K.D. Sharma, C.J.
1. This is an appeal filed by Nasir Mohammed against the judgment of learned Sessions Judge, Udaipur, dated May 28, 1977 by which the appellant was convicted under Section 363, of the Indian Penal Code and sentenced to under-go rigorous imprisonment for I year and pay fine of Rs. 500/- in default of payment of fine to further suffer rigorous imprisonment for 6 months.
2. The prosecution case against the appellant was that he took away Mst. Kalpana, a minor girl out of the keeping of her lawful guardian i.e. her father Shri Radhey Shyam with out the latter's consent on 28.12.75 at 8 A.M. from the shop of one Nathu Lal where she was left by her father Radhey Shyam, who had gone to wash his hands and mouth. The girl was taken away by Nasir Mohammed, appellant, on the false pretext that she was called by her father. The appellant left Kalpana in his mother's brother's house in the day and in the evening he took her away to Selana in the State of Madhya Pradesh where Kalpana's mother used to live. As soon as Kalpana's mother came to know that Kalpana has been brought by Nasir Mohammed, appellant without the consent of her guardian Radhey Shyam she refused to allow them to stay with her and sent them back to Udaipur in a train after purchasing Railway tickets for them. The appellant and the girl boarded the train at the instance of Kalpana's mother but got down at Chittor and stayed in a room of 'Dharamshala' in the night. Inside the room, Nasir Mohammed began to commit rape on Kalpana but the later began to cry and her cries attracted some persons who got the door of the room opened and latter on intimated the police. The police of Chittor after necessary inquiries handed over the appellant and the girl to the custody of Udaipur police. The police at Udaipur registered a criminal case against the appellant under Section 366 and 376, I.P.C and took up usual investigation into the matter. The girl was sent for medical examination as to her age for ascertaining whether rape has been committed on her. On completion of investigation, a charge sheet was filed against the appellant under Section 366, I.P.C. in the Court of Chief Judicial Magistrate, Udaipur who committed the appellant to the Court of Sessions Judge, Udaipur, for trial under Section 366 and 376, I.P.C. The Sessions Judge tried the appellant and found him guilty of the offence under Section 366 & 376, only. Accordindy he acquitted the appellant of the charges punishable under Sections 366 & 376 I.P.C. and convicted & sentenced him under Section 363, I.P.C.
3. Aggrieved by his conviction and sentence, the appellant has preferred this appeal. I have carefully perused the record and heard Mr. Mridul Jain appearing on behalf of Mr. M.C. Bhandari, learned Counsel for the appellant and Mr. H.N. Calla, public prosecutor for the State At the outset I may observe that Mr. Mridul Jain could not succeed in assailing the findings of the trial judge as to the guilt of the appellant under Section 363, I.P.C. Upon careful review of the evidence of Radhey Shyam P.W.2, Kalpana P.W.3, and Kalpana's mother Chandrakala, P.W.4, I am satisfied that the learned trial judge committed no error in placing reliance on their evidence and in holding on its basis that it was Nasir Mohammed, appellant, who took away minor girl Kalpana from the shop of Nathu Lal on 28.12.75 at about 8 A.M. out of the keeping of her legal guardian i.e. her father Radhey Shyam without the latter's consent on a false pretext that she was called by her father. The minority of girl at the time of her removal by the appellant is fully established by the evidence of her father Radhey Shyam and by the testimony of Dr. D.C. Dangi, who came to a conclusion on the basis of osscification test and examination of genaral characteristics of her body that the girl was about 13 years of age. The learned Counsel appearing on behalf of the appellant could not succeed in challenging the evidence pertaining to the minority of the girl led by the prosecution in this case. Upon close and careful scrutiny of the entire prosecution evidence, I have no hesitation in confirmity the conviction of the appellant under Section 363, I. P. C. It will not be out of place to mention that the appallant pleaded in his statement at the trial that he took away the girl to her mother at Selana with the consent of her father Radhey Shyam but his plea appears to be false and an after thought. Mr. Mridul Jain appearing on behalf of the appellant, however, contended that there is material on the record to show that the appellant actually had taken away the girl to her mother's house at Selana and they had no intention to take her away for ever to some other place and that the girl was taken into custody at Chittor while she and the appellant were returning to Udaipur from Selana. According to the submission of the learned Counsel, these facts may be taken into consideration as mitigating facts and circumtances justifying release of the appellant on probation of good-conduct, especially when the appellant is not a previous convict for similar offence or any other offence and is facing the trial since 1975. I have considered the above contention and found it not devoid of force. The appellant was an youngman of about 21 years of age at the time of commission of the offence. He has no previous conviction for similar or any other offence to his discredit. There is evidence on the record that he used to pay visit frequently to the house of Radhey Shyam and used to meet the girl prior to the occurrence. There is further evidence that he took away the minor girl to her mother's house at Selana in M.P. State and when her mother refused to allow them to stay there, he started in train for coming back to Udaipur with the girl. In my opinion, the lapse on his part occurred on account of his familarity with girl and her parents. I am told by the learned Counsel for the appellant that the appellant has married and is living peacefully with his wife. In these circumstances, I do not feel inclined to send the appellant to jail after a long period of 7 years. In my opinion, the ends of justice would be met if a chance is given to him to reform himself, and, if instead of being sentenced to imprisonment atonce he is released on probation upon his entering a bond in the amount of Rs. 5,000/- together with I surety in the like amount to appear and receive the sentence as and when called upon during the period of 2 years and in the mean-time to keep peace and be of a good behaviour.
4. Abcordingly, I partly accept the appeal filed by Nasir Mohammed and while confirming his conviction under Section 363, I. P. C. set-saside the sentences awarded to him by the trial judge for the said offence and instead of sentencing him at once to any punishment direct that he be released on probation upon his antering into a bond in the amount of Rs. 5,000/- (Rupees five thousand only) together with one surety in the like amount to appear and receive sentence when called upon during the period of 2 years and in the mean time to keep peace and be of good behaviour. The bond will be furnished by the appellant within 2 month's in the trial court i. e. in the Court of Sessions Judge, Udaipur, failing which necessary action under the law shall be taken against him. The appellant is on bail. He need not to surrender his bail bonds which are hereby cancelled.