Om Parkash, J.
1. This appeal, from jail, is directed, against an order of the learned Additional Sessions Judge, convicting and sentencing the appellant, under Sections 366 and 876, Indian Penal Code. The prosecution case against the appellant was as under:
2. Shanti P. W. 2 was living with her parents, Rajbir Singh P. W. 5 and Smt. Padma P. W. 6, in the village Silampur, Delhi. The appellant, a boy of 16 or 17 years, was a neighbour of Shanti in that village. On the 27th December, 1967, at about 10 or 11 a.m. Shanti and his younger brother Thakar Das P.W. 7, aged about 9 years, had gone to Shahdara to purchase vegetables. The appellant had met them on the way. He had told shanti that she should accompany him to Chandani Chowk and that he would get Chappals and good clothes and good food for her: Shanti had agreed to go with the appellant. The appellant had taken Shanti and her brother Thakar Das to Qutab Minar and had then taken them to the Zoo. He did nto purchase any clothes for Shanti who reminded him of his promise to get new clothes for her. The appellant had replied that he had no money. Shanti bad protested that the appellant had brought her deceitfully and that her mother would be angry. The appellant had then taken Shanti and Thakar Das to Jamuna Bazar and leaving them in a hotel bad gone to borrow money from Borne person. The appellant had come back with Rs. 12. He bad then taken Shanti and Thakar Das to the Railway Station. Delhi, and had taken them to Khurja by train. Shanti bad begun to weep at Ehurja. The appellant had brought her and Thakar Das back to Delhi on the next morning. At Delhi Railway Station, the appellant had brought copper wires and had sold the same at Jama Masjid for Rs. 19. The appellant had then asked Thakar Das to go back to his parents and had given him Be. 1, The appellant had taken Shani to Sarai Khalil, Qutab Road. At the Sarai, the appellant had taken a Jhaunpri and he and Shanti had remained at the Sarai up to the 10th January 1968 on which date the appellant was apprehended by the police. The appellant had, while residing in the Sarai. committed sexual intercourse with Shanti against her will.
3. While on his way to his house in Silampur, Thakar Das bad met his father Rajbir Singh P. W. 5, who was searching for Shanti. Thakar Das had informed his father that the appellant had taken away Shanti. Rajbir Singh P. W. 5 had lodged the F.I.R., Exhibit. P. W. 5/A at the Police Station, Shahdara, at about 11 p. m. on the 30th December. 1967. He had stated, in that report, that his daughter Shanti aged 13 years and his son Thakar Das aged 10 years, had on the 27th December 1967, been sent to purchase vegetables, but had nto returned, that on the 29th December, 1967, when he was searching for the children his son had met him in Jamuna Bazar and had informed him that the appellant had taken him and Shanti to Khurja and had then brought them back to Delhi, the following day. It was, further, stated in the report, that the appellant had asked Thakar Das to go home after giving him Re. 1/.
4. On the 10th January 1968, Sub-Inspector Baldev Raj P. W. 10, who was conducting investigation in the case, bad received information that the appellant and Shanti were staying in Sarai Khalil. He had gone to Sarai Khalil with Rajbir Singh P. W. 5 and had apprehended the appellant. He had recovered Shanti who was with the appellant at that time. Dr. Miss S. Tandon P. W. 1 had examined Shanti on the 10th January and had observed bruises over medial side of labia majora and some laceration over right lateral side of hymen. The report of Dr. Miss S. Tandon is Exhibit P. W. I/A. Dr. G. D. Munjal P. W. 3 had examined Shanti for her age. In his opinion, Shanti was approximately 131/2 years old. The report of Dr. G, D. Munjal is Exhibit P. W. 8/B. The appellant was examined by Dr. Ved Bhushan P, W. 8 The doctor was of the opinion that the appellant was capable of performing sexual intercourse. The report of Dr. Ved Bhushan is Exhibit P. W. 8/A.
5. After investigation, the appellant was hauled up and committed under Sections 366/376. Penal Code.
6. The appellant denied the allegations, made against him. His plea was that Rajbir Singh P. W. 5 had falsely involved him in the case as he (the appellant) had a dispute with Rajbir Singh about the return of money lent out by the appellant to Rajbir Singh. The appellant produced one witness Mohd. Sharif D. W. 1. Munshi of Sarai Khalil. This witness had brought the register of the Sarai and had stated that the appellant and a girl named Nafisa had stayed in the Sarai from the 29th December 1967 to the 10th January 1968 and that the appellant had described the girl as his wife. The appellant had summoned Nafisa D. W. 2, but had nto examined her.
7. The learned Additional Sessions Judge held that the case of the prosecution that the appellant had kidnapped Shanti P. W. 2. a girl of 131/2 years, from the lawful guardianship of her father and had committed sexual inter-course with her stood established. Ha convicted the appellant under Sections 366/376, Penal Code, but instead of passing sentence on the appellant, the learned Additional Sessions Judge gave him the benefit of the provisions of the Probation of Offenders Act and ordered him to be released subject to his furnishing a bond for Rs. 3,000/- with one surety in the like amount for probation of good conduct for a period of two years. The learned Additional Sessions Judge, further, directed that on the appellant's failure to famish such a bond and surety, he would undergo rigorous imprisonment for two years on each count, but the sentences will run concurrently. The appellant failed to furnish surety as ordered and is undergoing the sentence of two years on each count.
8. The appellant filed the present appeal from jail against his conviction and sentence. He did nto engage any counsel for arguing the appeal. Shri Dinesh Chander Mathnr, Advocate was appointed amices curiae to argue the appeal on behalf of the appellant. I am grateful for the assistance rendered by Shri Dinesh Chander Mathur in disposing of the appeal. The appellant was also summoned from jail and heard.
9. During the course of arguments, Shri D. R. Sethi Advocate, the learned Counsel for the State, submitted that an offence, under Section 376, Penal Code, was punishable with imprisonment for life and that the learned Additional Sessions Judge erred in giving the benefit of the provisions 'of the Probation of Offenders Act to the appellant. The learned Counsel, further, submitted that though the State has nto filed any appeal or revision against the order of the learned Additional Sessions Judge, this Court should suo motu take action and correct the patent illegality committed by the Additional Sessions Judge. It is quite obvious that the learned Additional Sessions Judge had no jurisdiction to give the appellant the benefit of the provisions of the Probation of Offenders Act as the appellant had been convicted, under Section 376, Penal Code, which offence is punishable with imprisonment for life. The order of the learned Additional Sessions Judge is clearly illegal to that extent. In order to correct the patent illegality, I, suo motu issued notice to the appellant to show cause why the order of the Additional Sessions Judge giving him the benefit of the provisions of the Probation of Offenders Act be nto set aside and substantive sentence of imprisonment be nto imposed upon him. Arguments with respect to the above notice were also heard.
10. The first point, which requires consideration, is what was the age of Shanti P. W. 2 the prosecutrix, on the 27th December, 1967, the data on which she was alleged to have been kidnapoed. Rajbir Singh P. W. 5 and Smt. Padma P. W. 6, respectively father and mother of Shanti, stated that the age of Shanti was between 13 and 14 years. They could nto give the month or the year of birth of Shanti or of any other child of theirs. The evidence of the parents of Shanti on the question of age is, thereforee, of little value. The only other evidence, produced by the prosecution, with respect to the age of Shanti, was the medical evidence. Dr. G. D. Munjal P. W. 8, Radiologist, Irwin Hospital, bad stated that he had gto taken skiagram Ex P. W. 3/A. According to the doctor, the skiagram revealed that platform bone had appeared and epiphysis for the lateral epicondyle had united, but epiphysis for the medial epicedial had nto united completely. The doctor was of the opinion that the age of Shanti was approximately 131/2 years. There is no valid reason to reject the evidence of Doctor G. D. Mnnjal. It is true that there is a margin of error with respect to the age determined on the basis of ossification test. Even allowing for the margin of error, the age of Shanti P. W. 2 cannto be held to be more than fifteen years on the day of the occurrence.
11. The next question to be considered is whether Shanti P. W. 2 had been kidnapped from the lawful guardianship of her father on the 27th December 1967, and was subjected to sexual intercourse in January 1968. It is nto disputed that Shanti P. W. 2 was in lawful guardianship of Rajbir Singh, her father. Shanti had stated that she along with her brother Thakar Das P. W. 7 had been Bent to Shahdara to purchase vegetables and the appellant had met them on the way. Shanti had, farther, stated that the appellant had held out a promise to her that if she would accompany him, he would purchase Chappals and good clothes for her and also would give her good food. The appellant bad taken Thakar Das and Shanti to Qutab Minar and then to the Zoo. Shanti had, further, stated that the appellant did nto provide her with Chappals and clothes and that she reminded him of the promise. The appellant had replied that he had no money. He bad taken Shanti and her brother to Jamuna Bazar and had borrowed Rs. 12/- from some person. The appellant had then taken Shanti and her brother to Khurja, and had brought them back to Delhi on the next morning as Shanti had started weeping. The appellant had brought copper wire and had sold it at Jama Masjid for Rs. 19/-. According to Shanti. the appellant bad asked her brother to go to his house and bad given him Rs. 1/-. The appellant bad then taken Shanti to Sarai Khalil, where be had given out that Shanti was his wife. On the first day the appellant could nto get a separate jhaunpri but on the next day a separate jhaunpri was given to the appellant. Shanti and the appellant remained in the jhaunpri up to the 10th January, 1968. Shanti, finally, stated that the appellant had committed sexual intercourse with her twice forcibly. According to Shanti she was recovered from the jhaunpri by the police and the appellant was apprehended.
12. The statement of Shanti stands corroborated, in material particulars by the evidence of Thakar Das, P. W. 7, Rajbir Singh P. W. 5, Smt. Jeevani P. W. 4, Sub-Inspector Baldev Raj P. W. 10 and Dr. Miss 8. Tandon P. W. 1. Thakar Das P. W. 7, aged about 8 or 9 years stated that he was sent with Shanti to purchase vegetables from Shahdara and the appellant bad met them at the vegetable shop. Thakar Das had, further, stated that the appellant bad taken him and Shanti to Qutab Minar and then to Khurja by train. According to Thakar Das, the appellant had brought them back to Delhi and had asked him to go home after giving him Rs. 1/near Kumar Cinema.
13. The learned Counsel for the appellant criticised the evidence of Thakar Das as unreliable. The learned Counsel contended that it is always dangerous to rely upon the evidence of a child witness, as he can be tutored to say things which he bad nto witnessed. The learned Additional Sessions Judge has observed in his judgment that Thakar Das had given his evidence in a straightforward manner. In view of the observations of the learned Addl. Sessions Judge, who had the opportunity to see and watch the demeanour of Thakar Das, suggestion that his evidence should be discarded as there was a danger of his being tutored cannto be accepted.
14. In her statement Exhibit P.A., recorded under Section 164, Criminal P.C. on the 10th January 1968, Shanti P. W. 2 had made no reference to her brother Thakar Das. The learned Counsel for the appellant, referred to this omission, and contended that Thakar Das had never accompanied Shanti and that he had been brought in falsely to corroborate the evidence of Shanti. It is true that the name of Thakar Das does nto find mention in the statement Exhibit P. A., made by Shanti, under Section 164, Criminal P.C., but his name was mentioned by Rajbir Singh p. W. 5 in the F.I.R. Exhibit P. W. 5/A which was lodged on the 30th December 1967 about ten days before the recording of the statement under Section 164, Criminal P.C. It does nto stand to reason that Rajbir Singh had invented a false story in the F. i.e. The F.I.R. was baaed on the information supplied by Thakar Das to Rajbir Singh. As already noted Rajbir Singh P. W. 5, had stated in Exhibit P. W. 5/A, that Shanti and Thakar Das had been sent to purchase vegetables and that the appellant had met them on the way and had taken them to Qutab Minar, Zoo and Khurja. Shanti P. W. 2 had also referred to her brother Thakar Das in her statement made before the Court. In the circumstances, the omission, made under Section 164, Criminal P.C. cannto but be regarded as a slip of memory on the pact of Shanti.
15. Another point urged by the learned Counsel against the evidence of Thakar Das was that if Thakar Das had been accompanying Shanti when she had been taken away by the appellant, the appellant would have been charge. sheeted for kidnapping of Thakar Das also. According to the prosecution case, in. document by the appellant was given to Shanti alone and nto to Thakar Das. It was Shanti who had been taken away from the lawful guardianship of her father on this inducement. Thakar Das had merely ac-companied Shanti. He had nto been offered any inducement by the appellant. The fact that the appellant was nto charge. sheeted for kidnapping of Thakar Das does nto lead to the inference that Thakar Das was nto ac. companying Shanti when he was taken away by the appellant.
16. Smt. Jeevani P. W. 4, who ran the Sarai Khalil, bad stated that the appellant accompanied by a girl had come to the Sarai on the 29th December, 1967, at about 6 p. m. and had stayed for 8 or 9 days. Smt. Jeevani had, further, stated that on the first day she could nto give them separate Jhaunpri but on the next day the girl and the appellant were given a separate Jhaunpri. The learned Counsel for the appellant contended that the evidence of Smt. Jeevani was of no assistance to the prosecution as it did nto show that it was Shanti who had lived with the appellant in the Sarai. It must be said that the prosecution was remiss in nto getting identified Shanti by Smt. Jeevani as the girl who had lived with the appellant in the sarai. But there is other evidence which goes to prove that Shanti P. W. 2 was the girl who stayed with the appellant at the Sarai. Smt. Jeevani P. W. 4 had stated that the appellant and the girl were arrested at the Sarai. Rajbir Singh P. W. 5 and Baldev Raj P. W. 10 had abated that the appellant was apprehended and Shanti was recovered from Sarai Khalil. The evidence of Smt. Jeevani, read with the evidence of Rajbir Singh and Baldev Raj, clearly goes to show that the girl referred to by Smt. Jeevani was Shanti P. W. 2.
17. The only defense witness, summoned by the appellant, namely, Mohd Sharif D. W., supported the statement of Shanti to the extent that the appellant had lived at Sarai Khalil from the 29th December 1967 to the 10th January 1968. Mohd. Sharif had, further, stated that the appellant had a girl with him whom he had described as his wife.
18. The learned Counsel for the appellant attacked the recovery of Shanti P. W. 2 from the Sarai as illegal and contended that it should nto be taken into consideration. The argument of the learned Counsel was that Sub-Inspector Baldev Raj P. W. 10 had nto called two persons of the locality at the time of the recovery. This argument is nto factually correct. One of the witnesses to the recovery memo, was Smt. Jeevani P. W. 4 who was running the Sarai and belonged to that locality. The other witness was Rajbir Singh who of course, did nto belong to the locality. The failure to summon another witness of the locality will nto render the search and recovery of Shanti illegal and the recovery cannto be excluded from consideration.
19. Dr. Miss S. Tandon had examined Shanti on the 10th January 1968, the date on which she had been recovered from the Sarai. The doctor had observed injuries on his private parts which indicated that Shanti had been subjected to sexual intercourse. Unfortunately, the prosecution did nto ask Dr. Miss. S. Tandon the question whether the injuries were the Result of Shanti having been subjected to sexual intercourse. But the deficiency was made up by questions put to the doctor in cross-examination. It is clear from the answers given by Dr. Misa S. Tandon in the cross-examination that Shanti had been subjected to sexual intercouse.
20. Another contention, raised by the learned Counsel for the appellant; was that the F.I. R. was lodged by Rajbir Singh P. W. 5, three days after the occurrence and that the delay in making the F. I. R was fatal to the prosecution case. Rajbir Singh P. W. 5 had explained that he was searching for his children before lodging the P. i.e. Rajbir Singh bad gto information on the 28th December 1967 from Thakar Das P. W. 7 that Shanti bad been taken away by the appellant. Rajbir Singh did nto furnish any Explanationn why he had nto lodged the report immediately on the 28th instant and why he had waited up to the 30th. It was suggested by the learned Counsel for the State that a father, whose daughter had been kidnapped, is generally reluctant to report the matter to the police as that would bring the family into disgrace and disrepute. The suggestion appears to have some substance. In any case, the delay of three days in lodging the F.I.R. does nto justify the rejection of the prosecution case, especially when the evidence of the prosecutrix stands corroborated by other independent evidence.
21. The appellant did nto produce any evidence to prove his plea that he had lent out money to Rajbir Singh P. W. 5 and that the latter had failed to return and there was a dispute. The suggestion was put to Rajbir Singh that ha used to borrow money from the appellant. Rajbir Singh repudiated that suggestion.
22. Shanti P. W. 2 was no doubt a consenting party to her taking away and sexual intercourse. After the appellant had held out inducement to her, she had remained with him for more than ten days. She had never raised any alarm, though she had ample opportunity to do so. She and the appellant had visited crowded places. She had nto made any effort to go home with her brother, Thakar Das. After her brother had left, she had remained with the appellant for more than ten days in Khalil Sarai. She had never complained to Smt. Jeevani P. W. 4, who was running the Sarai or to any other person. But the consent of Shanti P. W- 2 in the present case was immaterial and did nto absolve the appellant from his guilt as she was only 13 1/2 years old.
23 The evidence of Shanti P. W. 2, corroborated by other evidence, established that the appellant had taken away Shanti, a minor girl of 13 1/2 years, from the lawful guardianship of her father by inducing her that he would purchase good clothes and food for her and that the taking was with the intention that she may be seduced to illicit intercourse. The evidence, further, established that the appellant had committed tape on Shanti in a jhaunpri in Sarai Khalil. The conviction of the appellant under Sections 366/376, Penal Code, is to be upheld.
24. As already stated, the learned Additional Sessions Judge had given the benefit of the provisions of the Probation of Offenders Act to the appellant. He erred in doing so, as the offence under Section 376, Penal Code, is punish. able with imprisonment for life and a person convicted for that offence cannto be given the benefit of the provisions of the Probation of Offenders Act. The order of the learned Additional Sessions Judge to that extent is liable to be set aside.
25. As a result of the above discussion, the conviction of the appellant under Sections 366/376, Penal Code, is maintained. The order of the learned Additional Sessions Judge giving the appellant the benefit of the provisions of the Probation of Offenders Act is Bet aside. The appellant is sentenced to two years rigorous imprisonment for each of the two offences. The sentences will run concurrently and would be deemed to have commenced from the date of the conviction of the appellant by the learned Additional Sessions Judge, namely, the 16th October, 1968.