Rajendra @ Raju vs State of Maharashtra

Rajendra Babu, J.—Delay in filing special leave is condoned.

Leave granted.

The prosecution case is that on 5.6.1997 PW 1 - Shahnaz Bano along with her daughter Sabana Bano - PW 22 went to Jaswant Talkies at Nagpur to watch matinee show which was over by 3 p.m.; that as the said PW 1 and PW 22 emerged out of the theatre, the appellant, who was going on road on a scooter No. MFW 9252 Bajaj Super, having seen them, is stated to have stopped the scooter and offered to give lift to them on his scooter upto their house; that when PW 1 declined to accept his offer, the appellant is stated to have threatened PW 1 that he would kill her by pointing out a knife at her; that on account of the fright created by the appellant, PW 1 is stated to have gone with him on his scooter along with her daughter PW 22; that PW 1 and PW 22 were thereafter taken to a Lodge owned by PW 3 - Smt. Shabha located in Buldi area and on reaching that place the appellant is alleged to have held the hand of PW 1 and started taking her towards a room inside the Lodge; that the son of PW 3 started closing the door of the room from outside allegedly on the direction of the appellant and on seeing this PW 1 asked the boy not to close the door and at that time her daughter PW 22 Sahaha Bano was also inside the room: that thereafter, PW 1 forcibly pulled her hand out of the appellant's hold and managed to become free from the clutches of the appellant and went out of the room along with her daughter; that PW 1 then started crying "Beijjatee" and on seeing the mob gathering on the road, the appellant is stated to have driven away on his scooter; that, thereafter, PW 1 and PW 22 went to their house in a cycle rickshaw: that on reaching home PW 1 narrated the incident to her husband who asked her to lodge a report at the Police Station and said that otherwise he would not keep her at his home; that PW 1 and her husband went to the Police Station and lodged a complaint at about 5 p.m. as per Exhibit 22 which was registered for offence under: Section 341, 354, 366 and 506 of the Indian Penal Code at about 8.05 p.m.; that the appellant is also stated to have reached the same Police Station by then where the complaint had been lodged in which he was working and on noticing that case had been registered against him, he left his scooter in front of the Police Station and ran away. PSI PW 10 seized the scooter and drew a seizure memorandum and recovered a Spear Blade from the dickey of the said scooter; that the appellant is stated to have surrendered at the Police Station and charge sheet was filed against him. On committal to the Court of Session he was tried for offences under Sections 341, 354, 366 and 506 Part-II IPC.

The trial court held the appellant guilty of the charges leveled against him and sentenced him to undergo different periods of imprisonment for offences under Sections 341, 506 Part-II and 366 IPC. The substantial sentence imposed on the appellant was to undergo rigorous imprisonment for 10 years and to pay certain amount of fine. The appellant preferred an appeal. The High Court set aside the conviction and sentence imposed on the appellant under Sections 341 and 506 Part-II IPC and acquitted the appellant of those offences. However, the High Court maintained his conviction under Sections 354 and 366 IPC by modifying the sentence to six months for the offence u/s 354 and six years for the offence u/s 366 with a fine of Rs. 500. Hence this appeal.

After analysing the evidence the High Court came to the conclusion as follows:-

"24. It is difficult to believe that the accused obstructed the prosecutrixand her daughter Shabana in the square near Jaswant Talkies and forcedthem to sit on the pillion at the point of knife and then forcibly took themup to the lodge at Buldi. This occurrence was alleged to have takenplace at 3 p.m. It was in the broad-day light. The alleged obstruction wasin front of Indora Police Outpost. The evidence shows that the accusedalong with the prosecutrix and her daughter Shabana crossed some eightsquares on the scooter while going from Jaswant Talkies to Buldi. Onehas to pass first through Indora Square. Then ahead of Indora Squarethere is a Kadbi Chowk. After Kadbi Chowk, a railway bridge is there.Thereafter, there is a Gaddigudam Chowk. Thereafter comes LICsquare. Thereafter there isa Reserve Bank Chowk. Thereafter there is"T-Point" and then comes Variety Square. In almost all the squares,there are traffic signals. At some squares, the traffic police are on duty.The road by which the accused took the prosecutrix and PW Shabana isa highway running through the city and it is the busiest way. It is acrowded road and there is always a heavy rush of people and vehicles onthat road. The scooter cannot be driven fast on that road. Buldi is amarket area, naturally having a huge rush of customers and other people.The vehicle must have been driven slowly all the while on the above road.The prosecutrix could raise the shouts. When the scooter was slow, theprosecutrix and her daughter could have got down from the scooter.

The evidence of the prosecutrix show that the weapon was in thedickey and not either in the hands of the accused or in the front sidehelmet box. The accused was driving the scooter with both of his hands.The prosecutrix could have resisted and struggled and could have gotdown from the scooter on the way. If the accused had to take themunder the fear of knife, he would not have placed the weapon in thedickey and he would have kept it in the front side helmet box while drivingthe scooter. The evidence on record also shows that at one point thatis at the Variety Square, the scooter had halted for five minutes. At thatplace also the prosecutrix and her daughter Shabana did not get downit is worth noting that Sitabuldi Police Station is just in that Square. Noattempt was made by the prosecutrix to invite the attention of themembers of public all along with road though they had crossed thedistance of about six kilometers through the thick crowd or at the placewhere the scooter had stopped for some time. The evidence of PWShabana also shows that all or them had taken tea, it might be onreaching the place near the Lodge.

Already stated above the knife or the weapon was not in thehands of the accused nor was in the place of helmet box. Even as perthe own evidence o the prosecutrix, it was in the dicky. The accused wasnot alleged to be in the uniform of police. So the above story of taking theprosecutrix and her daughter at the point of knife to such a long distancethrough a crowd of people and vehicles is not worth believing. As per theevidence of the prosecutrix and PW Shabana, the story at the subsequentstage shows that the prosecutrix rescued herself from the Lodge by givinga jerk to the hands of the accused which invited the attention of the mobon the road. The prosecutrix could struggle with the accused in theLodge in a room which was somewhat a secluded place. She couldhave easily struggled with the accused on the crowded road of couldhave invited the attention of the people. The learned Additional PublicProsecutor submitted that at the time when there was an attempt on thepart of the accused to confine the prosecutrix, she gained courage. Hadit been a fact that the accused took the prosecutrix and Shabana forciblyon the scooter, then on noticing that they were being taken elsewhere,that is to say, to the place other than to their house, the prosecutrix wouldhave immediately suspected a foul an could have gained courage andwould have raised the hue and cry. It seems that the prosecutrix came toBuldi area along with the accused on his scooter willingly.

Though this is the state of things, it cannot be said that theprosecutrix was knowing the design of the accused. The further story thatthe accused took the prosecutrix inside the room of the Lodge and madean attempt to close the door, inspires confidence. There is not reason todistrust this story. The evidence of the prosecutrix and her daughterShabana clearly shows that the prosecutrix got rescued herself and herdaughter from the clutches of the accused while she was being confinedin the room when she came to know the design of the accused. Then thefact remains as to how did she come up to Buldi on the scooter of theaccused without offering any resistance. The necessary inference, thathas to be raised is that the accused must have brought the prosecutrixand Shabana to Buldi area by making some misrepresentation or undersome pretest and as the prosecutrix was knowing the accused, since hewas visiting the area of hutment of the prosecutrix, she must haveaccompanied the accused on his scooter along with her daughterbelieving in his representation.

It is not that PW 1 was not knowing that the appellant was not taking themto their house but somewhere else. If PW 1 did not want to go with the appellant,there was hardly any difficulty for her to have declined. If really the appellantintended to have sexual intercourse with her there would have been no chanceeither for her or her daughter to rescue themselves from the clutches of theappellant while they were being confined in a room of the Lodge. Even if PW 1came to Buldi area along with the appellant on his scooter to go to her home, onnoticing that she was being taken elsewhere to a place other than her home, shewould have immediately suspected a foul play and would have raised an alarm.It cannot be taken that PW 1 is so innocent as to be carried away by the antics ofthe appellant to simply go with him when she did not intend to go with him. Atthe same time, the High Court held that "the accused must have brought theprosecutrix and Shabana to Buldi area by making some mis-representation orunder some pretext and as the prosecutrix was knowing the accused, since hewas visiting the area of hutment of the prosecutrix, she must have accompaniedthe accused on his scooter along with her daughter believing in hisrepresentation". While the High Court held that though PW 1 did not discloseas to what representation was made by the accused or under what pretext sheand her daughter were taken by the accused on his scooter and, on the otherhand, PW 1 introduced the story of her forcibly taking, nevertheless, it held that itwas by adopting deceitful means that PW 1 was abducted by the appellant.This conclusion of the High Court rests on a pure figment of imaginationinasmuch as what misrepresentation or pretext was held out to PW-1 is not speltout and not established as a fact. The High Court could not have speculated onhow PW-1 could have accompanied willingly right upto the lodge and then inferthat she did so only yielding to a pretext or mis-representation held out to herwhen in fact no evidence was adduced on this aspect at all. Therefore thefinding that the appellant adopted deceitful means to abduct PW-1 or PW-22cannot be sustained. In order to constitute offence of 'abduction' a person mustbe carried off illegality by force or deception, that is, 'to compel a person by forceor deceitful means to induce to go from one place to another'. In the instantcase, neither of these two ingredients are established.

On reaching the Lodge, it is difficult to visualise that the appellant hadasked PW-1 to have sexual intercourse with her in the presence of her 11 yearsold child and that the allowed her to easily slip out of his hands from the Lodge, ifthat was his intention. Hence that part of the case also is doubtful.

These facts are sufficient to hold that the offence alleged against theappellant was not established. The view taken by the High Court appears to usto rest on surmises. In that view of the matter, we allow this appeal and set asidethe order passed by the High Court affirming the conviction of the appellantunder Section 366 IPC read with Section 354 IPC.