JUDGMENT 1. - The appellant, Khiladi, has been convicted by the Sessions Judge, Sawai Madhopur (Camp Gangapur City/by his judgment dated 21st August, 1980 for the offences under Sections 366 and 368 read with Section 366 IPC. He has been sentenced as under : Under Section 366 IPC 3 years rigorous imprisonment and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo 3 months simple imprisonment. Under Section 168 read with section 366 IPC. One years rigorous imprisonment and a fine of Rs. 200/-. In default of payment of fine to further undergo one months simple imprisonment. Against this conviction and sentence, this appeal has been preferred. Kanchan, lather of the appellant was also tried along with this appellant, and he has been acquitted. One accused Ramdeo was absconding, hence he could not be tried. 2. The facts of the case are that Mst. Bhoti (PW. 5) was married to one Jagram, who died prior to the incident. She was staying at her parents house in village Daulatpura, when on the night between 29th and 30th Nov. 1979, the appellant. Khiladi with Rarrdeo and one more person came to Daulatpura. They first knocked at the house of Kalyan & then at the house of Ramchandra to find out the house of Bhoti and thereafter came to her house. When the door was knocked her mother Kesar (PW 4) opened the door. PW. I Prabhu brother of Bhoti was also there. Accused person entered the house and gave beating to Kesar and Prabhu and then sent Kesar inside the house to get some ghee and flour. Thereafter Ramdeo came upto Bhooti and dragged her away. She was also beaten when she resisted. They dragged her towards the forest. Her odhani and ghaghra were also removed and in naked condition she was taken to Ramdeos village and there she was kept under a lemon tree for two on three days. Ramdeo provided her with a petticoat. He also committed sexual intercourse with her. After three four days she was taken to the house of Kanchan were she stayed for another three four days and thereafter the police came and recovered her. 3. The case of the appellant is that after the death of Jagram, the husband of Bhoti, she was given in Nata to Ramdeo by the father of Jagram. After three four days she was taken to the house of Kanchan were she stayed for another three four days and thereafter the police came and recovered her. 3. The case of the appellant is that after the death of Jagram, the husband of Bhoti, she was given in Nata to Ramdeo by the father of Jagram. Ramdeo had paid money to the father of Jagram but as the parents of Bhoti did not receive any money, they lodged this false report against the appellant and Ramdeo. It may be mentioned here that Ramdeo is absconding and he has not been tried so far. 4. The learned Sessions Judge did not accept the case of the prosecution that Bhoti was below 18 years of age. However, the statements of Prabhu, Kesar and Bhoti were believed in respect of the incident of kidnapping and the case against the appellant for the offences under Sections 366 and 68/366 IPC was held to be proved. Kanchan was acquitted because he did not take part in the kidnapping of Bhoti. 5. The learned counsel for the appellant has contended that the entire story of the prosecution is false and no incident took place as alleged. According to him, from the circumstances it can be shown that Bhoti was given in Nata to Ramdeo and a false case has been made in order to back out of the Nata, which was made by the father of Jagram It is contended that the ghaghra and odhni of Bhoti are said to have been removed after dragging her to the forest side. From where could Ramdeo provide her with another petticoat at right, in the way. The clothes seized by the police were not found to be torn and there was no injury which could show that Bhoti had been dragged. Even the story of inflicting injury on Kesar and Prabhu is false, because they had no injury which could be examined by any doctor. Besides this, Ramdeo has been attributed with a lathi, a gun as well as a torch and it could not be possible for him to use all there three articles. Story of Nata is said to be proved by the document Ex. P/7 which is said to have been proved by DW. 2 Prabhu. 6. Besides this, Ramdeo has been attributed with a lathi, a gun as well as a torch and it could not be possible for him to use all there three articles. Story of Nata is said to be proved by the document Ex. P/7 which is said to have been proved by DW. 2 Prabhu. 6. The learned Public Prosecutor has supported the decision of the learned Sessions Judge and relied upon the testimony of the main witnesses and as per their statements contended that Nata with Ramdeo has not been proved because neither there is any custom nor proof about the payment of money and further the document Ex. P/7 is not signed by the father and brother of Bhoti. 7. I have considered the contentions raised on behalf of both the sides and examined the record of the case. From the evidence it may be said that the accused persons were not knowing the house of Mst. Bhoti and they had to make inquirers from the neighbours in order to find out with which was the house of Mst. Bhoti. It was this woman they wanted and it is not a case wherein it can be said that the accused persons wanted to take away any girl from the village. Mst. Kesar (PW. 4) says that two persons had come to her house at the night time were not known to her. However, when they demanded ghee and flour, she went inside to fetch the same and she was beaten and her son Prabhu was also beaten by lathies. However, both these persons did not have any injuries which could be said to have been received by them at the time of this incident. Bhoti (PW. 5) says that Ramdeo alone entered the house and lifted her from the cot and forcibly took her away outside the house. This Ramdeo, appellant khiladi and one more took her away from her village and in the way the odhni and ghaghra were removed and thrown away. Then after taking her for another two three miles, she was given a petticoat and then she was kept in a field under a lemon tree for two three days. The odhni and ghaghra said to have been found in the forest, were seized by the police. Then after taking her for another two three miles, she was given a petticoat and then she was kept in a field under a lemon tree for two three days. The odhni and ghaghra said to have been found in the forest, were seized by the police. But these clothes do not hear any marks so as to say that the person wearing them was subjected to dragging. Thereafter the allegation is against Ramdeo that he committed sexual intercourse with her and there is no such allegation against the appellant Khiladi. The fact that Bhotis mother went inside the house to bring ghee and flour for Ramdeo suggests that she was knowing him and that there was some prior association with him. She does not agree to the theory that Bhoti had been given in Nata to Ramdeo but the accused himself has set up the claim that Bhotis father-in-law had given her in Nata and received the money hut her mother did not get any money, hence, she was not satisfied with this arrangement. It may be said that the identification of appellant Khiladi by Mst. Kesar in an identification parade cannot be accepted. She was Khihdi at a time when he was in handuffs and she had been asked to identify this person as Khiladi. This sort of identification becomes meaningless. This case against Khiladi is to be considered in this appeal and it can be said that no reason has been shown as to why he would associate, with Ramdeo when there is no allegation that he had entered the house to remove Bhoti or that he had committed any sexual intercourse with her. Why would the accused remove the clothes of the woman in the way and from where they could provide her with another petticoat. The story of keeping her naked or half naked under a lemon tree near the well for a couple of days also sounds improbable. At this place, Bhoti met other persons but she did not make any complaint to them. The appellant had no interest in Mst. Bhoti and his father had actually kept her in his house when she became ill and Khiladis wife even looked after her at that time. In the circumstances, it cannot be said to be proved that the appellant kidnapped Mst. The appellant had no interest in Mst. Bhoti and his father had actually kept her in his house when she became ill and Khiladis wife even looked after her at that time. In the circumstances, it cannot be said to be proved that the appellant kidnapped Mst. Bhoti and that he knew that she would be sexually abused by Ramdeo or any one else. In my opinion, the case against the appellant Khiladi cannot be said to be proved beyond reasonable doubt and the conviction of the appellant cannot be maintained. 8. Accordingly, this appeal is accepted and the conviction and sentence of the appellant is set aside. He is on bail and his bail bonds shall stand discharged. *******