JUDGMENT 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/-, 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 380 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. 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. 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. 4. I have carefully gone through her statement and it appears that she has falsely introduced the story of fight and her injuries. These facts are missing from her police statement. From her statement one fact which is established is that there does not appear to have been any fight between appellants and her rescuers namely, Harlal, Sukhram and Jogji. P.W. 3 Harlal stated that Jogaram came and informed him about the taking away of Moomli. He and Joga then went to rescue Moomli. In village Jhanwar they met Sukhram, Chautharam,Manglaram and Keraram. From Jhandu he, Joga and Sukhram went in a tractor to chase the car. At Sunidhani they could trace Dhokalia, Bhanwaria and Moomli. Moomli came to them and sat in the tractor. Bhanwaria ran away but Dhokalia tried to fight. He and Joga then went to rescue Moomli. In village Jhanwar they met Sukhram, Chautharam,Manglaram and Keraram. From Jhandu he, Joga and Sukhram went in a tractor to chase the car. At Sunidhani they could trace Dhokalia, Bhanwaria and Moomli. Moomli came to them and sat in the tractor. Bhanwaria ran away but Dhokalia tried to fight. He denied the suggestion that at village Jhandu only Sukhji met him. In the police statement this witness admitted that Sukhji had also gone towards Jodhpur. The other witness in this respect is Jogaram P.W. 6. He deposed similarly. He admitted in the cross examination that he did not have any conversation with Moomli. He also said that Dhokalia and Bhanwaria on seeing them tried to ran away. P.W. 7 Sukhram in this respect stated like the other two witnesses but he cannot be believed because in the police statement of P.W. 3 Harlal, his presence was not given out. It uppers that Sukhram is not speaking the truth on this aspect of the case. Thus on the point of rescue of Moomli it appears that Harlal and Jogaram took way Moomli from the appellants who did not put any serious fight to detain Moomli. This has an important bearing in the case in the sense that if the appellants had really abducted Moomli, they would not surrender her so easily. It may also be observed that along with the appellants Dhania was there. Thus Harlal and Joga were hardly in a position to rescue Moomli from the appellants. None was injured. This is one of the circumstance when taken together with their circumstances would indicate that Moomli was not abducted. At this stage it may also be stated that Moomli had admitted that she was not willing to marry the younger brother of her deceased husband. Normally in Bishnoi a Chutapa is made after the death of the husband of a woman i.e. to say the marriage according to the custom does not automatically come to an end after the death of the husband and the widow is not free to re-marry unless the marriage is formally dissolved. This fact that at the time of the alleged abduction the marriage of Moomli with her deceased husband had not been formally dissolved is established from the statement of P.W. 10 Phooli. This fact that at the time of the alleged abduction the marriage of Moomli with her deceased husband had not been formally dissolved is established from the statement of P.W. 10 Phooli. The two additional circumstance which emerge from the above discussion are That Moomli was not inclined to marry with the younger brother of her deceased husband but she was not free to re-marry according to her witch because her marriage with her deceased husband had not been formally dissolved according to custom. (2) That after the incident till she was examined in the court almost after three years she had no occasion or opportunity to meet her parents meaning thereby that her in-laws were keen to see that Moomli may not repudiate her marriage with the younger brother of her deceased husband under the influence of her parents. Before proceeding further with the alleged eye witnesses of the incident, namely Chautharam, his wife and Sukhji, I may point out two further infirmities in the prosecution case. In the first information report two more persons namely Deva and Gorkha were implicated. They were the relations of the mother of Moomli. However, the case against them was given up at the investigation stage but the fact remains that Chatharam did implicate them in the first information report. The possibility cannot be ruled out that they were in the company of the appellants when Moomli went way with them. They were admittedly the relations of the mother of Moomli. This is another point to the inference that Moomli with the connivance of her parents of her own accord went away with the appellants so that she may not be compelled to marry against her will on the dictate of her father-in-law. The F.I.R. itself is quite delayed and was made at 7p.m. though it appears from the statement of Chautharam that he had reached Jodhpur quite early in the day. It appears that when Moomli was rescued by Harlal and Jogaram were the relations of the in-laws of Moomli and brought to Jodhpur, Chautharam had but no alternative to make the report. It is pertinent to note that even after the so called alleged reissue of Moomli she was not handed over to her parents but was given to her in-laws. In this background the evidence of the other prosecution eye witnesses have to be examined. It is pertinent to note that even after the so called alleged reissue of Moomli she was not handed over to her parents but was given to her in-laws. In this background the evidence of the other prosecution eye witnesses have to be examined. It is not possible to place any reliance upon the testimony of P.W. 7 Sukhram. As already observed, he has falsely claimed to be along with Jogaram and Harlal at the time of the alleged rescue of Moomli. He stated that he had gone to the house of Chautharam on the night of the incident. He heard some noise and awoke. He had a torch with him and with its help saw that Bhanwaria and Dhakalia were taking away Moomli. He and Chautharam then came down from the upper storey. They chased them in a tractor and at Jhandu, Chautharam, Keraram, and Mangla went to Jodhpur and he with Harlal and Jogaram followed the car. He has made considerable improvements and contradictions from his police statement. He said in the cross-examination that Moomli was crying, while Moomli said that she was gagged.I am, therefore, not inclined to place any reliance on his statement specially when he is a close relation. P. W. 10 Dhooli stated that Bhanwaria appellant was the son-in-law of her sister-in-law and Dhokalia was also her relation. On the night of the incident she was sleeping in a room and in the other room Moomli was sleeping. Bhanwaria and Dhokalia came there in the early morning and knocked the door. She opened the door and saw them and then went to her attend the call of nature. She further asserted that the appellants by force put Moomli in a jeep and Bhanwaria gagged her. The appellants took away Rs. 2500/- from a box. Moomli was then wearing various ornaments given to her by her in-laws. She admitted that though she opened the door she did not talk to the appellants under the impression that they would go to the upper storey. When she returned from attending the call of nature, she saw Dhokalia carrying away Moomli. She heard the cries of Moomli while she was attending the call of nature. She admitted that though she opened the door she did not talk to the appellants under the impression that they would go to the upper storey. When she returned from attending the call of nature, she saw Dhokalia carrying away Moomli. She heard the cries of Moomli while she was attending the call of nature. The conduct of the witness is unnatural inasmuch as in the early hours of the morning two persons came to her house knocked the door and she opened the door without making any enquiry and then immediately went away to attend the call of nature. The normal conduct would have been to enquire from the appellants why they have come at that odd hour. Another unusual feature is that though Moomli was sleeping at that time, yet she was wearing all her ornaments. These two circumstances almost point out that Phooli is now deposing falsely that Moomli was carried away by force. He conduct in not making any enquiries from the appellants is extremely doubtful. The remaining witness is P.W. 2 Chautharam, the father of the girl. He stated that he and Sukhji were sleeping in the upper storey of the house. He heard the noise of his neighbour Mangla. Then he came down. His wife had not raised any alarm. By the time they reached the ground floor, the car had started. Immediately he went to the in-laws of Moomli and informed them and then with Sukliji, Harlal. Chautharam and Mangla went in a tractor to chase the appellants. From village Jhandu he with Mangla went away to Jodhpur while the others pursued the car. The witness was cross examined at length. He admitted that after the incident he had never met Moomli. He could not say why he named Deva and Gorkha in the F.I.R. and falsely asserted that he only implicated Dhokalia and Bhanwaria in the F.I.R. He denied that Dhoklia was on visiting terms though it is so stated in Ex. P. 1 G to H. He further admitted in the cross examination that he did not see the appellants carrying away Moomli. He was so informed by Sukhji. He reached Jodhpur at about 8 or 9 a.m. Thus in view of these various contradictions it is difficult to place any reliance on his statement. P. 1 G to H. He further admitted in the cross examination that he did not see the appellants carrying away Moomli. He was so informed by Sukhji. He reached Jodhpur at about 8 or 9 a.m. Thus in view of these various contradictions it is difficult to place any reliance on his statement. He has falsely introduced Sukhji in the chase and asserted that he left the village in the company of Jogaram and Herlal. From the above discussion the following circumstances are firmly established. 5. (I) The first information report was not made promptly and two persons viz, Deva and Gorkha admittedly the relations of the mother of Moomli were also implicated. (2) Phooli opened the door at about 4 a.m. but without making any enquiry from the appellants went away to her bara. (3) Moomli was wearing all her ornaments though she was a widow. (4) The marriage of Moomli with her deceased husband had not been formally dissolved and she was not inclined to marry the younger brother of her deceased husband at the dictates of her father-in-law. (5) In the story of rescue Sukhji was falsely introduced and it appears that Harlal and Jogaram relations on the in-laws side of Moomli of their own accord pursued the appellants and Moomli. The appellants did not offer any worthwhile resistance before surrendering Moomli to Jogaram and Harlal. (7) Jogaram and Harlal did not hand over Moomli to her father and handed her over to her in-laws. (8) It further appears that Moomli did not raise any hue and cry at the time of her alleged abduction and it is extremely doubtful whether her mother likewise made any cries. (9) It is extremely improbable that only two persons would go to the house of Moomli to abduct her in the early hours of the morning. They had no reasons to support that they would not meet with stiff resistance. 6. In these circumstances I am of the view that the prosecution has not established its case beyond reasonable doubt against the appellants. The entire incident is not inconsistent with the case that Moomli on her own accord went away in the company of the appellants in order to avoid her threatened marriage with the younger brother of her deceased husband. In this view the appellants are entitled to benefit of doubt. 7. The entire incident is not inconsistent with the case that Moomli on her own accord went away in the company of the appellants in order to avoid her threatened marriage with the younger brother of her deceased husband. In this view the appellants are entitled to benefit of doubt. 7. I, therefore, accept the appeal and set aside the conviction and sentence of the appellants under section 366 I.P.C. The appellants are on bail and they need not surrender to their bail bonds which are hereby cancelled.Appeal Accepted. *******