RAMSINGH HARNARAIN Vs. STATE OF MADHYA BHARAT

JUDGEMENT

(1.) SEVEN Appellants, Ramsingh, Bhaggu, Kapa(sic) singh, Jimee Pal, Alia, Munshi, and Rustam (sic) been convicted by the Special Sessions Judge (sic) Gwalior, under Section 395, I.P.C. and each (sic) been sentenced to 7 years rigorous imprisonment and a fine of Rs. 30/ -. Appellant Ramsingh has (sic) further been convicted under Section 372, I.P.C. and has been sentenced to undergo rigorous imprisonment for a further period of 3 years and fine of Rs. 30/ -; and Appellant Munshi has been convicted under Section 436, I.P.C. and sentenced (sic) undergo rigorous imprisonment for a further period of 3 years. The Appellants have filed this appeal against their conviction and sentences. (sic) the Appellants have been acquitted for offence under Sections 366 and 376, I.P.C.; and the State has preferred an appeal, under Section 417, Code of Criminal Procedure, against their acquittals. This judgment will pose of both these appeals.

(2.) THE prosecution story is that Appellant Ramsingh was the leader of a gang of dacoits and the other Appellants were working in this gan(sic) that this gang on the evening of 6 -12 -1949 raided a hamlet known as Sahariyon -ka -pura near village Billowa, P.S. Antri District Gird, which is (sic) habited by Sahariyas whose main occupation (sic) cutting of wood and collecting of grass. (sic) gang put fire to the huts, assaulted, the residents of the place, forcibly snatched away a gun from the house of Shyama P.W. 15, a sword (sic) Phoda, P.W. 13, an ornament (Khangwari) (sic) Radiya P.W. 24 and a lathi from Khema P.W. 25. The gang then asked all the young girls (sic) Sahariyas to come out, and, out of the girls (sic) assembled, selected five girls and took them away Subsequently on different occasions from (sic) December 1949 to 10th December 1949 the members of this gang committed rape on those (sic) and on 9th December 1949 the three girls (sic) P.W. 20, Durjo P.W. 21 and Puniya P.W. (sic) were sold away to Airbaz, Roshana and (sic). The two girls Sarjo P.W. 1 and Bhaggo P.W. (sic) were kept with the members of the gang and (sic) subsequently recovered from the house of Appellant Kaptan Singh at Rai Mal Khedi when (sic) 16 -12 -1949 the house was raided by the Police (sic) when all the accused (except Kaptan Singh (sic)self) were arrested there.

(3.) THE expression 'same transaction' is nowhere defined in the Code, and it is difficult to give a (sic) destination which may cover all kinds of (sic). Justice (sic) in - 'Shapurji Sarabji (sic) Emperor', AIR 1935 Bom 154 (A), observed (sic) the word 'transaction' is not intended to be interpreted in any artificial or technical sense, (sic) commonsense and ordinary use of language (sic) decide whether on the facts of a particular (sic) one is concerned with one transaction or (sic) transactions. In several cases it has been (sic) down that proximity in time as well as continuity of action and purpose are necessary to (sic) "same transaction" within the meaning of Section 239, Code of Criminal Procedure. The importance of (sic) proximity in time was stressed in - 'Queen (sic) v. Fakirapa', 15 Bom 491 (B) and in - (sic) Empress v. Vajiram', 16 Bom 414 (C). So (sic) offences are separated by any distinct in -(sic) of time it will often be impossible to des -(sic) them as part of the same transaction. In (sic) v. Datto Hanmant Shahapurkar' 30 (sic) 49 at p. 54 (D), Batty J., however observed (sic) the word 'transaction' suggests not (sic) proximity in time so much as continuity of (sic) and purpose. In my opinion the following (sic) of Justice Chandavarkar in - 'Emperor v. (sic), 27 Bom 135 at p. 133 (E), correctly lays (sic) the test: