JUDGMENT 1. - Appellants Tamachi, Madha, Abda, Alisher and Usman were tried for the offences under Secs. 366 and 147 Indian Penal Code by the learned Sessions judge, Balotra. By the judgment dated January 9, 1976 the learned Sessions Judge acquitted the appellants for the offence under Section 147 Indian Penal Code but held them guilty for the offence under Section 366 Indian Penal Code and sentenced them to rigorous imprisonment for four years and a fine of Rs 500/- in default of payment of line to further undergo rigorous imprisonment for six months each. 2. Being aggrieved by their conviction and sentences the appellants have preferred this appeal. 3. Succinetly narrated the facts of the case giving rise to this appeal are that Mst Roopan sister of appellant Usman was married to Ali uncle of Mst. Puran (P.W. 2) daughter of Vali. Vali and Ali are brothers. That at the time of the marriage of Ali, it was decided that Vali would give his daughter in marriage to Usman. Subsequently Usman assembled a Panchayat and stated that lie would not marry Valis daughter. On September 12, 1974 Mst. Puran had gone to the house of her maternal grand mother Mst. Khandi, (P.W. 6) with some curry. She took her meals there and as dark had set in, she stayed there for the night. Achar (P.W. 2) cousin of Vali had also gone to the dhani of Mst. Khandi that day and slept there in the night. Mst. Sharifan (D. W. 2) is also said to have slept there in the night. That, in the mid night Tatnachi, Megha and Abda went there and Tamachi lifted Mst. Puran and other two accused threatened Achar of dire consequences if he intervened. They took the girl with them on a camel. Usman and Alisher who were also here at some distance from the dhani accompanied the other appellants Mst. Puran was taken to the dhani of one Duda and was made to put on new clothes. One Noora was sent to call mulla Latif (P.W. 4) to perform the nikah ceremony of Mst. Puran and Ustnan. Latif refused to do so without the consent of the parents of the girl and therefore, nikah ceremony could not be performed. Puran was taken to the dhani of one Duda and was made to put on new clothes. One Noora was sent to call mulla Latif (P.W. 4) to perform the nikah ceremony of Mst. Puran and Ustnan. Latif refused to do so without the consent of the parents of the girl and therefore, nikah ceremony could not be performed. Thereafter, the girl is said to have been taken to the 'dhani of Akan and then to the dhani of Abda and Ustnan and in the morning she was asked to return to her house. 4. Achar went to the house of Vali and informed him about the incident. Next morning Achar went to Police Station Shiv and lodged the report Ex. P. 1 with Khuman Singh, Station House Officer. Case against the appellants was registered and the Station House Officer went to the site. He prepared the site memo of the house of Mst Khandi. When the Station House Officer reached the house of Vali, Mst. Puran was present there. The clothes she was wearing were taken in possession. On the third day the appellants w r, arrested and the clothes of Mst. Puran which she was wearing ai the time of the alleged incident are said to have been recovered from the dhani of Usman at his instance. 5. After completion of investigation charge sheet against the five appellants was filed in the Court of Munsif and Judicial Magistrate, Barmer. The case being exclusively triable by the Sessions Judge, the learned Magistrate committed the appellants to the Court of Sessions to stand their trial there. The learned Sessions Judge charge sheeted the appellants for the offences under Secs, 366 and 147 Indian Penal Code and recorded their plea. A;I of them denied the indictments and claimed to be tried. To substantiate its case prosecution examined seven witnesses in all. The appellants in their statements under Section 313 Criminal Procedure Code total denied the allegations levelled against them and stated that M.LA. Hukam Singh and Pradhan Sawai Singh, Ex-Jagirdar of Kotra were inimical to them and the police is under their influence. Tamachi stated that other accused appellants were his relatives and as he was looking after their cases, police has concocted this false case. Tamachi appeared in the witness box as D.W. 1. Mst. Sharifan (D.W. 2) and Noora (D.W. 3) were examined from the defence side. Tamachi stated that other accused appellants were his relatives and as he was looking after their cases, police has concocted this false case. Tamachi appeared in the witness box as D.W. 1. Mst. Sharifan (D.W. 2) and Noora (D.W. 3) were examined from the defence side. The learned Sessions Judge placed reliance on the prosecution evidence and passed the judgment of conviction for the offence under Section 366 Indian Penal Code as stated earlier. 6. I heard Mr. K C. Gaur, learned counsel for the appellants and Dr. S.S. Bhandawat, learned Public Prosecutor for the State. 7. It has been strenuously contended by the learned counsel for the appellants that there was no question of Usman intending to marry Mst. Puran because he had already declined to do so. It has been stressed that there was long standing enmity between Vali, father of the prosecutrix and Usman and this fact coupled with the loss of rupees four thousand given by Vali to Usman as consideration for the marriage of his daughter to Usman aggrieved Vali and resulted in this device of involving the appellants who are all relatives, in a false case. It has been further urged that the prosecution case rests on the testimony of the prosecutrix a girl of tender age and Mst. Khandi and Achar who happen to be the relatives of Vali. That, the independent witnesses Mst. Sharifan and Salia, who according to the prosecution happened to be there at the time of the alleged incident have not been examined and therefore, Mst. Sharifan had to be examined from defence side and she had totally shattered the prosecution case. 8. The learned Public Prosecutor controverting these arguments submitted that the minor contradictions in the statements of three witnesses are of no significance and there is no reason to disbelieve the testimony of the child Mst. Puran. According to the Public Prosecutor, there was no reason for Vali, Achar or any body else to conceit the story of abduction. 9. Achar happens to be the cousin of Vali father of Mst. Puran. According to him, he after taking his meals had gone to the house of Khandi that night and slept there. He is the informant in the case. He has stated about Megha and Abda threatening him with by standing near him at the time of lifting the girl. Achar happens to be the cousin of Vali father of Mst. Puran. According to him, he after taking his meals had gone to the house of Khandi that night and slept there. He is the informant in the case. He has stated about Megha and Abda threatening him with by standing near him at the time of lifting the girl. This version does not find place in the statement of Mst. Khandi who has simply stated that when she wanted to rescue the girl she was pushed a side Where as Mst. Khandi and Achar have stated that the latter had reached the dhani after taking his meals Mst. Puran states that Achar took the meals at the dhani of Mst. Khandi. A very important point raised by the learned counsel for the appellants is that the mode of abduction appearing in the statements of the witnesses is different from the one stated in the First Information Report. The fact of the chunri of Mst. Puran lying on the ground at the time of abduction is also a subsequent improvement according to Mr. Gaur. 10. Attention of the witness Achar was drawn to Ex.P. 1, the First Information Report where these two facts are missing. The fact of chunri being there may not be of such importance, but so far as the mode of abduction is concerned it has great significance. Such an important factor not being mentioned in the First Information Report leads strength to the arguments advanced by Mr. Gaur that in order to explain as to why the appellants were not chased or efforts to rescue the girl were not made, this theory of camel has been introduced at the trial. It is also noteworthy that instead of chasing the culprits or asking other persons of the dhani Achar went to the Police Station next morning. The witness has admitted his relationship with Mst. Purans father Vali. He has also admitted that litigation was going on between Vali and the appellants at Barmer. The fact of Roopan, sister of appellant Usman being married to Ali, brother of Vali and uncle of the prosecutrix, has been stated by this witnesses. He has also stated that for this purpose four thousand rupees were given to Usman but he subsequently declined to have the girl as his wife, at a Panchayat held two months prior to the present incident. He has also stated that for this purpose four thousand rupees were given to Usman but he subsequently declined to have the girl as his wife, at a Panchayat held two months prior to the present incident. The witness has stated that Mst. Sharifan was also there in the dhani in that night. Mst. Sharifan dropped by the prosecution and examined as D.W. 2 and has not supported this witness. 11. Another witness whose presence at the time the witness discloses is Salia but he too has not been examined. 12. Mst Khandi is the maternal grandmother of the prosecutrix. As observed above, she has no where stated about any of the appellants having axe with them or threatening Achar with dire consequences in case of intervention. She also stated about Sanwalia reaching the place of the incident on hearing the cries of Mst. Puran but Sanwalia has not been examined by the prosecution. Presence of Sharifan has been admitted by her but Sharifan has not supported her version. She also admitted the enmity between Mst. Puran's father and the appellants. Achar and Mst Puran have stated about there being no fencing around the dhani of Mst. Khandi. Mst. Khandi had stated in her examination-in chief that there was fencing around her dhani. In cross-examination she denied the fact but her attention being drawn to her statement in the first trial of this case, Ex.D. 1 where she has stated about there being fencing, the witness admitted the previous statement to be correct and the statement at this trial being wrong. This inconsistency and improvement appears to be an effort to establish that the witnesses were able to see from inside what was taking place outside. Mst. Khandi deliberately has tried to change her version even regarding Mst. Sharifan. At this trial she has stated that Mst. Sharifan was not related to her and she does not know how she was related to Vali and Puran.Her attention was drawn to her statement at the previous trial of this case Ex. D 1 where she has stated that Mst. Sharifan was her noise and the Cousin of Puran being the daughter of her maternal uncle. The witness admitted that version to be true. Whereas Puran has only stated about Tamachi placing hand on her mouth. D 1 where she has stated that Mst. Sharifan was her noise and the Cousin of Puran being the daughter of her maternal uncle. The witness admitted that version to be true. Whereas Puran has only stated about Tamachi placing hand on her mouth. Mst Khandi has stated that the accused had tied he mouth of Puran, though she could not say who had done so It is pertinent to note that the witness has named the accused persons and had also gone to the extent that it was Abda who had pushed her when she caught hold of Puran at the time of her being lifted. In her cross-examination she has stated that all the accused were having turbans on their heads she had only caught hold of Purans leg and had not seen the faces etc. of the accused. Mst. Khandi herself is not on good terms with the (accused party and has admitted that Jodha is the brother of Tamachi and she has quarrel with Jodha in connection with the fields Thus the witness being related to Vali and inimical to the accused party her statement is to be looked into having regard to the overall circumstances of the case. 13. Coining to the statement of Puran the prosecutrix, it is to be noted that she is a child of tender age being only 8-9 years old. She has stated about her being lifted from the dhani of her grandmother and then being taken on the camel to the 'dhani of Duda. She has stated that she was made to put on new clothes there and then mulla' Latif was called but he refused to perform nikah ceremony in the absence of the permission of the parents. Then she was taken to the dhani of Aka and then to that of Abda and Usman and in the morning she was naked to return to her house. Then she went to her field where she narrated the facts to her mother. 14. The contention of Mr. Gaur, learned counsel for the appellants is that she was tutored by her father because the latter had enmity with the accused and therefore, her statement deserves to be discarded. Then she went to her field where she narrated the facts to her mother. 14. The contention of Mr. Gaur, learned counsel for the appellants is that she was tutored by her father because the latter had enmity with the accused and therefore, her statement deserves to be discarded. The learned trial Judge has put certain questions to the witness to test whether she understands t he significance of tilling the truth, but no such searching questions had been put to her which may show the power of understanding of the witness. Though the learned trial Judge has noted that the witness understands the sanctity of oath and therefore, oath was administered to her, the only question put to her in this connection was whether after taking oath she would tell the truth ora lie and she said, she will tell the truth. Be it as it may, if the learned trial Judge was satisfied about the power of understanding of the witness and sanctity about oath there was nothing wrong in his administering oath to her. What this Court is to see is whether the statement of the witness taken in itself or in view of the surrounding circumstances and the testimony of other witnesses inspires confidence or not. 15. This is the settled principle of law that the testimony of a child witness is to be scrutinised carefully. The reason is that children very often live in imaginary world and it is not difficult to make them believe a thing which they themselves have no personal knowledge of. Cases are not rare where the child witnesses without knowing anything about a matter are made to mug-up a story and reproduce the same in a way as if they them- selves are acquainted with those facts. I am alive of the fact that in the present case the witness has not narrated a thing which she had seen rather has state the story of her own i.e. to say what actually happened with her. Therefore, her case to some extent is different from the witnesses appearing to state the facts which they had only seen. In examination-in-chief, the witness has given the version exactly in the line of the prosecution case but in the cross-examination she could not stand well. Therefore, her case to some extent is different from the witnesses appearing to state the facts which they had only seen. In examination-in-chief, the witness has given the version exactly in the line of the prosecution case but in the cross-examination she could not stand well. For example in cross-examination at one stage she had stated that there was litigation between her father and the accused but later on she has stated that there was no criminal case between her father and the accused nor there was any case previously. The witness thereafter again said that formerly there were cases between her father and the accused This type of statement clearly indicates that she was not certain about litigation. There is no wonder in her not knowing so because a child of her age ordinarily does not understand what criminal and civil litigation is. The important question emerging for answer is whether the statement of this child prosecutrix in the given circumstances of the case should be taken to be true. There is of course corroborative evidence of her uncle Athar and her grandmother Mst Khandi so far as her being taken away by the accused is concerned, though in the earliest version of Achar there is no mention about her being taken on camel. While discussing the evidence of Mst. Khandi and Achar I have noted the inconsistencies and contradictions in their statements and also in the statement of Puran. In order to appreciate the evidence of these three witnesses and to conclude whether the conviction based on their evidence can be justified or not, the circumstances of the case and the infirmities pointed out by the learned counsel for the appellants require careful examination. 16. The first infirmity pointed out is that despite these three witnesses being interested in the prosecution case and there being enmity between Vali and the accused party and also between Mst. Khandi and Jodha brother of appellant Tamachi independent witnesses have not been examined If a girl is taken up in the dead of night then only the family members may be available to see the incident and therefore, the prosecution has to remain content on their evidence along But the matter would be different if according to the prosecution itself independent witnesses had occasion to see the incident and still those witnesses are not examined. Achar, Mst. Achar, Mst. Khandi and Puran have all stated about Mst. Sharifan sleeping there in the dhani'. Investigating Officer. Khuman Singh (P.W. 6) has also stated on the basis of his investigation that a woman Sharifan by name was also there in the dhani at the time of the occurrence and that she had slept there as Mst. Khandi was alone. If Achar would have been there, there would not have been any reason for the investigating officer stating that Mst. Sharifan had slept there because Mst. Khandi was alone. Apart from it, the investigating officer has not explained as to why this lady Sharifan was not examined at the trial. The defence was quite cautious about the importance of this independent witness and therefore had taken care to examine her as D W. 2. Mst. Sharifan has admitted to have lived at the house of Mst. Khandi for fifteen days for labour. She also admitted to have remained there in the night also during those days. She had denied to have seen the accused going there and taking Puran during that period. No question to shatter this testimony of the witness was put to her in her cross-examination. 17. Another witness who according to the prosecution had reached at the time of the incident is Salia. His name finds place in the First Information Report as well as in the statement of Achar at the trial Court. Mst. Khandi has also stated about Sanwalia reached there at the time of the accused taking away the girl. For the reasons best known to the prosecution this independent witness has not been examined. For this reason the learned counsel for the appellants has built in the argument that a false story was concocted by the father of the girl who himself remained aloof from the picture and prepared his daughter, cousin and mother-in-law to give evidence and might have thought of seeking support from Mst. Sharifan and Salia but they perhaps refused to oblige and therefore, prosecution withheld those two independent persons. 18. In the case of Kamesh Kumar Singh and others v. State of Uttar Pradesh, 1968 Cr. L.J. 1655. their Lordships had the occasion to discuss the duty of the prosecution to examine material witnesses and when the non-examination of some witnesses may justify drawing adverse inference against the prosecution case. 19. 18. In the case of Kamesh Kumar Singh and others v. State of Uttar Pradesh, 1968 Cr. L.J. 1655. their Lordships had the occasion to discuss the duty of the prosecution to examine material witnesses and when the non-examination of some witnesses may justify drawing adverse inference against the prosecution case. 19. Their Lordships were pleased to observe as under : "A prosecutor should never adopt the device of keeping back eye witnesses only because their evidence is likely to go against the prosecution The duty of the prosecutor is to assist the Court in reaching a proper conclusion. It is open, however, to the prosecutor not to examine witnesses who in his opinion have not witnessed the incident, but normally, he ought to examine all the eye witnesses in support of his case. But in a case where a large number of persons have witnessed the incident, it is open to him to make a selection. The selection must, however, be fair and honest and not with a view to suppress inconvenient witnesses. Therefore, if it is shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an adverse inference and in a proper case record such failure as constituting a serious infirmity in the proof of the prosecution case". 20. With this principle in view when turn to the case in hand, I am constrained to observe that Salia and Sharifan were important witnesses in the case to throw light on the truthfulness of the prosecution case and the prosecution withholding then cannot be said to be fair. The matter would have been different if there would have been a question of selection of witnesses from a long list. But here besides the prosecutrix, a child of tender age, when there were two witnesses only examined by the prosecution, one being the maternal grand mother of the child and the other being her uncle and both of them inimical to the appellants, the importance of these two independent witnesses viz. Mst. Sharifan and Salia cannot be overemphasised. This is a case in which it can easily be understood that prosecution has deliberately withheld these two witnesses for the reason that if examined, they would turn inconvenient to the prosecution. This conclusion is based on the evidence of Mst. Mst. Sharifan and Salia cannot be overemphasised. This is a case in which it can easily be understood that prosecution has deliberately withheld these two witnesses for the reason that if examined, they would turn inconvenient to the prosecution. This conclusion is based on the evidence of Mst. Sharifan who appeared in the witness-box from the defence side and shattered the whole prosecution case. There is no wonder if Salia examined, would have also done the same. 21. The next check available to examine the truthfulness of the prosecution case is whether there could have been any motive on the part of the appellants to take away the girl. The prosecution case is, that it was with intention to perform the nikah of Puran with Usman that the offence was committed. The story coming forth from the prosecution side in the statement of Achar is that at the time of the marriage of Ali brother of Vali, the father of the prosecutrix it was decided that Vali would give his daughter to Usman in marriage and Ali and Vali also parted with an amount of rupees four thousand It has been further stated by Achar that in a Panchayat held only two months prior to the occurrence Usman expressed his reluctance to marry Valis daughter. Naturally therefore, as the learned counsel for the appellants submits, the amount of four thousand rupees of Vali was at a stake and therefore, grievance if any, must have been to the complainant party and not the accused. If Vali had agreed to give his daughter in marriage to Usman, where was the reason for Usman or other appellants to resort to this illegal method It also does not appeal as to why Usman who has declined to accept the girl in marriage secretly took her away. The contention of the learned counsel for the appellants has for e that on account of strained relations Usman might have denied to accept the girl and express" his intention before the Panchayat and that coupled with the loss of four thousand rupees might have annoyed Vali and his relatives. The circumstances as depicted by the prosecution witness Achar are suggestive of the fact that there could not have been any intention on the part of Usman or others to force ably marry Puran to Usman. 22. The circumstances as depicted by the prosecution witness Achar are suggestive of the fact that there could not have been any intention on the part of Usman or others to force ably marry Puran to Usman. 22. Yet another significant circumstance against the prosecution is the conduct of the family members of Puran. The occurrence is said to have taken place in the intervening night of 12-13 September, 1974 at mid night. Achar instead of raising a cry and chasing the miscreants or making the inhabitants of the neighbourhood to do so had kept quiet. If Salia would have been examined the reason for that could have been known. Assuming for the sake of arguments that Achar did not dare to chase the accused party and thought it wise to inform Vali first then what made Vali not to take immediate steps to rescue the girl, is not known. Here again Vali, father of the girl being an important witness has not appeared in the witness box. Of course he could not have said any thing about the actual occurrence but he could have atleast explained as to why immediate steps were not taken to recover the girl or not seeking police help immediately The report at the Police Station was lodged at 8 00am on the next day despite the Police Station being only at a distance of six killometre from the place of occurrence. Ordinarily this delay may not assume much importance but in a case like the present one, when a small child was abducted and there, was apprehension of her being maltreated it was expected of the father atleast, who was immediately informed of the incident, to rush up to the Police Station immediately even if he might not have dared to go to the houses of the abductors. It is also relevant to note that there are a number of 'dhanis around the dhani of Mst Khandi and Vali and there could not have been any difficulty for Vali and Achar to ask the neighboured to come to their help. The dhanis of accused according to Mst. Kasmi, mother of Mst. Puran were only at a distance of half a mile. According to the witness Antar, another to the site plan site memo, the dhanis of the accused were at a distance of a hearing of a cry from the dhani of Mst. Khandi. The dhanis of accused according to Mst. Kasmi, mother of Mst. Puran were only at a distance of half a mile. According to the witness Antar, another to the site plan site memo, the dhanis of the accused were at a distance of a hearing of a cry from the dhani of Mst. Khandi. I fail to understand the carelessness and negligence of the father of the girl in not attempting to get the girl back in the same night. Whatever be the hazard in the way, the father would, in the natural course of events be very particular to go to a distance of half a mile to rescue of the child instead of her being left at the mercy of the miscreants. 23. The learned Public Prosecutor also could not explain this unnatural conduct of the complainant party. 24. Coming to the corroboration of the statement of Puran regarding the effort of the appellants to get her married to Usman, prosecution has examined Latif (P.W. 4). In examination-in-chief he has stated about Noora taking him to the dhani of Duda and his being asked to perform the nikah" ceremony of Puran and Usman, but in cross-examination he has admitted that he had given the statement under the pressure of Sawai Singh and Vali because he was threatened that in case he would not give this statement he would also be taken in the police custody. The witness has also admitted that there were two groups in the village and the Pradhan Sawai Singh was against the accused. Noora has been examined as D.W. 3 and has denied to have gone to call Latif. Noora of course is the relative of the accused and therefore, his not supporting the prosecution case is not a surprise. But Latifs statement about his being pressurised is of considerable importance. The Investigating Officer has not taken care to examine Duda or his family members to substantiate the case that Puran was taken there and Latif was called. In these circumstances when there is not an iota of evidence about the girl being taken to the dhani of Duda. her statement cannot be implicitly relied upon In this connection it is also noteworthy that when the police reached the house of Vali in the morning Puran was already present there. In these circumstances when there is not an iota of evidence about the girl being taken to the dhani of Duda. her statement cannot be implicitly relied upon In this connection it is also noteworthy that when the police reached the house of Vali in the morning Puran was already present there. In case the accused had taken the risk of taking the girl knowing it well that in doing so they are liable to be involved in the case, they could have availed the services of another mulla' in ease Latif did not agree to their wishes to perform the 'nikah' ceremony. Even if it was not possible in that night, there could not have been an; difficulty in the way of the appellants to take the girl to a distant place so as to make her out of the reach of the police their mission was fulfilled. The girl being at her house at the time of the arrival of the police, also throws doubt on the prosecution case. 25. Regarding the recovery of the clothes from the dhani of Usman at his instance suffice it to say that in the absence of an witness from the house of Duda as to whether the girl was actually made to put off the old and put on the new clothes the recovery on the third day of the occurrence is not sufficient to connect the accused with the commission of the crime especially when the other circumstances discussed above, create doubt on the truthfulness of the prosecution case It is also to be mentioned here that the chunri falling outside the dhani is also a subsequent improvement in the case as is evident from the statement of Achar who had failed to mention the same in the First Information Report to which his attention was drawn in the cross-examination It also appears strange that the accused while asking the girl to return to her house will not make her put on her own clothes, especially when there was sufficient time at their disposal to do so, and would thereby create evidence against them in the form of new clothes with the girl and the old clothes being kept by them. 26. 26. With all these serious infirmities in the prosecution case coupled with the enmity between the parties, throw doubt on the evidence of the prosecution witnesses and I am therefore, inclined to hold that the conviction of the appellants on the basis of such impeachable evidence cannot be sustained. 27. Consequently, the appeal is accepted and the conviction and sentences awarded to the appellants are set aside and they are acquitted of the charges. They are on bail and need not surrender to it. Their bail bonds stand discharged.Appeal accepted. *******