LAXMANDAS Vs. HIRALAL

JUDGEMENT

(1.) THIS is an application in revision by one Laxmandas and has arisen under the following circumstances.

(2.) MST. Tulcha whose age is slated to be about fourteen years at the time the incident, out of which this revision arises, occurred, was living with her uncle Balaji in Barmer as her father and mother had both died. The present petitioner, Laxmandas, is her first cousin who lived in a separate house and it is said that he also looked after MST. Tulcha during Balaji's absence. Her younger sister, Girja, also lived with her. The opposite parties Hiralal, Lala and MST. Shanti also lived in Barmer. Shanti is the maternal aunt of Hiralal; and Lala appears to be a friend of his. Balji's house is situate near Hiralal's and is said to be about five minutes' walk from the latter. MST. Shanti's house is situate close to the house of Hiralal and there are just two houses in between them, one, of Purushottam (who is the brother of Shanti's husband) and the other of Chhaganlal, and the last-mentioned house is said to have been lying vacant The prosecution story is that on the 9th January, 1952, at about 4 P. M. MST. Shanti went up to Balji's house where MST. Tulcha was and asked her to accompany her as MST. Dami (Purushottam's wife) had urgently wanted her. It may be mentioned here that MST. Tulcha's uncle Balji had gone away to Ahmedabad in those days and so with MST. Tulcha were living his widowed daughter Daru and her own sister Girja only Both these also happened to be away at the time for one reason or another and so MST. Tulcha was reluctant to accompany MST. Shanti in their absence. MST. Shanti, however, pressed her to go whereupon they left together. On the way they met MST. Rana, MST. Tulcha's mausi Rana asked where she was going and MST. Shanti replied that she was taking MST. Tulcha to MST. Dami who had wanted her. They went to Dami's house which was however, closed. MST. Shanti suggested that MST. Dami might be in Chhaganlal's house and they might look her up there. Chhaganlal's house, as already stated above, is adjacent to Dami's house. As soon as MST. Tulcha looked into Chhaganlal's house, Hiralal who was there pushed her inside and MST. Shanti closed the door from outside, and thereafter Hiralal asked MST. Shanti to go away. Hiralal then pulled her into a room and Lala also followed him. It is said that Lala asked MST. Tulcha to wear the bridal clothes that were lying there. The girl refused. Lala then stripped her of her orna and asked her to put on the new lahanga and threatened that if she did not do so, he would himself tie it no her She then put on the lahanga and Hira put a dupatta on her. The girl was also forced to wear some bangles, which were lying there by Hira asked the girl to put her hand into his Hira asked the girl to put her hand into his in taken of marriage. The girl is said to have completely refused whereupon Hira used criminal force against her. Hira also asked her to take phera or rounds with him to which also she no. Then Hira asked Lala to bring a photographer and Lala left. When Lala came back, one Umeda had also come within and a chunri and a mod had also been brought. They tried to put the mod round her head but MST. Thulcha did not permit them to do to. The photographer also arrive a later and a photo was taken. The prosecution story further is that, shortly after, MST. Shanti and Dami and Purushottam came and inquired whether the work had been done. Hira replied that the girl was obliterate. They said, however, that Hira need not be impatient and that every thing would be all right, After about half an hour, one Dwarka came inside and when Hira told him that the girl was still refusing to marry him, Dwarka suggested that he might take her to his own house. MST. Tulcha is version then is that Hira told her that since she was not agreeable to marry him, he would leave her at her house and that she might accompany him. Hira's house was, however, next-door and as they were passing in front of it. Hira pushed her inside and closed the door. There was no one inside the house. After about five minutes of their having gone in, some body knocked at the door and asked it to be opened. Hira opened the door and the person who came in was Girdhari. The latter rebuked Hira for what he had done, at which Hira is said to have replied that he had been mis-guided. Soon-after Laxman and Gordhan entered Hira's house and thereafter they took her to her house. This is in brief the story related by MST. Tulcha in the committing court. The first report of the occurrence was present-ted by Laxman to the Superintendent of Police, Barmer, on the next day, that is, in the evening of the 10th January, 1952. This reached the police station on the 11th January 1952. The Station House Officer of the Barmer Police Station then took up the investigation. Ex. P-5 is the list of clothes and certain other articles which MST. Tulcha was made to were by Hiralal and Lala. This consists of a new lahanga and a banarsidupatta and a large number of bangles. Ex. P. 6 is the list, partly of old clothes of MST. Tulhca for which she had changed the new ones and partly of certain other articles, a new chundri and a mod, a piece of white cloth and moli etc. all of which were recovered from Chhaganlal's house. The police challenged Hiralal, Lala and MST. Shanti under sec. 366 I. P. C. in the court of the Extra Magistrate, Barmer. The Magistrate proceed under Chapter XVIII of the Code of Criminal Procedure and eventually held that no case was made out against MST. Shanti and Lala and, therefore, discharged them under sec. 209 Cr. P. C. As regards Hiralal the Magistrate framed charges against him under secs. 342 and 354 I. P. C. It appears that the Magistrate was of the opinion that the offence of kidnapping was not a continuing one and that it had become complete long before MST. Tulcha was detained by Hiralal and perhaps it was this view which induced the Magistrate not to from a charge against Hiralal under sec. 366 I. P. C. although it may be pointed out here that he did not say in so many words that he was discharging him so far as the offence under sec. 366 was concerned. Thereafter the present petitioner Laxman and the State went in revision to the Sessions Judge, Balotra. The latter has also upheld the order passed by the Magistrate and this has led to the present revision.