IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 179 of 2003. Date of Decision: 28th April, 2010. _______________________________________________________ Chander Singh and others ….Appellants. Versus State of Himachal Pradesh ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. Vinay Thakur, Advocate. For the respondent : Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J. (Oral) 1. The appellants have called in question their conviction and sentence passed by the learned trial Court under Sections 363 and 366 read with Section 34 of the Indian Penal Code in Sessions trial No.23 of 2001, decided on 26th April, 2003, whereby each of them were separately sentenced to undergo simple imprisonment for a period of seven years for the aforesaid offences and also to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo simple imprisonment for a period of one year, under each of the offences. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. The prosecution story as emerges from the evidence on record can be stated thus. The prosecutrix in the month of October, 2000 was aged about 16 years. At that time she was studying in 10th class in Government High School, Tangling in District Kinnaur. The appellants, herein, were running a Dhaba near Tangling bridge. From her village she used to go on foot and cross Tangling bridge to reach her school. 3. It is alleged that on 25th October, 2000 when the prosecutrix was returning from the school, her brother PW-7 Surjit Singh, a school going boy, was accompanying her. Appellant Ramesh Chand met her on the way and proposed to marry her, for which she refused. Thereafter on 28th October, 2000, after the school hours, when she was returning to her village the appellants met them near Tangling bridge. Ramesh Chand again proposed her to marry her, she again refused. On this, appellants dragged her forcibly to take her towards village Barang. The prosecutrix raised hue and cry. On this, PW-3 Bhag Puri, PW-4 Mast Ram, PW-6 Vidya Sagar and others, local residents got attracted. All of them except Leelawati reached the spot and relieved the prosecutrix from the clutches of the appellants. PW-8 Leelawati telephonically informed PW- 1, Kushal Devi, the mother of the prosecutrix about the - 3 - occurrence. She came there and took the prosecutrix to the Police Station. She made a complaint Ext.PW-1/A, which finally culminated into FIR Ext.PW-10/A under Sections 363, 366 read with Section 120B of the Indian Penal Code. After completing the investigation, Challan against the appellants was presented in the Court for their trial. 4. The appellants were charge-sheeted for the aforesaid offences. They pleaded not guilty and claimed trial. 5. To prove its case the prosecution, besides examining the prosecutrix, also examined PW-1 Kushal Devi, mother of the prosecutrix, PW-3 Bhag Puri, PW-4 Mast Ram, PW-6 Vidya Sagar, PW-7 Surjit Singh, brother of the prosecutrix and PW-8 Leelawati with respect to the alleged incident, PW-5 Rajinder Singh to prove the age of the prosecutrix and other official witnesses. The appellants were also examined under Section 313 of the Code of Criminal Procedure. Their case is denial simplicitor. They stated that they were implicated in the case at the instance of one Shiv Ram, husband of PW-8 Leelawati. When called upon to enter their defence, they examined DW-1 Arjun Singh to prove the alibi with respect to appellants Ramesh Chand and Mohanbir and DW-2 Pannu Ram also to prove alibi that appellant - 4 - Chander Singh was with him. At the end of the trial, the appellants were convicted and sentenced as aforesaid. 6. Shri Vinay Thakur, learned Counsel for the appellants forcefully argued that when the prosecutrix was alleged to have been taken to village Barang about 4/5 kilometers away, then it was not possible for the alleged eye witnesses to reach there. Thus the story of relieving the prosecutrix at Tangling Bridge causes a serious doubt in the prosecution case. 7. On the other hand, Shri J.S. Rana, learned Assistant Advocate General for the State supported the impugned judgment of conviction and sentence and vehemently argued that the statement of the prosecutrix coupled with the statements of the eye witnesses proves the case of the prosecution beyond reasonable doubt and further ventilated that the prosecutrix was being taken towards village Barang but on the way she was rescued by the aforesaid witnesses, as testified by them during the trial of the case. Thus no serious infirmity is there in the prosecution to dub it as suspicious without any malice. 8. I have given my thoughtful consideration to the rival contentions of the learned Counsel for the parties and have carefully reappraised the evidence on record. - 5 - 9. For the purpose of attracting the provisions of kidnapping the age of the prosecutrix is required to be less than 18 years and if she is being kidnapped from the lawful guardianship of her parents to compel her to marry any person against her will, then the offence punishable under Section 366 of the Indian Penal Code is made out. The prosecutrix on the day of examination in the Court has given her age to be 19 years and on the day of alleged incident she stated that she was 16 years of age, which fact was corroborated by her mother PW- 1 Kushal Devi. Prosecutrix and her mother further stated that when she was admitted in the school she was 6 years old and she failed twice. On the day of the incident she was studying in 10th class. Even by giving allowance of two years, she comes to be less than 18 years. 10. Once she is held to be less than 18 years the next question would arise whether she was kidnapped from the lawful guardianship of her parents to compel her to marry appellant Ramesh Chand. The prosecutrix stated that on 25th October, 2000 appellant Ramesh Chand proposed her for marriage when she was returning from the school, but she refused and this fact was corroborated by her brother PW-7 Surjit Singh, who, at the relevant time, was accompanying her. He also - 6 - stated that when she refused appellant Ramesh Chand caught hold from the neck and threatened her with dire consequences. She further testified that on 28th October, 2000 when she was alone, returning to her village after school hours, the appellants met her at the place known as “Tangling Bridge” where they were running Dhaba. Again appellant Ramesh Chand proposed her for marriage, but she turned down his proposal. On this he caught hold her from arms and dragged her forcibly. The other co-accused followed the pursuit and took her upto a distance of 1½ kilometers towards village Barang. During this period she kept on raising the alarm. It was thereafter PW-3 Bhag Puri, one Pyare Lal, PW-6 Vidya Sagar and others came to rescue her and relieved her from the clutches of the appellants. She also narrated the incident to PW-8 Leelawati, who in turn intimated her mother telephonically. Her mother came upon the spot and she also disclosed about the above facts to her. 11. PW-1 Smt. Kushal Devi, her mother, has corroborated her version and proved the complaint Ext.PW-1/A made to the police. She further stated that the prosecutrix had informed her that appellant Ramesh Chand had forced her to marry her to which she declined. - 7 - 12. PW-3 Bhag Puri, PW-4, Mast Ram, PW-6 Vidya Sagar have unequivocally supported the prosecution case as spoken by the prosecutrix and in their cross- examinations, no dent could be caused with respect to the incident in question. 13. PW-8 Leelawati, wife of Shiv Ram, stated that she was informed by her small children that the appellants had taken the prosecutrix towards village Shongthong. She immediately informed PW-4 Mast Ram about the incident. She did not visit the place of incident, but when the prosecutrix was brought to her house she narrated the entire incident to her, thereafter she informed the mother of the prosecutrix telephonically. In her cross-examination, no suggestion was put to her that her husband had any inimical relations with the appellants which prompted them to rope in the appellants in a false case. In the explanation given by the appellants under Sections 313 of the Code of Criminal Procedure the reasons for falsely implicating them have not been spelt out. 14. In the instant case the statement of the prosecutrix is confidence inspiring and can even be acted upon without any further corroboration, but there is material corroboration lent by the eye witnesses of the incident to her case. The presence of the appellants is - 8 - proved on the day of occurrence on the spot and it is proved that they have committed the offence as alleged. The plea of alibi as projected in defence is neither put to any of the prosecution witnesses nor it can be proved by preponderance of probability. Therefore, in the facts and circumstances of the case, for the aforesaid reasons, the offence under Sections 363, 366 read with Section 34 of the Indian Penal Code against the appellants stand proved beyond doubt, which requires no interference. 15. Since the offence of kidnapping punishable under Section 363 of the Indian Penal Code has merged into Section 366 of the Indian Penal Code, therefore, no separate sentence is required to be passed thereunder. Learned Counsel for the appellants has prayed for the leniency in the sentence keeping in view the age of the appellants and also the fact that the appellants have settled down in life and now the appellants are having children and they are the sole bread earner of their respective families. 16. I have considered this argument of the learned Counsel. In the circumstances of the case, although no separate sentence is required to be passed under Section 363 of the Indian Penal Code as it having merged in the main offence under Section 366 of the - 9 - Indian Penal Code, but however, the interest of justice shall be met in case each of the appellants is sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- each. In default of payment of fine to further undergo simple imprisonment for a period of six months. 17. It is stated that the fine as imposed by the learned trial Court was deposited by the appellants pursuant to the order of this Court. Therefore, the excess amount of fine be refunded to the appellants. The appellants are also given the benefit of pretrial and post- trial detention, as per provisions of Section 428 of the Code of Criminal Procedure. In view of this the sentence imposed by the learned trial Court is accordingly modified to the above extent. 18. The appellants are on bail. They are hereby directed to surrender before the learned trial Court on 24th May, 2010 to serve out the remaining sentence, failing which the learned trial Court shall take coercive steps and commit them to imprisonment in consonance with the orders of sentence as modified in this appeal to the above extent. 19. The appeal stands accordingly disposed of. April 28, 2010. (Surinder Singh),J. (rc)