- (1.) THIS is an appeal by Madho and twelve others against the judgment of the Additional Sessions Judge, Dholpur, dated the 10th March 1952, convicting all the accused under sec. 366 read with sec. 149 I. P. C. and sentencing them to five years' rigorous imprisonment and a fine of Rs. 200/-, in default six months' further rigorous imprisonment each.
(2.) SHANKERSINGH is absconding. His house was searched by the police at the instance of Chhidda and hence he was on a look-out to take revenge against Chhidda. With this intent, it is said, that SHANKERSINGH along with about 21 persons came to Nagla Umar Khan during the night between the 16th and 17th October 1949 and at first went to the house of Chhidda and when he was told that Chhidda was not within the house SHANKERSINGH and his party came to the house of Lakhua and Dhanpal who are near relatives of Chhidda. ' Some members of the party entered the house and took hold of Mst. Patola, sister of Lakhua, and dragged her out. They also caught Lakhua and tried to carry him away. Dhanpal having heard the cries of Patola and Lakhua also woke up and he attacked the party of SHANKERSINGH with a sword, but he was beaten by two members of that party. Other villagers also came out of their house and tried to pursue the party of SHANKERSINGH, which was carrying away both Patola and Lakhua, but guns were fired and the villagers could not succeed in their attempt. The party of SHANKERSINGH, it is said, released Lakhua after he had been taken to some distance but they carried away Patola and have kept her in confinement so that she has not been able to return uptil now. The police could not find Patola. On the 17th October 1949 the first information report was lodged by Dhanpal who was accompanied by Megha at the police station of Bari. Nagla Umar Khan is at a distance of 8 to 10 miles from the police station Bari. In that report seven persons were named and it was also stated that Lakhua knew the names of the other persons. The police could not arrest Bidha, SHANKERSINGH and Pothi, who were named in the first information report, but Devi, Pitam, Gorey, & Birbar who were named in the first information report were arrested and were challaned with 11 other persons who were subsequently named by Lakhua. The accused pleaded ignorance of this occurrence and stated that they did not take part in it. The prosecution examined, among others Kalol, Dhanpal, Tunda, Daulatram, Pothi and Lakhua, who are eye-witnesses. Kilol P. W. 2 has stated that he knew the accused persons from before but it appears from his statement that he was not present on the spot when the occurrence took place and his evidence is more or less hearsay. Much importance cannot therefore be attached to his statement. He identified Uttam and Umeda at the identification parade but when he was not present on the spot identification by him does not go any further. Dhanpal P. W. 5 was the person who attacked the party of Shankersingh with a sword and he was beaten, He has named Devi, Pitam, Gorey, Birbar, Badna Shanker and Pirthi and he has stated that he knew Badna, Shanker and Pirthi from before. He has mentioned the names of the persons, whom he did not know, and the reason stated for this is that the party of the accused were calling their companions with names and the witness could therefore know their names. At the identification parade he identified Uttam and Umeda correctly but he also identified Babu as one of the persons who took part in this occurrence, but the identification of Babu was wrong. Babu was mixed in the parade for the purpose of identification only and he had no connection with this occurrence. The evidence of Dhanpal therefore cannot by itself be of much assistance to the prosecution as regards the accused identified by him, as he was responsible in identifying one person in correctly. He was the person who made the first information report and he had a talk with Lakhua before he started for the police station. Lakhua knew all these persons from before and he must have named them. It was on this account probably that Dhanpal could cite the names of seven persons mention d in the first information report. Out of these seven persons three are absconding and only Devi, Pitam, Gorey and Birbal are before the court. The version given by Dhanpal is that he woke up when the dacoits were dragging Patola and Lakhua and he atonce took his sword and attacked the dacoits but was beaten back. When the dacoits had taken away both Patola and Lakhua the villagers came out and tried to pursue the dacoits. The dacoits then fin d several guns in order to scare away the villagers who then did not dare to pursue them any further. The next eye-witness is Tunda P. W. 7, who was not present at the identification parade and there is no explanation as to why he was not invited to join the parade. Tunda has named Pitam, Devi, Zardan, Pothi, Bidha, Birbal, Kanhai, Gulzari, Madho and Sobaran as the persons whom he recognised at the time of the occurrence. Out of these he has stated that he knew Pitam, Devi and Zardan from before. His statement is that he came to the spot where the dacoits were busy after he had heard the cries of Patola and Lakhua and also after he had heard the firing of the guns. Taking the version of Dhanpal to be correct, it seems doubt-ful if after the guns had been fired this witness had any occasion to come close to the dacoits to enable him to see their faces at the time when there was insufficient light. This witness was confronted with his statement before the committing Magistrate, in which he had said that he did not know the accused from before. He had then to admit that he mentioned the names of the dacoits because they were being called by their companions with names. This explanation does not appear to be very satisfactory under the circumstances of this case. Similarly, Daulat Ram P,w. 9 also says that he woke up by the reports of the firing of guns and came to the spot. The remarks which have been made in connection with the evidence of Tunda P. W. 7 in this behalf would apply to the testimony of Daulatram as well. Daulatram has identified Uttam alone but at the time of the trial he could not correctly identify the same person. He also incorrectly identified Ochha who was not one of the members of the party of dacoits. He has named Uttam, Umeda, Gulzari, Devi, Pitam, Shanker-singh, Pirthi, Badna, Kanhai, and Man Sahai. Man Sahai has been acquitted by the trial court At the identification parade only three accused Uttam, Umeda land Gulzari were mixed among other persons for the purpose of the identification parade. The rest of the accused were not put for identification. This witness did not know Kanhai from before on his own showing and there was no reason why at least Kanhai was not put for identification at the parade. Even though he has stated that he knew Devi and Pritam from before yet in his cross-examination he has admitted that he had known there names only on the day of the occurrence as they were so called by the other members of the party. The evidence of this witness under these circumstances does not appear to be much reliable. Pothi P. W. 8 has stated that he woke up with the sound of the firing of the guns and when he came out he saw the dacoits carrying away Patola and he recognised Devi, Pritam, Pirthi, Kanhai, Zardan, Umeda, Badna, Gulzari and Birbal whom he knew from before. He also said that he recognised the rest of the members of the party of the dacoits by their faces and at the same time he stated that the other persons whom he had recognised by faces were not present before the court. This witness is an ekzaddi of Dhanpal and Lakhua. He has correctly identified Uttam, Umeda, and Gulzari at the identification parade, but it appears that he failed to identify Uttam before the court when he said that the persons whom he did not know from before were not present at the time of the trial. His evidence relating to the Uttam and Gorey therefore becomes weak. Gorey was also present before the court and he was not pointed out by this witness as one of the persons who took part in this occurrence. This witness woke up after he had heard the gunshots and in his case as well the same comments would apply as have been made relating to the statements of Tunda and Daulatram, that when there was insufficient light and when he had come when the dacoits were firing guns it would not be probable for this witness to come at close quarters with the dacoits to see and identify them correctly. Lastly, the testimony of Lakhua is there against all the accused. Lakhua has said that he knew all of the accused from before and he had named 22 persons including all the accused before the Court as the persons who took part in this occurrence. The learned counsel of the accused has urged that Dhanpal had gone to the police station after discussing the occurrence with Lakhua and in the first information report only seven persons were named. The evidence of Lakhua relating to the persons other than those who were named in the first information report should therefore be looked at with suspicion. This argument of the defence counsel is not without force. It may also be stated that. Lakhua was examined by the police on the 28th of October 1949 for the first time and he had ample time to rope in as many persons as he could during this long interval. Lakhua was being dragged out of his bed by the dacoits and some of the dacoits, it is said, remained outside his house. It was not, therefore, easy for him to have managed to see each and every one of the party of the dacoits at the time he was being dragged, by some of them. In view of all these circumstances the statement of Lakhua can be relied upon in respect of the persons who were named in the first information report by Dhahpal. The case against the accused other than Devi Pritam, Gorey and Birbal therefore is not free from doubt and their appeal diserves to be accepted. As regards the four persons Devi, Pritam, Gosey and Birbal it may be noted that they were named from the beginning and there is evidence of Lakhua against them. There is therefore no room for any doubt against them that they took part in this occurance. The learned counsel of the accused has urged that the prosecution has failed to place on the record any evidence regarding the object of the accused persons in taking away Patola. Lakhua has however stated that the accused may have taken away Patola for the purpose of selling her away. He has also not said that the object of the accused in abducting Patola was to force her to marry against her will or to compel her to have illicit intercourse against her will. There is also no circumstance on the record of the case to warrant an inference against the accused that they had in their view one of the objections mentioned in sec. 366 I. P. C. in committing this offence. The argument of the learned counsel appears to be well-founded and as there is no evidence of any circumstance from which an inference about the intention of the accused can be gathered it cannot be held proved that the object of the accused in abducting Mst. Patola was to compel her to marry against her will or to force or seduce her to illicit intercourse. It is however evident that the accused persons used force to abduct Mst Patola and took her away with them and Mst. Patola has not yet returned to her house. There is under these circumstances good reason to infer that the accused have abducted Patola for the purpose of confining her wrongfully and secretly. The case of Devi and three others therefore falls within the scope of sec. 365 I. P. C.
(3.) THE number of the party of the dacoits was more than five and sec. 149 I. P. C. has been applied against them. All the four accused can therefore be convicted of an offence under sec. 365 read with sec. 149 I. P. C. It may be mentioned here that an offence under sec. 265 can be regarded as a minor offence as compared to an offence under sec. 366 I. P. C. We are supported in this view by the judgment of a Division. Bench case in Qeen Empress vs. Sitanath Manda [ I. L. R. 22 Cal. 1006] wherein it has been observed by Maopharson, J. as follows: - "it is true that wrongful confinement is not an essential feature of the commission of an offence under sec. 366, but it must often be involved in it. " The accused when they dragged and carried away Patola by force they in doing so did certainly commit an act which would fall within the scope of the definition of wrongfull confinement, thus justifying the view that the offence of sec. 365 is often involved in the major offence of sec. 366 specially when abduction is accompanied with use of force or violence. In the present case, the above view is strengthened by the fact that there is no trace of Patola after her abduction. The appeal of Madho, Latur, Bidha. Gulzari, Hota, Umeda, Kanhai Zarban & Uttam is allowed & their convictions and sentences are set aside. They shall be released forthwith if not required in any other case. ;