JUDGMENT 1. - This appeal has been preferred by the accused appellants against the judgment and order dated 10.11.1986 passed by learned Additional Sessions Judge, Rajsamand in Sessions Case No. 13/86 by which the learned Additional Sessions Judge acquitted accused Bheru Lal, Bheru S/o Amar Singh, Varda, and Smt. Pyari for offence under Sections 147, 323, 342, 366 and 447 Indian Penal Code, but convicted accused appellants Lehru, Lalu, Moti and Ganga Ram for offence under Sections 366, 447, and 342 Indian Penal Code and also convicted accused appellant Shankar for offence under Section 368 Indian Penal Code and sentenced each of them as under: Name Offence Sentence awarded Lehru Moti 366 Indian Penal Code 4 years' R.I. and a fine of Rs. 500/- each in default to further undergo Gangaram 3 months' R.I. Gangaram Lalu Lehru Moti 342 Indian Penal Code A fine of Rs. 250/- each in default Moti to undergo 1 month's R.I. Gangaram Lalu Lehru Moti 447 Indian Penal Code A Fine of Rs. 250/- each in default Moti to undergo 1 month's R.I. Gangaram Lalu Shankar 368 Indian Penal Code 4 years' R.I. and a fine of Rs. 500/- each in default to further undergo 3 months' R.I. Note: In this case there are five appellants and out of them, appellant Ganga Ram and Lalu Ram died during the pendency of this appeal and their appeal stands abated vide order of this Court dated 24.9.2001. 2. This appeal arises in the following circumstances: (i) On 17.6.1985, P.W.1 Badri Lal lodged a written report Ex.P/1 with the Police Station Railmagra, Dist. Udaipur at that time (Now Rajsamand) alleging inter alia that his younger sister Smt. Pyari P.W.5 (hereinafter referred to as the prosecutrix) was married 20 years back with Magni Ram and in the night she was in her house in village Chhatri Kheda at that time accused persons near about 10 to 15 and out of them he was only knowing the name of accused appellant Lehru and name of rest accused was not known to him came to her house and kidnapped her sister P.W. 5 Smt. Pyari Bai and this incident was witnessed by P.W. 7 Balu and other witnesses also. 3. On this report, police chalked out regular F.I.R. and started investigation. 4. During investigation, through Fard Ex.P/8 the prosecutrix was got recovered on 18.6.1985 from the house of Chhoga. 5. 3. On this report, police chalked out regular F.I.R. and started investigation. 4. During investigation, through Fard Ex.P/8 the prosecutrix was got recovered on 18.6.1985 from the house of Chhoga. 5. P.W. 5 Smt. Pyari was got medically examined and her medical examination report is Ex.P/6. 6. After investigation the police filed challan against the accused appellants and four other persons. 7. On 27.5.1986, the learned Additional Sessions Judge framed charge for offence under Section 368 Indian Penal Code against the accused appellant Shankar Lal and for offence under Sections 366, 147, 447, 323 and 342 Indian Penal Code against accused appellants and Bheru, Bheru Lal, Smt. Pyari W/o Moti and Varda. All pleaded not guilty and claimed trial. 8. During trial, 9 witnesses have been produced by the prosecution and thereafter statements of accused under Section 313 Criminal Procedure Code were recorded and one witness was examined in defence. 9. At the conclusion of the trial, the learned Additional Sessions Judge vide his judgment and order dated 10.11.1986 convicted the accused appellants Ganga Ram, Moti, Lalu, and Lehru for offence under Sections 366, 342 and 447 Indian Penal Code and accused appellant Shankar Lal for offence under Section 368 Indian Penal Code and sentenced each of them as stated above inter alia holding: (i) That P.W. 5 Mst. Pyari was kept by the accused appellants. (ii) That no case is found proved against the accused appellants for offence under Sections 323 Indian Penal Code (iii) That there is no doubt that there are two sets of evidence, but the learned trial judge placed reliance on the statement of prosecutrix and he also admitted that in the statement of P.W.5 Smt. Pyari Bai, there are some contradictions, but from that point of view, her statement cannot be discarded in toto. 10. Aggrieved from the said judgment, this appeal has been filed by the accused appellants. 11. In this appeal, the following submissions have been made by the learned Counsel for the appellants. (i) That it is admitted case of the prosecution that there was dispute, about some land with the accused appellant Moti as the land was given to accused appellant Moti by Jeetu, father-in-law of the prosecutrix P.W. 5 Smt. Pyari for which litigation was also going on. (i) That it is admitted case of the prosecution that there was dispute, about some land with the accused appellant Moti as the land was given to accused appellant Moti by Jeetu, father-in-law of the prosecutrix P.W. 5 Smt. Pyari for which litigation was also going on. (ii) That the statement of prosecutrix suffers from material contradictions with her previous police statement and this fact has also come in the picture that compromise between her husband and her father-in-law had taken place and initially she had also mentioned Jeetu as one of the persons alleged to have kidnapped her, but later on she had excluded her. In these circumstances, the statement of the prosecutrix suffers from contradictions and specially when other witnesses do not support her, reliance should not have been placed on her statement. (iii) Further more, the accused appellants Moti and Lalu are real brothers of Jeetu who is father in law of the prosecutrix and hence to assume that she would have been taken forcibly is wrong. (iv) That ingredient for offence under Section 366 Indian Penal Code are not at all made out and, therefore, from this point of view, no case for offence under Section 366 Indian Penal Code is made out. (v) That the prosecution has not come with clean hands as from the statement of P.W. 5, Smt. Pyari Bai, it is not clear how she received injuries and in these circumstances, the whole case of the prosecution is in doubt and the accused appellants should also be acquitted. 12. On the other hand, the learned P.P. has opposed the submission made by the learned Counsel for the appellants and submits that the judgment of the trial Court is based on correct appreciation of evidence and the same does not require interference by this Court. 13. I have heard both and perused the record of the case. 14. Before proceeding further, it is stated that from the injury report Ex.P/6 which has been proved by P.W. 8 Dr. Sukhlal, the fact that P.W. 5 Smt. Pyari received seven simple injuries is proved, but the learned Additional Sessions Judge has clearly observed that the prosecution has not been able to prove how she received these injuries, therefore, he acquitted the accused appellants and four other accused for offence under Section 323 Indian Penal Code 15. Sukhlal, the fact that P.W. 5 Smt. Pyari received seven simple injuries is proved, but the learned Additional Sessions Judge has clearly observed that the prosecution has not been able to prove how she received these injuries, therefore, he acquitted the accused appellants and four other accused for offence under Section 323 Indian Penal Code 15. The report Ex.P/1 was lodged by P.W. 1 Badri Lal, who is brother of the prosecutrix. In that report, he only mentioned the name of one accused Lehru and for rest, he stated that he did not recognise them and the only eye witness whose name has been mentioned in the report Ex.P/1 is P.W. 7 Balu who has been declared hostile. P.W. 1 Badri Lal who lodged the report Ex.P/1 has further admitted that he got Ex.P/1 written by one Prithvi Raj, advocate and he has further admitted that the dispute between Jeetu and P.W. 5 Smt. Pyari over a land was going on for last two years and after the incident, two bighas of land was given by Jeetu to P.W.5 Smt. Pyari. 16. P.W.2 Bheru is another witness. He has stated that at the time of incident, there was darkness and therefore, he was not in a position to recognise the persons who took away the prosecutrix and many persons were assembled there and he, P.W. 3 Champadas and P.W. 4 Devi Lal also followed, but the persons who took away the prosecutrix were not traced out. But when they reached near river, they came to know that the persons who took her were Jeetu (not accused), Magna (not accused), Chhagna (not accused), Mangi (not accused) Rama (not accused), Heera (not accused), Bheru (accused) and Vena (not accused). He has further admitted that a dispute over a land between Magna, Jeetu and Moti with the prosecutrix were going on. 17. PW-3 Champadas though has been declared hostile has stated that the persons who took the prosecutrix were Jeetu, Magna, Mangi (not accused) and Lehru (accused appellant). He has also admitted the fact that the dispute between Jeetu and prosecutrix was going on. 18. P.W. 4 Devi Lal has clearly stated in his statement that the none of the accused persons present in the court were the persons who took the prosecutrix. He has also admitted the fact that the dispute between Jeetu and prosecutrix was going on. 18. P.W. 4 Devi Lal has clearly stated in his statement that the none of the accused persons present in the court were the persons who took the prosecutrix. Thus, from the above evidence, only the name of accused appellant Lehru is coming forward and rest accused appellant are not being named and on the contrary, names of other persons are coming forward. 19. Now the statement of prosecutrix P.W. 5 Smt. Pyari has to be examined. 20. P.W.5 Smt. Pyari has mentioned the names of accused appellants who took her away. In the cross-examination, she has admitted following facts: (i) That it is wrong to say that Jeetu, Mangi, Chhagna, Heera, Vena, Bheru and Rama had taken her forcibly. Out of these persons, Bheru was one of the accused who was acquitted by the lower Court. (ii) That she filed a suit against Magna and Jeetu. (iii) It is also correct to say that she was given 2 bighas of land before this incident by her father-in-law. 21. P.W.6 Gulab Chand is another witness who stated that people were saying that Magna, Jeetu and Chhagna took away the prosecutrix. 22. P.W. 9 Bheru Singh has further admitted in his cross-examination that he did not arrest all those persons named by P.W.5 Smt. Pyari but only arrested those persons whose names were found in the statement of the prosecutrix recorded under Section 164 Criminal Procedure Code Thus this also goes to show that there is difference between the statement of P.W. 5 Smt. Pyari. 23. When there are two sets of evidence, the evidence favourable to the accused persons should be preferred. In this case, from the statements of prosecution witnesses, other than prosecutrix, it is very much clear that names of so many persons who have not been arrayed as accused are coming forward and thus a doubt has arisen in this case who were real persons who took the prosecutrix P.W. 5 Smt. Pyari. 24. There is no dispute on the point that P.W.5 Smt. Pyari received injuries, but these injuries have not been explained as to how she received injuries. This also creates a doubt on the prosecution story. 25. So far as statement of P.W. 5 Smt. Pyari Bai is concerned, the same also suffers from contradictions. 24. There is no dispute on the point that P.W.5 Smt. Pyari received injuries, but these injuries have not been explained as to how she received injuries. This also creates a doubt on the prosecution story. 25. So far as statement of P.W. 5 Smt. Pyari Bai is concerned, the same also suffers from contradictions. In these circumstances, when the sole eye witness P.W.6 Balu has been declared hostile, reliance should not have been placed on the statement of P.W. 5 Smt. Pyari Bai when her statement does not get corroboration from any other evidence. 26. P.W. 5 Smt. Pyari Bai nowhere has stated in her statement that purpose of taking her by the accused persons was that she would be compelled to marry another person against her will or she may be forced or seduced to intercourse. These are basic ingredients for making out an offence under Section 366 Indian Penal Code and in absence of that case of prosecution for offence under Section 366 Indian Penal Code cannot be found proved and findings of conviction recorded by the learned trial Judge are liable to be set aside. 27. Hence, findings of learned Additional Sessions Judge by which he convicted the accused appellants Lehru, and Moti for offence under Sections 366, 342 and 447 Indian Penal Code and accused appellant Shankar Lal for offence under Section 368 Indian Penal Code are liable to be set aside and their appeal is liable to be allowed and the accused appellants Lehru, Moti and Shankar Lal are liable to be acquitted for the aforesaid offences.For the reasons mentioned above, the present appeal filed by the accused appellants Moti, Lehru and Shankar Lal is allowed and judgment and order dated 10.11.1986 passed by the learned Additional Sessions Judge, Rajsamand by which he convicted and sentenced the accused appellants Moti and Lehru for offence under Sections 366, 342 and 447 Indian Penal Code and accused appellant Shankar Lal for offence under Section 368 Indian Penal Code are set aside and the accused appellants Moti and Lehru are acquitted for offence under Sections 366, 342 and 447 Indian Penal Code and accused appellant Shankar Lal is acquitted for offence under Section 368 Indian Penal CodeSince accused appellants are on bail, they need not surrender. Their bail bonds are hereby cancelled.Appeal allowed. *******