MOHD. YAMIN, J. - (1.) ACCUSED appellant Amra was tried for offence under Sec. 364 alternatively under Sec. 363-A of IPC by learned Sessions Judge, Dungarpur alongwith his wife Smt. Harki. Both of them denied their indictment when charges were read over to them and claimed trial. Prosecution examined as many as 10 witnesses in support of its case. They were examined under Sec. 313 Cr. P. C. and ultimately convicted and sentenced to two years rigorous imprisonment with a fine of Rs. 500/-each and in default to undergo six months rigorous imprisonment by learned Sessions Judge, Dungarpur as offence under Sec. 363 IPC was found proved. It is only accused Amra who has preferred this appeal.
(2.) I have heard the learned Amicus curiae Shri Pareek on behalf of appellant and learned Public Prosecutor on behalf of State at length. Case of the prosecution in short is that on 15. 11. 1997 at about 10. 30 A. M. Smt Manjula wife of Chandu had gone to deliver food to her husband on their field. She left his daughter Alka aged about 4-5 years at her house. When she returned, she did not find Alka. She searched her out. During search PW-10 Nana who was working on the road side told that the accused and his wife accompanied by a boy of 10-12 years were taking away a girl and that the lady accompanying the appellant was threatening the little girl and asking her not to weep. Then Smt. Manjula, her husband and others while searching Alka reached in village Bhatia and found that the appellant and his wife were taking away Alka. They made an alarm and then the appellant and the lady accompanying him tried to run away. But they were caught. They were taken to police. Report was lodged at Police Station, Dhambola where case was registered. During the investigation Alka was examined for her age and it was found that she was 5-7 years old. It revealed that Alka was being taken in order to be sold. After investigation police submitted challan for offences under Sec. 364 and 363-A IPC. As stated above, the appellant was prosecuted, tried, convicted and sentenced for lesser offence under Sec. 363 IPC. Learned Amicus curiae submitted that the witnesses are not reliable, that Alka was not removed from legal guardianship or her father/mother, that it may be possible that since her mother had gone to the field, she might have followed her. He also submitted that Alka was found to be 5-7 years of age and the children of this age in village work at their fields with their parents. So Alka might have gone to her father's field in order to work and in the way accused appellant might have met her. He submitted that the story as disclosed during the trial is improbable as Alka was being taken away in open and not clandestinely. According to him the boy who was found has not been examined and the witnesses examined do not inspire confidence. In the alternative he submitted that the accused appellant has undergone a major portion of sentence and that may be considered to be sufficient in the circumstances of the case. On the other hand, learned Public Prosecutor has vehemently controver-ted the arguments of the learned Amicus curiae and supported the judgment of learned Sessions Judge. In this case four witnesses are very material. They are PW-1 Kalu Singh, PW7 Manjula, PW-9 Sana and PW-10 Nana. PW-1 Kalu Singh has stated that he was the uncle of Alka. He has stated that PW-7 Manjula had gone to her field leaving Alka playing in the court yard. She returned after half an hour but to her surprise Alka was not available. Then they searched Alka. In the way Nana PW-10 met them and told that the appellant and a lady accompanying by him were taking away a girl and that the lady was keeping a girl in her lap. Thereafter Kalu Singh and Smt. Manjula went forward. They reached village Bhatia and caught hold the appellant and his wife near the house of Sana PW-9. According to PW-1 Kalu Singh it were the appellant and his wife who were taking away the girl. It is stated by the witness that they told that they were taking away the child in order to sell her. But the story of sale has not been believed by the learned Sessions Judge. This witness Kalu Sin-gh was cross examined at length but he has maintained that girl child Alka was being taken away by the appellant who was caught. There is no reason as to why he will implicate the appellant falsely.
(3.) SMT. Manjula PW-7 who is the mother of Alka has stated that it was Nana Bhai who told that Alka was taken away by the appellant and a lady accompanying him. She reached near the house of Sana and found that the appellant was taking away Alka. Then she made hue and cry. Thereupon people collected and caught hold the accused appellant and his wife. She has stated in very clear terms that she did not know the appellant and his wife from before. Therefore, there appears to be no reason why she would implicate the appellant falsely. She is a credible wit-ness. Pw-9 Sana corroborates the earlier two witnesses when he says that Smt. Manjula came in his village when he was present in his house. According to him Smt. Manjula was crying and when he came out of his house he found that the appellant and his wife were taking away Alka. The appellant and his wife were cau-ght then and there and were taken to the police. He was cross examined on behalf of the appellant at length but he is a credible witness who corroborates the other two witnesses. Pw -10 Nana says that he saw appellant with a lady who were taking away girl child who was weeping. He told this to Manjula and Chandu Lal. Pw-8 Chandu is Alka's father. He was informed by his wife when Alka was not available. He has corroborated Nana Pw-10 when he says that Nana Bhai met him and told that the appellant and a lady accompanying him took away Alka. He corroborates Smt. Manjula and Sana when he says that he reached near the house of Sana where appellant and the lady accompanying him were caught alongwith Alka. They are all reliable witnesses. It is thus proved beyond doubt that the appe-llant took away Alka. Pw-3 Dr. Sushil Saharan examined Alka and found that the age of Alka was 5-7 years. She was, thus a minor girl. Appellant kidnapped her lawful guardianship. ;