Cri. Appeal No. 161 of 1991

17th March, 1999

Petitioner Counsel: Mr. PRAKASH NAIK with Mr. ANIL S. HIRVE
Respondent Counsel: Mr. I. S. THAKUR

JUDGMENT

JUDGMENT :- This Criminal Appeal is filed by the appellant-accused, against the judgment and order dated 8th February 1991, delivered by the 11th Additional Sessions Judge, Pune, convicting the appellant for offence punishable under Section 363 of the Indian Penal Code and sentencing him to suffer R.I. for six months and to pay a fine of Rs. 2,000/-, in default of payment of fine, to suffer further R.I. for six months.

2. Few facts are required to be stated, which are as follows :

Accused, Sanjay Manohar Lonare, was residing at Indira Nagar Zopadpatti area at Pune. At some distance from his house, complainant Janabai Gama More was residing along with her family including her minor daughter Jyoti. Jyoti was about 14 years of age when the incident took place on 12-1-1989. There was a love affair going on between Jyoti and accused Sanjay. On the day of the incident, accused Sanjay met Jyoti near her school. They talked for some time. Sanjay offered to marry her. Thereafter they both went together on a bicycle to Sanjay's aunt's place. Thereafter they went for photograph and got themselves photographed. They also went to the Tea Stall and had tea. Thereafter again they went to the house of the accused. By that time, a complaint was lodged by the mother of Jyoti, Janabai at Chaturshringi Police Station about missing of Jyoti. Crime was registered at No. 16/1989, P.S.I. came to the house of the accused and found Jyoti there. He brought both of them to the Police Station. Jyoti was sent to Remand Home and the accused was arrested. Police collected the birth certificate from the Cantonment Hospital where Jyoti was born. Statements of witnesses were recorded. Charge sheet was filed in the Court of the Judicial Magistrate, First Class, Court No. 9, Pune. The Magistrate committed the accused for sessions trial since the offence of kidnapping is triable by the Sessions Court. Charge was framed against the accused under Sections 363 and 366 of the Indian Penal Code. Accused pleaded not guilty and claimed to be tried. His defence was that of total denial.

3. The prosecution examined five witnesses in support of its case. The accused also examined two witnesses. After hearing both the Sides, the learned 11th Additional Sessions Judge came to the conclusion that the prosecution had succeeded in proving the charge of kidnapping under Section 363 of the Indian Penal Code, but that the prosecution had failed to prove the charge under Section 366. At the time of hearing on the question of sentence, the Counsel for the accused submitted that the age of the accused was hardly 20 years and that it was his first offence and hence leniency should be shown. At this stage, the Probation Officer's Report at Exh. 23, which was in the sealed cover was also opened. The said report was favourable to the accused inasmuch as it stated that the behaviour of the accused was satisfactory and he had no bad habits. It also stated that he was not having hot temperament and was quite scared and that he was co-operative and possessed extrovert personality. The report also stated that he came from poor family and left school due to poverty. It further stated that his attitude towards family was love and affection and he was helpful to his parents. There were no adverse remarks even from the neighbours. The report further stated that this was the first offence of the accused Sanjay and that there was no previous conviction record at the Police Station. The Probation Officer recommended that in view of these circumstances, the accused should be released on probation of good conduct by entering into a bond with a surety under Section 4(1) of the Probation of Offenders Act, 1958.

4. The learned 11th Additional Sessions Judge, however, did not at all consider the suggestion of the Probation Officer though it was perused by him.

5. I have heard Mr. Prakash Naik, appearing for the appellant and Mr. I.S. Thakur, Addl. P.P. for the State at length. I have also perused entire record of the case. As far as offence of Kidnapping under Section 363 I.P.C. is concerned, technically speaking, there is no reason to interfere with the findings. The evidence of Jyoti herself, mother of Jyoti and Investigating Officer and the documents produced by the Investigating Officer on record convincingly show that Jyoti was indeed a minor girl of hardly 15 years of age and that the enticing on the part of the accused is established. Mr. Naik, learned Advocate for the appellant also fairly concedes to this position. He, however, makes his submission that it was erroneous on the apart of the learned Additional Sessions Judge to discard the report of the probation officer. It is submitted by Mr. Naik that the fact that it was the first offence of the accused, who himself was of a tender age and had no criminal record of any nature, ought to have been considered by the learned Additional Sessions Judge. I find substance in what he has submitted. The learned Addl. P.P. Mr. Thakur also fairly concedes that the provisions of the Probation of Offenders Act, 1958 ought to have taken recourse to by the learned Additional Sessions Judge. I am also of the opinion that it is a fit case where benefit of Section 4 of the Probation of Offenders Act, 1958 ought to have been given to the accused. The learned Additional Sessions Judge patently committed error in depriving the accused of the benefit of statutory provision of this Act which is meant to reform the person, who has committed wrong for the first time, by giving him an opportunity to reform himself. In view of this, following order is passed :

The order of the learned 11th Additional Sessions Judge, Pune, is modified as follows :

Accused Sanjay Manohar Lonare is found guilty of offence punishable under Section 363 of the Indian Penal Code and is directed to be released on execution of a bond to keep good behaviour for a period of 6 months as required under section 4 of the Probation of Offenders Act, 1958 in the sum of Rs. 5,000/- with one surety and shall make himself available as and when called to receive the sentence, if any, if terms of the bond are found to be infringed by him.

The said bond is to be executed within a period of three weeks from today.

With these directions, appeal is disposed of.

Order accordingly.