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3. PW-21, Investigation Officer, has deposed to the recoveries of the jewels belonging to PW-2 and watch of PW-1 as also other material objects. Insofar as these accused are concerned, PW-21 has spoken to recovery of M.Os.1, 11 and 12, a knife and two cell phones from A2 under Ex.P27, M.O.9 - < sovereign gold ring from A3, M.O.8 - 1= sovereigns gold chain from A4 under Ex.P11, a watch from A5 under Ex.P10 and M.Os.2, 10, 13 and 14, knife, gold ring, petro card and ATM card from A6 under Ex.P28. PW-14, Finger Print Expert, lifted finger prints from the White Omni Car bearing registration No.TN-07-Z-8836. An identification parade was conducted in the presence of PW-13, Judicial Magistrate, Salem. Therein, PWs.1 and 2 duly identified the accused. On transfer of PW-21, PW-22 Inspector of Police, took up investigation. He examined PWs.5, 6, 10/Doctors and two others and recorded their statements. Thereafter, he examined the Chemical Analyst and recorded his statement. The Chemical Analysis Reports are Exs.P12 and P13. The Serology Reports are Exs.P14 and P15. Upon completion of investigation, PW-22 filed a charge sheet informing commission of offences u/s.170, 323, 147, 148, 366, 343, 322 IPC r/w 397, 354, 506(ii), 376 r/w 120(b) IPC. However, the accused were tried for offences u/s.147, 148, 366, 342, 392 r/w 397, 354, 506(ii), 376 r/w 120-B IPC.

4. To substantiate its case, the prosecution examined PWs.1 to 22, marked Exs.P1 to P30 and M.Os.1 to 18. None were examined on behalf of the accused. On questioning under Section 313 Cr.P.C., the accused denied the charges.

5. Learned trial Judge, on consideration of the evidence adduced by the prosecution, has found the accused guilty, convicted and sentenced them as follows:

Sections of Law Accused Sentence 148 IPC A1 to A6 1 year R.I. and fine of Rs.1,000/- each i/d 3 months S.I. 366 IPC (2 counts) A1 to A6 10 years R.I. for each count and fine of Rs.10,000/- each i/d.1 year S.I. 342 IPC A1 and A2 1 year R.I. and fine of Rs.1,000/- each i/d. 3 months S.I. 397 IPC A1 to A6 7 years R.I. and fine of Rs.10,000/- i/d 1 year S.I. 506(ii) IPC A1 1 year R.I. and fine of Rs.1,000/- i/d 3 months S.I. 376(1) IPC A1 Life imprisonment and compensation of Rs.1,00,000/- payable to PW-2.

120-B IPC A1 to A6 7 years R.I. and fine of Rs.10,000/- each i/d 1 year S.I. Hence, the present appeals by appellants/A2, A5 and A6.

6. Heard learned counsel for appellants and learned Additional Public Prosecutor as also perused the records.

7. Appellants/A2, A5 & A6 stand convicted for offences u/s.148, 366 (2 counts), 397 and 120-B IPC. A2 stands convicted also for offence u/s.342 IPC.

8. It first is to be determined whether the charge under section 120-B IPC stands established against these appellants. As oft stated, in many a case there would be no direct evidence there regards. The same, many a times, is to be gathered from the circumstances. From the circumstance that there was a phone conversation between A1, holding PWs.1 and 2 in the Car driven by him and one of the accused A4 to A6, in the Car following them and thereupon, on realisation that they had taken a wrong road, A1 changed course, it fairly can be assumed that all six accused were party to preplanned kidnapping. It is the evidence of PW-2, victim, that when she was molested by A2, A3 informed A2 that their purpose was not the girl, but money and thereupon a quarrel ensued between A2 and A3. Therefore, to inform the case to be one of kidnapping for ransom, would be a fair assumption. However, kidnapping for ransom is an offence under section 364-A IPC, a charge not levied against the accused. In the circumstances of the case, this Court does not consider it proper to require appellants/A2, A5 and A6 to now answer such a charge. As regards these appellants/A2, A5 and A6, we would hold that the charge of criminal conspiracy punishable u/s.120-B IPC would stop with the offence of kidnapping and matters related thereto. We may also inform that though PW-2 had spoken to having been molested by A2, no charge u/s.354 IPC had been levelled against him.

9. From the evidence of PW-2 it is clear that the offence of rape stands committed against her by A1 when she was left alone with him. The evidence of PW-1 is that he was divested of his watch by the accused. He has not specified which of the accused so divested him. It is the evidence of PW-2 that A4 at the instance of A1 held a knife to her neck and forced her to remove and hand over jewels. All the accused stand convicted for offence u/s.397 IPC. In Dilawar Singh v. State of Delhi [AIR 2007 SC 3234] it has been explained that Section 397 IPC is attracted only against the particular accused who uses a deadly weapon or does any of the acts mentioned in the section and the other accused are not vicariously liable for the acts of such co-accused. Therefore, the conviction for offence u/s.397 IPC is misplaced. The charge u/s.366 IPC on two counts is most ill-founded. Section 366 IPC covers offence of kidnapping, abducting or inducing a woman to compel her marriage, a charge whereof totally is unsubstantiated in the circumstances of the case. Similar is the charge under section 148 IPC  offence of rioting. What follows from the above discussion is that the accused have shared the common intention of kidnapping PWs.1 and 2. Towards that end, they have also shared the common intention of wrongfully restraining them. While offences u/s.148 and 366 IPC would not be made out against any of the accused, that under 376 IPC can be attributed only to A1, that under 397 IPC, if such offence be made out, can be attributed only to A4. The trial Court has convicted only A1 for offence u/s.506(ii) IPC. We would hold the appellants guilty of offences u/s.120-B, 342 r/w 34 IPC and 363 IPC, the offence u/s.120-B IPC having been committed towards commission of the other offences.