1987 Supreme(Raj) 590
RAJASTHAN HIGH COURT
Shyam Sunder Byas, Ashok Kumar Mathur, JJ.
Jamal And Ors. - Appellant
Versus
State of Rajasthan - Respondent
D.B. Criminal Appeal No. 378 of 1977.
Decided On : 02-04-1987
Advocates:
For the Appellant:N.P. Gupta, Advocate.
For the Respondent: U.C.S. Singhvi, PP.
The essential ingredient of an offense under Section 365 IPC is abduction. If no abduction is there, the offense under Section 365, Indian Penal Code is not made out.
Headnote:
CRIMINAL APPEAL - SECTION 365, 365/109, 376, 384, INDIAN PENAL CODE - FACTUAL MATRIX OF ABDUCTION, RAPE, AND THEFT - INTERPRETATION OF SECTIONS 365, 376, 384, 109 IPC - ANALYSIS OF WITNESS TESTIMONY AND MEDICAL EVIDENCE - DETERMINATION OF GUILT AND INNOCENCE.
Fact of the Case:
The appellants were convicted of abducting, raping, and stealing from a young married woman. The prosecution's case was that the accused Soraj met the victim and offered to help her go to her in-laws, but she declined. Later, she went to the house of accused Ladu to collect money he owed her, but he did not pay her. In the afternoon, she went to ease herself and was lured to the cote of accused Jamal, where he confined her in a room and threatened her. At midnight, he raped her and threatened to kill her if she cried out. Before dawn, the accused took her away, and she was rescued by two witnesses. The accused were arrested, and the stolen ornaments were recovered.
Finding of the Court:
The court found that the charge of rape under Section 376 IPC was not proven, but the accused were guilty of abduction under Section 365 IPC and theft under Section 384 IPC. The court acquitted the accused Soraj and Ladu of abetting the abduction, as there was no evidence of their involvement.
Issues: 1. Whether the accused were guilty of abduction under Section 365 IPC? 2. Whether the accused were guilty of rape under Section 376 IPC? 3. Whether the accused were guilty of theft under Section 384 IPC? 4. Whether the accused Soraj and Ladu were guilty of abetting the abduction under Section 109 IPC?
Ratio Decidendi: 1. The court held that the accused Jamal was guilty of abduction under Section 365 IPC because he confined the victim in a room against her will. 2. The court found that the charge of rape under Section 376 IPC was not proven, as the victim's testimony was unreliable and there was no medical evidence to support her claim. 3. The court held that the accused Jamal was not guilty of theft under Section 384 IPC because the evidence of the recovery of the stolen ornaments was not credible. 4. The court acquitted the accused Soraj and Ladu of abetting the abduction under Section 109 IPC because there was no evidence that they instigated, incited, encouraged, or helped the accused Jamal in any manner.
Final Decision: The appeal of the accused Soraj and Ladu was allowed, and their conviction and sentence under Section 365/109 IPC were set aside. The appeal of the accused Jamal was partly allowed, and his conviction and sentence under Section 365 and 384 IPC were set aside. He was convicted under Section 342 IPC and sentenced to the period of detention already undergone.
JUDGMENT
1. - By this judgment dated September 8, 1977 the learned Additional Sessions Judge, Bhilwara convicted the accused Jamal under Section 365, Indian Penal Code and the accused Soraj and Ladu under Section 365/109 Indian Penal Code and sentenced each of them to one year's rigorous imprisonment with a fine of Rs. 500/-in default of the payment of fine to further undergo three months' like imprisonment. By the same judgment, accused Jamal was further convicted under Section 384, Indian Penal Code and was sentenced to six months' rigorous imprisonment with a fine of Rs. 300/- in default of the payment of fine to further undergo three months' like imprisonment. His sentences were directed to run concurrently. The accused have come-up in appeal and challenged their conviction.
2. Put briefly, the prosecution case is that PW 2 Smt. Roopa, a young married woman in her early twenties, was living with her parents in village Pander, district Bhilwara. The appellants are also residents of the same village. Smt. Roopa had come to her parents on the occasion of Raksha-bandhan. She is a twice married woman. She was first married with one Gopal of village Bihada. Thereafter she Was given in Natra marriage in village Malikhera. On September 12, 1976, when she was going to fetch water, accused Soraj met her in the way and told her that if she wanted to go to her in-laws, he was prepared to render his services for that purpose. Smt. Roopa expressed her inability as her father and brothers were ill. After sometime, she went to the house of accused Ladu to take payment of the money he owed to her for the work she had done in his field. Accused Ladu and Soraj met her there. No money was paid to her by accused Ladu. She returned to her house. In the afternoon on the same day, she left the house to go out-side the village to ease herself. The cote (Nohra) of accused Jamal falls in the way. When she reached near the Nohra of accused Jamal, accused Jamal asked her to come to him. The other two accused were also there with him. When she reached there, accused Jamal told her that her father has again given her in some other Natra marriage. He further told her that in case she wanted to go to her in-laws, they were prepared to help her for that purpose. Smt. Roopa again expressed her inability to go to her in-laws as her father and brothers were ill. Thereafter accused Jamal confined her in a room and locked it. He also threatened her that in case she raised cries, she would be finished for ever. In the mid-night, accused Jamal came in the room and committed rape on her. He again threatened her that in case she raised cries, she would be stabbed to death. Before the crack of dawn the three accused took her out from the room. Accused Jamal also relieved her silver ornaments Dodiya. The appellants then asked her to accompany them While she was going with them, she found PW 1 Surajmal and PW 2 Srawan at the crossing of the roads. Smt. Roopa raised an alarm. The accused fled away. She narrated the incident to these two witnesses. PW 1 Surajmal went to Police Station, Pender and presented written report Ex P 1 at about 10.00 a.m. on September 13, 1976. The police registered a case and proceeded with investigation, Smt. Roopa was got medically examined. The appellants were arrested and in consequence of the information furnished by accused Jamal, one knife and silver ornaments Doodiya were recovered. On the completion of investigation the police presented a challan against the three accused persons in the Court of the Munsif & Judicial Magistrate Jahajpur, who, in his turn, committed the case for trial to the Court of Sessions. The case came for trial before the learned Additional Sessions Judge. He framed charges under Sections 366, 376 and 384, Indian Penal Code against accused Jarnal and under Section 366, Indian Penal Code against the remaining two accused Soraj and Ladu, to which they pleaded not guilty and faced the trial. In support of its case, t
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