Important Point
When offences under Sections 366, 323, 342/34 and 376 were found not proved against accused persons conviction under Section 458 IPC could not be sustained.

Sunil Kumar Garg, J.— This appeal has been filed by the accused appellants against the judgment and order dated 31-10-1987 passed by the learned Addl. Sessions Judge, Bali in Session Case No. 63/85 (1 of 1983) by which he acquitted the accused appellants Pania for the offence under Sections 366, 323, 323/34 & 342 IPC, Jeevla for the offence under Sections 366, 323, 323/34 & 342 IPC and Kharta for the offence under Sections 366, 323, 323/34, 342 & 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. 1,000/-, in default of payment of fine, to further undergo 9 months RI.

2. It arises in the following circumstances:-

On 31-5-1982, P.W. 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 the 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 prosecu-trix PW 6 Jatna and after pulling prosecutrix PW 6 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. Thereafter, the prosecu-trix PW6 Jatna was got medically examined by P.W. 16 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. Jamni in the Court of Magistrate from where the case was committed to the Court of Sessions.

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:-

S.No. Name of accused persons Charges

1. Kharta 458,366,323,323/34,342 and 376 IPC

2. Pania 458, 366, 323, 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, state-ments 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 bea-ting her and her family member and with an inten-tion to kidnap her daughter prosecutrix PW6 Jatna?

2. That whether accused appe-llants kidnapped prosecu-trix 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 appe-llants caused injuries to the prosecutrix PW6 Jatna, her mother PW7 Geeta and her brother?

4. That whether after kidnap-ping prosecutrix PW6 Jatna, the accused appe-llants