JUDGMENT 1. - In the present matter, there were three accused-persons before the trial Court viz. (1) Hanuman Ram, who was charged for offence punishable under Sections 147, 323, 366 and 376 I.P.C.; (2) Rana Ram and (3) Joga Ram, who were charge for offence punishable under Sections 147, 323 and 366 I.P.C. Accused Hanuman Ram was acquitted of the charge of commission of offence under Sections 147, 323, 366 and 376 I.P.C. by the trial Court while convicted accused-appellant Rana Ram under Section 366 I.P.C. and accused-appellant Joga Ram under Sections 323 and 366 I.P.C. However, during pendency of present appeal, accused-appellant Joga Ram son of Moti Ram died on 4.4.2006 and hence, appeal proceedings qua him were terminated vide order dated 19.10.2011 passed by this Court. In this manner, now present appeal stands only on behalf of accused-appellant Rana Ram son of Khuma Ram. 2. Heard the learned counsel for the surviving accused appellant Rana Ram as well as learned Public Prosecutor. 3. Present appeal under Section 374 Cr.P.C. is directed against the judgment dated 21.2.1990 passed by learned Sessions Judge, Jodhpur in Sessions Case No. 179/1987, convicting the present accused-appellant Rana Ram under Section 366 I.P.C. and sentencing him to undergo two year's imprisorunent along with fine of Rs. 50/-, in default of payment whereof to undergo further one month's rigorous imprisonment. 4. The concise facts of the case are that on 10.7.1987 a written report (Ex.P-1) was submitted by Smt Sukhiya W/o Nena Ram and Nena Ram before the Dy. S.P. (Rural), Jodhpur, inter ilia, alleging that they are resident of Jatawas Dhani in village Jhanwar. On 8.7.1987 they went in the village Jhanwar to work in the marriage of Puna Ram. When they returned, their elder daughter Phooli (PW-1) told that after them at around 9 O'clock Rana Ram S/o Khuma Ram resident of Jhanwar, Joga Ram S/o Moti Ram resident of Feench and Gajra W/o Rana Ram Nai of Village Jhanwar came in jeep along with 7-8 persons, who all were armed with lathis, 'dhariya' and 'jamiya' and they forcibly abducted and took away her sister Shanti Devi wife of Jagdish Nai (PW-9) from her house. 5. At that time Shanti Devi was wearing silver ornaments-'kadlas' in her feet, 'bor' on the forehead and 'tops' in her ears. 5. At that time Shanti Devi was wearing silver ornaments-'kadlas' in her feet, 'bor' on the forehead and 'tops' in her ears. Rana Rain, Joga Ram and other persons who came with them tied the mouth, hands and legs of Shanti Devi with 'safas' (long cloth worn as turban) and forcibly put her in the jeep. She (Phooli Devi) tried to rescue her sister but Joga Rain Nai gave her beating. Those persons also forced her younger brother-Bhera Ram (PW-4) to sit a corner by giving him threat to kill. 6. It is also stated that she along with his husband - Nena Ram, whose mental state is not good, went to report in the Police Station at Jhanwar but the report was not registered and hence, report is being presented before the Dy. S.P. (Rural). 7. The aforesaid written report (Ex.P-1) was forwarded to the Police Station, Jhanwar, which reached there at 8 PM in the night and on the basis of this report, F.I.R. No. 27/1987 (Ex.P-9) was registered for commission of offence under Sections 366 376, 452, 147, 148, 149, 323 I.P.C. Investigation in the matter was conducted by the then ASI Bhanwar Singh (PW-12), Police Station-Jhanwar. On 13.7.1987, abducted lady Smt. Shanti Devi (PW-9) was recovered from house of accused Hanuman Ram vide recovery memo Ex.P-2, who stated forcible abduction from house of her father and also alleged commission of rape by accused-Harriman Ram. Accused persons-Harriman Ram, Rana Ram and Joga Ram were arrested (Ex.5, Ex.6 and Ex.7) and accused-Joga Ram submitted silver 'bor' and silver 'kadlas' to the Police (Ex.P-8) 8. On 14.7.1987 prosecutrix Smt. Shanti was medically examined by Dr. B.P. Gupta vide Ex.P-12, who opined that she is habitual to sexual intercourse and as regard recent intercourse, opinion will be given on receipt of chemical analysis. As regard age. she was examined on 15.7.1987 by Radiologist Dr. Ratan Lal Mathur vide Ex.P-13, who opined that she is above 16 years and below 19 years of age. As per FSL report Ex.P-14, semen was not detected from veginal smear and veginal swab of the prosecutrix Smt. Shanti. After medical examination, Smt. Shanti Devi was handed over to her father Nena Ram vide Ex.P-3. On the request by Police, injuries sustained by PW-1 Phooli Devi were also examined by Dr. As per FSL report Ex.P-14, semen was not detected from veginal smear and veginal swab of the prosecutrix Smt. Shanti. After medical examination, Smt. Shanti Devi was handed over to her father Nena Ram vide Ex.P-3. On the request by Police, injuries sustained by PW-1 Phooli Devi were also examined by Dr. R.D. Mathur (PW-7) vide Ex.P-4, which discloses two simple injuries (abrasion and bruise) caused by some blunt weapon. 9. After due investigation, on 3.9.1987 Police filed challan for prima facie offence under Sections 147, 323, 366 I.P.C. against accused persons - Rana Ram and Joga Ram while for offence under Sections 147, 323, 366 and 376 I.P.C. against accused-Harriman Ram, before learned Munsif and Judicial Magistrate No. 3, Jodhpur who ultimately ordered committal of the same to the Court of Sessions Judge, Jodhpur vide order dated 4.11.1987. Learned trial Court on 2.5.1988 framed charges against accused-persons, as aforesaid. All the accused- persons denied the allegation of commission of offence alleged against them, pleaded innocence and claimed trial. 10. The prosecution supported it case with the aid of 12 witnesses and exhibited 14 documents PW-1 Smt. Phoodi (sister of prosecutrix) and PW-4 Bhera Ram (minor brother of prosecutrix) are said to be eye-witness of the incident. PW-2 Smt. Sukhiya is mother of abducted Smt. Shanti and PW-3 Nena Rain is father of Smt. Shanti, whom Smt. Phooli narrated the incident and who lodge the written report Ex.P-1 before the Dy. S.P. (Rural), Jodhpur, on the basis of which F.I.R. Ex.P-9 was registered at the Police Station, Jhanwar. 11. PW-5 Multana Ram is motbir witness of site inspection by Police PW- 6-Chunni Lal and PW-8 Karna Ram are witnesses before whom Police recovered abducted Smt. Shanti from house of accused-Hanuman Ram and PW-10 Ridmaldan, Constable, is motbir witness of recovery of Smt. Shanti as well as arrest of accused-persons. PW-11 - Bhanwar Dan was SHO, PS Jhanwar who filed charge-sheet in the case and PW-12-ASI Bhanwar Singh registered this case at Police Station, Jhanwar and was the Investigating Officer in this case. 12. The statements of accused-persons were recorded under Section 313 Cr.P.C. wherein they refuted the prosecution allegation. In their statements, accused-persons Joga Rain and Rana Ram admitted that marriage of Smt. Shanti was solemnized with Jagdish, she went to her matrimonial house twice and on 8.7.1987 she was living at Jhanwar in her father Nena Ram's house. 12. The statements of accused-persons were recorded under Section 313 Cr.P.C. wherein they refuted the prosecution allegation. In their statements, accused-persons Joga Rain and Rana Ram admitted that marriage of Smt. Shanti was solemnized with Jagdish, she went to her matrimonial house twice and on 8.7.1987 she was living at Jhanwar in her father Nena Ram's house. However, they refuted allegation of her abduction or going there in a jeep or giving her in 'nata' forcibly. It is, rather, contended that Nena Ram etc got displeased over some money exchange in the 'nata' and therefore, lodged this false case against them. 13. Accused Hanuman Ram contended that he contacted 'nata' with Smt. Shanti at her sweet-will, she was 24-25 years of age and he gifted jewellery etc. He also alleged that parents of Smt. Shanti seems to be unpleased over transaction in the 'nata' and hence lodged this false case. In defence, the accused- persons examined three witnesses-DW-1- Smt. Khara wife of accused Joga Ram, DW-2- Jamal Singh, Sarpanch of Village Jhanwar and DW-3- Kewal Ram, said to be neighbour of father of prosecutrix-Nena Ram. 14. After scrutiny of material on record and evidence produced by the prosecution, the statement of accused-appellants tinder Section 313 Cr.P.C. as well as evidence adduced in defence; learned Sessions Judge, Pratapgarh vide impugned judgment dated 21.2.1990 acquitted the accused Hanuman Ram S/o Hajari Ram Nai from charge of offence tinder Sections 147, 323, 366 and 376 I.P.C., however, convicted the accused-appellant- Rana Ram S/o Khuma Ram for offence under Section 366 I.P.C. and accused-appellant - Joga Ram S/o Moti Ram for offence punishable under Sections 323 and 366 I.P.C. while acquitting them from other charges levelled against them and thereby sentenced them in the manner stated herein above. 15. Aggrieved by the conviction and sentence vide impugned judgment 21.2.1990 passed by learned Sessions Judge, Jodhpur, this appeal was preferred by both the accused-persons Rana Ram and Joga Ram, however, in view of death of Joga Ram during pendency of the appeal, appeal proceedings qua him were terminated by this Court as aforesaid and now present appeal stands on behalf of accused-appellant Rana Ram only. 16. 16. In appeal, learned counsel for the accused-appellant firstly argued on merits and contended that learned trial Court erred relying upon the prosecution evidence for convicting the accused-appellant and the material on the record does not establish the offence alleged against accused-appellant beyond reasonable doubt. It is further contended that the prosecution story is based on said eye-witnesses - PW-1 - Mst. Phooli, sister of the prosecutrix Smt. Shanti and PW-4 Bhera Ram - minor brother of Mst. Phooli. PW-2 Smt Sukhiya and PW-3 Nena Ram-Parents of the prosecutrix were not present at the time of said occurrence. Accused Joga Ram is Phupha (husband of father's sister) of the prosecutrix Smt. Shanti while accused-appellant Rana Ram is Tau (elder brother of father) of the prosecutrix. 17. It is contended that, in fact, Smt. Shanti was married to Jagdish, whom she had divorced and then was given in 'nata' marriage with Hanuman according to custom prevalent in their community. It is further contended that in the Panchayat also, it was resolved that Smt. Shanti may be given into 'nata' marriage according to her will; however, due to some dispute of money in relating to performing of 'nata', parents of Smt. Shanti have lodged this false case against accused persons. However, learned 'trial Court did not consider these important aspect appearing from the prosecution evidence as also in defence evidence. 18. Learned counsel for the appellant also contended that the case of accused-appellant Rana Ram, being based on same set of facts, is not distinguishable from case of Hanuman, who learned trial Court pleased to acquit from all the charges. Hence, learned trial Judge believed on part of the theory while convicted the accused-appellant on the basis of very same evidence and material on record. Hence, learned trial Court erred in correctly appreciating the evidence and record of the case. 19. Finally, the learned counsel for the accused-appellants urged that this appeal is pending since year 1990 and also contended that looking to age of the accused-appellant (around 80 years) and the fact that the incident pertains to the year 1987 i.e. more than 24 years ago, lenient view may be taken in the matter. 19. Finally, the learned counsel for the accused-appellants urged that this appeal is pending since year 1990 and also contended that looking to age of the accused-appellant (around 80 years) and the fact that the incident pertains to the year 1987 i.e. more than 24 years ago, lenient view may be taken in the matter. It is, therefore, prayed by the learned counsel that the accused-appellant may also either be granted benefit of probation or in the alternative, the punishment imposed being too harsh, deserves to be considered sympathetically and may favourably reduced to the period of imprisonment already undergone by the accused-appellant. 20. After perusal of the file, learned counsel for accused-appellant submitted that the accused-appellant Rana Ram son of Khuma Ram Nai was arrested on 14.7.1987, who was released on bail on 4.9.1987 and in this manner, the accused-appellant has remained behind the bars for 53 days in all. 21. Per cotitra, 'learned Public Prosecutor supported the impugned judgment passed by the learned trial Court and contended that the findings arrived at by the learned trial Court on the basis of evidence is correct. There is no infirmity on material contradiction, as such, it does not call for any interference. Learned Public Prosecutor submitted that there is no reason to disbelieve testimony of prosecution witnesses. Learned trial Judge has elaborately considered each of the prosecution evidence, arguments from both sides and rightly convicted the accused-appellants for offence under Section 366 I.P.C. Learned Public Prosecutor further contended that the prosecution has proved its case against accused-appellants beyond doubt. However, looking to facts and circumstances of the case, learned Public Prosecutor has not seriously opposed the prayer of the learned counsel for accused-appellant regarding reduction of the sentence of imprisonment or to grant benefit of probation to the accused-appellant. 22. I have given my thoughtful consideration to the submission made by learned counsel for the rival parties and carefully perused the evidence, record of the case and the impugned judgment of conviction and sentence passed by the learned Court below. 23. I have considered the arguments from both sides carefully. PW-9 Smt. Shanti (prosecutrix) stated that she was at her home, her parents went in village Jhanwar to work in the marriage of Puna Ram while her sister Phooli Devi (PW-1) and younger brother Bhera Ram (PW-4) were at home. 23. I have considered the arguments from both sides carefully. PW-9 Smt. Shanti (prosecutrix) stated that she was at her home, her parents went in village Jhanwar to work in the marriage of Puna Ram while her sister Phooli Devi (PW-1) and younger brother Bhera Ram (PW-4) were at home. At around 9 O'clock accused-appellants - Rana Ram and Joga Ram, along with other persons, came in a jeep and forcibly abducted her, put her in the jeep and took away. The persons accompanying Rana Ram and Jaga Ram gave beating to her younger brother and sister. The accused persons brought her to Jodhpur and took at Basni. Her 'phupha' Joga Ram gave her 'ghaghra-odhani' (dress) to change and they forcibly gave her in 'nata' marriage with Hanuman-accused. 24. Thereafter, accused persons-Joga Ram and Rana Ram tied her month and brought her to the village, who were accompanied with other persons also. Hanuman came with them at Bhesa village, where she was kept in then night at the house of I Ianuman. Hanuman gave her beating and forcibly raped her. In the morning her family persons came there and took from there. It is also stated that she was medically examined. It is also stated that when forcible 'nata' was being made with Hanuman, people of community were not there. It is also stated Joga Ram forced her to change cloths. 25. The statement of the prosecutrix Smt. Shanti was also corroborated by evidence of Phooli Devi (PW-1) and Bhera Ram (PW-4). It is also stated by the prosecution evidence that the prosecutrix Smt. Shanti was recovered from the house of accused Hanuman Ram. Learned Sessions Judge relied upon the prosecution evidence and his finding on the question of abduction version of the prosecution was also corroborated by other evidence. There is no reason to disbelieve the prosecution witnesses-PW-2 and PW-3 (parents of prosecutirx), PW-1 and PW-4 (younger sister and brother of prosecutrix) and PW-9 (the prosecutrix) in this regard, who all are close relative of the accused-appellant (elder brother of father of prosecutrix). 26. So, the prosecution evidence is reliable to the extent that the accused- appellant abducted Smt. Shanti (PW-9) and the motive appears to be that she will be married in 'nata' with Hanuman Ram. 26. So, the prosecution evidence is reliable to the extent that the accused- appellant abducted Smt. Shanti (PW-9) and the motive appears to be that she will be married in 'nata' with Hanuman Ram. Thereby, from the prosecution evidence it appears that the accused-appellant abducted Smt. Shanti so that she could be married (nata) with Hanuman Ram, of course, against her will. 27. In the instant case, it is found from the totality of the circumstances and the prosecution evidence that the prosecutrix Smt. Shanti was major and her statement showed that she was forcibly abducted from her parental house, whereas the accused-appellants alleged to have abducted the prosecutrix Smt. Shanti Devi and handed over her to Hanuman Ram, who took her and kept her in his house, from where she was recovered. It is found that the evidence given by the prosecutrix was cogent, convincing and trustworthy, therefore, conviction of the accused-appellant is held to be proper. 28. This is typical case where the accused-appellants, who are 'tau' (elder brother of father) and 'phupha' (husband of father's sister) in relation of prosecutrix, abducted prosecutrix Smt. Shanti for giving her in 'nata' marriage with Hanuman Ram for money consideration. The abduction was made by deceitful means. I have also carefully considered the facts, circumstances and evidence available on record in this context also. In this age and era, it is not possible to accept practice of abducting married daughters for 'nata' by her own 'tau' (elder brother of father) or other relative. Even if such practice may be used to exist before the Constitution came into force, a woman cannot be treated as "cattle" and cannot be sold in 'nata' against her wishes, even by close relatives, much less the accused-appellant, who is her 'tau' (uncle) and other accused- appellant-who died during pendency of this appeal-Joga Ram-who was 'phupha' (husband of father's sister), after dissolution of earlier marriage of the prosecutrix Smt. Shanti. 29. I am of the view that normally in such cases the sentence imposed should serve as a deterrent, however, the fact is that the accused-appellant belongs to Nai community, a rustic villager, illiterate and unaware of the new horizons of Constitutional developments and awakening in the society, in which women of this Country are given equal respectable status. 30. I have also perused entire evidence. 30. I have also perused entire evidence. The essential ingredient of the offence is that a person who kidnaps or abducts any women should be for the intent that she may be compelled, or knowingly it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse or knowingly it to be likely that she will be forced or seduced to illicit intercourse. In order to constitute offence of abduction, a person must be carried off illegally by force or deception, that is, "to complete a person by force or deceitful means to induce to go from one place to another." It will be clear from the reading of Section 105 of the Indian Evidence Act, 1872 that when the accused pleads any general exception, special exception or proviso, he has to establish the same. Want of consent does not come under a special exception or a proviso. The burden is not on the accused to prove the consent. 31. In the instant case, evidence of prosecutrix Smt. Shanti (PW-9) and witnesses-Mst Phooli (PW-1) and Bhera Ram (PW-4) is cogent and trustworthy. From the scrutiny of the prosecution evidence and the findings given by the trial Court, I am satisfied that there is no error in passing judgment of conviction by the Court below. 32. The punitive theory of punishment and deterrent theory of punishment have left their force considering the fact that the incident took place in the year 1987 and for last 24 years, the accused-appellant and the complainants have been co-existing peacefully, being in the same community and close relative. The offence committed by the accused-appellant was his first offence and the accused-appellant Rana Ram is now in advance age of about 80 years. The punishment, to be effective, must be sufficient and insufficient punishment is greater evil than an excess of-,rigour; for an insufficient punishment is an evil fully thrown away, no good results can be expected either from general public who are left exposed to the like offence nor to the offender whom it makes no better. 33. The punishment, to be effective, must be sufficient and insufficient punishment is greater evil than an excess of-,rigour; for an insufficient punishment is an evil fully thrown away, no good results can be expected either from general public who are left exposed to the like offence nor to the offender whom it makes no better. 33. Jurists have formulated following principles regarding punishment : (a) An excessive punishment, instead of being a deterrent, often results in the generation of an angry public contempt of justice because of its severity, and does not reform the criminal who perceives injustice towards himself. (b) Severity of sentence is far less effective as a deterrent to crime than certainty of detection and sentence. (c) Severity of punishment alone will never permanently solve the crime problem, but imposition of a series of severe sentences frequent temporarily at least, tends to suppress a local crime wave. 34. These recent trends have been recognised and approved by Hon'ble Supreme Court in Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, AIR 1960 SC 224 for ordinary crimes although some special crimes have been excluded. "It is true that modern criminology does not encourage the imposition of severe or savage sentences against criminals because the deterrent or punitive aspects of punishment is no longer treated as a valid consideration in the administration of criminal law. But it must be remembered that ordinary offences with which the normal criminal law of the country deals committed by persons either under the pressure it provoked and unbalanced emotions, or as a result of adverse environment and circumstances, and so, while dealing with these criminals who, in many cases, deserve a sympathetic treatment and in a few cases, are mere sinned against than sinners, criminal law treats punishment more as a reformative or corrective than as a deterrent or punitive measure." 35. So far as reduction of sentence of imprisonment is concerned, it is not in dispute that in the present case the incident occurred as back in the year 1987 i.e. more than 24 years ago, the accused-appellant had been facing trial for quite long time and he has remained in jail for 53 days. So far as reduction of sentence of imprisonment is concerned, it is not in dispute that in the present case the incident occurred as back in the year 1987 i.e. more than 24 years ago, the accused-appellant had been facing trial for quite long time and he has remained in jail for 53 days. The purpose of Court is not merely to punish the accused person but also to ensure that harmony be maintained with the society, therefore, it will not be proper now to send him again in jail after such long period. The accused-appellant is not professional criminal and in the circumstances, he should be released on probation. 36. This view was followed by this Court in Nagji & Anr. v. State of Rajasthan, 1980 Cr LR (Raj.) 244 , wherein also offence under Section 366 I.P.C. was involved and accused was in close relation and abduction was committed with intention to marry the girl against her consent. 37. Consequently, the appeal is partly allowed. The conviction of accused-appellant - Rana Ram S/o Khumaji Nai under Section 366 I.P.C. is maintained but instead of sentencing him at once for imprisonment, it is ordered that the accused-appellant Rana Ram S/o Khumaji Nai be released on probation under Section 4 (1) of the Probation of Offenders Act, 1958 provided he furnishes personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand) along with one surety in the like amount, to the satisfaction of trial Court, to be of good behaviour, to maintain peace and tranquillity and shall not repeat in any such offence for a period of two years and shall appear and receive the sentence whenever called upon to do so during this period. He shall execute such personal bond before the trial Court within a period of four weeks from today. 38. The accused-appellant shall also deposit a sum of Rs. 20000/- towards compensation, under Section 5 of the Probation of Offenders Act, 1958. Upon deposit of aforesaid amount, the same be paid to prosecutrix Smt. Shanti (PW-9) 39. The accused-appellant is on bail, he need not to surrender. His bail bonds stand discharged. Upon furnishing of aforesaid personal bond and depositing the amount of compensation, he shall be given the benefit of probation.Appeal partly allowed. *******