Decided on April 23,2002

LAXMIBAI Respondents


- (1.)Ms. Nirmala Sadafale agea about 13 years, was alleged to have been kidnapped by respondents from the lawful custody of her parents with the aid and assistance of some other persons, when she was on the way to her school. As Nirmala Sadafaie did not return from the school, her mother anusayabai (PW4) and others started searching but did not succeed in tracing her. One Narsabai told Anusayabai (PW 4) that she had seen her daughter Nirmala going by the road along with respondent. no. 1. This fact was also confirmed by others that her daughter was seen going with respondent no. 1. As her daughter did not come back even on the next day, anusayabai (PW4) informed her brother about the disappearance of Nirmala. He also searched for her. As they failed to trace nirmala, a report of disappearance of nirmala was lodged in the police station. During the investigation, it transpired that the victim was kept at the parental house of respondent no. 2. She was recovered from the house of parents of respondent no. 2 and brought back to her village. After the investigation the prosecution filed a charge-sheet against those accused persons for offences punishable under sections 363, 366 read with section 34 and section 343 of the Indian Penal Code Upon trial the 2nd additional district sessions judge, Chandrapur convicted respondents herein for the offence punishable under section 363 read with section 34 of the Indian penal Code and sentenced them to suffer rigorous imprisonment for four years besides paying a fine of Rs. 500/- each, in default, sentence of six months. The other four accused persons were acquitted.
(2.)Not satisfied with the judgment of the trial court, the convicted accused persons filed an appeal in the High Court which was allowed vide the judgment impugned in this appeal.
(3.)During the trial the respondent no. 1 had taken a defence that she was residing in a tenanted house in the neighbourhood of the mother of the victim. The other three accused persons were also residing as tenants in the said vicinity. The accused no. 1 had claimed to have very good relations with the mother of Nirmala. On the day of occurrence the respondent - accused no. 1 had told Anusayabai (PW4) that she was going to darga (mosque) at Girad which is near Hinganghat for offering prayer. Hearing that Anusayabai (PW4) told the accused that she could also take Nirmala with her for offering the prayers as she was not getting mensuration. Thereafter Nirmala made preparations and went with the accused persons with the consent of her parents. They stayed at the house of accused nos. 2 and 6 for a day and thereafter went to girad to offer their prayer to darga of Baba, where Nirmala was told to come again after ten days. Thereafter, Nirmala and the accused persons went to Hinganghat and stayed at the house of Saleemkhan and sayarabano. Accused no. 4, who is the father of accused no. 2 Saleemkhan. ultimately took Nirmala to her house at Rajura. After analysing the prosecution evidence and keeping in view the defence taken by the accused respondents, the High Court held:
"Certain circumstances enumerated hereinafter rendered probability to the defence, (a) mother of Nirmala, viz. PW4 Anusayabai or her father has not lodged any report, (b) Report in this regard was lodged on 15 9.1990 i e. after ten days There is no plausible explanation of delay PW4 Anusayabai admitted that she was informed by her son sandeep of going of Nirmala with the appellant no. 1 laxmibai Still she has not lodged report; (c) Even the statement of father of nirmala has not been recorded, (d) In view of the above, the version of Sandeep, brother of Nirmala and the prosecution's claim that nirmala was carried in a jeep has become doubtful; and (e) In this case, report is lodged by PW6 Nawanand Khandale, brother of PW 4 Anusayabai. "

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