BHANWARLAL Vs. MST PARBATI
HIGH COURT OF RAJASTHAN
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(1.) THIS is a reference made by the Additional Sessions Judge No. 2, Jodhpur recommending that the order of the Additional Munsiff Magistrate No. 2, Jodhpur dated 20th April, 1966, whereby he committed Bhanwarlal for facing trial under Section 459 of the Penal Code, be quashed as no offence under that section could be made out, and chat the applicant may be tried by the learned Magistrate.
(2.) THE circumstances which it is necessary to notice in order to decide this important and interesting question briefly stated are these: At about 4a. m. on the 14th June, 1959 Mat. Parbati a young widow was sleeping on the terrace of her house and heard the footsteps of some one which disturbed her sleep and she noticed petitioner Bhanwarlal and one Shrikishen standing by the side of her cot. They demanded sexual intercourse from her and when she declined to oblige Bhanwarlal inflicted a dagger blow on her head and ran away. Shrikishen also inflicted a few knife blows on this woman. A report of the occurrence was lodged with the police but after investigation the police gave a final report. Consequently Mst. Parbati instituted a complaint under Sections 307, 458, 323 and 324 of the Penal Code on 8th September, 1959. A case under Sections 324 and 457 of the Penal Code was registered against Bhanwarlal and Shrikishen. Proceedings against Shrikishen were dropped as he could not be served. The trial proceeded against Bhanwarlal and he was convicted on 23rd October, 1981 under Sections 326 and 458 of the Penal Code. The learned Sessions Judge, Jodhpur by his order of 17th February, 1962 acquitted him on appeal. The High Court on an appeal against acquittal remanded the case for retrial. Charges under Sections 326 and 457 of the Penal Code were framed against the petitioner and the evidence of the parties was closed on 23rd March, 1966. After part of the arguments were heard the complainant urged that charge against Bhanwarlal should be framed under Section 459 of the Penal Code and with this submission the learned Magistrate agreed and framed a charge under that section and since it was exclusively triable by the Court of Session he committed the petitioner to face his trial in that Court. By transfer the case came before the Additional Sessions Judge No. 2, Jodhpur. Before the said learned Judge an argument was raised on behalf of the accused that the facts as disclosed by the prosecution did not make out a case under Section 459 of the Penal Code and his commitment order was, therefore, highly unjust and improper. This argument found favour with the learned Additional Sessions Judge According to his inter, pretation the word 'whilst' occurring in Section 459 of the Penal Code persuaded him to hold that the offence of house breaking was complete as soon as an entry into the house was effected and any grievous hurt subsequently caused by the person breaking into a house could not be said to be grievous hurt caused while the accused was committing the house breaking. He has accordingly made the recommendation that the order of commitment be quashed.
(3.) MI. Bhimraj appearing for applicant Bhanwarlal supports the reference. He relies on Queen Empress v. Ismail Khan (1886) ILR 8 ALL 649, Sed Rasul v. Emperor AIR 1917 Lah 319, Muhammad v. Emperor AIR 1921 Lah 94 and Said Ahmad v. Emperor AIR 1927 ALL 536. Mr. Utsavlal appearing for Mst. Parbati opposes the reference and has placed reliance on Chatur v. King Emperor (1911) 8 ALL LJ 574, Imamudin v. The Crown (1876) 11 Pun Re No. 17 (Cr) and Enayat Ali v. Emperor 38 Cal WN 446 : AIR 1934 Cal 557.;
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