DAUD HASAN MHALUNGKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this Criminal Appeal, the convicted accused Nos. 1 and 4 have challenged the order of conviction and sentence recorded against them by the learned Sessions Judge, Ratnagiri, on 7-3-1990 in Sessions Case No. 52 of 1978. Accused/appellant No. 2 is dead and therefore, we have to deal with accused/appellant No. 1 only.

(2.) IT is the case of the prosecution that one Khatija, a minor girl was living with her mother. Accused No. 1 had developed friendship with Khatija. It is also admitted that he had sexual intercourse with Khatija resulting in pregnancy. Khatija is alleged to have been removed from the lawful guardianship of her mother and taken to Bombay, where she is married with accused/appellant No. 1. Accused/appellant No. 4 is alleged to have helped in the kidnapping and subsequent marriage of accused No. 1 with Khatija. It is also alleged that accused No. 4 was holding a power of attorney authorising marriage of Khatija with accused/appellant No. 1. Admittedly Khatija is now living with accused No. 1 as his wife and they have children also. . In all six accused persons were charged with the offences under sections 363, 363 r/w. 34, 376 and 366-A of the Indian Penal Code. The learned Sessions Judge who decided the case, was pleased to acquit accused Nos. 2, 3, 5 and 6 from all the offences charged and was pleased to convict accused/appellant No. 1 for offence under section 363 IPC and directed him to suffer rigorous imprisonment for 2 years. Both accused Nos. 1 and 4 were also found guilty for offence under section 363 r/w. 34 I. P. C. and accused No. 4 was sentenced to suffer rigorous imprisonment for one year on this count. No separate sentence was awarded to accused No. 1 on this count. Both the accused/appellants were acquitted from the charges under sections 376 and 366-A I. P. C.

(3.) IT is the case of accused/appellant No. 1 that Khatija herself came to his house on 18-7-1977 along with the authorisation from her father in the name of accused No. 4, who happened to be the uncle of appellant/accused No. 1. Since she had attained puberty and was competent to marry a person of her choice, accused Nos. 1 and 4 brought Khatija to Bombay and her marriage with accused No. 1 was performed.