Mahendra Dilip Gavit vs The State Of Maharashtra

In this appeal, there is challenge to judgment and order dated 25-02-2019 passed by learned Special Judge and Additional Sessions Judge, Nandurbar in Special Case No.16 of 2016 by which guilt of appellant is recorded for offence under Section 363 of the Indian Penal Code (IPC).

Prosecution story in trial Court was that, on 26-5-2016, victim, a minor, had been to answer call of nature between to 11:00 p.m. to 12 midnight i.e. at the washroom outside the house. While she was returning, it is alleged that accused no.1 appellant alongwith accused nos.2 and 3 came on motorcycle, made victim sit on the motorcycle and took her to Aamlan and to Molagi, there, she was kept for 2-3 days and later on, she was dropped at Nawapur on 29-05-2016. On 30-05-2016, on her report, crime was registered bearing no.57 of 2016 for offence under Sections 363, 354D r/w 34 of the IPC and under Sections 12 of the Protection of Children from Sexual Offences Act (POCSO Act).

After chargesheeting accused, they were tried vide above special case by learned Special Judge and Additional Sessions Judge, Nandurbar, who on appreciating oral and documentary evidence, refused to accept the case of prosecution as regards to offence under Sections 354D of the IPC and under Section 12 of the POCSO Act and acquitted accused nos.1 and 2 from the same, but conviction of the appellant came to be recorded for offence under Section 363 of the IPC, and precisely the same is under challenge in this appeal.

Learned counsel for appellant would apprise this Court about prosecution story in the trial Court. He took this Court through evidence of prosecution witnesses, more particularly that of victim and would submit that, even no offence of kidnapping can be said to be made out. He pointed out that, going by testimony of victim, it is seen that after answering call of nature, victim had reached and gone inside her house and therefore, there was no question of she been forcibly taken as is tried to be submitted by the prosecution. He pointed out that, very grandmother of victim at relevant time was also sleeping on the Ota i.e. raised platform, which was in front of courtyard and therefore, it is not possible to take away victim in her presence. He further submitted that, victim has travelled with accused on motorcycle to distinct villages, but at no point of time has raised any alarm even when she has admitted that there were several other villages on the way till they reached village Aamlan. He also pointed out that, victim has admitted that, the said houses where she stayed for 2-3 days with accused were in residential locality, but there was no reporting to anyone. He pointed out that, even she had admitted that she had mobile number of her brother, but there was no reporting to him either. Thus, according to him, essential ingredients for offence of kidnapping are patently missing from the prosecution evidence and therefore, conviction under the said section is unwarranted and misplaced. Therefore, he prays for allowing appeal.

On the contrary, learned APP also took this Court through the testimony of victim and would submit that, victim is proved to be around 15 years of age and thus a minor. That, there was removal of victim from custody of her parents that too from the house and therefore, offence was complete the moment she was taken away without their consent. He pointed out that, testimony of victim on the point of been taken from the house without the consent having remained intact and undisturbed, learned trial Court committed no error whatsoever in returning the guilt of accused for said offence and consequently, he prays to dismiss the appeal for want of merit.

Here is an appeal challenging the judgment and order of conviction for offence under Section 363 of the IPC. There is no serious challenge and rather in view of birth certificate of victim on record at exh.27, victim is indeed proved to be below 18 years of age. Now, it is to be seen whether prosecution has indeed proved charge of Section 363, which according to trial Court is proved.

Evidence of PW6 victim is at exh.21. In paragraph 2 of her examination-in-chief, she states that on 26-05-2016, at 11:00 p.m. she

went out to answer call of nature to a toilet, which was infront of her house. She deposed that, while she came out of the toilet, accused came near the toilet on motorcycle alongwith one person, who had covered his face by cloth. That, accused made her sit on the motorcycle and all three went towards village Aamlan. She claims that, she objected and even cried for help, but she was forcibly taken by accused to his relative’s place at Aamlan. There she noticed accused no.2 Harish, who left their company and she deposed that, that night she stayed in house of relative of accused no.1 and on next day morning, after having breakfast, she told accused that she wanted to go home, but accused asked her to stay with him and he also took her to another relative’s place. That time also she told him to drop her at her house but he refused and before leaving Molagi, she also requested him to leave her home after which accused nos.1 and 3 Mahendra and Rajesh and she herself went to house of paternal aunt of accused no.1 and reached there at 11 a.m. There, she claims to have learnt from said aunt that mother of accused no.1 had called her on mobile and had asked about the victim and has also told that they would come to take her and so she stayed at Molagi and on the next day, Sindhya and Rajesh came and again victim was taken on motorcycle and they reached Aamlan, where they stayed in the house of accused no.1. At around 08:00 p.m. she alongwith Harish and

Avinash came to Nawapur from where her maternal uncle took her to their house. There, panchas gathered, however, accused Mahendra was not present and as accused did not come before panchas, she accompanied her parents and maternal uncle to Police Station where she lodged complaint exh.22. Her supplementary statement is recorded after 12 days where she narrated entire facts. She identified accused as well as her clothes confronted to her.

While under cross-examination, she admitted that her parents, her uncle, Police Patil and almost 20 of her relatives had been to the Police Station. She admitted that, during meeting of panchas, it was decided to lodge complaint and it was discussed what is to be told to Police and she had heard the discussion and narrated it while lodging complaint.

In paragraph 9 of the cross-examination, she answered that, her house has 3 rooms and her grandmother sleeps on the Ota outside the house and on the day of incident also, she was sleeping there. She answered that, toilet was built 5-7 feet away from the house. She admitted that, she had seen accused while she was entering the house after attaining toilet. She stated that, accused were standing at a distance of two feet. She answered that, her grandmother was sleeping at a distance at 20 feet while accused no.1 took her on motorcycle and she also admitted that, her grandmother did not hear

her noise nor she woke up.

In paragraph 10 of cross-examination, omission brought to the extent that accused no.1 had come with two persons, who had covered their faces by handkerchief. Omission is brought in statement recorded under Section 161 of the Cr.P.C. about naming accused no.2. She further answered that, while she was being taken away, she was made to sit on motorcycle first and thereafter accused sat. She admitted that, her house is in the vicinity fo village, which is surrounded by many other houses. She admitted that, it being summer period, some persons slept on the Ota.

In further cross-examination, she admitted that, they had crossed other villages before reaching Aamlan and even the house of relative of accused no.1 is surrounded by other houses adjacent to it. She answered that, inside the house, she slept with two women and in the next morning, she had bath and she took snacks. She admitted that, name of accused no.3 Rajesh does not appear in complaint.

In further cross-examination i.e. after reaching Molagi, she stated that, they spent one night and there were four members in the house during which she had conversation with them. She admitted that, accused had left the house to go for marketing for two hours and she had taken bath, snacks and meals in the house at Molagi. She admitted that, her brother has mobile and she knew his number and

she requested family members to give a call to her brother but they did not allow her to talk. She deposed that, they stayed for 3 hours at Aamlan before coming to Nawapur.

In paragraph 14 of cross-examination, she answered that, the panchas meeting was called because accused no.1 Mahendra taken her alongwith him and she also admitted about stating in statement before Magistrate that her parents themselves had sent her to her uncle’s place.

In paragraph 15 of the cross-examination, she answered that while her complaint was narrated, it was videographed. She admitted that, in her complaint it was recorded that, she had stated merely date of the incident without mentioning its month or year. She answered that, while her complaint was recorded on 26-05-2016 after having dinner, her parents had been to the field while she, her brother and sister were sleeping in the house as well as grandmother was sleeping on Ota but said portion was not appearing in her complaint. She also answered that, she had stated that while accused no.1 was taking her away on motorcycle, she tried to shout, but the same was not appearing in the recording and therefore, it was duly marked as portion marked “D”. She further answered that, she told relatives of accused about herself and she gave vague answers to them and said portion therefore was duly marked as portion “E”. She admitted that, portion marked “F” about she telling accused that she wanted to go home did not appear in the recording. She admitted that, portions marked “A” to “H” are not appearing in the recording.

Above is the cross-examination of the victim. Firstly, it is noticed that victim was in the house with her other siblings and grandmother, who she admitted was sleeping on the Ota, which is in the front courtyard. She has answered that, their toilet is 5-7 feet away in the front of their house. She claims that, she was taken on motorcycle and she also stated that, she raised shout and gave call to her grandmother but she did not listen. Her such version on the point of she shouting is shown to be omission. It is difficult to comprehend taking away a girl of 15 years of age right from the vicinity of very house without getting unnoticed, more particularly, when her grandmother was also present outside on the Ota. Moreover, she admitted to have travelled on the motorcycle with two accused persons to another village and had come across other several villages till she reached Aamlan, but at no point of time, she had raised shouts or alarm. Even after reaching Aamlan and Molagi, she had stayed there for two days. She had performed her daily chores without raising alarm like sleeping with the women folk in the house, having bath, taking snacks and even meals in the said house. She has also admitted that, accused no.1 left her company for two hours when he went for marketing. She was knowing mobile number of her brother, but she did not inform by using any neighbour’s phone also. She has spent almost three days visiting distinct villages and spent 2-3 nights in the company of accused no.1 without raising hue and cry or alarm about being brought forcibly.

Here, it appears from her own testimony that mother of accused no.1 knew where she was because victim deposed that she learnt from aunt of accused no.1 that mother of accused no.1 had called and had asked her to stay there and that they would come there to take them. Moreover, on her request, accused later on dropped her at Nawapur. Thereafter, she joined her maternal uncle to her village. There is no reporting by either maternal uncle or by herself about being kidnapped. Rather her evidence shows that after returning to her village, village Panchayat was held and as accused no.1 did not attend the Panchayat, Police was duly approached.

From the above discussed evidence, the aspect of enticing or taking victim away from the custody of parents is patently missing. Victim merely spoke about she made to sit on the motorcycle. That said act has done so right in front of the house while her grandmother was sleeping on Ota. Therefore, her statement, at a later point of time that she was forcibly taken, is unworthy of credence. As stated above, she has travelled distinct villages and spent 2-3 days in the company of accused no.1. There is no element of any confinement in her testimony. Rather she seems to have accompanied accused no.1 on her own accord without any resistance or raising alarm.

Another distinct feature of this case is that, on same set of evidence, learned trial Court has acquitted accused no.2 Harish, who was said to be in the company of accused no.1. However, accused no.1 alone is convicted for charge of Section 363 of the IPC.

Law is fairly settled that, on same set of evidence, if co-accused is acquitted then other accused also deserves similar treatment on the ground of parity. On this proposition, reliance can be placed on the judgment of Hon’ble Apex Court in the case of Javed Shaukat Ali Qureshi v. State of Gujarat, MANU/SC/1012/2023 wherein earlier judgment of Hon’ble Apex Court in the case of Harbans Singh v. State of U.P. and Others reported in (1982) 2 SCC 101, was referred to and it was observed in paragraph 15 as under:

Similarly, in another judgment of the Hon’ble Apex Court in the case of Yogarani v. State by the Inspector of Police, reported in MANU/SC/1046/2024, the Hon’ble Apex Court has referred to the judgment of Javed Shaukat Ali Qureshi i.e. above judgment and reproduced paragraph 15, which is reproduced in aforesaid paragraph.

Likewise, again the Hon’ble Apex Court in a recent judgment of Vaddi Ratnam v. State of Andhra Pradesh reported in MANU/SC/1344/2025 in paragraph 9 reiterated the above law.

Here also on the same set of evidence, the learned trial Court seems to have acquitted accused no.2 Harishchandra Ganesh Gavit as well as accused no.3 Rajesh Virsing Vasave from charges under Section 363 of the IPC and therefore, applying the principle of parity, learned trial Court ought to have acquitted accused no.1 appellant also.

Taking overall view of the testimony of victim, as her evidence is weak on the point of she being kidnapped or forcibly taken, the same ought not to have been relied to return the guilt for offence under Section 363 of the IPC, but the same having not been done, indulgence and interference at the hands of this Court is called for. Accordingly, following order is passed:

I. The Criminal Appeal is allowed.

II. The conviction awarded to the appellant Mahendra S/o. Dilip Gavit by learned Special Judge and Additional Sessions Judge, Nandurbar in Special Case No.16 of 2016 for offence under Section 363 of the Indian Penal Code, on 25-02-2019, stands quashed and set aside.

III. The appellant Mahendra S/o. Dilip Gavit stands acquitted of the offence punishable under Section 363 of the Indian Penal Code.

IV. The bail bonds of the appellant stand cancelled.

V. Fine amount deposited, if any, be refunded to the appellant after the statutory period.

VI. It is clarified that there is no change as regards the order regarding disposal of muddemal.