M.M.PUNCHHI,J. - (1.) MEHRU , the appellant, was convicted under section 363, Indian Penal Code, by the Additional Sessions Judge Kurukshetra primarily on the testimony of Smt. Shamsheeda P.W.1, the kidnapped girl, aged about 12 years. Added thereto was the corroborative testimony of her brother Ibnu P.W.4, a child of 9 years, the only eye-witness to the crime, who after its commission reported the matter to his mother Smt. Mehbooba P.W.2. The ambit within which this appeal revolves is whether Shamsheeda is a reliable witness so as to sustain the conviction of the appellant.
(2.) THE broad facts are that Shamsheeda, the daughter of Smt. Mehbhooba P.W. 2 and Behrun Ali P.W. 3.at the relevant time on 13.12.1980 were residents of Ladwaa town in Haryana. At one point of time, Ram Piari, an acquitted co-accused, was living in another portion of the same house but on the date of the occurrence was living elsewhere on 13.12.1980, Sham sheeda P.W.8. and Ibnu P.W.4 had gone out towards the side of the Grain Market to answer the call of nature and when they were coming back allegedly,the appellant along with Bundu and Shakil forcibly lifted her and took her away on a tractor before hand which Ibnu PW.4 was given slaps and made to run away. Ibnu in turn narrated the facts to his mother Mehbooba P.W.2, who in return told these facts to Behrun Ali P.W.3. The matter was neither reported on 13.12.1980 moron 14.12.1980 but ultimately was reported on 15.12.1980 on the statement of Mehbooba Sub Inspector Ram Krishan P.W.9 on 16.4.1981, while investigating the case, received secret information on the basis of which he arrested Ram Piari, acquitted co-accused. She, on interrogation, made a disclosure statement as a result of which Shamsheeda P.w.8 was recovered in a tomb near Mustafabad.At the time her of recovery, Nasru, another acquitted co-accused was found in the tomb. Nasru was arrested, as an accused. Later, Mehru, the appellant,was arrested, but when, is not clear from the statement of Ram Krishan P.W.9. Shamsheeda P.W.8 was produced before a Magistrate four days later on 20.4.1981 for the purpose of recording her statement, Exhibit P.B., under section 164 of the code of Criminal Procedure. In her statement, there was no mention of Bundu and Shakil to be the persons who had kidnapped her. This belied the story as put in the first information report. Substitutability, she said that it was Ram Piari, acquitted co-accused, one Shamshira and Mehru appellant, who on meeting her, had told her that since her parents used to beat her and she was kept hungry, she might as well accompany them and her life would be happy. She was then stately taken to a tubewell and then to Mustafabad where she was kept for four months by the three aforesaid persons. It is on this statement of hers the prosecution was directed against the appellant and his acquitted co-accused Ram Piari and Nasru. Otherwise, but for statement, there was neither any allegation nor any other evidence since 13.12.1980 that Ram Piari and Nasru were involved in the crime.
(3.) AT the trial, Exhibit P.B. was proved by Shri P.K. Goyal, Judicial Magistrate Ist Class (P.W.1) who had recorded it.;