& Ors, Taufiq Ahmed Aminuddin, Santosh Shashikantam Vs. State of Maharashtra  INSC 415 (13 August 1998)
Nanavati, G.P. Kurdukar Nanavatim J.
APPEAL NO. 425 OF 1998 WITH CRIMINAL APPEAL NO. 755 OF 1998
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.
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 weapons.
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
High Court, on re-appreciation of the evidence, agreed with the findings
recorded by the trial court and confirmed the conviction and sentence.
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.
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.
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.
appellants are on bail. Their bail is cancelled.
are ordered to be taken into custody to serve out the remaining part of their