- (1.) THIS criminal appeal, preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 (for brevity hereinaf ter Cr. PC.), is directed against the judg ment and order dated 15th April, 1997, passed by learned Additional Sessions Judge, Roorkee, in Sessions Trial No. 377 of 1993, whereby appellant Sohanbir has been convicted under Section 366-A of the Indian Penal Code, 1860 (for brevity hereinafter I. P. C.) and sentenced to rigorous impris onment for five years and also to pay fine of Rs. 1,000/-, in default of pay ment of which, he is directed to under rigorous imprisonment for a further period of six months.
(2.) HEARD learned counsel for the parties and perused the entire record. Prosecution story, in brief, is that on 8-11-1991, at about noon, appellant Sohanbir came in the house of P. W. 1 Kiran Singh, resident of P. S. Gadar Judda, Police Station Manglore, and abducted his daughter Suman. It is alleged by the prosecution that the incident was seen by witnesses P. W. 2 Ajab Singh and P. W. 4 Nepal Singh. According to the prosecution, Sohanbir used to come to the house of Kiran Singh, frequently. When on the day of incident, in the noon, the complainant Kiran Singh P. W. 1, returned back to his home he was told by his son that Suman has been abducted. It is further alleged that Kiran Singh, father of the victim, went to the police station to lodge the First Information Report, but the police asked him to search for the girl and lodge the First Information Report, thereafter. According to the prosecution, accused Sohanbir is a driver of Truck registration No. U. P. M. /2317. On 09-08-1992, at about 6:30 P. M. , accused was seen near the village along with his Truck and there had been "maarpeet' (scuffle) between the complainant and the accused and accused suffered head injury, which ac cording to the complainant, was caused by getting dashed with the window of the Truck. It appears that the accused Sohanbir lodged First Information Re port against present complainant Kiran Singh relating to offences punishable under Section 307, 504 of I. P. C. with the police station. Later on, complainant Kiran Singh also lodged First Information Report (Ext. A -1) with the police against accused Sohanbir relating to offences punishable under Section 363, 366 of I. P. C. It appears that both the crimes were separately investigated by the police. In the present case the crime is registered as case crime number 293 of 1992. On completion of the investigation, a charge sheet (Ext. A -5) against the accused Sohanbir was filed. On receipt of the charge sheet, it appears that the Magistrate concerned, after giving necessary copies to the ac cused, as required under Section 207 of the Cr. P. C. , committed the case to the court of Sessions, for trial. Learned Ad ditional Sessions Judge, after hearing the prosecution and the defence framed charge of offence punishable under Sec tion 366 of I. P. C. , against the accused/appellant Sohanbir, who pleaded not guilty, and claimed to be tried. On this prosecution got examined P. W. 1 Kiran Singh (complainant and father of the girl); P. W. 2 Ajab Singh (eyewitness); P. W. 3 Ram Narain (brother of the victim); P. W. 4 Nepal Singh (another eyewitness) and P. W. 5 Sub Inspector Bhayya Lal (In vestigating Officer ). All oral and docu mentary evidence was put to the accused by the trial court under Section 313 of the Cr. P. C. , in reply to which accused/appellant alleged that he was falsely im plicated in the crime. Accused/appellant has further stated that complainant had to make payment to him and due to that enmity he was falsely implicated in the crime. No evidence in defence appears to have been adduced on behalf of the ac cused. After hearing the parties, the trial court found the accused/appellant Sohanbir guilty of the offence punishable under Section 366-A of I. P. C. , and after hearing him on sentence, sentenced him to rigorous imprisonment for five years and also to pay fine of Rs. 1,000/-, in de fault of payment of which, the convict was directed to undergo rigorous impris onment for a further period of six months. Aggrieved by said judgment and order, the convict preferred this appeal before Allahabad High Court in the year 1997, from where the same is received by this Court by way of transfer, under Section 35 of the U. P. Re-organization Act, 2000, for its disposal.
(3.) THE first argument advanced on behalf of the appellant is that the First Information Report was highly belated and the same is lodged without suffi cient explanation. On examination of the evidence on record, I found that there is substance in the argument made by learned counsel for the appel lant. THE incident is said to have oc curred on 08-11-1991. at about noon. Almost after ten months, the First Information Report appears to have been lodged on 4th September. 1992. at about 11:35 A. M. THE explanation given by the prosecution for such a long delay of more than nine and a half months is that when the complainant P. W. 1 Kiran Singh, went to the police station to lodge the First Information Report, he was asked to search his daughter first and then to lodge the report. This explanation could have been said sufficient for a delay of couple of days in lodging the First Information Report. But, it is not a case of delay of couple of days in lodging the First In formation Report, rather, there is long delay of more than nine and a half months, in lodging the report, for which the above explanation cannot be said to be sufficient. This long delay itself creates reasonable doubt in the pros ecution story as to the manner in which the incident is said to have been taken place, by the prosecution. Mr. Pawan Kumar, learned coun sel for the appellant further argued that the First Information Report (Ext. A -1) was lodged after the First Information Report lodged by the accused/appel lant in August 1992, against the complainant for allegedly committing, at tempt to murder of the accused/appel lant. This fact is not denied by the pros ecution. It is also not disputed that in respect of offence punishable under Section 307 of I. P. C. , a charge sheet was submitted by the police, against the present complainant and he stood trial in connection with the same, as is clear from the statement of P. W. 3 Ram Narain. As such, the enmity due to which the present report was lodged cannot be ruled out.;