BONDAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS is the appeal of the six accused persons against their respective convictions and sentences. All the accused persons have been convicted and sentenced under Section 148 IPC. Then again some of them have been convicted and sentenced under Section 342 IPC and the rest - under Section 341 IPC. Conviction under Section 366, I. P. C. is only against Bondal, Bodram and Gimjarilal. The accused Bedram, has, however, been further convicted and sentenced for the offence under Section 324 (354?) I. P. C.

(2.) ACCORDING to the prosecution, in the early hours of the morning of 24th Nov. 1976, prosecutrix Mst. Shantibai aged about 25 years and wife of Banshilal Satnami, had gone out of the village to answer the call of nature. On the way, the appellants-accused Bondal, Bedram and Gunjarilal caught her. bodily lifted her and took her to the house of Bondal where she was wrongfully confined and was not allowed to move out. The appellant-accused Bedram attempted to outrage her modesty during her confinement in the house. She was, however, rescued on the same date by about the night time. Therefore, she lodged the report on the next day morning. After due investigation, the appellants-accused were put up for trial for commission of the offences punishable under Sees. 148, 366, 354. 342/341, IPC. All of them abjured the guilt in the trial Court and contended that they were implicated on false report due to enmity. The trial Court, on the strength of evidence on record, convicted and sentenced the respective accused persons for commission of various alleged offences. Hence now, their present appeal.

(3.) THE foremost point advanced by the appellants' learned Counsel is that conviction of some of the accused persons under Section 366, IPC was bad in law : and as such, unsustainable. It is urged in this connection that the learned Sessions Judge, after the initial commitment of the case to him under Section 209 Cr. P. C. , had sent back the case to the Magistrate, for trying the accused persons, only for offences exclusively triable by the latter; and had, thus, discharged these accused persons of the offence under Section 366 IPC. The Magistrate, after taking some evidence, had again committed the case to the Court of Session, who, thereafter, had framed the charge under Section 366, IPC; and after due trial, had convicted some of the appellants-accused of the offence under Section 366 IPC. According to the appellants' learned Counsel, the Magistrate, in the first place was not competent to re-commit the appellants-accused for trial of the offence under Section 366, IPC, inasmuch as, the learned Sessions Judge, by implication, had discharged these appellants-accused, of the said offence : and in the second place, the learned Sessions Judge, having already earlier discharged the accused persons of the offence under Section 366, IPC, was not competent to frame the charge under Section 366. IPC : and, thus, review his own earlier order. Then again, on merits, it is urged that there being two FIRs in the case, as disclosed from the prosecution evidence itself; and the first FIR of the date 24th Nov. , 1976 having been suppressed, no reliance could be placed on the latter FIR filed by the prosecutrix on the next day. It is further canvassed, before me that the appellants-accused Nos. 4, 5 and 6 were not liable for any conviction in the absence of any cogent evidence, inasmuch as, they are not found to be incriminated in the FIR and also in the earlier police statements of the material prosecution witnesses. Roznamcha Report (Ex. P-7) is urged to be of no probative value either for corroboration or for contradiction, inasmuch as, Banashilal who had lodged this report, had not been examined, at all, by the prosecution. As regards, the offence under Section 354. IPC, it has been argued that even from the prosecutrix's own evidence, no such offence was made out, at all.