The High Court · 2010

Mr.D.S.Kahlon, Advocate, for Mr.Narinder Lucky, Advocate, Amicus Curiae, for the appellant. Mr.Dhruv Dayal, DAG, Haryana. ... JORA SINGH, J. Dhoopa son of Banwari filed this appeal to impugn the judgment of conviction dated 5.5.2001 and order of sentence dated 9.5.2001 rendered by Additional Sessions Judge, Karnal, in Sessions Case No.56 of 1999, arising out of FIR No.133 dated 22.5.1999 under Sections 363/365/366 IPC, Police Station Nissing. By the said judgment, he was convicted under Sections 363 and 365 IPC and sentenced to undergo RI for 5 years and to pay a fine of Rs.3,000/-, in default of payment of fine, to further undergo RI for 1-3/4 years under Sections 363 and 365 IPC. Both the sentences were ordered to run concurrently. Prosecution story, in brief, is that Dharam Pal, complainant, is the resident of Village Bastali and was a labourer. He had dispute with Jai Singh qua some agricultural land.

Suit was pending in the Court and there was a stay. Complainant moved an application against Jai Singh and Mahavir. So, they were having a grudge against him. On 21.5.1999, Reena, aged about 8/9 years, minor daughter of the complainant, was kidnapped at Crl. Appeal No.815-SB of 2002 2 the instance of Jai Singh and Mahavir. Reena was brought back to her house by Muni Lal. Reena was being taken away by Dhoopa with bad intention. In view of complaint (Ex.PA), formal FIR (Ex.PC) was recorded. After inspecting the spot, rough site plan with correct marginal notes was prepared. Accused was arrested and produced before the doctor for medico legal examination. After completion of investigation, challan was presented in the Court. Accused was charged under Sections 363/365/366 IPC, to which he pleaded not guilty and claimed trial. Prosecution examined 7 witnesses in support of its story. PW1 Dharam Pal is the complainant and stated on oath that he had dispute with Jai Singh and Mahavir.

Suit was pending in Court. His daughter Reena was taken away by the accused with bad intention at the instance of Jai Singh and Mahavir. PW2 Dr. Abhinav has medico legally examined the accused. PW3 Reena appeared and stated that while playing in the street, the accused came and had taken away her towards chaupal. On the way, Muni Lal met them. On seeing him, she cried and was brought back to her house by Muni Lal. PW4 Muni Lal stated that on 21.5.1999, he along with his brother Des Raj was going out side the village for bringing sand in a buggi. On the way, accused met them and demanded a bidi from his brother. He was under the influence of liquor. Despite consuming 3/4 match sticks, he was unable to lit the bidi. Reena appeared before him and was nervous. He enquired from Reena but she did not answer. Ultimately, she told that she was being taken away by the accused. Reena and accused were brought to Crl.

Appeal No.815-SB of 2002 3 the house of complainant. Later on, intimation was given to the police. PW5 HC Mann Singh has delivered special report to the Ilaqa Magistrate. PW6 Constable Prem Kumar prepared scaled site plan (Ex.PD). PW7 ASI Sham Lal is the Investigating Officer. After close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. After hearing learned Public Prosecutor for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on the file. After arguing for some when learned defence counsel for the appellant failed to point out any infirmity or illegality in the impugned judgment, then stated that at the time of occurrence, appellant was 25 years' old.

He is labourer and has already undergone one year, ten months and twenty four days out of actual sentence. Requested to take lenient view. Learned State counsel argued that Reena, aged about 8/9 years, daughter of complainant, was present in the street, from where she was kidnapped by the appellant. On the way, Muni Lal had seen her in the custody of the appellant. Appellant failed to reply satisfactorily as to why minor daughter was being taken away by him. Complainant had dispute with Jai Singh and Mahavir. Litigation was pending. At the instance of Jai Singh and Mahavir, appellant had kidnapped minor girl. Appellant has already undergone one year, ten months and twenty four days out of actual Crl. Appeal No.815-SB of 2002 4 sentence. No objection if lenient view is taken. Learned defence counsel for the appellant has not challenged the judgment on the point of conviction and only requested to take lenient view, even then I want to scrutinize the evidence as to whether occurrence has taken place as per prosecution story or not.

Undisputedly, Reena is the daughter of the complainant, who had dispute with Jai Singh and Mahavir but no document on the file regarding pendency of civil suit. Reena was aged about 8/9 years and on 21.5.1999 while present in the street, was recovered from the custody of appellant by Muni Lal. Muni Lal was not related to the complainant. He was not inimical towards the appellant. Muni Lal along with his brother was going outside the village to bring sand in a buggi. On the way, appellant had met them and demanded a bidi. Bidi was supplied to the appellant but he failed to lit the bidi inspite of consuming 3/4 sticks. Appellant was under the influence of liquor and failed to give reply satisfactorily. Reena also appeared as PW3 but nothing on the file why to disbelieve minor girl and Muni Lal. Simple allegation of the appellant is that case is false at the instance of Jai Singh and Mahavir but no defence whether appellant was inimical towards the above said persons.

Suppose, appellant was inimical towards Jai Singh and Mahavir, then question is why he was named by the complainant, who has litigation with Jai Singh and Mahavir. Reena along with appellant was brought to the house of complainant by Muni Lal and his brother. After that, telephonically, intimation was given to the police. On the same day, appellant was arrested by the police and was medico legally examined. Till today, no complaint to Crl. Appeal No.815-SB of 2002 5 any authority regarding false implication. Occurrence is dated 21.5.1999. At that time, appellant was 25 years' old. He is a labourer and is the first offender. He has already undergone one year, ten months and twenty four days out of actual sentence. Appellant is to become hard criminal, if again sent to jail to serve the imprisonment, as ordered by the trial Court. Ends of justice would be fully met if lenient view is taken. Keeping in view the circumstances of this case, I take a lenient view and direct the appellant to undergo imprisonment as already undergone (one year, ten months and twenty four days). Fine maintained. For the reasons recorded above, appeal without merit is dismissed with modification qua sentence.

15.12.2010 ( JORA SINGH ) JUDGE