Offences under Sections 366 and 376, I. P. C. are non-compoundable and cannot be compromised.

( 1 ) THE appellant Bhalia was convicted under Sections 366 and 376, I. P. C. by judgement dated 20-5-1986 delivered by the Additional Judge to the Court of Sessions Judge, Jhabua Camp, Alirajpur in Sessions Trial No. 428 of 1985 and sentenced to suffer 2 years' R. I. on the first count and four years R. L on the second count. By the same judgement the appellant Natu was convicted under Section 366, I. P. C. and sentenced to suffer 2 years' R. I. and another appellant Sekdiya was also by the same judgement convicted under Section 366, I. P. C. (but he is reported to have died during the pendency of this appeal) and sentenced to two years' R. I. The two appellants through this appeal challenge their conviction and sentence.

( 2 ) THE prosecution case is that on 5-5-1985 at about 7 a. m. from near village Kosariya the two appellants with deceased appellant Sekdiya kidnapped or abducted Islibai (P. W. 1) said to be 14 or 15 years of age, in order that she may be married to the appellant bhaila and subjected to illicit intercourse by him. First she was taken to the house of deceased appellant Sekdiya and then to the house of the appellant Bhaila. The appellant Bhaila is said to have forcibly sexually assaulted Isli. The incident of taking away was witnessed by Ugarsingh (P. W. 3) Chhelbai (P. W. 5) who informed Nayakda (P. W. 4), father of Islibai. On the next day Nayakda (P. W. 4) lodged F. I. R. (Ex. P/2) which was written down by Bhanwarsingh Chauhan (P. W. 6 ). Bhanwar Singh recovered Islibai from the house of the appellant Bhaila on 6-5-1985 and she was sent for medical examination. Dr. Pratima Mukherji (P. W. 2) vide her report (Ex. P/1) found one simple injury on Islibai. She could not, however, express any opinion about sexual intercourse having been committed on Islibai. She found that Islibai was between 19 to 21 years of age. After usual investigation challan was put up against the appellants.

( 3 ) THE two appellants Bhaila and Natu pleaded not guilty to charges under Sections 366 and 376, I. P. C. They denied all material allegations and pleaded false implication. They examined Narju (D. W. 1) and Barju (D. W. 2) to prove that Nayakda was willing to compound the matter on being paid Rs. 2000/- and two goats while accused Bhaila was willing to pay Rs. 1000/- and give one goat. Two appellants and the deceased appellant Sekdiya were convicted and sentenced as stated above.

( 4 ) AT the hearing to the appeal Shri Amarsingh, learned counsel for the appellant submitted that evidence has been misappreciated and there is no corroboration to story of Isli (P. W. 1 ). She is a grown up healthy woman and. no injury was found on her person. Hence offences under Sections 366 and 376, I. P. C. are not made out. It was further submitted that the appellants are tribals being Bhils of Jhabua district and the custom of Bhagoriya marriage by elopement/capture is prevalent amongst them. According to this custom the girl and the man run away and have sexual intercourse; thereafter there is bargaining with the father and other relatives of the girl. Usually boy pays some amount to the father or relatives of the girl and two of them are married. If the bargain is, however, not settled, quarrel takes place and report is lodged in the police leading to prosecution. According to him in the instant case Nayakda (P. W. 4) had demanded Rs. 2000/- and two goats from the appellant Bhaila and Bhaila could not pay the same amount and this false report is lodged against him.

( 5 ) DURING the pendency of this appeal before this court an application was filed (I. A. No. 661/89) urging that the appellants, the prosecutrix Isli and her father Nayakda have compounded their differences with the appellants and did not wish to prosecute the appellants. On the day of hearing on 5-7-1989 prosecutrix Islibai and her father Nayakda appeared before this court. On being questioned the two stated that they had compromised the matter with the appellants