IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 283 of 2009. Date of decision : 19. 4.2011 Narender Thakur ….Appellant Versus State of H. P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. Ashwani Pathak, Advocate. For the respondent : Mr. A.K. Bansal, Addl. Advocate General. . Surinder Singh J. (Oral) The appellant hereinafter referred to as “accused” was tried and convicted by the learned trial Court for the offence punishable under Section 363 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of `1000/-. In default of payment of fine he was further ordered to undergo simple imprisonment for a period of 2 months, for allegedly kid-napping the prosecutrix (aged 9 years). Hence the present appeal by the convict precisely on 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes 2 the grounds that the learned trial Court did not appreciate the evidence of the prosecution in the right perspective , the accused was falsely implicated and also that the delay in lodging the FIR is not properly explained in the instant case. 2. In short, prosecution story can be stated thus. In the year 2004, prosecutrix was a student of 4th standard, studying in the Government Primary School Nehrian. On 1.1.2004 between 3 or 4 p.m. when she was returning to her home, while passing through the area of village Dharu, accused met her at a lonely place just across dhaba of PW3 Teju Ram. She was picked-up and taken behind the bushes by the accused. Prosecutrix cried for help by which Teju Ram aforesaid got attracted and rushed to the spot to rescue the prosecutrix. On seeing Teju Ram at a distance, accused left the prosecutrix and escaped. Few more persons also came on the spot. PW1 Mahinder Singh, father of the prosecutrix was informed about the incident. In the meantime, prosecutrix also reached home. She narrated the incident to him. Since the prosecutrix did not know the name of accused thus, she along with her parents 3 went to village Dharu and identified the accused, who was out side his cow-shed in that village. Mahinder Singh aforesaid inquired about the incident from the accused. He confessed his guilt and asked to be pardoned. Thereafter prosecutrix and her parents returned to their house. Next day, they went to the police Station to report the matter. Police declined to register the case and advised them to go to the Panchayat. He approached PW Santosh Kumar Pradhan of the Panchayat. He convened the Panchayat wherein accused and his father both were present. Again, accused admitted his guilt and compromise Ext. PW1/B was executed. 3. On 4.11.2004, PW1 Mahinder Singh was told by the Panchayat that they were not competent to impose any penalty on the accused it being beyond power thus they advised him to report the matter to police. 4. On 5.11.2004 Mohinder Singh along with the prosecutrix, Pradhan of the Panchayat, B.D.C member Ram Lok and PW3 Teju Ram went to police station, filed a complaint Ext. PW1/A which ultimately culminated into FIR Ext. PW7/A. 4 5. Police visited the spot and took the photographs and prepared the site plan Ext. PW9/A of the place of alleged incident. 6. During the investigation of this case, police obtained the birth certificate Ext. PW10/A of the prosecutrix from the Head Master of the School. 7. Prosecutrix belonged to a scheduled caste family, therefore, Section 3 (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was also added with Section 363 of the Indian Penal Code. 8. Accused was accordingly charge sheeted for the aforesaid offences. At the end of the trial, he was acquitted of the offence punishable under Section 3 (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 but convicted and sentenced, as aforesaid. 9. Heard and gone through the record. 10. In this case, the statement of the prosecutrix PW6 is of utmost importance. She corroborates the prosecution version in toto and categorically stated 5 that while returning from the School when she had crossed the Dhaba of Teju Ram (PW3), accused intercepted her at a lonely place, picked-up her from behind and took her to nearby bushes. Although she stated that accused laid upon her after opening the jip of his pant, on this, she raised hue and cry for help but to this effect she was confronted with her previous statement recorded under Section 161 of the Code of Criminal Procedure wherein it did not find mention. Thus, this is a material improvement in her statement. She also stated that accused on seeing Teju Ram, fled-away leaving her on the spot. On inquiry by Teju Ram, she narrated about the incident to him. 11. PW3 affords material corroboration to her statement to the extent that he heard the noise of crying of a female child from a lonely place across his dhaba. He rushed to the spot and saw prosecutrix weeping. Since he knew her as she used to pass through his dhaba daily, on having been asked she told that one boy had lifted her and took her behind the bushes. But he did not see anybody around and sent the prosecutrix to her house and also rang up to the father of the prosecutrix and informed him about 6 the incident. He also admitted having visited the police Station on 5.11.2004 along with prosecutrix, her parents and Pradhan Santosh Kumar when complaint Ext. PW1/A was moved to the police. 12. Although prosecution did not examine Santosh Kumar aforesaid but he was examined by the accused as DW1. Significantly, he admitted that the prosecutrix had leveled the above allegations against the accused before local Panchayat. Her father had also given a slap to him but the accused denied the allegations. It is worth mentioning here that the execution of the compromise Ext. PW1/B wherein accused has admitted his guilt, is admitted by him. He also stated that he was present in the said meeting in his capacity as Pradhan of Gram Panchayat. 13. In his statement under Section 313 of the Code of Criminal Procedure the case of the accused is denial simplicitor. He stated that the witnesses were inimically disposed of towards him but no such allegation was leveled to any particular witness in cross-examination. 14. On the scrutiny and re-appraisal of the aforesaid evidence, in my considered opinion, the 7 ingredients of the offence under Section 363 of the Indian Penal Code stand proved. Prosecutrix is also proved to be minor aged about 9 years at the time of the alleged incident, as stated by PW10 Kashmir Singh. He proved the Certificate Ext. PW10/B, the correctness of which has not been challenged. He categorically stated that the date of birth of the prosecutrix is 26.5.1996 which comes to less than 10 years on the date of the alleged incident. 15. Immediately after the alleged incident, the accused stands properly identified by the prosecutrix on the day of the alleged incident itself as well as during the trial. On this aspect of the matter, she was not also cross-examined. The statements of the prosecution witnesses are consistent and there is no material contradiction in so far as the offence of kidnapping is concerned. The delay in lodging the FIR stands properly explained and is corroborated by the compromise deed referred above. The extra-judicial confession before the Panchayat and also to the father of the prosecutrix affords further corroboration to the prosecution story. Therefore, I do not find any 8 fault in the judgment of conviction passed by the learned trial Court. 16. The learned counsel for the accused submitted to have mercy on the appellant being an unmarried boy at the time of alleged incident and also the fact that he has no criminal history to his credit. I have considered this aspect of the matter. In so far as the sentence is concerned, in the background of the aforesaid facts and circumstances of the case, the substantive sentence imposed on the accused appears to be bit excessive keeping in view the age of the accused who was only a young man of 25 years of age at the time of the alleged incident. The perusal of the record certainly does not reveal that he was having any criminal history at that time nor there is any other instance quoted by the opposite party that he was involved in criminal activity or any offence of such a nature. Therefore, keeping in view the exaggerating and extenuating circumstances, the interest of justice would be met, in case the accused is sentenced till rising of the court instead of six months as imposed by the learned trial Court without disturbing the fine and default clause. In addition, 9 accused is directed to deposit the compensation to the tune of `5000/- in the learned trial Court within one month from today, failing which, it shall be recovered as a fine. In case it is realized, it be disbursed to the prosecutrix PW6. Ordered accordingly. 17. The accused is hereby directed to be present before the learned trial Court on 19.5.2011 to serve-out the sentence till the rising of Court and deposit the payment of fine and compensation as ordered above. 18. With the above modification in sentence, the appeal stands disposed of in the above terms. 19. Record of the learned trial Court be send down forthwith so as to reach there on or before the date fixed. 19th April, 2011. (Justice Surinder Singh), (cm) Judge