Crl.Appeal No.1249-SB of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.1249-SB of 1999 Date of decision:27.7.2010 Baggar Singh ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.T.S.Sangha, Sr.Advocate, with Mr.Narinder Singh, Advocate, for the appellant. Mr.Amandeep Singh Rai, AAG, Punjab. ... JORA SINGH, J. Baggar Singh son of Jugraj Singh preferred this appeal to impugn the judgment of conviction and order of sentence dated 20.11.1999 rendered by Additional Sessions Judge, Muktsar, arising out of FIR No. 11 dated 29.1.1998, Police Station Gidderbaha, under Sections 364, 377/511 IPC. By the said judgment, he was convicted under Sections 363, 365 and 377/511 IPC and sentenced to undergo RI for five years and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for one year under Section 363 IPC, to undergo RI for five years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for one year under Section 365 IPC and to undergo RI for five years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for one year under Sections 377/511 IPC. All the substantive sentences were ordered to run concurrently. Crl.Appeal No.1249-SB of 1999 2 Prosecution story, in brief, is that Ram Chand reported to the police on 29.1.1998 at about 4.00 PM that he was present in his house when his sons Rajinder, aged about 8 years, and Varinder, aged about 5-1/2 years, and daughter Alka aged about 4 years, were playing in the street outside his house. When he came out of the house, then Varinder was found missing. On enquiry from his children, they replied that Varinder was playing with the children of Banti. After that, Ram Chand had gone to the house of his brother Mohan Lal and made enquiry from the children of Mohan Lal about Varinder. Mohan Lal replied that Varinder had left from there since long. Then complainant and his brother had gone towards the godowns situated on Piauri road in search of Varinder. Baldev Singh son of Neetan Singh, resident of Gidderbaha, had met them and enquired as to why they were nervous. Ram Chand reported to Baldev Singh that his son Varinder, who was wearing a red pant, white shirt, a long pull over and `V' shape chappal, was missing. Then Baldev Singh replied that he had seen a child of that description sitting on the bicycle of a long statured person, aged about 35/36 years while going on the katcha passage towards Village Piauri. Complainant Ram Chand, Mohan Lal, Baldev Singh and some other persons tried to search Varinder on that side, but he was not available. Then complainant had gone to police station to lodge a report. Near Octroi Post of Lambi road, police party headed by Inspector Jaspal had met the complainant. Report was lodged that Varinder was missing. Statement of Ram Chand (Ex.PA) was sent to the concerned police Station, on the basis of which, formal FIR (Ex.PA/2) was recorded. Inspector Jaspal after inspecting the spot had prepared rough site plan (Ex.PF). Next day in the morning, Inspector Jaspal received secret Crl.Appeal No.1249-SB of 1999 3 information that a person had been hiding with a child in the farm house of Angrez Singh. Accordingly, a raid was conducted and the accused was arrested. Varinder was recovered from the custody of the accused. On personal search of the accused, Rs.50/- was recovered. Currency note and bicycle were taken into police possession vide separate memo. Rough site (Ex.PG) with correct marginal notes was prepared. Varinder was produced before the doctor for medical examination. Scaled site plan (Ex.PE) was got prepared and after completion of investigation, challan was presented in Court. Accused was charged under Sections 364 and 377/511 IPC, to which he pleaded not guilty and claimed trial. Prosecution examined six witnesses. PW1 Ram Chand, complainant, stated that on 29.1.1998 at 4.00 PM, he was present in his house, whereas his sons Rajinder, aged about 8 years and Varinder, aged about 5-1/2 years and daughter Alka, aged about 4 years, were playing in the street outside his house. After some time, when he came out of the house, then Varinder was found missing. On enquiry from his children, they replied that Varinder was playing with the children of Banti. After that, he had gone to the house of his brother Mohan Lal and enquired about Varinder. When Varinder was not traceable, then he along with his brother had gone towards the godowns situated on Piauri road in search of Varinder. Baldev Singh had met them and enquired as to why they were nervous. He replied that his son Varinder, who was wearing a red pant, white shirt, a long pull over and `V' shape chappal, was missing. Then Baldev Singh replied that he had seen a child of that description sitting on the bicycle of a long statured person, aged about 35/36 years, while going Crl.Appeal No.1249-SB of 1999 4 on the katcha passage towards Village Piauri. Effort was made to trace Varinder, but he was not available. Then matter was reported to the police. On the next day, his son was recovered from the custody of Baggar Singh, appellant, while present in the fields of Angrez Singh. PW2 Varinder Kumar has supported the version of his father Ram Chand. PW3 Harnek Singh stated that while coming from the side of Gurdwara at 4.00 AM., police party had met him. He along with police party had gone to the fields of Angrez Singh. Baggar Singh was found sitting with the child. Child was recovered from the custody of Baggar Singh. PW4 Dr. H.N. Singh had medico legally examined Baggar Singh on 3.2.1998 and proved report (Ex.PD). PW5 Ajit Sharma had proved site plan (Ex.PE) prepared by him. PW6 Inspector Jaspal was the Investigating Officer. After close of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that he was implicated at the instance of Mohan Lal, brother of the complainant. In fact, he was coming from Gidderbaha with Hansa Singh to purchase goods and was arrested from the bazar. In defence, Hansa Singh appeared as DW1 and supported the defence version. DW2 Angrez Singh stated that he owned land but there was no Crl.Appeal No.1249-SB of 1999 5 raid by the police. Baggar Singh or minor son of Ram Chand was not recovered from his farm house. 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 gone through the evidence on the file. After arguing for some time when learned counsel for the appellant failed to point out any infirmity or illegality in the impugned judgment, then stated that judgment of the trial Court is not challenged on the point of conviction. Appellant is the first offender and belongs to a poor family. He remained in custody for about one year and eleven months. After conviction, appellant has not committed any such act. Requested that appellant may be directed to undergo imprisonment already undergone. In support of his contention, learned counsel for the appellant cited 2006(4) RCR (Crl.) 507, Sher Singh vs. State of Haryana, and 2008(1) RCR (Crl.) 623, Raghbir Singh alias Nadar vs. State of Haryana. Learned State counsel argued that minor son was abducted with intention to sodomise. Before the present occurrence, complainant had no enmity with the appellant. Minor boy while appearing as PW2 has supported the version of his father. Nothing to disbelieve him. Evidence on the file was rightly scrutinized. No doubt, learned counsel for the appellant stated that judgment of trial Court is not challenged on the point of conviction and requested to take lenient view, but despite request, Court wants to scrutinize the evidence on file as to whether appellant was rightly convicted under Crl.Appeal No.1249-SB of 1999 6 Sections 363, 365 and 377/511 IPC. Ram Chand, complainant, categorically stated that on 29.1.1998 at 4.00 PM, Varinder was playing in front of his house along with his second son Rajinder and daughter Alka. After some time, he came out of the house and found Virender missing. Enquiry was made from the house of his brother Mohan Lal. When Virender was not traceable, then he along with Mohan Lal had gone towards the godowns of Village Piauri. On the way, Baldev Singh had met them and enquired as to why they were going towards the godown. He replied that his son Varinder, who was wearing a red pants, white shirt, a long pull over and `V' shape chappal, was missing. Then Baldev Singh replied that he had seen a child of that description sitting on the bicycle of a long statured person, aged about 35/36 years while going on the katcha passage towards Village Piauri. When Varinder was not traceable, then matter was reported to the police. On the next day, his son was recovered from the custody of Baggar Singh, appellant, while present in the fields of Angrez Singh. Varinder stated that while he was playing in front of his house, then he was taken away by Baggar Singh, who attempted to commit unnatural offence. Varinder was recovered from the custody of Baggar Singh while present in the fields of Angrez Singh. Before the present occurrence, appellant had no enmity with the complainant party. Nothing on the file that minor child was tutored. Without previous enmity, there was no idea to name the appellant, particularly when reputation of minor child was at stake. Baggar Singh, appellant, was medico legally examined and doctor reported that he was fit to perform sexual intercourse but no medical Crl.Appeal No.1249-SB of 1999 7 evidence on the file that minor child was sodomised by the appellant. In defence, Hansa Singh appeared as DW1 and stated that he along with appellant was coming from the side of Gidderbaha when appellant was arrested, but regarding false implication, no report to any authority. Hansa Singh was not present at the time of recovery or abduction. So, his statement is without any evidentiary value. Angrez Singh appeared as DW2 and stated that there was no raid. Appellant along with minor child was not recovered from his farm house, but his statement is also without any evidentiary value because he was also not present at the time of abduction or recovery of minor child. While present in the house, Angrez Singh cannot state whether there was a raid and the appellant along with minor child was recovered from his fields. Something could be said if Angrez Singh was present at the time of recovery of the child. According to prosecution story, Baldev Singh had seen the child on the bicycle while going towards the side of Village Piauri. Baldev Singh was not produced by the prosecution and if prosecution story was not correct, then he could easily be produced in defence to state that he had not seen Virender in the custody of appellant while going on a bicycle towards Village Piauri. Secondly, on 29.1.1998, he had not met the complainant and reported that he had seen one child of that description while sitting on a bicycle driven by a person aged about 35/36 years. From the statements of Virender, his father Ram Singh and Harnek Singh, I am of the opinion that trial Court rightly opined that Virender was kidnapped by the appellant and later on recovered from his possession and offences punishable under Sections 363, 365 and 377/511 IPC were committed by the appellant. Crl.Appeal No.1249-SB of 1999 8 Occurrence is dated 19.1.1998. At that time, appellant was 33 years' old. He is the first offender and is the only bread earner of his family. After present occurrence, appellant has not committed any such act. He has already undergone one year, ten months and twenty five days, as per custody certificate produced on record. In Sher Singh's case (supra), conviction was under Sections 376/511 IPC on the allegation that appellant attempted to commit rape on a minor girl. Appellant was directed to undergo three years RI. Accused was facing trial for about 13 years. Sentence was reduced to one year and six months. In Raghbir Singh @ Nadar's case (supra), an attempt was made to rape a young girl. Appellant was convicted and sentenced to undergo RI for four years. Sentence was reduced to RI for two years because appellant was of young age. In the present case, an attempt was made to commit unnatural offence with a boy of 5-1/2 years' old. Occurrence was on 29.1.1998 and at that time, appellant was 33 years' old. Appellant is the first offender and belongs to a poor family. He has already undergone one year, ten months and twenty five days out of the actual sentence. Ends of justice would be fully met if instead of directing the appellant to undergo imprisonment as ordered by the trial Court, his sentence is reduced. Hence, sentence awarded to the appellant is reduced to already undergone (one year, ten months and twenty five days) . Fine is increased to Rs.25,000/- and is to be deposited within two months before the trial Court, payable to the victim as compensation. Crl.Appeal No.1249-SB of 1999 9 For the reasons recorded above, appeal without merit is dismissed with modification on the point of sentence. 27.7.2010 ( JORA SINGH ) pk JUDGE