Accused entered the house of his wife when his marriage with prosecutrix was subsisting - Accused did not commit rape or caused any other injury - Conviction of accused under Section 458 IPC set aside

RAJASTHAN HIGH COURT

Before :- Sunil Kumar Garg, J.
S.B. Criminal Appeal No. 456 of 1987. D/d. 22.2.2002

Pania & Ors. - Appellants Versus State of Rajasthan - Respondent

For the Appellants :- Suresh Kumbhat, Advocate.
For the Respondent :- Mahipal Bishnoi, Advocate.

JUDGMENT

Sunil Kumar Garg, J. - This appeal has been filed by the accused appellant against the judgment and order dated 31.10.1987 passed by the learned Addl. Session Judge, Bali in Sessions Case No. 63/85 (1 of 1983) by which he acquitted the accused appellant Pania for the offence under Sections 366, 323, 323/34 and 342 IPC, Jeevla for the offence under Sections 366, 323, 323/34 and 342 IPC and Kharta for the offence under Sections 366, 323, 323/34, 342 and 376 IPC and also acquitted another accused Mst. Jamni for the offence under Section 368 read with 366 IPC, but convicted the accused appellants for the offence under Section 458 IPC and sentenced each of them to undergo three years RI and to pay a fine of Rs. 1000/-, in default of payment of fine, to further undergo 9 months RI.
2. It arises in the following circumstances :-

On 31.5.1982, PW-7 Mst. Geeta lodged a written report Ex.P/7 with the Police Station Sadri District Pali stating inter-alia that on 31.5.1982 at about 1.00 AM in the morning, her daughter Jatna (PW-6) (hereinafter referred to as the prosecutrix) aged about 16 years had been kidnapped by some persons. It was further stated in report that when she was sleeping in front of her house, at that time, four persons suddenly entered her house after breaking the door and they also started beating her as well as her daughter prosecutrix PW-6 Jatna and after pulling prosecutrix PW6 Jatna, they took her outside the house and after putting her in the motor, which was standing outside her house, they took her and at that time, she was weeping severely. It was further stated in the report by PW7 Mst. Geeta that her husband had gone to Sadri and after coming to Sadri, she lodged that report.

On this report, police registered the case and chalked out regular FIR Ex.P/8 and started investigation.
During investigation, through fard Ex.P/3, the prosecutrix PW6 Jatna was got recovered from the possession of the accused appellant Kharta Ram. Therefore, the prosecutrix PW6 Jatna was got medically examined by PW16 Dr. Champalal and her medical examination report is Ex.P/18.
After usual investigation, police submitted challan against the accused appellants and one more accused Mst. Jatna in the Court of Magistrate, from where the case was committed to the Court of Session.
On 12.8.1986, the learned Addl. Sessions Judge, Bali framed charges against the accused appellants and one more accused Mst. Jamni in the following manner :-

Name of accused persons	Charges
1. Kharta	458, 366, 323, 323/34, 342 and 376 IPC
2. Pania	458, 366, 322, 323/34 and 342 IPC
3. Jeevla	458, 366, 323, 323/34 and 342 IPC
4. Mst. Jamni	368 read with 366 IPC.

The charges were read over and explained to the accused persons. The accused persons denied the charges and claimed trial.
During trial, the prosecution in support of its case examined as many as 16 witnesses and got exhibited some documents. Thereafter, statements of the accused persons under Section 313 Cr.P.C. were recorded. In defence, five witnesses were produced by the accused persons.
The learned Addl. Sessions Judge, after recording evidence, formulated the following questions in his impugned judgment and order dated 31.10.1987 :-

1. That whether the accused appellants entered the house of PW7 Geeta after making preparation of beating her and her family members and with an intention to kidnap her daughter prosecutrix PW6 Jatna ?

2. That whether accused appellants kidnapped prosecutrix PW6 Jatna with an intention that she may be compelled to marry with the accused appellant Kharta Ram and whether at that time, prosecutrix PW6 Jatna was 16 years of age ?

3. That whether accused appellants caused injuries to the prosecutrix PW6 Jatna, her mother PW7 Geeta and her brother ?

4. That whether after kidnapping prosecutrix PW6 Jatna, the accused appellants used force against her ?

5. That whether accused appellant Kharta Ram committed rape with the prosecutrix PW6 Jatna ?

6. That whether accused Mst. Jamni wrongfully concealed prosecutrix PW6 Jatna, who was kidnapped ?

The learned Addl. Sessions Judge, after examining the evidence available on record, answered the above questions in the following manner :-

(1) That the question No. 1 was answered in affirmative holding that the accused appellants entered the house of PW7 Geeta after making preparation to cause injury to her and with an intention to kidnap her daughter prosecutrix PW6 Jatna.

(2) That the question No. 2 was answered in negative holding that at the time when prosecutrix PW6 Jatna was kidnapped, there was relationship of husband and wife between accused appellant Kharta Ram and the prosecutrix PW6 Jatna and that at that time, the prosecutrix PW6 Jatna was more than 16 year of age.

(3) That the question No. 3 was also answered in negative meaning thereby accused appellants did not cause any injury to the prosecutrix PW6 Jatna, after taking her from her house.

(4) That the question No. 4 was also answered in negative holding that no force was used by the accused appellants against the prosecutrix PW6 Jatna, after taking her from her house.

(5) That question No. 5 was also answered in negative holding that accused appellant Kharta Ram did not commit rape with the prosecutrix PW6 Jatna.

(6) That question No. 6 was also answered in negative and that is why, the accused Jamni was acquitted of all the charges framed against her.

Thus, after answering the questions No. 2 to 6 in negative, the learned Addl. Sessions Judge through his judgment and order dated 31.10.1987 acquitted the accused appellants Pania for the offence under Sections 366, 323, 323/34 and 342 IPC, Jeevla for the offence under Sections 366, 323, 323/34, 342 and 376 IPC and also acquitted another accused Mst. Jamni of all the charges framed against her, but convicted the accused appellants for ate offence under Section 458 IPC and sentenced them in the manner as indicated above.
Aggrieved from the said judgment and order dated 31.10.1987 passed by the learned Addl. Sessions Judge, Bali, this appeal has been filed by the accused appellants.
3. In this appeal, the main submission of the learned counsel appearing for the accused appellants is that since the accused appellants have been acquitted of all the substantive charges framed against them, therefore, the findings of conviction for the offence under Section 358 IPC are palpably erroneous one on the ground that when the learned Addl. Sessions Judge has come to the conclusion that no offence of kidnapping or causing injuries to the prosecutrix PW6 Jatna and her mother PW7 Geeta was found proved against the accused appellants, therefore, the offence that accused appellants entered the house of PW7 Geeta with an intention to kidnap her daughter prosecutrix PW6 Jatna, cannot be said to be proved against them. Hence, it was prayed that this appeal be allowed and the impugned judgment and order be set aside and the accused appellants be acquitted of the charges for the offence under section 458 IPC.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge, Bali.
5. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and pursued the record of the case.
6. To prove the charge for the offence under Section 458 IPC, the prosecution must prove :-

(i) that the accused committed lurking house-trepass by night, or house- breaking by night;

(ii) that he did as above after having made preparation for causing hurt, or for assaulting, or for wrongfully restraining some person, or for putting some one in fear of hurt, assault or wrongful restraint.

7. In my considered opinion, the findings of convictions for the offence under Section 458 IPC recorded by the learned Addl. Session Judge against the accused appellants are on the very face erroneous one. When the learned Addl. Sessions Judge has come to the conclusion that the accused appellants did not kidnap prosecutrix PW6 Jatna as the marriage between accused appellant Kharta Ram and the prosecutrix PW6 Jatna was subsisting on that day and furthermore, accused appellant Kharta Ram did not commit any rape with the prosecutrix PW6 Jatna and no force was used by the accused appellants against her and she was above the age of 16 years, therefore, in these circumstances, how the accused appellants could be convicted under Section 458 IPC, it is beyond imagination, as the basic ingredients for proving the charge under Section 458 IPC are missing in this case. In the present case, it cannot be said that the accused appellants entered the house of PW7 Geeta after lurking themselves and furthermore, when the charge of causing injuries to PW7 Geeta was not found proved by the learned Addl. Session Judge, therefore, it cannot be said that the accused appellants entered her after making preparation for causing injuries to her or wrongfully restraining prosecutrix PW6 Jatna or PW7 Geeta.
8. For the reasons stated above, the findings of conviction for the offence under Section 458 IPC recorded by the learned Addl. Sessions Judge against the accused appellants cannot be sustained and the same are liable to be set aside and this appeal deserves to be allowed and the accused appellants are entitled to acquittal of the charges for the offence under Section 458 IPC.
Accordingly, this appeal filed by the accused appellants Pania, Kharta and Jeevla is allowed and the impugned judgment and order dated 31.10.1987 passed by the learned Addl. Sessions Judge, Bali are set aside and the accused appellants are acquitted of the charges for the offence under Section 458 IPC.
Since the accused appellants are on bail, they need not surrender and their bail bonds are cancelled.

Appeal allowed.