By this judgment and order dated 30.3.1993 passed in Sessions Case No.l (S)/89, learned Addl Sessions Judge, Sonitpur, at Tezpur convicted the accused Bhagya Hazarika and Sadhan Debnath under section 366 Indian Penal Code (IPC) and sentenced them thereunder to 3 years rigorous imprisonment (RI) and also to pay a fine of Rs.300 each, in default to further 3 months RI. 2. Being aggrieved, the accused Bhagya preferred Criminal Appeal No. 104 of 1993 and accused Sadhan Criminal Appeal No. 75 of 1993. By an order dated 26.7.1993 passed in Criminal Appeal No. 104 of 1993, this Court directed that both the appeals be heard analogously by the same Bench. 3. I, therefore, propose to dispose of both the appeals by this common judgment. 4. I have considered the record of the case and have heard Mr. JM Choudhury, learned senior counsel for the accused appellant Sadhan Debnath and Mr. S. Mitra, learned counsel for the accused appellant Bhagya Hazarika, as well as Mr. Nur Mohammad, learned Addl Public Prosecutor appearing for the respondent -State of Assam. 5. The prosecution case in brief is that on 9.2.1987 at about 1.30 PM at No. 2 Dolabari under Tezpur Police Station, PW 2 Smti Jyoti Debnath, a student of 1st year TDC (Arts) was returning home from the college and as she reached near the house of PW 3, Bhola Shah, accused Sadhan and accused absconder Siddique appeared there in a car driven by accused Bhagya. They forcibly took PW 2 into the car upto a canal at Bahbera under Missamari Police Station. From there accused Bhagya and accused absconder Siddique returned with the car, and the accused Sadhan took PW 2 to the house of one Jabbar and then to the house of PW 8 Madan Singh. The accused Sadhan intended to marry PW 2 by force, PW 2 was however rescued by police from the house of PW 8 Madan within six hours of her abduction. Next day she was examined by Govt Doctor, PW 7 who opined that here age was above 19 years; she herself stated in cross-examination that she was then 19 years old. 6. Next day she was examined by Govt Doctor, PW 7 who opined that here age was above 19 years; she herself stated in cross-examination that she was then 19 years old. 6. The prosecution case as stated above has been amply proved by the prosecution evidence and has not been disputed by the defence except on the point of taking PW 2 in the car by force with intent to compel her to marry accused Sadhan against her will. In his statement under section 313 of the Code of Criminal Procedure (CrPC) the accused Sadhan told the Court that he and PW 2 had been in love since their childhood, that on the date of occurrence in the morning, they met and she expressed her willingness to come with him as her father would not allow her to marry him, and that she asked him to come with a car at about 1 PM, and accordingly he came and took her to the house of PW 8 Madan Singh, an acquaintance of her father (neither Madan Singh nor his father PW 1 in their evidence stated that they knew each other before the occurrence). The other accused Bhagya stated in his statement under section 313 of the CrPC that PW 2 got into the car on her own and that this car was hired by the accused Sadhan. 7. Mr. JM Choudhury, learned senior counsel for the accused appellant Sadhan Debnath, submits that Sadhan and PW 2 had been in love and since at the relevant time PW 2 was above 18 years of age, her consent has taken the act of the accused out of section 366 of the IPC. It is true that at the time of occurrence PW 2 was above 18 years of age. It may also be true that she had been in love with accused Sadhan; but for that reason she could not be abducted by him. She had a right to refuse to go with him at a particular point of time and the act of the accused taking her away in spite of her refusal of compel her to marry him against her will definitely attracts section 366 of the IPC. 8. This most important witness in a case of abduction, under section 366 of the IPC is the abducted woman herself. 8. This most important witness in a case of abduction, under section 366 of the IPC is the abducted woman herself. In the instant case, PW 2 gives details as to how she was abducted. According to her, on her way back home from the college when she reached near the house of PW 3, Bhola Shah one taxi stopped near her, accused Sadhan and another (accused absconder Siddique) got down, took her into the car kept in starting condition with the accused Bhagya in the driving seat and forced her down to the car floor. She started crying and shouting for help when accused Sadhan gagged her mouth and threatened her with a spring knife (later seized by seizure list, Ext 3). 9. At that time two boys (PWs 5 and 6) arrived and the driver (accused Bhagya) drove away the car. When she could guess that the car was passing near her house, she cried loudly and accused Sadhan again gagged her mouth. The car stopped near a canal. From there accused Sadhan took her first to the house of one Jabbar and then to the house PW 8 Madan Singh wherefrom police rescued her. She told both Jabbar and PW 8 Madan Singh that she had been taken by force. Mr. Choudhury, learned senior counsel for the accused appellant Sadhan, submits that PW 2, shortly before she was rescued by police told DW 1 that she voluntarily and wilfully came with the accused Sadhan and hence no offence under section 366 of the IPC was committed. But the evidence of DW 1 that PW 2 told him that she had come with the accused on her own does not merit acceptance in view of the clear and categorical evidence of PW 2 herself. But the evidence of DW 1 that PW 2 told him that she had come with the accused on her own does not merit acceptance in view of the clear and categorical evidence of PW 2 herself. PW 2 has been corroborated by two independent eye witnesses, PWs 5 and 6, her father PW 1 who heard cries when the taxi passed his house, PW 3 who came out of his house hearing cries and saw an ambassador car with the accused Sadhan and others passing his house and was told by PWs 5 and 6 that Promod Master's daughter (PW 2) had been taken away by some people in a taxi, and PW 2 was also corroborated by PW 8 from whose house she was rescued by police and who found her crying after accused Sadhan took her to his house. The Investigating Police Officer, PW 9 stated that he seized the spring knife (vide seizure list, Ext 3) handed over to him by VDP Secretary who claimed to have recovered the same from the possession of the accused Sadhan. This statement of. PW 9 has not been challenged by the defence in his cross-examination. The evidence on record leaves no room for doubt that the accused Sadhan Debnath abducted PW 2, Smti Jyoti Debnath, a young girl of marriageable age, with intent to compel her to marry him against her will. Once the charge under section 366 of the IPC is found to have been squarely brought home to the accused Sadhan, the next question that falls for consideration is whether the evidence on record is sufficient to sustain conviction of the other accused Bhagya Hazarika under section 366 of the IPC read with section 34 of the IPC. It is true that in the instant case the accused persons were charged under section 366 of the IPC and not under section 366/34 of the IPC. It is however been held in Garib Singh's case reported in AIR 1973 SC 460 that section 34 of the IPC can be applied even though no charge is framed if the evidence on record establishes it and no prejudice is caused to the accused. That in the instant case, the evidence on record established it and no prejudice was caused to the accused persons is absolutely clear from the tell-tale circum­stances. That in the instant case, the evidence on record established it and no prejudice was caused to the accused persons is absolutely clear from the tell-tale circum­stances. The accused Bhagya drove the car used for abducting PW 2. He stopped the car near her, kept the engine in starting condition, saw the accused Sadhan and accused absconder Siddique dragging her into the car and forcing her down to the car floor, when she shouted and started crying for help till accused Sadhan gagged her mouth and threatened her with a spring knife; and accused Bhagya drove the car as soon as other two accuseds taking PW 2 forcibly with them got into the car. From such proved circumstances, conclusion is irresistible that the accused Bhagya along with other two accuseds committed the offence pursuant to a pre-arrange plan. 10. In view of the above, I could not persuade myself to accept the submission of Mr. S. Mitra, learned counsel for the accused appellant Bhagya Hazarika, that he was a mere taxi driver whose taxi was hired by the accused appellant Sadhan Debnath and hence he committed no offence. 11. In the result both the appeals fail and are dismissed. 12. The conviction and the sentence awarded by the impugned judgment and order are upheld with the modification that the conviction shall be under section 366/34 of the IPC instead of under section 366 of the IPC. 13. The accused appellants are now on bail. Their bails stand cancelled. They shall surrender before the learned trial Court within 15 days from the date of this order to serve out the sentence and to pay the fine, failing which, the learned trial Court shall proceed against them according to law. 14. Send down the lower Court records with a copy of the judgment and order of this Court.