Allowed

Jafar Munshiali Raja Ali and Anr. v. the State of Maharashtra

Bombay HC25 Jul 2012APEAL/334/2012

Case brief

AI extract

What is this about?

High Court of Judicature at Bombay allowed the appeal against conviction for kidnapping and wrongful confinement. The court acquitted the appellants, finding the victim had left voluntarily with appellant No.1 despite his persuasion to stay, and no evidence showed knowledge of her minority.

What did the court decide?

Conviction and sentence for kidnapping and wrongful confinement under Sections 363, 365, 342 and 34 IPC set aside and appellants acquitted and set at liberty.

Jafar Munshiali Raja Ali and Anr. Vs the State of… — Criminal Trial and Appeal | Bombay HC (2012)

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Apeal 334-12.odt

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Anand

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.334 OF 2012

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1. Jafar Munshiali Raja Ali .Appellants Age:22 yrs, Occu:Nil R/o. Bidraban, Post:Khaira, Taluka:Paraspur, District:Gauda, State:Uttar Pradesh

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2. Shahidali alias Rinku Chheda Ali Shah Age:22 yrs, Occu:Nil R/o. S/2/2, Azadpur Zopadpatti, Lalbaug, Petrol pump Galli, New Delhi.

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 V/s.

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The State of Maharashtra.Respondent

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Mr.Abhaykumar Apte, Advocate, for the Appellants
Mrs.M.R.Tidke, APP, for the Respondent - State

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CORAM:R.C.CHAVAN, J.
DATE:25TH JULY, 2012

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ORAL JUDGMENT

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.This appeal is directed against

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conviction of the appellants for the offences

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punishable under Sections 363, 365 and 342 read

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with Section 34 of the Indian Penal Code and

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sentence of rigorous imprisonment for five years

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Page 1 of 8

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Apeal 334-12.odt

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with a fine of Rs.1,000/- each or in default
rigorous imprisonment for three months each for

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each of the first two counts and rigorous
imprisonment for six months with a fine of
Rs.200/- each or in default rigorous
imprisonment for 15 days each on the third count
imposed upon them on conclusion of Session Case
No.581 of 2009 by the learned Additional
Sessions Judge, Sewree, Mumbai.

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2.Facts which are material for deciding

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this appeal are as under :-

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On 31st January, 2009 when the victim had
gone to answer call of nature at about 4:00
p.m., her uncle saw her talking with appellant
No.1. He promptly reported to the victim's

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mother. The victim's mother scolded and
slapped her. The victim left her house. The
victim's mother gave a report on 2nd February,
2009 that the victim was missing and thereafter,
filed a complaint. An offence was registered.

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After about three months, the victim was brought

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Page 2 of 8

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Apeal 334-12.odt

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along with appellant No.1 on 12th August, 2009
from Delhi and appellant No.2 was also brought
on 23rd August, 2009. Police recorded statements
of witnesses, sent the victim as well as the
appellants for medical examination and on
completion of investigation, sent charge sheet
to the Court of Metropolitan Magistrate, Dadar,
who committed the case to the Court of Session,
Mumbai.

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3.The learned Additional Sessions Judge to

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whom the case was made over, charged the
appellants for the offences punishable under
Sections 342, 363, 365 read with Section 34 of
the Indian Penal Code and also changed appellant
No.1 Jafar for the offence punishable under
Section 376 of the Indian Penal Code. Since they
pleaded not guilty, they were put on trial at
which the prosecution examined in all five
witnesses in its attempt to bring home guilt of
the appellants. After considering the
prosecution evidence in the light of defence of

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Page 3 of 8

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Apeal 334-12.odt

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denial, the learned Judge acquitted appellant
No.1 of the offence punishable under Section 376
of the Indian Penal Code but convicted the two
appellants for the offences punishable under
Sections 342, 363, 365 read with Section 34 of
the Indian Penal Code and sentenced them as
aforementioned. Aggrieved thereby, the
appellants are before this Court.

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4.I have heard the learned counsel for the
appellants and the learned Additional Public
Prosecutor for the respondent – State. With the
help of both the learned counsel I have gone
through the evidence on record. There is

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nothing in the evidence of PW-1 victim's mother,
Kalabai Ramesh Pawar to show that appellant No.1
enticed the victim or made her accompany him.
She had not even seen the appellant No.1 with the
victim. It appears that her brother-in-law told
her that the victim was seen in the company of
appellant No.1 – Jafar. PW-2 is the victim
herself. She categorically stated when she was

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Page 4 of 8

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Apeal 334-12.odt

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slapped by her mother for talking to unknown boy

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she was angry on being scolded by her mother,

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and on her own she left for Bombay Central
station along with the appellant No.1 – Jafar and
then proceeded to Delhi by train where she stayed
with the appellants for a period of three
months. Since she did not state anything about
any sexual assault, the learned Judge had
acquitted the appellant No.1 of the offence
punishable under Section 376 of the Indian Penal
Code. She was declared hostile and cross
examined extensively by the learned APP but
maintained she had not been enticed by the
appellant No.1 to accompany him and that she had
not been subjected to any sexual intercourse by

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the appellant No.1. In the course of cross
examination for the appellants, she stated that
in fact when she met the appellant – Jafar, he
persuaded her not to leave home and asked her to
go back. It is, indeed, unfortunate that in the

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face of this evidence coming from the victim,
the learned Judge should have found the

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Page 5 of 8

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Apeal 334-12.odt

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appellants, both 20 years old young men, guilty
of the offences of kidnapping with the intent to
wrongfully confine the victim and wrongfully
confining the victim.

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5.PW-3 PSI, Vikram Ramsingh Gaund and PW-4
DattaramVasudeoSawanthadconducted

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investigation in parts. Both stated that one
API Suryawanshi had been sent to Delhi to get
the accused persons. API Suryawanshi is,

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however, not examined. PW-5 Dr. Pratap Daya
Anand, who examined both the victim and
appellant No.1 – Jafar had proved his
Certificate. The victim's birth date is 10th

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December, 1996. Therefore, she was obviously a
minor at the relevant time.

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6.However, when there was nothing to show
that any of the appellants knew that the victim

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was a minor, and since the Medical Certificate

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proved by Dr. Anand shows that the victim was
4'10½” in height, the appellants could not be

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Page 6 of 8

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Apeal 334-12.odt

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blamed, if they did not find the victim to be of
an age where they should not have allowed her to
join them. Therefore, though the learned APP
tried to support Judgment of the trial Court,
there is absolutely no reason apparent from the
Judgment to hold the appellants guilty for the
offences punishable under Sections 342, 363, 365
read with Section 34 of the Indian Penal Code in
the face of categorical statement of PW-2 Victim
that she had gone with the appellant – Jafar on
her own in spite of appellant's pursuading her
not to do so.

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7.The appeal is, therefore, allowed.

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Conviction of the appellants for the offences
punishable under Sections 363, 365 and 342 read
with Section 34 of the Indian Penal Code and
sentence of rigorous imprisonment for five years
with a fine of Rs.1,000/- or in default rigorous
imprisonment for three months each for the 1st
two offences and rigorous imprisonment for six

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months with a fine of Rs.200/- each or in

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Page 7 of 8

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Apeal 334-12.odt

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default rigorous imprisonment for 15 days each is
set aside. They are acquitted of the said
offences. They be set at liberty, if not wanted
in any other case.

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 (R.C.CHAVAN, J.)

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Page 8 of 8

Jafar Munshiali Raja Ali and Anr. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Jafar Munshiali Raja Ali and Anr. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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