SANTOSH DHONDU CHAVAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN the present appeal, it is not necessary to go into the evidence adduced on behalf of the prosecution as the defence has accepted the fact that accused No. 1 had removed the prosecutrix Nanda from the custody of her parents and was brought to Bombay. Even as per the findings recorded by the trial Judge, the taking by the accused was not by force. Nanda had willingly accompanied accused No. 1. The evidence P. W. 1 Damodhar Deodhar, the Head Master of the school where Nanda was admitted as a student, and the school leaving certificate shows that the date of birth of Nnada was 2nd of January, 1970. The said evidence is corroborated by the evidence of the birth extract (Ext. 27 ). This evidence, therefore, proves beyond reasonable doubt that Nanda was below the age of 16 years on the date of the offence. As far as the role played by accused No. 2 is concerned, she was no where on the scene when accused No. 1 had met Nanda and had started taking her to Bombay. The act of kidnapping was complete when accused No. 1 took charge of Nanda and was proceeding to Bombay. Accused No. 2 appears to have met them on the way and accompanied them. This is the only role attributed to accused No. 2. Merely because accused No. 2 did not prevent accused No. 1 from taking Nanda to Bombay will not be sufficient to cast criminal liability on accused No. 2. Another role which is attributed to accused No. 2 is that she promised to prepare ornaments for Nanda. This act also would not be sufficient to arrive at a finding that she had shared the common intention of accused No. 1 to kidnap Nanda. In view of this position, accused No. 2 is entitled to an order of acquittal.

(2.) AS far as accused No. 1 is concerned, it would appear that he would be liable to be convicted merely on the defence which has been taken by him. He has conceded that he has taken Nanda from her village and brought her to Bombay. According to him, Nanda had come of her own accord. Unfortunately for accused No. 1, Nanda is found to be below the age of 16 years. Hence, the consent of Nanda is of no consequence and will not absolve him from the criminal liability.

(3.) THE trial Court has proceeded to convict the accused under Section 366-A of the Indian Penal Code. That is an apparent error. It is nobodyts case that Nanda was kidnapped with a view that she may be force or seduced to illicit intercourse with some other person. The object of taking Nanda was to facilitate her marriage with accused No. 1. The offence, therefore, would fall under section 266 of the Indian Panel Code. The conviction of accused No. 1 is, therefore, altered from section 366a to Section 366 of the Indian Penal Code.