the fact of Devilal dying on the same day in the circumstances stated above, shows that something serious must, have happened between him and his parents. Though in the absence of specific evidence it can be said as to what exactly might have happened, the probability of the injuries being sustained in any quarrel between Devilal and other member of the family can also not to be ruled out. When the prosecution comes with a specific case, it must establish it beyond reasonable doubt. In the present case in the light of the detailed discussion above, I am constrained to observe that prosecution has not cared to bring the true facts before the court; material witnesses have been left unexamined and the defence version is probable. This is therefore not a case in which it can be said that the prosecution the brought home the guilt against the appellants beyond all shadow of reasonable doubt. In these circumstances, it is a case in which benefit of doubt should be extended to the appellants and their convictions and sentences be set aside.
22. Consequently the appeal is allowed. The judgment of conviction; and sentence awarded to the appellants are set aside. They are acquitted of the charges levelled against them. They are on bail and need not surrender to it. Their bail bonds stand discharged.