Balli vs State of Madhya Pradesh

G.S. Solanki, J.—This judgment shall govern disposal of both these appeals as they arise out of same sessions trial.

Appellants have preferred these appeals under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgments dated 01.01.1997 and 17.01.1997 passed by Additional Sessions Judge, Umaria District Shahdol in S.T. No.11/1994, whereby the appellants have been convicted under Section 365 and 323 of the I.P.C. and sentenced to R.I. for 5 years and R.I. for 1 year respectively. Both the sentences shall run concurrently.

Babbli @ Ballhi, appellant No.1 in Criminal Appeal No.115/1997, has died during the pendency of this appeal. Therefore, Cr.A. No.115/1997 stands abated against him.

The facts, in short, giving rise to this appeal are that on 12.07.1993, at about P.M., complainant Kuntibai (P.W.-2) was going for answering the call of the nature. These appellants alongwith Balli @ Ballhi (since deceased) had caught hold her and tried to take away her, at this juncture Motilal (P.W.-1) (husband of complainant) intercepted them, then appellants had assaulted him. Thereafter Kuntibai fled away from the spot and reached to her parental house. Compliant was lodged by Motilal (P.W.-1) at Police Station Pali, District Shahdol for the offences punishable under Sections 363, 366, 323, 354 of the I.P.C. against these accused/appellants.

After due investigation, appellants have been charge sheeted before Addl. Chief Judicial Magistrate, Umaria, who committed the case to the Court of Sessions. The Sessions Judge has made over the case to Additional Sessions Judge, Umaria. The Additional Sessions Judge, Umaria has framed the charge under Sections 363, 366, 354 read with Section 34 of the I.P.C. against the appellants.

Appellants abjured the guilt and pleaded false implication.

After appreciation of evidence on record, though the trial Court acquitted the appellants from the charge under Sections 363, 366 and 354 of the I.P.C., however, they 3 have been convicted and sentenced as mentioned hereinabove. Hence, this appeal.

Learned counsel appearing on behalf of the appellants has submitted that the trial Court had committed an illegality in not appreciating the evidence on record in its proper perspective. He further submitted that as far as the offence under Section 323 of the I.P.C. is concerned, he does not press these appeals for the offence punishable under Section 323 of the I.P.C.

I have perused the impugned judgment alongwith the statement of complainant Kuntibai (P.W.-2), Motilal (P.W.-1), Pappulal (P.W.-3) and Gangaprasad (P.W.-4), wherein Kuntibai (P.W.-2) has stated that when she was returning from answering the call of nature, accused/appellants had caught hold her, when she made hue and cry, her husband Motilal came to rescue her, then appellants have assaulted Motilal, consequently Motilal fled away from the spot. She further submitted that thereafter they took her to the jungle, from where she fled away and reached to her parental house. Motilal (P.W.-1) corroborated her statement and stated that appellants Ramcharan, Mahadeo alongwith Balli @ Ballhi (since deceased) have assaulted him and further stated that appellants were taken away the prosecutrix with them. But the other eye witness Ganga Prasad (P.W.-4) has stated that he saw the appellants were going and complainant Kuntibai was following them silently. The trial Court had failed to consider the statement of Ganga Prasad (P.W-4), from where it reveals that complainant herself was going with the appellants. It further reveals from the statements of Kuntibai that she was unable to state anything why appellants were taking away her from the custody of her husband. In these circumstances, the prosecution has failed to prove the ingredients of offence punishable under Section 365 of I.P.C. that appellants were abducted the complainant with the intent to cause her to be secretly or wrongfully confined. In these circumstances, the trial Court has committed an illegality in recording the conviction under Section 365 of the I.P.C., the same is liable to be set aside. As far as the offence under Section 323 of the I.P.C. is concerned, the appellants have not challenged the conviction recorded against the appellants for the aforesaid offence.

In these circumstances, this appeal is partly allowed. The conviction recorded against the appellants under Section 365 of the I.P.C. is hereby set aside. The appellants are acquitted from the charge under Section 365 of the I.P.C. The conviction recorded under Section 323 of the I.P.C. is hereby affirmed.

Since appellant Ramcharan has suffered jail sentence of about 5 months and appellant Mahadeo has suffered jail sentence of about one year, therefore, the ends of justice would be met, if their jail sentence be reduced for the period already undergone by them.

The appeals are partly allowed. The conviction recorded against the appellants under Section 365 of the I.P.C. is hereby set aside. The conviction recorded against the appellants under Section 323 of the I.P.C. is reduced to the period already undergone by them.

Appellants are on bail. Their bail bonds and surety bonds stand discharged.

Record of the trial Court be sent back alongwith copy of this judgment immediately for compliance and necessary action.