SUSHIL MANDAL Vs. STATE OF M P

JUDGEMENT

(1.) This is an appeal against conviction of the two appellants u/s 363/ 366 T.P.C. and sentence of R.T. for three years on each of the charge with direction for concurrent running of the sentences awarded, vide judgment, dated 29/6/90, passed in S.T. No. 57/90 of Baster Sessions Division.

(2.) The prosecution case is that on 22/8/1989 appellant No. 2 Too alias Sharmila Mandal came to the house of prosecutrix Dipali (P.W. 2) in the afternoon. Both were on friendly terms and, therefore, on request made by appellant No. 2, the prosecutrix accompanied her up to some distance where from appellant No. 2 went to answer the call of nature. In the meantime, appellant No. 1. Sushil Mandal came there and forcibly took the prosecutrix to the house of Shyamal where she was detained and violated by said Shyamal against her will. She was then taken by the said Shyamal to Kanker where he wanted to contract marriage with her but she was able to escape and the report was maade to the police. After investigation, the two appellants and Shyamal were prosecuted and the appellants were convicted and sentenced as afore-said Whereas Shyamal has also been convicted on charge of rape but has not preferred any appeal.

(3.) Appellants learned counsel stated that though both the appellants were ordered to be released on bail by this court after presentation of the appeal appellant No. 1 could not furnish security and, therefore, could not be released. Ultimately, he has been released after serving out the wholesentence and thus his appeal having become practically infructuous is not pressed by the learned counsel. On behalf of appellant No. 2 it was argued that from the evidence of prosecutrix herself (which was read over), it is clear at the two ladies were neighbours and or friendly terms. In such, circumstances, if the prosecutrix was asked by appellant No. 2 to come with her and she agreed there was nothing unusual in it. The evidence of the prosecutrix further shows that she was kidnaped when appellant No. 2 had go to answer the call of nature. In view of this evidence there is nothing to infer that appellant No. 2 was also a party to this design of kidnapping. Her conviction therefore is liable to be set side. The learned Govt. Advocate could not point out anything to demolish this argument.