IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 67 of 2004 Date of Decision: 27th October, 2010 __________________________________________________________ Dev Raj ….Petitioner. Versus State of HP ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ___________________________________________________________ For the Petitioner: Pt. Om Parkash Sharma, Advocate For the Respondent: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner is convicted for offence under Section 363 IPC on the allegation that he kidnapped Ms. Veena Kumari from the lawful guardianship of her parents. FIR Ext.PA was registered at Police Station, Nadaun. According to the allegations made against the petitioner, on 4.7.1995 around 7.30 P.M. the petitioner kidnapped minor Veena daughter of complainant Prithi Chand. At that time, she was aged about 14 years and was studying in 8th class. The case is that she had gone to deliver milk at the residence of Bank Manager at Nadaun, but she did not return thereafter. A thorough search was made, but she could not be traced. The 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 involvement of the petitioner was excited on the basis of suspicion because on the previous night, he had visited the house of the complainant with a proposal of marriage of his sister, with the son of the brother of the complainant. He had disclosed that he has been working as Inspector in the Police Department in Sarahan. In the morning after taking tea etc. he left the house of complainant. 2. When search was made for missing minor, some one informed the complainant that she was lastly seen in the company of petitioner herein. The matter was reported to the police by complainant Prithi Chand and First Information Report was lodged and thereafter investigation was carried out in accordance with law. 3. It is also on record that the minor was thereafter recovered from the house of one Kartar Singh, PW5 where she had been left by some lady residing in Gheena. She was handed over to PW2 Bayasa Devi. Application Ext.PW8/D was moved to the Medical Officer to get the minor medically examined but the girl as also her parents declined to do so. The statements have been recorded vide Ext.PW8/E to Ext.PW8/G. 4. To prove the case, the statement of PW1 Prithi Chand is vital for consideration. He states that the petitioner had visited their house on 4.7.1995 and informed the complainant that he has two sisters and he would like to have one of them married with his nephew. Thereupon, the complainant stated that his nephew was not there. At night, he stayed in the house of his brother(complainant). The further story is that in the morning, minor Veena went to deliver milk at the residence of Bank Manager, Nadaun, but she did not return. 5. To similar effect is the statement of PW2 Byasa Devi, mother of the minor. PW5 Kartar Singh says that Veena minor is the 3 daughter of his brother in law and she had been left in his house by some person. The statement of PW14 (Veena) is to the effect that she was taken by the petitioner in a blue coloured maruti van, but she did not remember where she had been taken. On consideration of evidence on record, the learned trial Court proceeded to convict the petitioner for convict under Section 363 IPC and sentenced him to undergo rigorous imprisonment for three years. 6. In appeal, conviction and sentence have been reduced to rigorous imprisonment for one year. On the facts on record, what I find is that Veena was a minor on the day when she was taken away by the petitioner. What I find strange in this case is that prosecution story itself starts in the house of the complainant and ultimately ends up in the house of PW5 Kartar Singh, the brother in law of the complainant. I also find that there is no allegation that during this period the petitioner has been subjected to any kind of physical trauma or any attempt to assault the prosecutrix or sexually exploit her in any manner. On the aspect as to whether the evidence on record establishes no offence, I cannot accept this submission made on behalf of the petitioner and hold that there was sufficient evidence to arrive at this conclusion. 7. On the question of sentence the report of the Probation Officer was called for. On detailed examination of the record, what I find is that the petitioner has a family consisting of himself, his wife and four children, all of whom are students. I find that the Punchayat certifies his character to be good. The Probration Officer on inquiry had reported that the petitioner is of amiable character and friendly to all. There is no complaint regarding his strange behaviour with anybody in the village nor of any social ostracism. In these circumstances, taking into consideration the totality of the facts and circumstances of the case and also considering 4 the fact that offence relates to the year 1995 and 15 years having elapsed, this is a fit case in which benefit of Section 4 of the Probration of Offenders Act can be extended to the petitioner. It is accordingly directed that the petitioner be given the benefit of Probation of Offenders Act. For this purpose, the petitioner shall execute a bond for a period of one year in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the learned Chief Judicial Magistrate, Hamirpur, undertaking to keep peace and be of good behaviour for a period of one year and during this period, he shall be supervised by the Probation Officer. The petitioner shall also undertake that he shall not involve in any anti social or criminal activity and shall keep the peace. In case the petitioner violates any of the above conditions of the bond, he shall be liable to be taken in custody and to serve out the sentence of imprisonment as imposed upon him. The Probation Officer is further directed that he shall report to this Court any violent behaviour on the part of the petitioner, who shall thereafter be liable to be proceeded with in accordance with law. Needless to say that in case of violation of any of the conditions, the bond shall be forfeited. Let bond be furnished within four weeks from the date when this order is first presented to the trial Court. (Dev Darshan Sud) Judge October 27th, 2010(ms)