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BOMBAY HIGH COURT AT PANAJI, GOA
P.V. HARDAS, J.
Uday Hulaswar and others - Appellant
Versus
State - Respondents
With
Sanjay Kerkar - Appellant
Versus
State – Respondent
Criminal Appeal Nos. 59 and 64 of 2001
Decided on: 29th August, 2003
Indian Penal Code - Kidnapping, Abduction, and Rape - Sections 363, 365, 376 - Summary
Fact of the Case:
The case involves the kidnapping and sexual assault of a minor girl, with the accused being convicted and sentenced. The accused appealed the conviction and sentence.
Finding of the Court:
The court found that the evidence of the prosecutrix and corroborative medical evidence established the guilt of the accused No. 1 for kidnapping and rape. However, it found that the convictions of accused 2 to 4 with the aid of Section 109 of the Indian Penal Code were not justified.
Issues: The issues revolved around the credibility of the evidence, the consent of the prosecutrix, and the applicability of Section 109 to the co-accused.
Ratio Decidendi: The court held that while the prosecutrix willingly accompanied accused No. 1, his guilt for kidnapping and rape was established due to her being a minor. The court also found that the convictions of accused 2 to 4 with the aid of Section 109 were not justified.
Final Decision: The court maintained the conviction of accused No. 1 for kidnapping and rape but modified the sentence based on time served. It acquitted accused 2 to 4 of the charges.
P.V. Hardas, J.-Criminal Appeal No. 59 of 2001 is filed by original accused 1 to 3 and Criminal Appeal No. 64 of 2001 is filed by original accused No.4. Original accused No. 1 stands convicted for offences punishable under Sections 363, 365 and 376 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for 2 years and to pay fine of Rs. 1,000/-, in default simple imprisonment for one month and rigorous imprisonment for 7 years and to pay fine of Rs. 500/-, in default simple imprisonment for 3 months. Accused 2, 3 and 4 are convicted for an offence punishable under Section 109 read with Sections 363 and 365 of the Indian Penal Code and are sentenced to undergo rigorous imprisonment for two years and also to pay fine of Rs. 1,000/- each, in default simple imprisonment for one month. The substantive sentences of accused No. 1 are directed to run concurrently. The appellants, being aggrieved by the conviction and sentence passed by the IInd Additional Sessions Judge, Panaji, by judgment, dated 13th November, 2001, in Sessions Case No. 18 of 1998, have filed these appeals challenging the conviction and sentence.
2. The facts in brief as are necessary for the decision of these appeals are stated hereunder :-
PW 27 L.P.S.I. Sunita Sawant was attached to Mapusa Police Station. On 9th March, 1998, PW 6 Cristalina Fernandes complained that her minor daughter Jennamicka had been kidnapped while she was returning from school by accused No. 1 Uday and others in a Sumo vehicle. On the basis of the complaint, at Exhibit 41, an offence, vide Crime No. 16/98, under Sections 363 and 365 of the Indian Penal Code, was registered, After registration of the Crime, a wireless message was issued to all police stations regarding the offence and the staff of the police station were deputed to Margao, where some relatives of accused No.1 were working. On the same day, PW 27 L.P.S.I. Sunita recorded the statement of PW 4 Sharada Kittar. Meanwhile PW 27 L.P.S.I. Sunita received information that a white colour Sumo bearing registration No. GA-01-M-9976 had left Mapusa stand alongwith some customers and was probably heading in Londa-Belgaum direction. PW 27 L.P.S.I. Sunita issued wireless message for keeping a check on the said vehicle and its occupants. On 10th March, 1998, a look out notice was circulated to all the police stations. PW 27 L.P.S.I. Sunita recorded the statement of PW 11 Remedios Colaco and, on the same day, on perusal of the records of the Regional Transport Office gathered information regarding the name of the owner. It transpired that the said Tata Sumo vehicle was registered in the name of Mrs. Bhanumati Harischandra Kerkar. Police Personnel were deputed at the residence of the said Mrs. Bhanumati Harishchandra Kerkar and PW 27 L.P.S.I. Sunita was informed that the said vehicle was driven by 'one Sanjay Kerkar, who had left on 9th March, 1998 and had not returned. On 11th March, 1998, the Tata Sumo was found at Verla and the presence of accused No.4 Sanjay was secured and he was interrogated. The said Tata Sumo vehicle was attached under a panchanama, at Exhibit 28, in the presence of PW 2 Anil Kerkar and one Raymond Menezes. Accused No.4 Sanjay came to be arrested. Accused No.5 came to be arrested and later on accused No.2 Gajanan and accused No.3 Mahesh came to be arrested. On 12th March, 1998, PW 6 Cristalina approached the police station and informed PW 27 L.P.S.I. Sunita that her daughter, who had been kidnapped, had telephonically informed PW 6 Cristalina that she was calling from the house of one Babasahel Patil, situated near the bus stand, Kolhapur. PW 27 L.P.S.I. Sunita after recording the supplementary statement of PW 6 Cristalina, proceeded to Kolhapur alongwith the police party and apprehended accused No.1 Uday and original accused No.6 Anil Mohite, in whose house the minor girl was staying. The statement of the minor girl PW 19 Jennamicka came to be recorded and it transpired that an offence under
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