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Raj Kishore Tewari Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in1949CriLJ158
AppellantRaj Kishore Tewari
RespondentRex
Excerpt:
- - 8. in the third place, it was urged on behalf of the appellants that as against the appellant raj kishore tewari there was only the uncorroborated testimony of the girl and it was not at all safe to base a conviction thereon. and that there was no reliable evidence to show that tirath raj or bhola had abducted her. that they told him that they could arrange for a brahman girl of good family but that would cost him ks. in my opinion, therefore, the prosecution failed to bring home the charge under 8, 420, penal code, against the appellants, ram sewak and kishore pandey......tewari of village sakutwa, p. s. tarkulwa, district deoria, were prosecuted under section 366, penal code. bam sewak and kishore pandey were pro. sectioned under section 420, penal code, also. the sessions judge of ballia, who tried the case, found suba and rameshwar not guilty and acquitted them. he found other accused persons guilty and convicted earn sewak, kishore pandey and raj kishore tewari under section 366, penal code, and sentenced raj kishore to undergo rigorous imprisonment for five years and to pay a fine of es. 250 and earn sewak and kishore pandey to undergo rigorous imprisonment for three years and to pay a fine of rs. 100 each. he also convicted earn sewak and kishore pandey under section 420, penal code and sentenced each of them to undergo rigorous b imprisonment.....
Judgment:

Bhargava, J.

1. Ram Sewak Gosain, resident of Village Kasaura, P. 8. Sahatwar, district Ballia, Kishore Panday and Rameshwar Pandey, who live in village Amdore, P. S. Bansdih, in the same district, and Raj Kishore Tewari and Suba Tewari of Village Sakutwa, P. S. Tarkulwa, district Deoria, were prosecuted under Section 366, Penal Code. Bam Sewak and Kishore Pandey were pro. sectioned under Section 420, Penal Code, also. The Sessions Judge of Ballia, who tried the case, found Suba and Rameshwar not guilty and acquitted them. He found other accused persons guilty and convicted Earn Sewak, Kishore Pandey and Raj Kishore Tewari under Section 366, Penal Code, and sentenced Raj Kishore to undergo rigorous imprisonment for five years and to pay a fine of Es. 250 and Earn Sewak and Kishore Pandey to undergo rigorous imprisonment for three years and to pay a fine of Rs. 100 each. He also convicted Earn Sewak and Kishore Pandey under Section 420, Penal Code and sentenced each of them to undergo rigorous B imprisonment for three years and to pay a fine of Rs. 500. He ordered the sentences of imprisonment to run concurrently; and in default of payment of fine the defaulters were to undergo further rigorous imprisonment for three months each.

2. The case for the prosecution was that Bhola Upadhya wanted a bride for his younger brother, Bhakola. He asked Earn Sewak and Kishore Panday appellants to arrange for a bride. They promised to do so if he paid them Bs. 1000. On 28rd January 1946, Bam Sewak and Kishore Pan-day came and told him that they had arranged for a girl and he should pay the money, which was paid at once. They promised to bring the girl in ten or twelve days' time. On or about 25tb January 1946, the appellant Raj Kishore Tewari abducted Shrimati Gujri from the house of her father, Vindhyachal, in village Sareni, P. S. Tarkulwa, and took her to his house in village Sakutwa on the pretext that he would take her for a bath in the river Ganges at Ballia. On or about 28th January 1946, Raj Kishore Tewari, Suba Tewati and his mother, Rameshwar Pandey and Earn Sewak abducted Gujri from Sakutwa and took her from place to place and ultimately to Amdore, where she was kept at the house of Rameshwar and Kishore Pandey. Raj Kishore Tewari and Suba Tewari and his mother left the place without informing Gujri. On 2nd February 1946, Bam Sewak and Eameshwar abducted her from Amdore and took her to the house of Bhola in Chit Basawan P. S. Sahatwar. When the girl was taken inside the house of Bhola, she told the women present that she was the married wife 'of Raj Bali of Dhanauji, district Gorakhpur, and that Raj Kishore Tewari had brought her from her father's house on the pretext of taking her for a bath in the Ganges at Ballia. Bhola then reported the matter at P. S. Sahatwar on 3rd February 1946, and the appellants were prosecuted as stated above.

3. The appellants denied the prosecution story, and alleged that they had been falsely implicated owing to enmity. Bam Sewak further alleged that he had gone to Chit Basawan to demand money from Nagina Mukhia; and that there was an exchange of abuses between him and the Mukhia, who took him to P. S. Sahatwar, where he was taken into custody. He admitted the presence of Bhola and Gujri while he was at the police station. Kishore Pandey alleged enmity With the police. Raj Kishore Tewari's case was that there was dispute between him and Tirath Raj who had illicit connection with Gujri, and the girl was abducted by Tirath Raj and Bhola, who had got him falsely implicated.

4. The learned Sessions Judge found that Ram Sewak and Kishore Pandey had obtained a sum of Es. 1000 from Bhola by deceitful means; that Raj Kishore Tewari had abducted Gujri from her father's house at Sareni in the district of Gorakhpur and Ram Sewak and Kishore Pandey had also taken part in the abduction; and that Ram Sowak had taken her to the house of Bhola at Chit Basawan.

5. In the first place, the appellants' learned Counsel has argued that the joint trial for two distinct offences, namely, under Sections 366 and 420, final Code, was illegal. Ram Sewak and Kishore Pandey were undoubtedly charged with two distinct offences; they were charged firstly, under Section 166, Penal Code, jointly with Raj Kishore Tewari and others and secondly, under Section 420, Penal Code. According to the general rule laid down in Section 283, Criminal P. C, there should have been a separate trial in respect of each charge. There was, however, a joint trial; and the question for consideration is whether in the circum-stances of the present case the trial was illegal as contended by the appellants' counsel.

6. As already stated, the case for the prosecution was that Ram Sewak and Kishore Pandey had dishonestly induced Bhola to deliver to them Bs. 1000 and they promised to procure a bride for his brother, Bhakola; and that having obtained the money, they along with the other accused persons abducted Gujri, a married girl, and took her to the house of Bhola with the intention that she might be forced to marry Bhakola against her will. Section 235 of the Code provides an exception to the general rule contained in Section 233 of the same Code. Clause (l) of Section 235 runs thus:

If, in one series of act to be connected together as to form the same transaction, more offence than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

It has, therefore, to be seen whether the different acts alleged by the prosecution form the same transaction so as to bring the case within the exception. In order to determine whether the various acts alleged form the same transaction, the proximity of time between different acts is not an essential factor; but it is necessary to see how one act is related to the other. If they are related in point of purpose, as cause and effect Or as principal and subsidiary acts so as to constitute one continuous act, they will be deemed to form the same transaction. Applying this test to the facts of this case, there can be no doubt that the acts alleged form one and the same transaction. The transaction began with the request from Bhola for a bride for his brother, and it ended with the taking of Gujri to his house. The acts which were committed in the interval-the demand for and payment of money and the abduction of the girl - were so interlinked that one could not be divorced from the other and they formed part of one and the same transaction. When Bhola made a request to Ram Sewak and Kishore and the bargain was settled, the girl was removed from her father's house with the help of Raj Kishore Tewari, who was known to the girl, Then she was taken from place to place and eventually Ram Sewak took her to the house of Bhola. In view of these allegations, there was one single transaction and the case was covered by the exception to the general rule. The joint trial was consequently legal.

7. The learned Counsel for the appellants,, in the second place, contended that no charge under Section 366, Penal Code, was framed against Kishore Pandey and that his conviction under the said section was wrong, It appears from the charge-sheet that along with the other accused persons Kishore Pandey was also charged with having ' committed an offence Under Section 366, Penal Code, read with S3. 34,109 and 114, Penal Code.' But, while specifying the part played by different accused persons, no special part was assigned to Kiahore Pandey and it was only stated that he had conspired with others to force Gujri to marry Bhakola against her will. The charge-sheet was carefully drawn up; and if Kishore had played any part in the abduction of Gujri it must have been indicated therein. It is significant that Gujri does not say that Kishore Pandey took part in her abduction, even though she mentioned his name and pointed him out in Court as the person who was staying in the house at which she stayed in Amdore. He did not accompany her to the house of Bhola in Chit Basawan. Therefore, although a charge-under Section 366, Penal Code, was framed against Kiahore Pandey, it was not proved against him.

8. In the third place, it was urged on behalf of the appellants that as against the appellant Raj Kishore Tewari there was only the uncorroborated testimony of the girl and it was not at all safe to base a conviction thereon. In cases of this nature the evidence of abducted women is no doubt important, but it has to be received with caution. The learned Sessions Judge accepted the evidence of Gujri because she impressed him favourably, she made a consistent statement and withstood the test of cross-examination and her evidence was supported by facts and circumstances of the case.

9. The statement of Gujri was recorded by the trial Judge on 19th November 1946, and the judgment was delivered on 28th November 1946. The trial Judge did not make any note about the demeanour of the witness or his impressions when the girl's statement was recorded. It is not a fact that the girl has all along made consistent' statements. (His Lordship discussed the evidence and proceeded:)

10. The learned Sessions Judge has mentioned the following facts and circumstances which support the statement of Gujri: That the girl toad no reason to bring a false charge against Raj Kishore Tewari, whom she knew from before; that the girl was taken away from her father's house and when she reached Bhola's house she told about Raj Kishore Tewari having abducted her; and that there was no reliable evidence to show that Tirath Raj or Bhola had abducted her. (His Lordship after discussing the evidence, proceeded:)

11. Therefore, the statement of the girl has not been corroborated by any facts or circumstances. On the other hind, it appears that the girl has not stated the whole truth and has attempted to conceal the facts already deposed to earlier. Her statement could not, therefore, be relied upon. Consequently, the case against Raj Kishore' Tewari has not been proved beyond doubt.

12. In the fourth place, the learned Counsel for the appellants contended that Earn Sewak had been implicated in this affair owing to enmity with Nagina, the Mukhia of the village Chit Basawan. The statement of Gujri that Bam Sewak had taken her to the house of Bhola is supported by his own admission that he was taken along with the girl from the house of Bhola to the police station Bahatwar where the report was made. His allegation that there was a dispute between him and the Mukhia about the price of a bullock appears to be false, Even if there was any such dispute, there was no reason for hi3 being taken to the police station; nor was there any occasion for his being taken into custody. It is, therefore, difficult to believe that he has been falsely implicated in this affair at the instance of the Mukhia. He was rightly convicted under Section 366, Penal Code.

13. Lastly, the appellants' learned Counsel argued that no offence under Section 420, Penal Code, was made out against Bam Sewak and Kishore Pandey. The charge against these persons was that they had cheated Bhola by dishonestly inducing him to deliver to them us. 1000, which money was his property. Bhola has stated that he had asked Kishore, who is the son of his maternal uncle, and Bam Sewak to arrange for a girl for his brother, Bhakola; that they told him that they could arrange for a Brahman girl of good family but that would cost him Ks. 1000; that after sometime they came and asked him to pay Es. 1000 as they had arranged for a girl and that he paid the money and they promised to bring the girl after ten or twelve days. It is difficult to believe that Kishore Pandey would have demanded Bs. 1000 for arranging a bride for his cousin. No connexion- between Kishore Pandey, who lives in Indore in the district of Ballia, and Ram Sewak Gosain, who evidently has no fixed place of abode, has been made out. Bhola, according to his own showing, has got only 25 bighas land under cultivation and it is difficult to believe that he would have so easily handed over Rs. 1000 to Bam Sewak or Kishore. The statement of Gujri that Bhola was one of the persons who was accompanying her when she was taken to Chit Basawan also goes to show1 that the story of payment of Bs. 1000 is false and fabricated. It seems altogether incredible that Bhola would have handed over such a big sum of money without seeing the girl. It is significant that he did not know Bam Sewak from before and he never had any dealings with him. His statement before the police that he was on the look-out of a girl for himself negatives the story of his arranging for a bride for his brother, Bhakola. No reliance could, therefore, be placed upon the statement of Bhola (p. w. l) or upon the statement of his two neighbours, Gajadhar Rai (p. W. 8) and Birna Pandey (p. w. 4), as far as the payment of Rs. 1000 to Ram Sewak or Kishore Pandey was concerned. In my opinion, therefore, the prosecution failed to bring home the charge under 8, 420, Penal Code, against the appellants, Ram Sewak and Kishore Pandey.

14. The appeal is, therefore, allowed to this extent that the conviction of Ram Sewak and KiBhore Pandey and the sentence imposed upon them under Section 420, Penal Code, are set aside. The conviction of and the sentence imposed upon Raj Kishore Tewari and Kishore Pandey under Section 366, Penal Code, are also get aside. The conviction of and the sentence imposed upon Kam Sewak under Section 366, Penal Code, are upheld. Ram Sewak is on bail. He should surrender immediately to serve out the sentence under Section 366, Penal Code. The other appellants, who are on bail, need not surrender. Their bail bonds are cancelled.


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