R.C.Deo Sharma, J. - (1.) THE two appellants have been convicted by the learned II Additional Sessions Judge of Hardoi by his order dated 29th July 1981 for offences under sections 363 and 366 IPC and sentenced to undergo five years' RI and pay a fine of Rs. 2000/- each and in default to undergo a further Rl for six months under section 366 IPC. THEy have not been awarded a separate sentence under section 363 IPC. THE charge under section 376 IPC made against both of them, however, failed and they were acquitted of that charge.
(2.) THE girl who was kidnapped in this case was Kumari Sushila aged about 13 or 14 at the time of occurrence!. Her brother Banshi Lal lodged a report at the police station Bilgram whiich was about eight miles from the village of the complainant. It was alleged therein that his sister Kumari Sushila had gone to throw some rubbish near the Gonda of Ram Swarup shortly before sunset and did not return. He made a search for the girl but she could not be traced and hence the next day i. e. on 20-1-1978 at about 3.30 P. M. he lodged a report naming Sahab Lal appellant as the person who was suspected for kidnapping the girl. It is alleged that the girl returned home on 20-1-1978 and when her brother came back from the police station she was already there. Banshi Lal took his sister to the police station the next day i. e. on 21-1-1978 to inform the Sub-Inspector that she had come back. Investigations were taken up. Sub- lnspector Vinod Kumar Sharma who investigated the case interrogated Banshi Lal, his sister Kumari Sushila and other witnesses. She was sent for medical examination and in due course a charge sheet was submitted against both the appellants. The evidence adduced at the trial consisted of the statements of Banshi Lal, the informant, Kumari Sushila who was kidnapped and the investigating officer Vinod Kumar Sharma. The lady doctor who examined Kumari Sushila and Dr. J. K. Varma who did X-ray examination in order to determine the age etc. of the girl were also examined. The appellants denied their participation in the crime and alleged that they had been implicated on account of enmity. No evidence was adduced in defence. The learned Additional Sessions Judge on a consideration of the evidence found that the case had been fully established so far as offences under sections 363 and 366 IPC were concerned, and accordingly convicted both the appellants as above. The offence under section 376 IPC was, however found not to have been made out in view of the medical evidence indicating no fresh signs of rape having been committed and the girl having been found used to sexual intercourse. Feeling aggrieved the appellants have preferred this appeal and it has been contended that the findings recorded were against facts and law and that the appellants were entitled to be acquitted.
(3.) I have heard the learned counsel for the appellants as also for the State and have been taken through the entire evidence on record. It was argued by the learned counsel for the appellants that so far as the FIR is concerned only suspicion was expressed against Saheb Lal but not a word was said against Sant Ram. That was very natural and rather a truthful version given by Banshi Lal with no effort to implicate any body falsely. When the girl came back home the next day after getting an opportunity when the appellants were away and was taken to the police station, she was Interrogated and at that stage the name of Sant Ram came to light. She also mentioned a third person amongst the kidnappers but could not give his name and said that she could only identify him if produced. However, no test identification parade was held and none else was arrested. I do not therefore, find any infirmity in the FIR. It was next argued that Kumari Sushila was found to be a girl of easy virtue and therefore, should not have been believed. Simply because the doctor has found on the basis of medical examination that Kumari Sushila was used to sexual intercourse and no apparent signs of rape were detected, it could not be said that whatever she would state about her kidnappers would be a falsehood or that she would implicate an unconcerned innocent person. She had been cross-examined in detail and so far as Saheb Lal is concerned she could not be shaken. It was consistently stated that she had gone to throw some rubbish at point ' A' shown in the site plan where Saheb Lal approached and took her forcibly towards a field. She tried to shout for help but was gagged. That was not unnatural or unbelievable in the circumstances. Simply because the appellant's father had appeared as a witness long back in a case against the father of Banshi Lal, the informant, it could not be said that after such a lapse of time the informant would unnecessarily implicate this appellant and Kumari Sushila would start naming him for that reason. The suggestion has rightly been rejected.;