JUDGMENT 1. This criminal appeal has been filed by the six accused-appellants, namely, Chhotu, Narain, Rama, Bhagu, Chhoga and Gheesa who have been convicted and sentenced by the Additional Sessions Judge, Ajmer, vide his judgment dated 11th Mar., 76 as under:- Name of Accused Offence U/s. Punishment Gheesa and Chhoga 366/368, IPC 5 years' RI each under section , 366/149, IPC, and also a fine of Rs. 100/- each, for the said offence, In default to undergo further 6 months RI each. No separate sentence under section 368, IPC. Chhoga 376, IPC 7 years RI and a fine of Rs. 200/-. In default to further undergo 6 months RI. Chhotu, Narain Rama alias Shrirama, Bhagu 366, IPC 5 years RI and a fine of 100/- each. In default to further undergo 6 months RI each. " 460, IPC/149, IPC 7 years RI and a fine of Rs. 100/- each. In default to further undergo 6 months RIeach. " 147, IPC 4 months RI and a fine of Rs. 50/- each. In default, to further undergo 15 days RI each. " 302/149, IPC Life Imprisonment and a fine of Rs. 300/- each. In default, to undergo further 6 months RI each. 2. All the substantive sentences awarded to the accused- appellants, were, however, ordered by the learnad additional Sessions Judge, to run concurrently. 3. The prosecution case is that on the night intervening between 18th and 19th November, 1971, accused Udai Singh and others, armed with lathis, forced themselves into an unlawful assembly, with a common object to beat and commit murder of those persons who obstructed abducting Mst. Gendi, wife of Harchand Gujar, from her residence at Village Chawanda. The intention of these accused persons was to abduct Mst. Gendi and then to compel her to marry against her will, so that she might be forced to illicit intercourse. To achieve this purpose, the accused persons committed lurking house- trespass or house breaking trespass by night into the residential house of Harchand Gujar, and caused beating to him and others. One Kalyan Singh was killed in this incident on account of beating by the accused party. Harchand Gujar received various injuries in the incident. Mst. Gendi was abducted forcibly and then wrongfully confined by accused Gheesa, Chhoga and then raped by accused Chhoga. 4. One Kalyan Singh was killed in this incident on account of beating by the accused party. Harchand Gujar received various injuries in the incident. Mst. Gendi was abducted forcibly and then wrongfully confined by accused Gheesa, Chhoga and then raped by accused Chhoga. 4. After lodging of a report with the police, and after investigation, the accused persons were committed to the court of Sessions for trial, when a charge - sheet was tendered in the court. 5. 35 witnesses were examined in support of their case, by the prosecution. The accused persons denied the charges and claimed trial. Accused Chhoga alleged that Mst. Gendi herself had come to him, and that, he never went to about her possession or custody. Chhoga, in support of his case, examined himself and PW 2 Onkar. 6. After the arguments were heard by the trial court, all the accused-appellants were convicted and sentenced as mentioned above. 7. In this appeal, since the original counsel, who was engaged by the accused persons, did not appear, we appointed Mr. Sajjan Singh as amicus curiae to assist us, who after preparing the case, has assisted us in considering this appeal. 8. We have heard Mr. Sajjan Singh, the learned amicus curiae and Smt. Kamla Jain, the learned Public Prosecutor at length, and also gone through the entire record of the case. 9. The learned amicus curiae has not challenged the finding that Kalyan Singh was killed in the alleged incident and that the other members of the complainant party received injuries, and also that Mst. Gendi was taken away by the accused party. However, his principal objection is that there is no evidence regarding the alleged murder of Kalyansingh. Mr. Sajjan Singh took us to the statements of all the eye-witnesses and showed that none of them has suggested that anyone of the accused party caused any injury to Kalyansingh or that Kalyansingh died on account of injuries caused to him by the accused persons. Similarly, it was pointed out by him that so far as the case of rape on Mst. Gendi is concerned, the circumstances of the case show that Mst. Gendi remained with accused Chhoga for months together, and that she conceived a child also from him. Admittedly, she never made any protest against accused Chhoga to anybody. Similarly, it was pointed out by him that so far as the case of rape on Mst. Gendi is concerned, the circumstances of the case show that Mst. Gendi remained with accused Chhoga for months together, and that she conceived a child also from him. Admittedly, she never made any protest against accused Chhoga to anybody. All these, according to the learned amicus curiae, would show that the allegation of rape is not made out and false charge is levelled. 10. The learned public prosecutor, on the other hand, has vehemently opposed the appeal. According to her, Kalyansingh (deceased) died in this incident. However, when she was asked to point out any iota of proof in the form of evidence against any of the accused for causing death of Kalyansingh, she fairly conceded that so far as evidence is concerned, only an inference can be drawn that because Kalyansingh died and because the accused persons had come there, they were the persons who could have caused the death of Kalyansingh. 11. We have gone through the entire evidence in this ease and also given our thoughtful consideration to the rival contentions of both the learned counsel for the parties. 12. The most important witnesses in this case, are PW 34 Mst. Gendi and PW 35 Harchand Gujar. 13. According to the version of Mst. Gendi, she was sleeping in the house of Harchand where she had gone under 'Nata' Chhotu, Naraina, Rama, Bhagu, Bhairu, Kishna, Hangna, Chhitar, Nimba, Amba, Naraina, Rama, Bhairu etc. etc., about 20-25 persons came there. They started beating her and then forcibly took her. Then she tried to catch hold of Harchand, for saving herself, they started beating Harchand and dragged her. They then took her in a truck. They kept her under confinement at the Gaushala of Beawar. Later on, she was kept for three nights at the house of Gheesa, and then she was taken from there by Chhoga accused, who kept her under 'Nata'- When police came, Chhoga tied her and hid her. Then, she was taken to Marwar, where she was kept for about 3-4 months. During that period, Chhoga used to do sexual intercourse with her on account of which, she conceived a child. Then, the police came and took her and handed her over to Harchand. 14. The statement of Mst. Then, she was taken to Marwar, where she was kept for about 3-4 months. During that period, Chhoga used to do sexual intercourse with her on account of which, she conceived a child. Then, the police came and took her and handed her over to Harchand. 14. The statement of Mst. Gendi is corroborated by Harchand, with whom, she was living. According to him also, all these accused persons committed criminal trespass into his house in the night, and then started beating Mst. Gendi, who was his wife. When Mst. Gendi caught hold of him to save herself, the accused persons gave beating to him also, and then they took away Mst. Gendi with them. They took Mst. Gendi in a truck forcibly. All the accused persons were known to the witnesses since prior to the incident. From the statements of the above two witnesses, which is corroborated by the other evidence, it is clear that all the accused persons came from a different village and committed trespass in the house of Harchand with the criminal object of forcibly taking away Mst. Gendi, for giving her to different persons for marriage or Nata or illicit intercourse. 15. P. W. 6 Sua and PW 11 Ladu have supported the prosecution case. 16. So far as the issue regarding murder of Kalyansingh is concerned, the learned Public Prosecutor pointed out the statements of PW 4 Moti and PW 5 Nathu. But, either of them nowhere mentions that Kalyansingh was beaten or injured or killed by any of the accused persons. In fact, their statements only show that at the most at some point of tints, Kalyansingh wanted to rescue the lady, and nothing more. 17. We find that there is absolute absence of evidence so far as the allegation of murder of Kalyansingh by the accused persons or any other proof of their act is concerned. In the absence of any positive and definite evidence either direct or circumstantial which is completely lacking in the present case, we are unable to sustain the conviction of the accused persons for offence under section 302 or/and 302/149, IPC. Consequently, all the accused persons, namely, Chhotu, Rama alias Shrirama, Narain and Bhagu, who have been convicted for offence under section 302/149, IPC by the learned trial court, are hereby acquitted of the said offence. 18. Consequently, all the accused persons, namely, Chhotu, Rama alias Shrirama, Narain and Bhagu, who have been convicted for offence under section 302/149, IPC by the learned trial court, are hereby acquitted of the said offence. 18. We have no hesitation to confirm the conviction of accused appellants Gheesa, Chhoga, Chhotu, Narain, Rama and Bhagu for offence under section 366, IPC read with S. 149, IPC. 19. Chhoga has been convicted of offence under section 376, IPC. But, we find that in view of long stay of Mst. Gendi with him, no case u/s 376, IPC, against him, is made out. 20. Since we have held above that an offence under section 302, IPC, against the accused persons for murdering Kalyansingh, has not been made out and Harchand did not get any grievous hurt, an offence under section 460, against the accused persons, is not made out. Accused persons Chhotu Narain Rama alias, Shrirama, and Bhagu committed lurking house-trespass into Harchand's house and they did make preparations for causing hurt, and they actually caused hurt to Harchand who received 7 injuries as per his statement, which is corroborated by the medical evidence, therefore, we find them guilty of offence under section 458, IPC. 21. The result of the above discussion is that the appeal is partially accepted. Accused-appellants Chhotu, Narain, Rama alia's Shrirama and Bhagu are acquitted of offence under section 302/149, & 460, IPC. Chhoga accused is acquitted of offence under section 376, IPC. and his sentence passed under this section by the trial court, is set aside. 22. However, accused-appellants Chhotu, Narain, Rama alias Shrirama and Bhagu are convicted under section 366, IPC read with S. 149 IPC, and sentence awarded to them for this offence by the trial court, is maintained. These four accuse are also convicted under section 458, IPC and sentenced to five years rigorous imprisonment and also a fine of Rs. 100/- each, and in default of payment of fine they shall undergo six months rigorous imprisonment each. They are also convicted of offence under section 147, IPC and the sentence imposed upon them by tin trial court for this offence, is maintained. 23. Accused Chhoga and Gheesa are convicted under section 366, IPC, and their sentence imposed by the trial court under this section, is maintained and confirmed. 24. All the six accused-appellants are on bail. They are also convicted of offence under section 147, IPC and the sentence imposed upon them by tin trial court for this offence, is maintained. 23. Accused Chhoga and Gheesa are convicted under section 366, IPC, and their sentence imposed by the trial court under this section, is maintained and confirmed. 24. All the six accused-appellants are on bail. The trial court would take steps to arrest them and send them to jail for undergoing the remaining sentences. While computing the sentences, the trial court would adjust the sentences already undergone by the accused persons and also the period during which they were detained after their arrest, along with the remissions earned by them in the jail. 25. All the substantive sentences would run concurrently. 26. Copies of this judgment would be given to each accused after their arrest or surrender, and on production of a certificate in this regard from the competent authority, before this court.Order accordingly. *******