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PETITIONER: RAJESH & ORS., TAUFIQ AHMED AMINUDDIN, SANTOSH SHASHIKANTAMB

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       13/08/1998

BENCH: G.T. NANAVATI, G.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO. 425 OF 1998                             WITH               CRIMINAL APPEAL NO. 755 OF 1998                       J U D G M E N T NANAVATIM J.      All these  appeals arise  out of  a common judgment and order passed  by the  High Curt of Bombay in Criminal Appeal NO. 102 of 1995. Criminal Appeal NO. 2 of 1997 is filed by 4 appellants who were Accused Nos. 2, 3, 6, and 7 in the trial court. They had filed SLP (Crl.) No. 2629 of 1996 along with Navneet, Accused  No. 1,  but Navneet’s SLP was dismissed at the preliminary  hearing stage.  Criminal Appeal  No. 425 of 1998 if  filed by  laufiq who  was Accused  No. 4.  Criminal Appeal No.  755 of  1998 is filed by Santosh who was Accused No. 5. Accused No. 1 was convicted under Section 366 IPC and the other accused were convicted under Section 366 read with Section 109  IPC. All the 7 accused had appealed to the High Court but their appeal was dismissed.      The prosecution  case was  that on  24.12.1991 at about 6.00 A.M.  they abducted  Archana with the object of getting her married  with Accused  No. 1.  However,  they  were  not successful in  taking her away as on hearing her shouts, Dr. Mahajan (PW  13) came there, then followed the appellants in his car,  overtook them  and prevented  them from taking her away. While  all the  appellants were running away they were followed by  the persons  who were with Dr. Mahajan and also by the  two Police  Constables who  had come  there  in  the meantime. Appellant Irshad was caught on the spot but others were able  to run  away .  It was  also the prosecution case that Accused  No.1 and  appellants Rajesh  and  Taufiq  were caught from  a  nearby  place  within  a  short  time  after incident. It  was also  the prosecution  case that appellant Irshad, soon after he was caught, had disclosed the names of the remaining  accused as  the persons  who had come in that car with  a view to take away Archana. On the basis of these allegations all  the accused  were  tried  fr  the  offences punishable under  Section 366,  354 and  also under  Section 3074 read  with Section  34 IPC  as there  was an allegation that they  had tried  to assault  Dr.  Mahajan  with  deadly

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weapons.      In absence of any evidence regarding the assault on Dr. Mahajan with  deadly weapons  the charge  under Section  307 read with  Section 34  IPC was  held not  proved. The  trial court also  held that  the charge  under Section 354 was not proved. It,  however, believed  the evidence of Archana, Dr. Mahajan (PW 13) and Constable Mule (PW 10) and held that all the 7 appellants guilty as stated above.      The High  Court, on  re-appreciation of  the  evidence, agreed with  the findings  recorded by  the trial  court and confirmed the conviction and sentence.      The learned  counsel for  the appellants submitted that the finding  recorded by  the courts below that Accused No.1 had gone  to Nandura  for abducting  Archana  and  that  the appellants herein had helped him in doing so by accompanying him is  not warranted  by the  evidence on  record. He  also submitted that  the courts  below committed a grave error of law in throwing the burden upon the accused to prove that it was a case of clopement, in view of such a defence raised by Accused No.1.  In our  opinion, the learned counsel is right in his  second submission but in view of the other clear and credible evidence  on record it cannot affect the conviction of the  appellants. The  evidence of  Archana  (PW  6),  Dr. Mahajan (PW  13) and  Police Constable  Mule (PW 10) clearly establishes the  presence of  all the appellants and Accused Navneet at Nandura, as place 200 kms. away from Nagpur where the appellants  and Accused  Navneet  were  residing.  Their evidence also establishes that Accused Navneet and Appellant Manoj made  her sit  in the  car in  which they had come and were about  to take  her away  and that  they were prevented from doing so by Dr. Mahajan and others. It is no doubt true that Archana  (PW 6)  did not  name the  appellants  in  her complaint as  the persons  whom she had recognized while she was being  taken away in the car. She, however, did refer to their name  in the  complaint itself  as the  persons  whose names were  disclosed by Appellant Irshad when he was caught and asked by Dr. Mahajan and others as to who were the other companions and why they had come to Nandura. It appears that for some  reason she had tried to protect Appellants Irshad, Taufiq, Santosh and Manoj even though they were known to her as they  were studying  with her  in the College previously. The omission,  however, does  not create any doubt regarding their presence at the time of commission of the offence. The evidence  of  Dr.  Mahajan  and  Police  Constable  Mule  is consistent on  this point  and it  establishes that  all the appellants and  Accused N.  1 were  together in the car when Archana was  being abducted.  Therefore, the   conviction of Accused No. 1 under Section 366 and all the appellants under Section 366 read with Section 109 IPC is quite proper.      But, at  the same  time, it  also clearly  appears that Accused No.  1 Navneet  and Archana were close to each other while they  were studying at Nagpur. Accused No. 1 wanted to marry her.  Archana’s parents had shifted her from Nagpur to Nandura a few months before the incident took place. Archana had completed  18 years  and Accused No. 1 probably believed that she  would  come  with  him.  Accused  No.  1  and  the appellants were  all College-going  boys. The  incident took place in  the year 1991. Consisering all these circumstances were are of the opinion that ends of justice would be met if their  sentence   is  reduced   from  two   years’  rigorous imprisonment  to   one  year’s  rigorous  imprisonment.  We, therefore, partly allow these appeals. Though the conviction of the  appellants is  maintained the  order of  sentence is modified as stated above.      The appellants  are on  bail. Their  bail is cancelled.

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They are  ordered to  be taken into custody to serve out the remaining part of their sentence.