Kanta Bhatnagar, J.
1. Appellants Gokul and Gordhan were tried for the offences under Sections 366 and 363 IPC by the Addl. Sessions Judge, Bhilwara. The learned trial Judge held Gokul guilty for the offence under Section 366 IPC and Gordhan for the offence under Section 366/409 IPC. On October 22, 1977 the learned Judge sentenced Gokul for the aforesaid offence to six months RI and a fine of Rs. 500/-, in deafult to undergo three months RI. Gordhan was santenced to four months RI and a fine of Rs. 300/-, in deafult to undergo two months RI for the offence under Section 366/109 IPC.
2. Being dissatisfied by their conviction and sentences, the two appellants have preferred this appeal in this Court.
3. Briefly stated the facts of the case giving rise to the appeal are as under:--On March 11, 1977 Jagroop (PW 1) lodged the report at Police Station, Kareda to the effect that on March 9, 1977 Smt. Lahari aged 27 years along with her three children was going from her father' shouse to Nayapura. When she reached somewhere near Rooppura in the afternoon, a jeep propaganding for congress election reached there. Ismail, Panna Balai, Srilal, Nanda, Bherusingh, Hukamsingh and Devi Singh were there in the jeep. The driver of the jeep was Gordhan. The person boarding in the jeep forcibly caught hold of Smt. Lehari and her two children and forcibly took them in the jeep Meva aged about 10 years old son of Smt. Laheri made good to his escape and went to Naya-Talab. He informed his uncle Jagroop about his mother being taken in the jeep Jagroop and others went in a search of Smt. Lehari but she was not traceable. Smt. Lehari was then escorted to the house of her husband Raimal and informed Jagroop of her sister Smt. Sarju who was residing at Miyapala ka-Kheda. As stated above Jagroop went to Police Station, Kareda on March 11, 1977 and lodged the report at 10.30 p.m. On the basis of Ex. P. 1 on March 12, 1977 Md. Shafiyu Jama (PW 6), Station House Officer went to the site and at the instance of Jagroop and in the presence of Smt. Lehari inspected the site and prepared the site plan Lx. D. 3. He recorded the statement of the witnesses. Because of his transfer, investigation was entrused to Shanker Singh.
4. Upon completion of necessary investigation, charge sheet against the appellants was filed in the Court of Munsif and Judicial Magistrate, Gangapur. The learned Magistrate finding a prima facie case exclusively triable by the Court of Sessions, committed the appellants to the Court of Sessions Judge, Bhilwara to stand their trial there. The case was transferred to the Court of Addl. Sessions Judge, Bhilwara.
5. The learned Additional Sessions Judge, Bhilwara charge-sheeted the appellants for the aforesaid offences and on their denial of the indictments proceeded with the trial. The prosecution examined six witnesses in all. To substantiate its case Gokul in his statement Under Section 313 Cr. PC denied the legations levelled against him and stated that Smt. Lehari was married to him and the witness might be stating against him because of enmity. Gordhan admitted to be driver of the jeep at the relevant time of allegation but denied the alligations levelled against him as well as the prosecution case about the abduction of Smt. Lehari. No defence witness was examined. The learned trial Judge placed reliance on the prosecution witnesses and passed the Judgment under appeal.
6. I heard Mr. N P. Gupta, learned Counsel for the appellants and Mr. H.N. Calla, learned Public Prosecutor for the State.
7. Mr. N.P. Gupta, learned Counsel for the appellents has assailed the firdirgs of the learned trial Judge on a number of grounds. According to him the inordinate delay in lodging the FIR remains unexplained. It has been unged that Smt. Lehari has stated about her getting down from the jeep in the presence of her sister Smt. Sarju but Smt. Sarju has not been examined by the prosecution to state as to in what circumstances Smt. Lehari was brought to the place where she was. Another point raised by Mr. Gupta in that even if prosecution case is believed, still Gokul being the legaly married husband of Smt Lehari, his efforts to take back his wife do not amount to any offence of abduction. About Gordhan accused, the argument of the learned Counsel is that there is no allegation against him for forcibly taking the prosecutrix and, therefore, he cannot be said to be a guilty associate of any offence of abduction to hold his conviction under Section 366/109 IPC.
8. At the very outset it may be observed that from the prosecution evidence itself it is evident that Smt. Lehari was married to Gokul appellant. Jagroop brother of Raimal the said husband of Smt Lehari at the time of the alleged incident and the informant in the present case has admitted that Smt. Lehari was married to Gokul. According to him subsequently, Smt. Lehari's father gave her in 'Nata' to the witness at 'Sijari-ka-Badiya'. The witness thereafter improved the version and stated that the lady was not given to him rather to his brother Raimal. Smt. Lehari (PW 2) also did not deny the suggestion of her marriage with Gokul rather expressed her ignorance as to whether she was married to Gokul or not. She also could not say the way in which she was married to Raimal. She also failed to recollect whether Raimal had come in marriage procession or not. Smt. Lehari has admitted that her sister Smt. Sarju was related as sister-in-law ('Bhabhi') to Gokul. She also avoided the question as to what was the name of her sister's husband. In view of all these facts, the statement of the witness that she was not knowing Gokul before hand and had seen him for the first time on that day does not inspire confidence.
9. Bakhtawar (PW 3) cousin of Smt. Lehari who had taken her to 'Naya-Talab' at her instance has also admitted the fact that Smt. Lehari was legally married to Gokul and thereafter was given in 'Nata' to Raimal.
10. From the aforesaid evidence it can be said with certainty that Smt. Lehari was legally married to the appellant Gokul. There is nothing on record to show whether there was any break of the marriage by way of divorce or otherwise.
11. In the case of Mannalal v. State of Rajasthan 1966 RLW 460 the question for determination was as to whether the husband or his associates can be held guilty for the offence of abduction till the marriage subsits.
12. In that case the wife was turned out by the husband and was living with nother person, alleging that she had contracted second marriage with the latter Husband went to the house of that person and attempted to take the wife forcibly. In the absence of evidence to prove that the husband had divorced the wife his lordship was pleased to hold that the husband and his associates cannot be convicted Under Section 366/511 IPC.
13. It is important to consider that the ingredients of Section 366 IPC are missing in the case. There is nothing on record to prove that Smt. Lehari had been abducted to marry against her will or to be seduced to illicit intercourse against her wishes. Smt. Lehari has stated that when she stepped down of the jeep at 'Miyapali' there was none also present but her sister. She stayed with her sister for sometime. She admitted that she had not seen any quarrel between her sister and Gokul at that time. According to the wi'ness she went direct to 'Naya Talab' and her brother had mother on the well in the way. She further stated that till the time she reached 'Naya Talab' Gokul had not told her that he wants to keep her as his wife She also admitted that Gokul had not given any beating to her. She further admitted that Gokul had not tried to forcibly take her by catching hold of her husband in the presence of her sister Smt. Sanju. To substantiate her version that she was forcibly taken, Smt. Lehari alleged that Gokul threatened to cut her nose in case she would weep. Her attention was drawn to her statement Ex. D. 1. recorded by the Magistrate, where this fact of threatening is missing. The witness could not explain the omission. From the statement of Smt. Lehari itself, the prosecution case about any force being used stands falsified.
14. The important fact damaging the prosecution case is the failure of the prosecution to examine Smt. Sarju the sister of the prosecutrix at whose house the latter bad stayed for sometime. The story coming forth from the statement of Bakhtawar is altogether different. According to him Smt. Lehari her cousin was forcibly brought by two persons viz. Panna and Pema from 'Miyabali-ka-Kheda' to 'Sanjari-ka-Badia' where the witness resided. These persons informed Bakhtawar (PW 3) that they have brought Smt. Lehari from 'Miyapali-ka-Kheda'. If Smt. Lehari was at her sister's house at 'Miyapalika-Kheda', what was the reason for her being forcibly taken from there. Panna and Pema have not been examined by the prosecution to state under what circumstances they had to take the lady from there. Bakhtawar has stated that at the instance of Smt. Lehari he took her to her father-in-law's house at Naya Talab. The witness happens to be the cousin of Smt. Lehari. Despite that Smt. Lehari did not tell anything to him regarding the incident.
15 Nathu (PW 4) has been examined as an eye witness to the occurrence. He too does not help the prosecution in any way. The witness stated that Gordhan was driving the jeep in which Gokul had forcibly taken Smt. Lehari. In cross-examination, the witness admitted that he was not knowing the came of Gokul on that day nor was he knowing Smt. Lehari. He admitted that at that time he was not knowing as to who was being caught hold of. That he was also not knowing as to which place she belonged and to which place the accused belonged. If he was not knowing the prosecutrix and the accused before hand, his statement carries no value. The prosecution has not cared to examine the parents of Smt. Lehari or Raimal with whom she is said to have been given in 'Nata' to show as to in what capacity she was livingwith Raimal, brother of the informant. The factum of marriage of Smt. Lehari with Gokul having been established by the prosecution witnesses and there being no evidence to suggest any divorce by the appellant, the charge of abduction cannot be taken to be substantiated. There is no explanation for the inordinate, unexplained delay in lodging the FIR. If Smt. Lehari had reached her house on the date of occurrence itself, then what kept her husband or brother-in-law Jagroop quiet for two days is not known. The importance of prompt FIR of an incident cannot be over emphasized. The reason is that it gives earliest version of the prosecution case. If there is delay in lodging the report without any plausible explanation, it may raise suspicion for the reason that the informant had time to improve upon what actually migh have happened. In the present case, this delay in lodging the FIR in view of the strange type of evidence of the prosecutrix, taken together with that of Bakhtawar, raises a doubt on the truthfulness of the prosecution case.
16. In such circumstances, I am constrained to disagree with the findings of the learned trial Judge regarding the guilt of the appellants. In view of the above discussion, I am of the opinion that prosecution could not establish the guilt against the appellants.
17. Consequently, the appeal filed by Gokul and Gordhan is allowed and theirconviction and sentences are set aside and they are acquitted of the charges. Both the appellants are on bail. They need not surrender to it. Their bail bonds stand discharged.