ADHIK GOPE Vs. EMPEROR

JUDGEMENT

(1.) These two appeals have been heard together. The appellants were convicted in the same trial held with the aid of assessors by the learned Assistant Sessions Judge of Purnea. It is only necessary to state the facts briefly in order to indicate why we are forced to set aside the convictions without entering into the merits of the case leaving it open to the prosecution to put upon trial all or any of the accused on properly framed charges--the commitment proceedings are found to be perfectly valid. The prosecution case was that Mt. Sundari, daughter of Panchu Tatma, was living in village Pipra in Sawan two years ago. In the next Kartic, her husband died at village Damgara from where his family had migrated to village Pipra, also in the district of Purnea, where she was living with her parents as a widow near the house of one Tetar. A little later she was married in Chumauna form with Tetar of that village in Magh following thus disappointing the appellant Roudi, a rival suitor of that place. After she had been living with her second husband for about a few months it is said that Roudi accompanied by the appellant Mohan and Brihaspat and some others went to the house of Tetar during the absence of the male folk on 28-3-1944 at mid-day. Roudi and Mohan entered the house of Tetar while accused Brihaspat remained outside along with others of the party. Mt. Sundari was forcibly abducted and carried bodily from that house of Tetar to the house of Roudi and there detained till evening. After night-fall she was removed to the house of appellant Adhik, who also lives in the game tola of village Pipra where Roudi lives, and she was wrongfully confined there till midnight. Roudi attempted to have sexual intercourse with the woman, but she refused. Thereafter a number of persons came to Adhik's house including the appellant Domi Sao, also of village Pipra. Domi Sao enquired of Roudi whether Mt. Sundari was amenable to his control and was prepared to go wherever she was required to. On getting an answer in the negative, Domi ordered that the ornaments of Mt. Sundari should be taken off and she should be removed to some place beyond the district of Purnea. The ornaments were then removed by accused Roudi and made over to Domi. It is said that Adhik also ordered the removal of Mt. Sundari to a place outside Purnea. At dead of night Roudi and a number of other persons,-who are not before this Court, removed Mt. Sundari to Besar, police station, Murliganj, in the district of Bhagalpur, where she was detained in the house of Saukhi Gope of that village. Mt. Sundari remained confined there for two nights, that is the whole of Tuesday and Wednesday, but on Thursday mid-night she escaped and related her pitiable story to the choukidars who kept her for the remaining part of that night in the house of one Mahabir Choukidar. Information was sent to the father at village Pipra who came at once to village Besar. Thereafter Mt. Sundari accompanied by her father and the choukidars went to Murliganj police station where heir fardbeyan was recorded. It is unnecessary to give any further details as to how the actual first information was lodged and the investigation began and was concluded.

(2.) On these allegations the appellants along; with others were committed to the Court of Session. The trial began before the learned) Assistant Sessions Judge who, in addition to the charges framed by the learned committing Magistrate, altered some of the charges and framed some additional charges. It is desirable to give in details the charges upon which the; appellants and others were put on their trial.. Roudi along with Mohan and Brihaspat was charged under Section 366, Indian Penal Code for having abducted Mt. Sundari on 28 March 1944 at village Pipra with intent that she maybe compelled to illicit intercourse etc. They were also charged under Section 448, Indian Penal Code for having committed house trespass on the same day by entering into the house of Tetar. Roudi and Domi were further charged under Secs.379, Indian Penal Code for having committed theft of the ornaments of Mt. Sundari. Roudi was also charged under Section 354 for having used criminal force on Mt. Sundari with intent to outrage her modesty from 28th March to 31 March both at village Pipra and at village Besar. He was also charged under Section 342 for having wrongfully confined Mt. Sundari from 28th March to 31 March at village Pipra and at village Besar. Roudi along; with Mohan Gope and Brihaspat Gope were also charged under Section 147, Indian Penal Code for being members of an unlawful assembly with the common object of abducting Mt. Sundari on 28 March 1944, at village Pipra. Roudi and Mohan were further charged under Section 323, Indian Penal Code for having voluntarily caused hurt to Jhaksu Tatwa on 28 March 1944 at village Pipra--this hurt is alleged to have been caused to Jhaksu Tatwa when he was trying to obstructs the forcible removal of Mt. Sundari on 28 of March.

(3.) Mohan, as already stated, was charged under Secs.366, 448, 147 and 323, Indian Penal Code. Mohan, along with Adhik and Domi, appellants, were also charged under Section 342, Indian Penal Code for having wrongfully confined Mt. Sundari at village Pipra and at village Besar from 28tb March to 31 March 1944. Domi along with Adhik, appellant and others who are not appellants were charged under Section 366/114, Indian Penal Code for having abetted the abduction of Mt. Sundari by accused Roudi, Mohan and Brihaspat on 28 of March 1944, at village Pipra. Domi was also charged, as already stated, under Section 379 for having committed theft of the ornaments of Mt. Sundari. He, as already stated, was also charged under Section 342, Indian Penal Code for having wrongfully confined Mt. Sundari from 28th March 1944 to 31 March 1944 at village Pipra and at village Besar. The last appellant Adhik was charged under Section 366/114, Indian Penal Code for having abetted the abduction of Mt. Sundari by Roudi, Mohan and Brihaspat on 28th March at village Pipra. He, as already stated, was charged along with appellants Mohan, Domi and others under Section 342, Indian Penal Code, for having wrongfully confined Mt. Sundari from 28 March to 31 March 1944 at village Pipra and at village Besar.