V.K. Bist, J. -
(1.) THIS appeal preferred u/s. 374 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 13.10.2003 passed by the Addl. Sessions Judge/5th F.T.C., Dehradun in Sessions Trial No. 69 of 2002 State v. Abdulla, whereby the learned Sessions Judge has convicted the appellant accused Abdulla under Section 363, 366 and 376 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced him to undergo four years' rigorous imprisonment with a fine of Rs. 1,000/ - for the offence punishable u/s. 363 I.P.C. and in default of payment of fine, further rigorous imprisonment for two months, seven years rigorous imprisonment with fine of Rs. 1,000/ -under Section 366 I.P.C. and in default of payment of fine, further rigorous imprisonment for two months and eight years rigorous imprisonment with a fine of Rs. 1,000/ - under Section 376 I.P.C. and in default of payment of fine, further rigorous imprisonment for a terms of two months. It was directed that all the sentences shall run concurrently and the period already undergone shall be adjusted. The prosecution case, in brief, is this that on 19.09.2001 at 12:15 p.m., complainant Beer Singh (PW -2) lodged a report at Kotwali Rishikesh that on 18.09.2001 at about 5:30 a.m. his daughter Km. Kamla, aged 15 years, height 5 feet, who was wearing red colour polka -dots suit, had gone out to case herself. After waiting a great deal of her return, when he could not find her whereabouts, he came to know that one Abdulla, who is employed in Nickel Factory, has taken away her daughter by enticing her. It was urged that a case against Abdulla may be lodged for kidnapping the minor girl from the lawful guardianship of her father. The F.I.R. is Ext. Ka -2 on record. On the basis of the written report, Chik First Information Report Ext. A -10 was prepared by Head Constable Chandri Lal in the Police Station on 19.09.2001 at 12:15 p.m. and a case crime No. 410/2001 under Section 363, 366 I.P.C. was registered. The distance of the place of occurrence is shown about 10 kms. away from the Police Station. An entry was made in the General Diary, a copy of the G.D. is Ext. A -11 on the record. Investigation was entrusted to SI Sundar Lal (PW -6). During the investigation, the Investigating Officer recorded the statement of witnesses under Section 161 Cr.P.C. On 10.11.2001, on receiving information that the accused Abdulla alongwith the abducted girl Km. Kamla are waiting for a bus proceeding towards Dehradun, the I.O. alongwith the complainant, reached at Tip -Top Hotel and on being identified by the complainant, the accused was apprehended. An entry was made in the General Diary, carbon copy of which is Ext. A -9. The girl was produced before the Magistrate for recording her statement under Section 164 Cr.P.C. Km. Kamla was medically examined by PW -5 Dr. Sushmita Verma, Medical Officer, S.P.S. Govt. Hospital, Rishikesh, who conducted medical examination of the girl and prepared Medical Report Ext. A -4. The girl Km. Kamla was handed over into the possession of her parents. Supurdaginama is Ext. A -1. PW - 5 Dr. Sushmita Verma also prepared supplementary report Ext. A -5, based on the X -ray report (Ext. A -12), Elisa, Radiologist and Pathology reports. Km. Kamla was produced before the Chief Medical Officer in order to ascertain her age, who determined age of the victim as 17 years, based on the report of Radiologist Dr. D.S. Rawat (PW -7). On the basis of the statement of the abducted girl, the crime was converted and a crime under Section 376 I.P.C. was also added. The Investigating Officer, after completing the investigation, filed charge sheet on 19.11.2001 against the accused Abdulla for the offence punishable u/s. 363, 366 and 376 I.P.C. The charge sheet is Ext. A -8 on the record.
(2.) LEARNED Magistrate, Rishikesh on receipt of the charge sheet, after giving necessary copies to the accused, as required u/s. 207 Cr.P.C. committed the case to the Court of Sessions for trial on 18.06.2002 under Section 209 Cr.P.C. Learned Sessions Judge, Dehradun after hearing the parties on 20.07.2002 framed the charge of offence punishable under Section 363, 366 and 376 I.P.C. against the appellant/accused Abdulla. The charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried. Later on, the Sessions Trial was transferred to the Court of Addl. Sessions Judge/5th F.T.C., Dehradun for hearing and disposal.
(3.) THE prosecution, in order to prove its case, has examined PW -1 Km. Nirmala, the victim, PW -2 Beer Singh, the complainant, PW -3 Brijpal Singh, Head Master, Indira National Child Development School, Garhi, Shyampur, PW -4 Smt. Geeta, witness of kidnapping, PW -5 Dr. Sushmita Verma, Medical Officer, PW -6 S.I. Sundar Lal, Investigating Officer and PW -7 Dr. D.S. Rawat, Radiologist.;