- (1.) THESE are two connected appeals, one No. 116 of 1951 by Mst. Bhonri from Jail and the other No. 78 of 1951 by Gulab Chand, Narain Singh, Mohar Mal, Radha Kishan and Ganpat Singh. Mst. Bhonri and Ganpat Singh have been convicted under sec. 376 read with sec. 109 of the Indian Penal Code and sentenced to five years' rigorous imprisonment each. Ganpat Singh has also been sentenced to a fine of Rs. 250/-and Mst. Bhonri to a fine of Rs. 100/ -. The other accused have been convicted under sec. 376 and sentenced to seven years' rigorous imprisonment and a fine of Rs. 250/- each.
(2.) THE prosecution case may be briefly stated as follows - One Mst. Prem Kumari a Khatri girl came out of her father's house on the morning of 19th June, 1950 in the town of Alwar on account of a quarrel with her brother and seated herself under a tree. She was weeping when the appellant Mst. Bhonri came to her and began to shed crocodile tears. She offered the girl to take her to her father's house but instead of taking her to her father's house she took her to her own house where she kept her confined for two days. When the girl asked her to take her to her father's house, she told the girl that if she would raise an alarm, she would be arrested. Next day by the mid-night train Mst. Bhonri started with the girl to Sambhar where she arrived in the forenoon, and proceeded to Kotwali Sambhar and enquired about Gulab Chand constable, who was not there. THEn she took the girl to Narain Singh's house and there she was made to drink and then rape was committed upon her by Gulab Chand and Narain Singh. Mst. Bhonri kept hold of Mst. Prem Kumari's hands and gagged her mouth when she was being raped. Ganpat Singh kept on guard when that nefarious act was being committed. In the evening, Mohar Mal and Radha Kishan also forcibly ravished the girl. THEreafter,. Mst. Bhonri, with the girl, was found near the hospital at Sambhar by Kalu Ram constable who sent them to Kotwali Sambhar for a medical report as they appeared drunk. THE girl was sent to the hospital and it was reported by the doctor that her mouth was smelling of liquor but she was not in unconscious state. On coming back to Kotwali, she lodged a report at about mid-night in consequence of which the accused were arrested. Identification proceedings of Mohar Mal, Ganpat Singh and Radha Kishan were held before a Magistrate of Sambhar and the petticoat of the girl and the trousers of Narain Singh and Gulab Chand were sent for chemical examination. THE girl and the accused Gulab Chand, Narain Singh, Mohar Mal and Radha Kishan were medically examined. A site plan of the house of Narain Singh, where the rape is said to have been committed, was prepared and a bottle alleged to be of liquor, a tumbler and a cup were also seized from Narain Singh's house. All the accused were subsequently challaned. Mst. Bhonri under sec. 366 and 376/109 I. P. C. , Gulab Chand under sec. 376/109 I. P. C, and the others under sec. 376 of the Indian Penal Code. All of them were committed to take their trial before the Court of Sessions Judge, Jaipur District, for the offences given above. THE learned Sessions Judge held two trials one of Mst. Bhonri under sec. 366 I. P. C. in which also the judgment has been delivered today and the other under sec. 376 and 376/109. In this judgment we are concerned with the last named trial. All the accused denied the charge and pleaded that the case was an outcome of enmity. The learned Sessions Judge, however, found Gulab Chand, Narain Singh, Mohar Mal and Radha Kishan guilty of an offence under sec. 376 and sentenced them to seven years' rigorous imprisonment and a fine of Rs. 250/- each. He found Mst. Bhonri guilty under sec. 376/109 and sentenced her to five years' rigorous imprisonment and a fine of Rs. 100/ -. Ganpat Singh was found guilty under sec. 376/109 and sentenced to five years' rigorous imprisonment and a fine of Rs. 250/ -. Mst. Bhonri has filed a separate appeal from Jail and the others filed another appeal. Both are being disposed of by this judgment. Mr. D. M. Bhandari argued the appeal on behalf of Gulab Chand, Mr. N. C. Lalwani of Ajmer for Mohar Mal, Mr. Panna Lal for Radha Kishan, and Mr. Habibullah Khan for Narain Singh. The contentions which were raised by all the learned counsel are that it was not proved that Mst. Prem Kumari was subjected to sexual intercourse without his consent, that Mst. Prem Kumari was not proved to be below fourteen year and that Mst. Prem Kumari's statement was most unreliable and was not sufficient for conviction specially when it was uncorroborated. It was also argued that medical evidence shows that the girl had been accustomed to sexual intercourse from before and was therefore, not like an innocent girl who is ravished for the first time. Her evidence was, therefore, altogether worthless. On behalf of Mohar Mal it was argued that his name was not mentioned in the first information report and the only evidence against him is that of identification at the identification parade, where he was identified by Mst. Prem Kumari after having wrongly identified several other persons who were neither Mohar Mal nor Radha Kishan nor Ganpat Singh. On behalf of Radha Kishan it was argued that apart from the fact that his name was not mentioned in the first information report, he was not even identified at the identification parade. Similar is the case with Ganpat Singh. The learned Deputy Government Advocate conceded that so far as Ganpat Singh and Radha Kishan are concerned, the case against them is very weak. They are neither mentioned in the first information report nor were they identified at the identification parade. We agree with the learned Deputy Government Advocate and find that so far as Radha Kishan and Ganpat Singh are concerned, the case against them is not free from reasonable doubt and they deserve acquittal. Coming to the case of Gulab Chand, Narain Singh and Mohar Mal, we take first the cases of Narain Singh and Gulab Chand. Against these two accused there is the straight forward & natural evidence of Mst. Prem Kumari which shows that on coming to Sambhar. Mst. Bhonri took her to Sambhar Kotwali & asked where Gulab Chand constable was. When she was told that he was not there. Narain Singh accused who appended to be there, directed Mst. Bhonri to take her to a house where she was taken by Mst. Bhonri, and Gulab Chand joined them. She was forced to take liquor and Gulab Chand was the first man to commit rape upon her without her consent and Mst. Bhonri held her hands under her knees and gagged her mouth when Gulab Chand ravished her. After Gulab Chand, Narain Singh ravished her. She felt extreme pain in the course of forcible intercourse and her petticoat became drenched in blood. In the evening she was taken to Kotwali and from there, was sent for medical examination. She lodged a report Ex. P. A. at the Kotwali Sambhar. So far as the incident of Sambhar is concerned, nothing has been brought about in her cross-examination which would throw the least doubt upon her testimony so far as Gulab Chand and Narain Singh are concerned. It was argued that the evidence of Mst. Prem Kumari was not corroborated by any other independent evidence and therefore, the conviction ought not to have been founded upon her evidence alone. It was further argued that support has been wrongly sought by the learned Sessions Judge for conviction from the evidence of Kalu Ram and Narain Singh P. Ws. 1 and 2 in corroboration of the evidence of Mst. Prem Kumari. It was argued that a parcha Ex. P. D. which is relied upon to show that soda water bottles were required by Gulab Chand on the date of occurrence was not genuine and the date was subsequently put on it in different pencil. About the police report, it was argued, it was worthless as corroborative evidence, as it was lodged after consultation with various authorities, and the girl did not come out with a theory of rape when she was first brought before the Police or the doctor. There is no doubt that it has been laid down as a rule of prudence that in a case of rape, the evidence of the woman alleged to have been subjected to rape like that of an accomplice should not ordinarily be made the basis for conviction without any corroboration in material particulars. The latest authority on this point is that of Supreme Court, in the case of Rameshwar Kalyansingh vs. The State of Rajasthan (1) (1952 S. C. , J. 46. ). Their Lordships have very elaborately laid down the principles upon this point. In the course of the said Judgment, His Lordship, Bose, J. says, on a review of several authorities, that "the true rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the Judge and this should be indicated in the judgment. The Judge should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the jury, or, when there is no jury, he himself, is satisfied that it is safe to do so. The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand. "these remarks his Lordships was making in connection with the evidence of an accomplice, a child of tender years, but there is no reason why the same remarks should not apply in the case of a grown up woman as well. A grown up woman complaining of rape has no worse position than that of an accomplice who is a man of much worse character. His Lordships Bose, J. says in the course of the said judgment that in his opinion, the law in India in the case of sexual offence is certainly not higher than in the case of accomplice so far as this question is concerned. It is therefore, clear that the principles laid down by their Lordships in connection with the evidence or an accomplice apply to the evidence of a prosecutrix in the case of rape. As regards the nature and extent of corroboration required, their Lordships have laid down certain principles which are given below - "first, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainent or the accomplice, should in itself be sufficient to sustain conviction. Indeed if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other independent testimony. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complaint) is true and that it is reasonable safe to act upon it. " "secondly, the independent evidence must, not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular, the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness' story that the accused was the one, or among those, who committed the offence. " "thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice should not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. " "fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with crime. Were it otherwise, many crimes, which are usually committed between accomplices in secret, such as incest, offences with females (or unnatural offences) would never be brought to justice. " Applying these principles to the facts of the present case, we find that these precautions were present before the mind of the learned Sessions Judge who decided this case. He came to the conclusion that the statement of Prem Kumari by itself was sufficient to prove that rape was committed upon her in a brutal manner at the house of Narain Singh among others. By Gulab Chand and Narain Singh and that the girl became giddy and bled profusely after the brutal Act. He has given his reasons why he would have believed the statement of Mst. Prem Kumari even if it were alone and it cannot be said that his reasons are unsound. In the present case there is material on the record to show that the evidence of Mst. Prem Kumari was true and it was reasonably safe to act upon it. Soon after the occurrence, she lodged a report at the Police Station. Sambhar in which she mentioned Gulab Chand and Narain Singh specifically as the two persons who committed rape upon her. She was not known to these persons from before and it has not been shown why they were falsely named. Although she mentioned in the report that two other persons also committed rape upon her and one man stood on guard, yet as she did not know their names, their names were not given in the report. She said clearly that she knew the house in which she was raped. It was argued on behalf of the appellants that in the first instance, the report was a manipulated one as the date and time were afterwards changed, but the sub-Inspector Nanu Singh under whose supervision, the report was recorded, has stated that because the report was lodged about half an hour after mid-night it was felt that the date given should be 22nd and not 2lst. Therefore, 21st was corrected to 22nd in the opening portion of the report. Of course, towards the end the mistake was not corrected by oversight. As regards time, all that can be said is that at first some figure was put down which was afterwards corrected to 12, but the word night is there and so there can be no room for argument that the report was not taken on the night between the 21st and 22nd. From the fact that at first the date of the report was given as 2lst but after-wards it was corrected to 22nd in the opening portion of the report it appears that the time at which the report was taken was on the border line of the 21st & 22nd June, 1950 and at first a mistake of a few minutes was committed but afterwards, finding the exact time, it was corrected. The correction appears to be genuine one and not out of any ulterior motive. The defence has not been able to show that in changing the date from 21st to 22nd and in correcting the time to 12-30 some ulterior motive was in view. The learned counsel for the appellants argued that the report was made after an unreasonable delay. This however, is not true because the sub-Inspector's evidence is that the girl reached him at about 10 in the night. She was drunk and therefore, she had to be sent for medical examination. The first anxiety of the Police Officers was to find out whether the girl was in a state of consciousness and she could make a correct statement. From the doctor's report, it is clear that her mouth was smelling of alcohol when the girl reached him. So it is not surprising that after the girl returned from the hospital and was found in a state of full consciousness then her report was recorded at 12-30 in the night. If the report had been taken down after full tutoring then there was no reason why the names of all the accused were not given in it. The fact is that the girl was allowed to give her unvarnished version which was taken down in the first information report. The report, to our mind, is quite genuine and has been recorded according to what the girl had stated of her own accord. It was next argued that the report could not be taken to be a corroborative piece of evidence of Mst. Prem Kumari's evidence. There is no doubt that the first information report is not a substantive piece of evidence. It is, however, a very valuable piece of evidence for purposes of corroboration under sec. 157 of the Indian Evidence Act which provides that any former statement made by a witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. In this case, the report was made to an authority legally competent to investigate the complaint made by the girl and therefore, under sec. 157, it was a piece of evidence in corroboration of Mst. Prem Kumari's evidence. It has been held by their Lordships of the Supreme Court in the case of Rameshwar Kalyan Singh vs. The State of Rajasthan (1) (1952 S. C. J. 46.) referred to-above that sec. 157 makes no exceptions. Provided the conditions prescribed, that is to say, "at or about the time etc. " are fulfilled there can be no doubt that such a statement is legally admissible in India as corroboration. It was argued by the learned counsel for Gulab Chand that in the case before their Lordships they had to deal with the information given by the girl to her mother within a reasonable time of the occurrence. In this case there is no such evidence and the report was made to a police officer and much after the occurrence. Reading sec. 157 we find that there are no such qualifying words as at or about the time attached to the statement made before any authority legally competent to investigate the fact. Therefore, it is not necessary that the police report, to be used as a corroborative evidence, should have been made at or about the time when the fact took place. But in the present case, the report was not made after an un-reasonabl time. It was certainly not made at the time of the occurrence but only a few hours after the occurrence and there was reason for this little delay on account of indifferent condition of Mst. Prem Kumari's health on account of drunkenness as well as profuse bleeding. Moreover it is difficult for a girl of tender years to disclose the story with such facts as would tarnish her reputation. Mst. Prem Kumari could not, therefore, be expected to give out the information about rape without any hesitation before an unknown person. Under sec. 157 a former statement made to an authority legally competent to investigate a fact is admissible as corroborative evidence. The report is, therefore, admissible as corroborative piece of evidence of Mst. Prem Kumari's test a mony and reading it with the statement of Mst. Prem Kumari we find no inconsistency so far as the case of Gulab Chand and Narain Singh are concerned. Coming as it does, containing an unvarnished version, it furnishes a strong corroboration of Mst. Prem Kumari's testimony. We proceed to discuss certain evidence which corroborates Mst. Prem Kumari in material particulars. Mst. Prem Kumari was able to point out the house of Narain Singh in which rape was committed upon her. It was difficult for her to be able to point out the house in an unfamiliar town unless she had seen it. It was argued by Mr. Bhandari that the fact that the girl was able to point out Narain Singh's house has no significance against Gulab Chand. It may be, but it shows that the girl's statement that she had been taken to Narain Singh's house is correct. The matter does not rest here. The prosecution has produced a parcha Ex. P. D. which is proved to be in the hand-writing of Gulabchand himself and which shows that he sent for soda water bottles from the shop of Gowardhan. The entry in the account book of Gowardhan also show that the bottles were purchased. It has been contended that the parch. Ex. P. D. was not genuine. The prosecution has proved that the parcha is in the hand-writing of Gulab Chand himself. This evidence is no a challenged. It is only argued that the date has been inserted afterwards as it is in different pencil. It may be that the date is in different pencil, but it may be due to various reasons. Gulab Chand might have at first given no date but then considering the necessity of dating it, he might have dated it & might have accidentally picked up a different pencil. The shopkeeper finding it undated might have returned it for dating or might have dated it himself. We need not enter on speculation in this matter. Suffice it to say, that the defence had ample opportunity to clear this matter in the cross-examination of Gowardhan if it wanted to show that the parcha did not relate to 21st June, 1950 but to a different date. Evidence of Rochak Mal P. W. 12 shows that liquor was purchased from his shop on the date of occurrence by Narain Singh. It is also proved from the evidence of Shanker Mal P. W. 13 who was a constable at Sambhar Kotwali that the duty of Gulab Chand at the treasury on the date of occurrence was from 12 to 3 P. M. but he did not turn up and remained absent and Girraj Prasad, constable acted in his place. Mst. Prem Kumari has also stated that Gulab Chand promised to supply clothes to Mst. Bhonri and for that he withdrew some money from the Post Office. This is corroborated by the entries in the Post Office Savings Bank Book. The girl could not have mentioned about this fact if Gulab Chand had not sent for money in her presence. All the circumstantial evidence corroborates Mst. Prem Kumari's statement that Gulab Chand was present at Narain Singh's house at the time of the said occurrence. It was argued that even if it be taken that Gulab Chand was present at the house of Narain Singh at the time when the occurrence took place, it does not prove that he committed rape upon Mst. Prem Kumari. It is true that there is no direct evidence except that of Mst. Prem Kumari to show that Gulab Chand and Narain Singh participated in rape upon her. It is however, seldom that in cases of rape direct evidence is available beyond the evidence of the raped woman. The evidence of the doctor clearly shows that the girl seemed to have been subjected to sexual intercourse within a day of her medical examination which was made on the 22nd June, 1950 at about 10 A. M. There is also no reason why the girl named Gulab Chand and Narain Singh falsely when she clearly said that there were three other persons whose names she did not know. She swore that she could give the names of Narain Singh and Gulab Chand because their names were called in her presence. There is absolutely no evidence to show that the girl had any enmity against Narain Singh and Gulab Chand or that she was under the influence of any other person who bore enmity with them. As soon as she made the report, she named these two persons. There is also the evidence of Mohd. Ali constable P. W. 10 which shows that Mst. Bhonri, when she came to Kotwali first, asked him where Gulab Chand was. It was argued that it was not shown that the clothes of Narain Singh and Gulab Chand which they were wearing at the time of intercourse bore any stains of semen. In the first instance payjamas of Narain Singh and Gulab Chand were found by the Chemical Examiner to bear the, stains of semen, but it may be said that the prosecution has not been able to prove definitely that these payjamas were worn by the two accused at the time of the offence. We do not, therefore, attach much importance to this fact, but it is not necessary that till the date of medical examination, the accused should be wearing the same clothes which they were wearing at the time of the offence. Ordinarily, unless a man is very poor and has only one garment or has been caught red handed, it is not usual that he would continue to wear the same clothes which might become soiled or stained with semen at the time of the intercourse. The fact, therefore, that it has not been proved that the clothes which the accused were wearing at the time of medical examination were stained with semen does not show that Gulab Chand and Narain Singh did not commit an offence of rape. It was argued that even if the two accused were said to have had sexual intercourse with Mst. Prem Kumari there is nothing to show that the intercourse was without her consent. It was argued that medical examination showed that the girl was about 14 years of age and therefore sexual intercourse with her consent will not be an offence. It is true that medical examination shows that the girl was above 14 years but her evidence is positive that the intercourse was without her consent and was forcible. It was argued that there were no injuries over her vagina which ought to have been present if she was subjected to forcible intercourse. In the first instance, the medical report shows that there were injuries on her vagina and the labia was congested and swollen. This is some evidence of forcible intercourse. The fact that there was no serious injury is due to the fact that the girl was made drunk and was incapable of any resistance. If the girl, who is subjected to sexual intercourse without her consent is incapacitated from putting up any resistance, serious injuries cannot be expected. There is some, evidence that the girl seemed to have had sexual intercourse previously. There was, therefore, no question of the rupture of her hymen at the time of the present occurrence. It was further argued that the girl had previous intercourse and therefore, she might have subjected herself willingly to sexual intercourse. First of all the evidence of the girl is positive that she was made to drink and her hands were put under her knees by Mst. Bhonri and her mouth gagged. Having sexual intercourse under the influence of drink cannot be said to be an intercourse with consent. Then there was no necessity of Mst. Bhonri to catch hold of Mst. Prem Kumari's hands if she willingly subjected herself to sexual intercourse. Then it is absurd to think that a girl of 14 years would give her consent for sexual intercourse with so many unknown persons. It was argued that the girl was, of a bad character as she had intercourse previously. It may be so but it does not prove that a. girl who had been unfortunate enough to have been subjected to sexual intercourse some time before the occurrence would willingly allow four unknown persons to have sexual intercourse on a single day one after another. Law does not allow even a prostitute to be subjected to forcible intercourse against her will.
(3.) WE do not much rely upon the evidence of Kalu Ram and Narain Singh P. Ws. 1 and 2 for the corroboration of Mst. Prem Kumari's statement because they have made improvement in the statements at trial. The prosecution should know7 that there is no use making unnecessary improvements in the statements of prosecution witnesses which are inconsistent with their previous versions. Many a true case ends in acquittal simply on account of this tendency of the prosecution. The duty of the prosecution is to put the true version before the court and it should not be anxious to secure a conviction of the accused by putting forward false exaggerated evidence. If there is no sufficient evidence, for the conviction of the accused, it should not be the concern of the prosecution to bring forward evidence which is not true. WE have, therefore, ruled out of our consideration the evidence of Kalu Ram and Narain Singh P. Ws. 1 and 2 as corroborative evidence of Mst. Prem Kumari but her statement read with the corroborative evidence discussed above convinces us that it is true and leaves no room for doubt that Narain Singh and Gulab Chand committed rape upon her. They have been rightly convicted. As regards Mohar Mal, we do not find that there was sufficient evidence against: him to secure his conviction. His name was not mentioned in the police report. The girl Mst. Prem Kumari was able to identify him after having wrongly identified a few other persons. No confidence can be placed upon her statement so far as the identity of Mohar Mal is concerned. No doubt the girl's statement that she was subjected to forcible intercourse by four persons appears to be true and this she has mentioned in the first information report itself. It cannot, however, be said without doubt that the two other persons were Radha Kishan and Mohar Mal. It has already been said above that Radha Kishan and Ganpat Singh deserve acquittal. As regards Mst. Bhonri there is ample evidence to prove that she kidnapped the girl from lawful guardianship from Alwar. Besides Mst. Prem Kumari's statement, there is the evidence of her father Ram Gopal and that of Hari Dass, Then there is the evidence of Mohd. Ali P. W. 10 which shows that she came along with Mst. Prem Kumari to Kotwali Sambhar and asked whether Gulab Chand was there. Again there is the evidence of Hiralal P. W. 17 who says that he saw Mst. Bhonri in the company of Mst. Prem Kumari on the day of occurrence at about 11 A. M. in the bazar of Sambhar. Then there is the evidence that Mst. Bhonri along with Mst. Prem Kumari was found in the evening on the day of occurrence and was taken to police station. This clearly shows that on the date of occurrence Mst. Bhonri kept constant company with Mst. Prem Kumari and under the circumstances there is no reason to disbelieve Mst. Prem Kumari's statement that she was present at the time of rape and caught hold of her hands. She has been rightly convicted under sec. 376/109 of the Indian Penal Code. As regards the sentence passed on Gulab Chand and Narain Singh it is by no means severe. They brutally ravished a girl of about fifteen years against her will after making her drunk. Such enemies of modesty should be put down with strong hand once their crime is detected. Mst. Bhonri has been given five years' rigorous imprisonment under sec. 366 I. P. C. , and her appeal against that conviction has been dismissed. We deem it proper that sentence of imprisonment in both the cases should run concurrently. Appeal No. 78 of 1951 so far as Radha Kishan, Ganpat Singh and Mohar Mal are concerned is allowed, their convictions and sentences are set aside and they are acquitted. We understand that Radha Kishan and Ganpat Singh who were ordered to be released on bail, should not furnish the bail and are in Jail. If so they shall be released at once unless required in any other case. Mohar Mal shall be released at once if not required in connection with any other case. The fine, if paid, shall be refunded. The appeal so far as Gulab Chand and Narain Singh are concerned is dismissed. The appeal No. 116 of 1951 of Mst. Bhonri is also dismissed, subject to the modification in lower court's order that her sentence of imprisonment in this case shall run concurrently with the sentence of imprisonment under sec. 366 I. P. C. in the other case decided today. . ;