NATHUDAS NARSINGHDAS Vs. STATE

JUDGEMENT

(1.) THE five applicants before me Nathudas, Harisingh Nirbhayesing, Nathudas S/o Tulsidas and Gopaldas have been convicted by the Additional District Magistrate of Mandsaur for an offence under Section 366, I.P.C. and sentenced to four years' rigorous imprisonment each. Their appeal against their convictions and sentences was dismissed by the Sessions Judge, Mandsaur. The accused persons have now preferred the petition to revise the decisions of the Courts below.

(2.) BEFORE me the conviction of the applicants is challenged on the ground that the examination of the accused persons under Section 342 of the Code of Criminal Procedure was contrary to law. It was said that the applicants cere prosecuted for having abducted one Musamat Janibai aged 30 years on the night intervening between the 2nd of January and 3rd of January 1951 with intent that she may be contoelled to marry one Gopaldas, and that the charee framed against the applicants also mentioned that the alleged incident took place on. the night of 2rd January 1951; but that the Magistrate put to each of the accused the question viz., whether he along with his companions forcibly removed Janibai on 6th January 1951 from the house of Jagannath. It was argued that as the accused persons were never asked to explain the circumstances appearing in the prosecution evidence relating to the alleged incident on 2nd January 1951, they could not be convicted under Section 366, I.P.C. in respect of the incident of 2nd January 1951. The learned Government Advocate concedes, and it is also clear from the record that in the questions put by the Magistrate to the accused persons, the date of the occurrence has been mentioned as 6th January 1951. But it is contended by the learned Government Advocate that this is an error which has not caused any failure of justic and that in view of the provisions of Sections 225 and 547, Code of Criminal Procedure, the convictions of the applicant cannot be set aside solely on the ground of this error.

(3.) THE next question for consideration is whether a retrial of the accused persons should be directed. Counsel for the applicant maintains that in view of the fact that the applicants have already served 9 months' rigorous imprisonment and also of the fact that there are many serious defects in the prosecution case, it would not be in the interests of justice to direct a retrial of the applicants. I am inclined to agree with this submission. It appears to me on a careful consideration of the material on the record that the investigation in this case, has been so perfunctory and the evidence of Janibai and other prosecution witnesses is so lacking in details as to the specific acts of each of the accused persons and the intention with which she was alleged to have been abducted by them, that I do not think any useful purpose will be served by ordering a retrial.