Om Parkash vs State of Haryana

Harbans Singh Rai, J.

This is an appeal by Om Parkash son of Ram Nath, aged 24 years, resident of Kachha Camp, Panipat, against his conviction under section 366, Indian Penal Code by the Additional Sessions Judge, Karnal, who has sentenced him to two years'' rigorous imprisonment. Feeling aggrieved, be has filed this appeal in this Court.

The prosecution case is that Satya Rani is the resident of Kachha Camp, Panipat. She has two sons and four daughters from the loins of her husband Atma Ram. One of the daughters was named Shanti Rani, Satya Rani moved an application Exhibit PD, stating that her daughter Shanti Rani was missing from the house from the evening of 23.4.1984. She further stated that she and her husband had made search for Shanti Rani but she was not traceable. Satya Rani suspected that Chhotu alias Om Parkash accused appellant. who was residing in their house up to 15.3.1984, might have enticed her daughter with a view to marry her.

This application was given on 25.4.1984, on the basis of which formal F I.R. Exhibit PD/1 was recorded by ASI Sant Ram. The investigation was taken over by ASI Manke Ram who visited the house of Satya Rani, prepared the site plan. recorded the statement of her husband Atma Ram and started search for Shanti Rani and the accused appellant but they were not traceable.

On 13.7.1984 ASI Yad Ram, who had taken over the investigation after the transfer of ASI Manke Ram, along with PWs Subhash and Duli Chand, was present at the Bus Adda, Panipat. Om Parkash accused and Shanti Rani alighted from a bus there Subhash, who is the brother of Shanti Rani, identified her sister. Both Om Parkash and Shanti Rani were apprehended and the former was formally arrested in the case. He was got medicolegally examined from Dr. R. K. Aneja of Civil Hospital, Panipat, and, Shanti Rani prosecutrix was got medicolegally examined from lady doctor Usha Nagpal PW2 other medicolegal report is Exhibit PB. After the investigation, challan was presented in the Court, trial held and the accused appellant convicted. Hence this appeal.

The trial Court, after considering the prosecution case, found that Shanti Rani was more than 16 years of age but less than 18 years of age. The accused was initially charged under section 376 Indian Penal Code also. The trial Court found that Shanti Rani had voluntarily lived with the accused as his wife in Nakodar for more than 21/2 months, that while the accused was working in a Khaddi in Nakodar she was also working in another Khaddi there and that it being a case of consent and she being more than 16 years of age, no offence under section 376 Indian Penal Code was made out.

The trial Court, however, convicted the accused appellant under section 366 Indian Penal Code, on the ground that even if the consent is there. the prosecutrix being less than 18 years of age, her going with the accused appellant will amount to kidnaping as the accused appellant had taken her without the consent of her guardian. Taking this view, the trial Court convicted the accused appellant under section 366, Indian Penal Code.

I have gone through the evidence with the help of the learned counsel for the parties. The learned counsel for the appellant has prayed that it is a case where two young persons had eloped and lived together for a considerable period as husband and wife. So, at the most, it will be a technical offence and a lenient view in the matter of sentence is called for. He has further brought to my notice that the appellant has undergone more than one year of sentence. As the prosecutrix bad gone willingly with the appellant and the appellant is found guilty only on the ground that the age of the prosecutrix is less than 18 years, I think it will be in the interest of justice that the sentence of the appellant is reduced to that already undergone. No useful purpose will be served by sending him back to jail as he is on bail. I order accordingly.

With the aforesaid modification in sentence, this appeal fails and is hereby dismissed.