RAM VEER Vs. STATE

JUDGEMENT

(1.) Ram Veer, resident of village Kulapur, has been convicted and sentenced under Section 363 I. P. C. to undergo R. I. for 3 years. The appellant is said to have kidnapped Km. Ram Suta, P. W. 1, aged about 14 years, daughter of Mewa Ram, P. W. 2 of Village Korara from his field on March 4, 1975 at about 7 P. M. Despite search by Mewa Ram and his relations, she was not found. It was learnt from Smt. Phool Mati, P. W. 3, wife of Ram Bharosey that she had seen Km. Ram Suta talking to the appellant and that he had taken her away. Mewa Ram could not find the girl. On March 5, 1975 at 8. 45 P. M. he lodged a report with the police of police Station Nawabganj, District Farrukhabad. Ram Jatan Singh, S. I. , P. W. 6, entered upon investigation. On March 6, 1975 he recovered the girl along with the appellant from the house of Smt. Jai Devi, in village Korara. At that time Smt. Jai Devi was not present at her house. On March 7, 1975 at 11. 30 P. M. Dr. S. Ibad. P. W. 5, examined Km. Ram Suta. She found that she was used to sexual intercourse. X'ray of the relevant joints of Ram Suta was taken. This indicated that she was aged about 14-15 years. The appellant did not admit the allegations of the prosecution. The prosecution examined Ram Suta and Smt. Phool Mati. But they did not depose that the appellant had taken away Ram Suta from her father's field. The prosecution then examined Ram Jatan Singh and Ram Sanehi, P. Ws. 6 and 9 to prove that Ram Suta and the appellant were found together inside the house of Smt. Jai Devi in village Korara i. e. the village of Mewa Ram. P. W. 2 Ram Sanehi did not support the prosecution. Thus on the point of recovery there was sole testimony of Ram Jatan Singh. The prosecution examined Ram Nath, uncle of the girl who tried to prove kidnapping. But he did not support the prosecution. Ram Suta, Phool Mati and Mewa Ram were declared hostile by the prosecution and cross-examined. The learned V Additional Judge found that Ram Suta had intentionally given false evidence against the appellant. He believed Ram Jatan Singh, S. I. on the point of recovery of Ram Suta with the appellant from the Kotha of Smt. Jai Devi. Hence he convicted the appellant, Parties learned counsel have been heard and record has been perused. Section 363 I. P. C. punishes the person who kidnaps any person from lawful guardianship. Section 361 defines kidnapping from lawful guardianship in this way that who ever takes or entices any minor under 16 years of age, if a male or under 18 years of age, if a female out of the keeping of the lawful guardian of such minor without the consent of such guardian, is said to kidnap such minor from lawful guardianship. In the present case it is proved from the statement of Mewa Ram that he left his daughter Km. Ram Suta in his field. There is no reliable evidence that the appellant had taken away Ram suta from her father's field. The possibility that Ram Suta had gone away from her father's field herself to the appellant cannot be ruled out by any material on record. It will be noticed that Ram Suta was used to sexual intercourse. It means that she was having intimacy with some person. Evidence on record shows that Ram Suta wanted to marry the appellant. Therefore, it is highly probable that Ram Suta was carrying on illicit intimacy with the appellant from before the date of occurrence. In this aspect of the matter it is also probable that Ram Suta herself might have gone to the appellant. In these circumstances, the offence of kidnapping from lawful guardianship cannot be said to have been proved by the prosecution. In the result the conviction of the appellant under Section 363 I. P. C. cannot be sustained. The learned trial Judge has given benefit, of Section 4 of the U. P. First Offenders Probation Act, 1938 and has; bound him down for a period of 3 years. This order has to be set aside. Appeal is allowed and the conviction of Ram Veer, appellant under Section 363 I. P. C. is set aside and the order of the V Additional Sessions Judge releasing the appellant under Sec. 4 of the U. P. First Offenders Probation Act is also set aside. Bonds furnished by the appellant under Section 4 of the said Act shall stand cancelled. .