Rajasthan High Court - Jaipur
Maninga And Ors. vs State Of Rajasthan on 26 July, 2000
Equivalent citations: 2000CRILJ5001, 2000WLC(RAJ)UC759
JUDGMENT Sunil Kumar Garg, J.
1. This appeal has been filed by the accused-appellants against the judgment and order dated 7-5-1983 passed by the learned Sessions Judge, Pratapgarh by which :
1. he acquitted accused Khatu, Nakuda Rakma, Ratna, Bheru and Badri of the charges under Sections 148, 324/149, 323 and 366, IPC;
2. he convicted accused-appellant Maniga for the offence under Section 324/34, IPC and sentenced to 6 months R. I. and a fine of Rs. 100/- and also convicted for the offence under Section 323/34, IPC and sentenced to three months RI and further convicted under Section 366, IPC and sentenced to one year R. I. and a fine of Rs. 100. In default of payment of fine, to further undergo one month R. I.
3. He also convicted accused appellant Manji for the offence under Section 323, IPC and sentenced to 3 months RI and also convicted under Section 324/34, IPC and sentenced to six months R.I. and a fine of Rs. 100/- and further convicted for the offence under Section 366, IPC and sentenced to one year R. I. and a fine of Rs. 100/ -. In default of payment of fine, to further undergo one month R. I.
4. He also convicted accused-appellant Hurji for the offence under Section 324, IPC and sentenced to 6 months R. I. and a fine of Rs. 100/- and also convicted under Section 323, IPC and sentenced to three months RI and further convicted under Section 366, IPC and sentenced to one year RI and a fine of Rs. 100/-. In default of payment of fine, to further undergo one year RI.
2. It arises in the following circumstances :-
On 25-5-1980 at about 4.25 pm, PW3 Partha lodged a report Ex. P/4 before the Police Station Pratapgarh District Chittorgarh stating that on 24-5-1980 in the evening at 7.00 p.m., he along with his wife Dulki, PW4, Kamlu, PW9 and Jalki, PW5 were going to Padaliya, and when they reached Dholikhera, accused Harji (present appellant), Bheriya, Badri alongwith 3-4 other persons, whose names he did not know, came there. At that time, Harji, accused-appellant was armed with Kulhari, accused Bheriya was having sword and Badri was having lathi. The accused Harji gave blow with Kulhari on the person of PW3 Partha and asked Partha, PW3 where is his money. Because of the blow by Kulhari, PW3 Partha fell down and, thereafter, Badri gave two lathi blows on the person of PW3 partha. Harji, accused appellant again gave blow by Kulhari and Badri also gave lathi blow on the person of PW3 Partha. Rest of accused persons remained standing as witnesses of the beating. PW9 Kamlu and PW5 Jalki fled a way. Accused persons took away the PW4 Dulki, wife of PW3 Partha with them. Thereafter, the present report has been lodged by PW3 Partha. On this report, police registered the case and started investigation and after usual investigation, submitted challan against accused persons in the Court of Magistrate from where the case was committed to the Court of Session, Pratapgarh. The learned Sessions Judge, Pratapgarh vide order dated 3-6-1982 framed charges under Sections 148, 324, 323, 366, 392, IPC against the accused Hurji and against rest of the accused, all charges similar to Harji except that of offence under Section 392, IPC were framed. Accused denied charges and claimed trial. In support of its case, the prosecution examined as many as nine witnesses and statements of accused were recorded under Section 313, Cr.P.C. Thereafter, the learned Sessions Judge vide his judgment and order dated 7-5-1983 acquitted six accused persons of all the charges framed against them and convicted the present accused-appellants and sentenced as stated above.
Aggrieved from the said judgment and order dated 7-5-1983 passed by the learned Sessions Judge, Pratapgarh, the accused-appellants have filed this appeal.
3. In this appeal, it has been contended by the learned counsel for the accused-appellants :-
(1) That no case for the offence under Section 366, IPC is made out against the accused-appellants as the prosecution has not been able to establish that the accused-appellants abducted Mst. Dulki, PW4 with the intention to compelling her to marry any person against her will or in order that she may be forced or seduced to illicit sexual intercourse.
(2) That there are material contradictions and omissions in the statements of the prosecution witnesses and, therefore, no case against the accused-appellants for any offence is made out. Hence, they be acquitted of charges framed against them.
(3) That if any case is made out against the accused-appellants, they may be released on the sentence already undergone by them.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order.
5. I have heard the learned counsel for the accused-appellants and learned Public Prosecutor and perused the record of the case.
6. Before proceeding further, it may be stated here that the injury report of PW3 Partha is Ex. P/1, which shows that PW3 Partha has received seven injuries and out of them, injury No. 1 was incise wound caused by sharp weapon and rest of the injuries were simple caused by blunt weapon. The injury report Ex. P/1 has been proved by Dr. Ashok Kumar, PW1.
7. The injury report of PW4 Dulki is Ex. P/2, which shows that she received three injuries caused by blunt weapon and were simple in nature. The injury report of Dulki Ex. P/2 has been proved by Dr. Ashok Kumar, PW1.
8. The learned Sessions Judge vide his judgment under appeal has come to the following conclusions :-
(1) That at the time of incident, PW3 Partha received injuries on his body as mentioned in the injury report Ex. P/1 and PW4 Dulki also received injuries on her person, as mentioned in the injury report Ex. P/2.
(2) That the prosecution has proved that the injury No. 1, 2 and 7 on the body of PW3 Partha have been caused by accused Hurji only and for rest injuries, it is not established as to which accused has caused them.
(3) That similarly Injuries No. 1 and 2 of PW4 Dulki have been caused by accused Manji and for injury No. 3, it has not been established by the prosecution as to which accused has caused that injury.
(4) That PW3 Dulki was abducted by the present accused-appellants and rest accused were not found guilty of the charge under Section 366, IPC.
(5) That the charge under Section 148, IPC is not made out against any of the accused.
9. In this appeal, the above findings of the learned Sessions Judge have been assailed by the learned counsel for the accused appellants.
10. The first point for consideration is whether charge under Section 366, IPC has been proved against the accused-appellants beyond reasonable doubt or not.
11. From the report Ex. P/4 lodged by PW3 Partha, it appears that in that report, he has mentioned the names of accused Hurji, Bhuriya and Badri specifically. In his statement she has stated that Hurji, Nagiya, Rakma, Manji and Khatuda were the only persons, who met. Thus, the names of accused Bhuriya and Badri did not find place in the statement of PW3 Partha when it was recorded in the Court. In his examination-in-chief, PW3 Partha has further admitted that he has given the amount of dispute of his wife PW4 Dulki to one Vajinga and all accused persons, who met him at the time of incident were demanding the amount of dispute. In cross-examination, he admits that he knew all the five accused before the incident, but he has mentioned the names of three accused in his report Ex. P/4.
12. The next witness is PW4 Dulki, wife of PW3 Partha. She states in her statement that she was first married to Rupa and, thereafter, she came in nata to PW3 Partha. PW3 Partha paid Rs. 500/- to the brother of his previous husband Rupa. in her statement, she stated that six accused persons met, though the statement of PW3 Partha is otherwise. She has further stated that her hand was caught hold by accused Hurji and Manji. She has admitted in her cross-examination that in her caste, there is a custom of giving a lady in nata and in that event, some amount has to be paid to the previous husband and it is further admitted that when the amount is paid, it is reduced in writing and PW3 Partha also had written proof for the payment of the amount to Vijanga, brother of her previous husband.
Note:- In this case, no written document is produced showing that the payment has been made by PW3 Partha to the previous husband of PW4 Dulki.
13. PW4 Dulki further stated that she lived for two days with the wife of accused Manji. She has admitted that she prepared roti for all persons and she also ate roti and when she was taken away by the accused, she did not make any hue and cry.
14. PW5 Jalki, whose name is also found in the report Ex. P/4, states that accused Manji and Hurji took away Dulki, PW4.
15. PW9 Kamlu has been declared hostile.
16. To prove the charge under Section 366, IPC, two ingredients must be established; (i) that she was kidnapped or abducted from the custody of her lawful guardian and (ii) that she was kidnapped or abducted with the intention of compelling her to marry any person against her will or in order that she may be forced or seduced to illicit sexual intercourse.
17. In the present case, in my opinion, the charge under Section 366, IPC against the present accused-appellant cannot be said to have been proved by the prosecution beyond reasonable doubt.
18. PW4, Dulki, who is prosecutrix in this case has specifically states that she was being caught hold by two accused Hurji and Manji. Nowhere she states that she has been taken away by accused persons. Furthermore, she admitted in his cross-examination that she lived in the house of accused Manji for two days, where she prepared roti also and she did not make any hue and cry and dispute between them was with respect to payment of amount to her previous husband and it is an established custom in her caste that in case a lady goes in nata, her second husband has to make payment to the previous husband and reducing it in writing is necessary and in this case no written document is produced, that means dispute between the party was with regard to money and in such circumstances, if the lady i.e. PW4 Dulki has gone in the house of some relatives of her previous husband, it cannot be said that she had been abducted and furthermore, in this case, it is missing that she was abducted with the intention of compelling her to marry any person against her will. As per the statement of PW4 Dulki, she has lived in the house of Manji as a woman and there is no evidence that she was compelled to marry any person against her will or that she was forced or seduced to illicit sexual intercourse.
19. Thus, in my opinion, the prosecution has failed to prove charge under Section 366, IPC against the accused-appellants beyond reasonable doubt and, therefore, the findings of the learned Sessions Judge holding accused-appellants guilty for the offence under Section 366, IPC are liable to be set aside and the accused-appellants are liable to be acquitted of the charge under Section 366, IPC.
20. On findings of beating, it may further be stated that there is a material contradictions and omissions in the statements given by the prosecution witnesses. The name of accused Maninga and Manji is not found in the report Ex. P/4, though PW3 Partha knew them. Thus, their presence on the spot is doubtful and thus, they cannot be held liable for causing injuries to either PW3 Partha or PW4 Dulki. Thus, they are entitled to be acquitted of the charges framed against them.
21. Now, there is only one accused Hurji, whose name is found in the report Ex. P/4 and also in the statements of PW3 Partha and PW4 Dulki and there is a clear cut evidence that he has caused injuries on the body of PW3 Partha by Kulhari and this fact is further corroborated by medical evidence in this case. Therefore, the prosecution has been able to prove its case beyond reasonable doubt against the accused-appellant Hurji for the offence under Sections 324, 323, IPC and the findings recorded by the learned Sessions Judge in this regard are liable to be confirmed and rest of the findings of the learned Sessions Judge are liable to be set aside.
22. On the point of sentence to Hurji, it may be stated that from the judgment of the learned Sessions Judge, it appears that he remained in police custody and judicial custody for the period from 7-7-1980 to 30-7-1980 and in my opinion, looking to the facts and circumstances of the case and that the incident took place on 24-5-1980 and now 20 years have gone, the sentence which has been served out by the accused Hurji for the offence under Sections 324, 323, IPC is sufficient and no useful purpose will be served by sending him to jail now. Therefore, he should be sentenced to the period already undergone by him.
In the result, for the reasons stated above:
(1) The appeal of accused-appellants Maninga and Manji is allowed and the judgment and order dated 7-5-1983 passed by the learned Sessions Judge, Pratapgarh are set aside and they are acquitted of the charges framed against them.
(2) So far as the appeal of accused-appellant Hurji is concerned, his appeal is partly allowed. The accused-appellant Hurji is acquitted of the charge under Section 366, IPC and the judgment and order dated 7-5-1983 passed by the learned Sessions Judge convicting and sentencing him for the offence 366, IPC are set aside. However, the conviction of accused Hurji for the offence under Sections 323, 324, IPC made by the learned Sessions Judge vide his judgment dated 7-5-1983 is maintained, but the order of sentence dated 7-5-1983 for the offence under Sections 323, 324, IPC passed against him by the learned Sessions Judge is set aside and he is sentenced to the period already undergone by him.
Since the accused appellants are on bail, they need not surrender and their bail bonds stand cancelled.