Amaresh Ku. Singh, J. - (1.) Heard the learned counsel for the appellants and learned Public Prosecutor. Since both the appeals arise from the same judgment, therefore, they were heard together and we propose to dispose of them by a common judgment.
(2.) In Sessions case No. 52/95, State v. Prem Chand and others three persons namely Prem Chand alias Pema, Smt. Ganeshi, and Kalu were tried by the learned Additional Sessions Judge No. 1, Udaipur on charges under Sections 366 and 343 of the Indian Penal Code. Kalu was also charged under Section 383 read with 34 of the Indian Penal Code. Above named accused persons pleaded not guilty to the charges framed against them, therefore, trial was conducted. During trial Kalu expired, therefore, proceedings against him were dropped on 26th June, 1996 and trial continued against Prem Chand and Smt. Ganeshi. Another co-accused Girdhari who was also named in the charge-sheet submitted by the Police was absconding, therefore, he could not be tried. After trial Prem Chand as well as Smt. Ganeshi were acquitted of the charge punishable under Section 343 of the Indian Penal Code but both of them were convicted under Section 366 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for 2 years and to pay fine of Rs. 200/- and to undergo further simple imprisonment for 3 months for default in payment of fine. Smt. Ganeshi as well as Prem Chand have filed separate appeals against their conviction as well as sentence.
(3.) The facts of the case may be briefly summarised as below; On 16th May, 1995 at 6.10 p.m. Dola Ram submitted the First Information Report Ex.R 1 at Police Station Gogunda and stated there in that on 8th May, 1995 his wife Smt. Kanku aged 30 years had left his house with Ganeshi with a view to go to her father's house situated in Baroda but she did not reach there and when she did not return for three days he went to his father-in-law's house and came to know that Kanku had not reached. It was further stated in the First Information Report Ex.P 1 that a search was conducted to trace out Smt. Kanku and during search Smt. Kanku's brother Pema and 3-4 other persons reached Sisarma near Udaipur and there they got information that Girdhari, Prema and Kalu had brought one woman with them and that they had departed with her for going to Udaipur. When the search party including the brother of Smt. Kanku reached "kachchi" basti near Udaipur, the members of search party saw Kalu S/o Dalu standing in front of a house. As soon as Kalu saw the search party he confronted the search party, showered abuses and appeared to be ready for a violent confrontation. But in view of the fact that search party consisted of 4 persons, he ran away. Thereafter Smt. Kanku came out of the house she was weeping. She was brought to the house of her husband by her brother. It was also stated in the First Information Report Ex.R 1 that after Smt. Kanku started from her house she met Kalu, Girdhari and Prema at some distance. They were on motor cycle, they left the motor cycle and they started travelling on foot with Smt. Kanku and Smt. Ganeshi. Ganeshi had expressed her desire to go to Baroda with Smt. Kanku when she startecf from the village but later on she expressed her desire to purchase some clothes and, therefore, she proposed to Smt. Kanku that both of them would go to Udaipur and after purchasing clothes they would return. It was also stated in the First Information Report that Smt. Kanku and Smt. Ganeshi accompanied the three persons named in the report to Sisarma where the house of the father-in-law of Girdhari was situated. Smt. Kanku, Ganeshi, Kalu, Girdhari and Prem Chand stayed at Sisarma during night and in the following morning Ganeshi went away leaving Smt. Kanku at Sisarma. After that Smt. Kanku was forcibly kept at Sisarma and she was advised to become the wife of Kalu by way of Nata and was also threatened with murder in the event of her refusal. On the following night Kalu and Girdhari deprived Smt. Kanku of her silver 'kadas' which she was putting on her legs. At Sisarma Smt. Kanku was left for four days and thereafter she was taken to 'kachchi basti' near Udaipur in a tempo and was confined there. She came out of the hoyse when her brother and 2-3 other persons reached the 'kachchi basti'. On the basis of the report submitted by Dola Ram the Police registered a case under Section 366, 343 and 384 of the Indian Penal Code. After investigation the Police submitted a charge-sheet under Section 173 of the Criminal Procedure Code in the Court of learned Civil Judge (Junior Division) and Judicial Magistrate First Class, Gogunda who took cognizance of the offences under Sections 366, 343, 384 and 120-B of the Indian Penal Code. Prem Chand, Smt. Ganeshi and Kalu were challaned by the Police and Girdhari was reported to be absconding. Since the offence punishable under Section 366 is triable exclusively by the Court of Sessions, the learned Judicial Magistrate committed the case to the Court of learned District and Sessions Judge, Udaipur who made over the case to the learned Additional District and Sessions Judge No. 1, Udaipur for trial. Smt. Ganeshi and Prem Chand were charged under Sections 343 and 366 of the Indian Penal Code. Kalu was charged under Sections 343, 366 and 383 read with 34 of the Indian Penal Code. All the three accused persons pleaded not guilty to the charges.;