JUDGMENT Hon. Dharam Veer, J. This appeal preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 5.5.1989 passed by Sessions Judge, Tehri Garhwal in Sessions Trial No. 1/1988, State vs. Budhi Lal & Sunder Lal, whereby the learned Sessions Judge has convicted the appellant/accused Sunder Lal for the offences punishable u/s 365 and 379 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to undergo two years’ R.I. u/s 365 I.P.C. and one year’s R.I. u/s 379 I.P.C. It was also directed that both the sentences shall run concurrently. However, co-accused Budhi Lal was acquitted of the charge levelled against him by the trial court. 2. I have heard Sri Lokendra Dobhal, learned counsel for the appellant/accused and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. In brief the prosecution story is that on 21.10.1987 at about 6 or 7 a.m. Sabal Singh (P.W.6), aged about 9-10 years, was taking his goats to graze in the forest of village Budali, P.S. Kirtinagar, District Tehri Garhwal. When he had gone a short distance from his house, then appellant/accused Sunder Lal arrived there with a rope and armed with a sickle (DARANTI). He asked Sabal Singh to accompany him with four goats. Then the appellant/accused Sunder Lal and Sabal Singh proceeded for Srinagar. Yodha Singh (P.W.5), Khushal Singh, Devendra (P.W.2) and Sunder Singh Bisht informed the father of victim Sabal Singh namely Mohan Singh that they have seen victim Sabal Singh along with appellant/accused Sunder Lal and co-accused Budhi Lal (acquitted by trial court) at Srinagar, and Sabal Singh was also having some goats with them. Then the complainant Kundan Singh Bisht (P.W.1) stated searching his brother Sabal Singh (victim) at Srinagar and nearby places of Srinagar but he could not get success. This information was given by Mohan Singh to his son Kundan Singh (P.W.1) at Dehradun on 22.10.1987. After that the complainant also came to know that four goats were sold at Srinagar by these accused persons. With the same averments, the First Information Report, i.e. Ext. This information was given by Mohan Singh to his son Kundan Singh (P.W.1) at Dehradun on 22.10.1987. After that the complainant also came to know that four goats were sold at Srinagar by these accused persons. With the same averments, the First Information Report, i.e. Ext. Ka.1 was lodged by Kundan Singh (P.W.1) at Police Station Kirtinagar, Tehri Garhwal on 24.10.1987 at 4:30 P.M. On the basis of this FIR, Head Moharrrir Bhanwar Singh prepared the Chik FIR, i.e. Ext.Ka.2. The necessary entry was also made in the G.D., the copy of the G.D. is Ext.Ka.3. The investigation of this case was entrusted to P.W.7 Karan singh, Station Officer of Police Station, Kirtinagar, who during the course of the investigation has recorded the statements of the witnesses and after completing the investigation, has filed charge sheet i.e. Ext.Ka.4 against appellant/accused Sunder Lal and co-accused Budhi Lal u/s 379/ 364 I.P.C. 4. It appears that after receiving the charge sheet, learned Chief Judicial Magistrate, Tehri Garhwal has committed the case to the Court of Sessions on 19.1.1988 after giving necessary copies to the appellant/accused and another co-accused as required u/s 207 Cr.P.C. 5. Learned Sessions Judge, Tehri Garhwal on 25.2.1988 has framed the charge against the appellant/accused Sunder Lal u/s 364 and 379 I.P.C. and the charge against co-accused. Budhi Lal u/s 364 I.P.C. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Kundan Singh, complainant and brother of victim, P.W.2 Devendra, who had seen Sabal Singh along with the appellant/accused Sunder Lal in Gola Market, Srinagar, P.W.3 Babu Ram, who has purchased three goats from the appellant/accused Sunder Lal on 21.10.1987, P.W.4 Mohd. Yaseen, who has purchased one goat from appellant/accused on 21.10.1987, P.W.5 Yodha Singh, who had seen appellant/accused in the morning at about 6:30 a.m. on 21.10.1987 while going towards the forest and he had also seen appellant/accused Sunder Lal along with victim Sabal Singh at 10-10:30 a.m. while going towards the market, P.W.6 Sabal Singh, victim of the case and P.W.7 Karan Singh, Investigation Officer of this case. 7. 7. After that the statements of the appellant/accused and another co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against each of them. However in defence, they did not produce any oral or documentary evidence. 8. After hearing learned counsel for the parties and examining the entire evidence available on record, the learned Sessions Judge vide his judgment and order dated 05.05.1989 convicted and sentence the appellant/accused as above. Feeling aggrieved by the said judgment and order, the appellant/accused Sunder Lal has preferred the present appeal. 9. To prove its case, the prosecution has examined P.W.1 Kundan Singh, who has stated that the appellant/accused Sunder Lal and his father Budhi Lal were well-known to him and the victim Sabal Singh is his brother who is aged about 9-10 years. He has further stated that on 22.10.1987, his father had come to Dehradun and informed him that on 21.10.1987 at about 6 a.m., his younger brother Sabal Singh had gone to forest to graze his ten goats. At about 11 a.m., witnesses Devendra (P.W.2), Yodha Singh (P.W.5) and Khushal Singh informed him (Mohan Singh, father of the victim) that they have seen victim Sabal Singh along with the appellant/accused Sunder Lal and another co-accused with four goats. His father had gone to the market to search his brother but neither his brother nor the goats was found. Then he went to his house in the evening at about 4-5 p.m. and there also he along with his father searched his brother and goats but all were in vain. After that on 24.10.1987, he lodged the First Information Report Ext.Ka.1 in the Police Station. After searching his brother for so many days, he reached Delhi through Rishikesh. At Delhi Railway Station, he found his brother along with appellant/accused Sunder Lal. When he reached near them, then Sunder Lal ran away from the place of occurrence leaving Sabal Singh on the spot. He also tried to catch appellant/accused Sunder Lal but he could not get success. Then, he came to Kirtinagar Police Station along with his brother on the next day and handed over his brother to the Station Officer. He found his brother along with appellant/accused Sunder Lal after 20-21 days of the said incident at Delhi Railway Station. He also tried to catch appellant/accused Sunder Lal but he could not get success. Then, he came to Kirtinagar Police Station along with his brother on the next day and handed over his brother to the Station Officer. He found his brother along with appellant/accused Sunder Lal after 20-21 days of the said incident at Delhi Railway Station. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence. The evidence of this witness is reliable and believable. 10. P.W.2 is Devendra, who has stated that the appellant/accused Sunder Lal and co-accused Buddhi Lal were well-known to him and the victim Sabal Singh and his father Mohan Singh was also known to him. On 21.10.1987 at 9:10 a.m., he had seen appellant/accused Sunder Lal along with victim Sabal Singh at Gola Market of Srinagar and four goats were also in their possession. He had asked appellant/accused Sunder Lal that from where he has taken these goats, then he replied that he had purchased these goats from Mohan Singh for Rs. 1,400/- Out of these four goats, appellant/accused Sunder Lal sold one goat to the son of Shakur. When he asked him to come home then he told him that he would come by 12 o’clock bus. Then he narrated this incident to Mohan Singh, father of Sabal Singh. The appellant/accused and the victim belongs to the same village. 11. P.W.3 is Babu Ram, who has stated that one day before Deepawali at about 10-11 a.m., he had purchased three goats from the appellant/accused Sunder Lal for Rs. 1,000/-. He has also given photo copy of the receipt of purchase of these goats to the Investigation Officer. 12. P.W.4 is Mohd. Yaseen, who has stated that on 21.10.1987, he had purchased one goat from appellant/accused Sunder Lal in Rs. 250/-. Receipt of the purchase of goat was also written. He has further stated that at the time, one boy was also there with the appellant/accused Sunder Lal who was not known to him. 13. P.W.5 is Yodha Singh, who has stated that on 21.10.1987 at about 6:20 a.m., when he was going to answer the call of nature in the morning, he saw victim Sabal Singh while going towards forest along with his goats. 13. P.W.5 is Yodha Singh, who has stated that on 21.10.1987 at about 6:20 a.m., when he was going to answer the call of nature in the morning, he saw victim Sabal Singh while going towards forest along with his goats. While returning after answering the call of nature, then he saw that appellant/accused Sunder Lal was also going behind victim Sabal Singh towards the forest. After that he had gone to Srinagar. At about 10-10:30 a.m., he had seen appellant/accused Sunder Lal along with Sabal Singh going in the Srinagar market. After that he came to his house. 14. P.W.6 is Sabal Singh, who is victim of the case. It is pertinent to reproduce the statement of the victim recorded in the trial court, which reads as under:- ßiz”u & dgk¡ [kMs+ gks\ mÙkj & dksVZ esaA iz”u & dksVZ esa fdl fy, vk, gks\ mÙkj & c;ku nsus ds fy,A iz”u & viuh mez tkurs gksA mÙkj & th gk¡A iz”u & fdruh mez gSA mÙkj & 10 lkyA iz”u & lp cksyk tkrk gS ;k >wBA mÙkj & lpA iz”u & tkurs gks dle ysuk fdl dks dgrs gSaA mÙkj & Keeping quite. iz”u & dle [kkdj c;ku lp nsuk pkfg, ;k >wBA mÙkj & lpA Oath not given : c;ku & (At this stage Prosecution counsel suggested that the witness must be given oath for which the defence counsel opposed. Oath has been administered to the witness subject to the objection of the defence counsel). iz”u & dle [kkdj c;ku lp nsuk pkfg, ;k >wBA mÙkj & lpA Oath not given : c;ku & (At this stage Prosecution counsel suggested that the witness must be given oath for which the defence counsel opposed. Oath has been administered to the witness subject to the objection of the defence counsel). l”kiFk c;ku & iz”u & ihNs ns[kks ;s yksx dkSu dkSu [kM+s gSa buds uke tkurs gks & (The witness looked behind and then said) & cq)hyky o lqUnj yky iz”u & ;s fdl xk¡o ds jgus okys gSaA mÙkj & cqMkyhA iz”u & rqEgkjs xk¡o ds jgus okys gSaA mÙkj & th gk¡A iz”u & rqe Ldwy esa i<+rs gks\ fdl Dykl esa i<+rs gks\ mÙkj & gk¡ Fourth esaA iz”u & ;g crkvks dc dh ckr gSA rkjh[k ekywe gSA mÙkj & 21-10-87 dhA iz”u & le; crkvksA mÙkj & 6&7 ctsA iz”u & lqcg dh “kkeA mÙkj & “kkeA iz”u & D;k gqvk Fkk ml le;A mÙkj & eSa 10 cdfj;k¡ taxy pjus ds fy, ys tk jgk FkkA ?kj ls FkksM+h nwj tkdj eq>s lqUnjyky feykA mlds gkFk esa jLlh vkSj njkarh FkhA mlus esjs ls dgk fd esjs lkFk pkj cdfj;k¡ ysdj py ugha rks rsjh xnZu dkV nw¡xkA fQj pkj cdfj;k¡ ysdj Jhuxj x;sA iz”u & Jhuxj dgk¡ x;sA mÙkj & 3 cdfj;k¡ ckcwjke cwpj ds ikl csp nhA iz”u & fdlus csphA mÙkj & lqUnj yky usA iz”u & pkSFkh cdjhA mÙkj & ldwj ds yM+ds ;klhu dks csphA iz”u & rc D;k gqvkA mÙkj & fQj nsosUæ feyk lqUnjyky us mls MkaVdj Hkxk fn;ka iz”u & fQj D;k gqvkA mÙkj & xksyk cktkj esa fQj lqUnj yky dks cq)hyky feykA nksuksa dh vkil esa ckrphr gqbZA iz”u & rc D;k gqvkA mÙkj & fQj lqUnjyky eq>s xkM+h esa _f’kds”k ys x;kA iz”u & _f’kds”k ys tkdj D;k gqvkA mÙkj & fnYyh dh cl esa fcBkdj fnYyh ys x;kA iz”u & fnYyh ys tkdj D;k gqvkA mÙkj & dHkh jsyos LVs”ku dHkh cl vM~Ms ij j[krk Fkk vkSj Mjkrk Fkk fd fdlh dks dgsxh fd cdfj;ka pqjkdj ykus okyh ckr dgsxk rks rsjh xnZu dkV nsaxsA iz”u & mlds ckn fnYyh esa D;k gqvkA mÙkj & 20&21 fnu ckn esjk cM+k HkkbZ dqUnu flag jsyos LVs”ku ij feykA iz”u & tc rqEgkjk HkkbZ feyk rks D;k gqvk\ mÙkj & lqUnjyky us esjk gkFk idM+ j[kk Fkk esjs HkkbZ dks ns[kdj lqUnj yky gkFk NksM+dj Hkkx x;kA iz”u & lqUnj yky ds Hkkxus ds ckn D;k gqvkA mÙkj & mlds vxys fnu esjk HkkbZ eq>s dhfrZuxj Fkkus yk;kA XXX XXX For both the accused (2) iz”u & cq)hyky lqUnjyky rqEgkjs xkao esa D;k dke djrs gSaA mÙkj & esjs dks irk ughaA iz”u & ;s rqEgkjs xkao esa iM+ksl esa jgrs gSaA mÙkj & esjs ?kj ds uhps jgrs gSaA iz”u & vkius vius ?kj ds uhps fdrus lkyksa ls jgrs ns[kkA mÙkj & tc eSa nsgjknwu ls vk;k rc ns[kkA iz”u & nsgjknwu ls dc vk;s FksA mÙkj & esjs dks 3&4 lky gks x;s nsgjknwu ls vk;s gq,A iz”u & nsgjknwu esa D;k djrs Fks\ mÙkj & i<+rk FkkA iz”u & nsgjknwu ls vkus ds ckn D;k dke djrs ns[kk bu yksxksa dksA mÙkj & lqUnjyky rks pksjh pkjh djrk gSA cq)hyky D;k djrk gS irk ughaA iz”u & cq)hyky o lqUnjyky gkftj yksgkj gSaA mÙkj & yksgkj gSaA iz”u & lqUnjyky us fdl fdl ds ?kj esa vkSj dc dc pksjh dhA crk ldrs gksA mÙkj & ;g ugha crk ldrkA iz”u & vkius fdl vk/kkj ij dg fn;k fd lqUnjyky pksjh djrk gSA mÙkj & eSaus lquk Fkk fd rhu pkj ckj blus b/kj m/kj pksjh dhA iz”u & rqEgkjh ;k rqEgkjs ifjokj dh ?kVuk ls igys lqUnjyky o cq)hyky ls nq”euh rks ugha FkhA mÙkj & th ughaA iz”u & 20-10-87 dks 6&7 cts lqcg taxy esa lqUnjyky vkidks dgk¡ ij feykA D;k uke gS ml txg dkA mÙkj & Nhyk dk xSjA iz”u & ;g txg xkao ls fdruh nwj gSA mÙkj & Keeping quite iz”u & ;g txg ¼Nhyk dk xSj½ xkao ds lHkh yksxksa dh pjku pqxku dh txg gS ;k flQZ rqEgkjhA mÙkj & xkao ds lHkh yksxksa dh pjku pqxku dh gS gekjh gh ughaA iz”u & ftl le; lqUnjyky vk;k rqe cdfj;k¡ ys tk jgs Fks fd pqxk jgs FksA mÙkj & eSa cdfj;k¡ pqxk jgk FkkA iz”u & fdruh nsj gks x;h Fkh cdfj;ksa dks pqxkrsA mÙkj & vk/kk ?kUVk gks x;k FkkA iz”u & ,slk rks ugha fd tc rqe cdfj;k¡ pqxkus ds fy;s tk jgs gks rc rqEgsa jkLrs esa lqUnjyky feyk gksA mÙkj & ,slk ugha gS eSa cdfj;k¡ pqxk jgk FkkA iz”u & ?kVuk ds lEcU/k esa fdlh iqfyl vf/kdkjh ;k deZpkjh us vkils iwNrkN dh FkhA mÙkj & th ughaA iz”u & vkt rd Hkh iwNrkN ugha dhA mÙkj & (Hesitant) ughaA iz”u & vnkyr esa vkt c;ku fn;k fd cdjh pjkus ys tk jgk Fkk rc lqUnjyky feyk vkSj vkt gh dgk fd tc cdjh pjk jgk Fkk rc feykA bu nksuksa esa dkSu lh ckr lgh gSA mÙkj & jkLrs esa pjkrs pjkrs ys tk jgk Fkk blfy, ,slk dgkA Dt. 27.9.88 - Continue on Oath --> iz”u & lqUnjyky tgka ij vkidks feyk vkSj tgka ls Jhuxj igqaps ml chp ds jkLrs esa lqUnjyky vkidks idM+ dj ys x;k ;k lkFk lkFk ys x;kA mÙkj & idM+dj ys x;kA iz”u & lqUnjyky us rqedks nksuksa gkFkksa ls idM+k ys pyk Fkk ;k ,d gkFk lsA mÙkj & ,d gkFk ls iz”u & rqEgkjk D;k idM+k FkkA mÙkj & esjk gkFk idM+k Fkk vkSj ys x;k FkkA iz”u & tgk¡ ls rqEgsa idM+k Fkk vkSj Jhuxj tgka ys x;k mu nksuksa txgksa ds chp esa nwjh D;k gSA mÙkj & ugha ekyweA iz”u & og nwjh FkksM+h gS ;k cgqrA mÙkj & eq>s og nwjh cgqr yxhA iz”u & ml chp esa xkao iM+sa gksaxs vkneh vk tk jgs gksaxsA mÙkj & xkao iM+s FksA iz”u & dkQh xkao iM+s gksaxsA mÙkj & thA iz”u & bu xkaoksa esa vkneh ns[ks FksA mÙkj & thA iz”u & rqeus fdlh ls dgk gksxk fd ;g eq>s idM+dj ys tk jgk gSA mÙkj & th ughaA iz”u & cdfj;ksa dks [kqyk&[kqyk [knsM+ dj ys tk jgk Fkk ;k cka/kdjA mÙkj & cka/kdj ys tk jgk FkkA iz”u & pkjksa cdfj;k¡ ,d gh jLlh esa cka/kh Fkh ;k vyx vyxA mÙkj & ,d jLlh ds pkj VqdM+s djds cdfj;ksa dks cka/kk FkkA iz”u & pkjksa jLlh mlh us idM+h Fkh ;k rqeus Hkh idM+h FkhA mÙkj & mlh us pkjksa jLlh idM+ j[kh FkhA iz”u & Jhuxj dkQh cM+k cktkj gSA mÙkj & gk¡A iz”u & bl ?kVuk ds igys Hkh vki Jhuxj x;s vkSj yksxksa dks igpkurs gksaxsA mÙkj & gk¡A tks xkao ds vkneh vkrs Fks cktkj esa mUgha dks igpkurk FkkA iz”u & Jhuxj esa iqfyl Fkkuk gSA mÙkj & th gk¡A iz”u & Jhuxj esa rqeus fdlh dks crkus ;k Fkkuk esa tkus dh dksf”k”k dhA mÙkj & mlus eq>s Mjk j[kk FkkA iz”u & tc mlus 3 cdfj;k¡ ckcwjke dks csph ml le; Hkh og rqEgsa o cdfj;ksa dh jLlh idM+s FkkA mÙkj & th gk¡A iz”u & tgk¡ ij mlus ckcwjke dks cdfj;k¡ csph ml le; ogk¡ ij dkQh yksx FksA mÙkj & rhu pkj vkneh FksA iz”u & os rhu pkj vkneh rqEgkjs djhc gh [kM+s FksA mÙkj & th ughaA nwj nwj FksA iz”u & fdruh nwjh ij FksA mÙkj & ftruh ;gk¡ ls cjkenk dh nwjhA (Ld. Counsel counted the space and stated that the distance is about 4 steps) iz”u & tc mlus 3 cdjh csph vkSj [kjhnnkj ls :i;s ys fy, ml le; Hkh lqUnj yky rqedks vkSj cdfj;ksa dks idM+s jgkA mÙkj & th gk¡A iz”u & iSls lqUnjyky us vius gkFk esa fy, Fks ;k rqeusA mÙkj & lqUnjyky us vius gkFk esa fy, FksA iz”u & iSls ysus ds ckn :i;s lqUnjyky us fxus gksaxsA mÙkj & eq>s irk ughaA iz”u & tc rqEgsa rqEgkjs xkao dk nsosUæ feyk rks rqeus mlls vfHk;qDr }kjk rqEgsa idM+us o cdfj;ksa dks ykus dh ckr dgh FkhA mÙkj & th ughaA iz”u & xksyk cktkj esa tc nsosUæ feyk ml le; D;k le; jgk gksxkA mÙkj & 10&11 cts fnu dk le; FkkA iz”u & tc cq)hyky feyk rc D;k le; jgk gksxkA mÙkj & eq>s cq)hyky ugha feykA iz”u & cq)hyky dks vkius ml fnu dgha Jhuxj esa ns[kk Hkh FkkA mÙkj & tc lqUnjyky cq)hyky dks feyk nksuksa dh vkil esa ckrphr gqbZA iz”u & ml le; vki dgk¡ Fks tc lqUnjyky o cq)hyky feys FksA mÙkj & esa mu nksuksa ls nwj FkkA iz”u & fdruh nwjh ij jgs gksaxs rqeA mÙkj & bruh nwjh ij Fkk ftruk ;gk¡ lkeus nhoky ls ckgjA (Defence counsel and the DGC say that the distance may about 25-30) iz”u & lqUnjyky o cq)hyky dks fdrus le; rd ckrphr djrs ns[kkA mÙkj & djhc 10&15 feuV rdA iz”u & lqUnj yky o cq)hyky dh ckrphr ds le; tgk¡ ij vki [kM+s Fks og vke lM+d Fkh vkSj ogk¡ ls yksx vk tk jgs FksA mÙkj & vkneh fudy jgs FksA iz”u & tc cq)hyky o lqUnjyky ckrsa dj jgs Fks vkSj rqedks lqUnjyky us jksd j[kk Fkk rc rqe Hkkxs D;ksa ugha vFkok fdlh ls dgk D;ksa ughaA mÙkj & lqUnjyky esjh rjQ ns[k jgk Fkk blfy, eSa Hkkx ugha ik;kA mlus eq>s Mjk j[kk Fkk blfy, fdlh ls eSaus crk;k Hkh ughaA iz”u & dS cts ysdj pyk Fkk _f’kds”k ds fy,A mÙkj & nksigj esa 1&1-30 ctsA iz”u & _f’kds”k fdrus cts igq¡psA mÙkj & 3&4 cts “kke dks _f’kds”k igq¡ps FksA iz”u & _f’kds”k fdl txg mrjs FksA mÙkj & cl vM~Ms ijA iz”u & _f’kds”k ls cl esa cSBdj fnYyh py fn;sA mÙkj & thA iz”u & bl ?kVuk ds lEcU/k esa eftLVªsV egksn; us rqEgkjk c;ku fy;k FkkA mÙkj & th fy;k FkkA iz”u & eftLVªsV egksn; ds le{k c;ku esa vkius ,slk dgk Fkk fd & At this stage the DCG raised the objection that the Prosecution does not relied upon the statement u/s 164 CrPC and this witness in this case as such so long the defence do not treat that document as their own. It cannot be said that the said document is on record and so long the document is not on record and is not relied by the Prosecution the witness cannot be confronted with the contents of the document. Objection sustained. iz”u & At this stage Ld. Counsel for defence made application for an opportunity for arguments for confronting the statement u/s 164 CrPC to the witness. Put tomorrow. Further cross examination deferred. Dt. 15.3.89 – Further cross of P.W.6 resumed on oath. Objection sustained. iz”u & At this stage Ld. Counsel for defence made application for an opportunity for arguments for confronting the statement u/s 164 CrPC to the witness. Put tomorrow. Further cross examination deferred. Dt. 15.3.89 – Further cross of P.W.6 resumed on oath. ¼3½ eSaus Magistrate egksn; dks eqyfteku }kjk Jhuxj ls _f’kds”k cl }kjk ys tkus okyh ckr ugha crkbZ FkhA eSaus Magistrate egksn; dks vfHk;qDr lqUnjyky }kjk eq>s cl ls ys tkus dh ckr gh ugha crkbZ FkhA Magistrate egksn; dks eSaus ?kVuk 21-10-87 dks lqcg 6&7 dh gksuh crkbZ FkhA eSaus Magistrate egksn; dks xksyk cktkj Jhuxj esa lqUnjyky dks cq)hyky feyk o nksuksa dh vkil esa ckrphr okyh ckr crk;h FkhA xokg dks 164 CrPC dk c;ku i<+dj lquk;k x;k ftlesa ;g ckr ugha fy[kh gS lqudj dgk eSa bldh otg ugha crk ldrkA eq>s ;kn ugha fd fnYyh esa cl vM~Ms ij j[kus dh ckr eSaus Magistrate egksn; dks crkbZ Hkh ;k ughaA eSaus lqUnjyky }kjk eq>s fnYyh esa ;g /kedh nsus fd cdfj;k¡ pqjkus okyh ckr fdlh dks dgsxk rks rsjh xnZu dkV nsaxs okyh ckr Magistrate dks crkbZ Fkh mUgksaus D;ksa ugha fy[kh bldh otg ugha crk ldrkA eSaus Jhuxj es alqUnjyky dks viuh rjQ ns[kus dh otg ls u Hkkx ikus o eq>s Mjk j[kk Fkk blfy, fdlh dks ugha crk;k Fkk] okyh ckr Magistrate egksn; dks ugha crkbZ FkhA eSa bldh dksbZ otg ugha crk ldrkA Magistrate egksn; us esjs c;ku vius gkFk ls fy[ks FksA ¼4½ fnYyh jsyos LVs”ku o cl LVs”ku ij cgqr lkjs vkneh jgrs FksA bl ?kVuk ls igys eSa fnYyh x;k ;k jgk ugha FkkA ml le; gekjk dksbZ vkneh fnYyh ugha jgrk FkkA jsyos LVs”ku ls cl vM~Mk tgk¡ eq>s j[kk Fkk 10&12 fd-eh- gSA esjs HkkbZ us jsyos LVs”ku ij tc lqUnjyky esjk gkFk NksM+dj Hkkxk rks esjs HkkbZ us lqUnjyky dk ihNk ugha fd;kA esjs HkkbZ us lqUnjyky ds ekeys esa dksbZ “kksj ugha epk;k FkkA fnYyh esa esjk HkkbZ dqUnuflag tc eq>s jsyos LVs”ku ij feyk Fkk rks ge mlh fnu ?kj vk x;s FksA ;g xyr gS fd lqUnjyky us dHkh eq>s /kedkdj ;k Mjkdj e; cdfj;ksa dks vius lkFk ugha ys x;k gksA ;g dguk xyr gS fd mlus gekjh 4 cdfj;ka u csph gksA ;g xyr gS fd cq)hyky gesa Jhuxj esa u feyk gksA ;g dguk Hkh xyr gS fd esjk HkkbZ eq>s lqUnjyky ds lkFk ls ubZ fnYyh jsyos LVs”ku ls u yk;k gksA ;g xyr gS fd eqyfteku ls geus [ksrhckM+h dk dk;Z djus dks dgk gks vkSj mUgksaus dk;Z djus ls bUdkj fd;k gksA bl otg ls ;g >wBk eqdnek fd;k gksA 15. P.W.7 is S.O. Karan Singh, Investigating Officer of this case, who has stated that on 24.10.1987 he was posted at Kirtinagar as Station Officer. FIR Ext. Ka. 1 was lodged in the Police Station and on the basis of this FIR, Head Moharrir Bhanwar Singh prepared the Chik FIR, i.e. Ext.Ka. 2. The entry was also made by him in the GD, copy of GD is Ext.Ka. 3. During the course of the investigation, he recorded the statements of the witnesses and after completing the investigation, he filed a charge sheet Ext.Ka. 4 against the appellant/accused Sunder Lal and another co-accused Budhi Lal. 16. After that the statements of the appellant/accused and another co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form who has denied the allegation made against each of them. In defence, they have not produced any oral or documentary evidence. 17. Learned counsel for the appellant/accused has submitted that as per the evidence discussed above, the prosecution has not proved its case against the appellant/accused Sunder Lal beyond reasonable doubt. I do not find any substance in the argument of learned counsel for the appellant/accused. From the evidence as discussed above, it has come in the statement of P.W.6 Sabal Singh, that at the time of the said incident, he was aged about 9-10 years and he was kidnapped by the appellant/accused from the guardianship of his father when he had gone to graze his goats in the forest. The victim Sabal Singh was taken by the appellant/accused Sunder Lal to Srinagar market along with the four goats, Out of these four goats, three goats were sold to Babu Ram (P.W.3) and one goat was sold to Mohd. Yaseen (P.W.4) by appellant/accused. This information was given to Mohan Singh, father of the victim Sabal Singh, by Devendra (P.W.2) and Yodha Singh (P.W.5). After that Mohan Singh, father of victim started searching for his son as well as the goats at Srinagar market and also at nearby places, however he could not get success in doing so. Thereafter, on 24.10.1987, P.W.1 Kundan Singh lodged the FIR at P.S. Kirtinagar. After 20-21 days of the said incident, victim P.W.6 Sabal Singh was recovered from the possession of the appellant/accused Sunder Lal at Delhi Railway Station by P.W.1 Kundan Singh. Thereafter, on 24.10.1987, P.W.1 Kundan Singh lodged the FIR at P.S. Kirtinagar. After 20-21 days of the said incident, victim P.W.6 Sabal Singh was recovered from the possession of the appellant/accused Sunder Lal at Delhi Railway Station by P.W.1 Kundan Singh. When the appellant/accused saw Kundan Singh, he ran away from the place of occurrence leaving the victim Sabal Singh on the spot. After that P.W.1 Kundan Singh handed over his brother Sabal Singh (P.W.6) to the Station Officer, P.S. Kirtinagar. Besides this, four goats were also taken by appellant/accused Sunder Lal without the consent of Mohan Singh, father of the victim Sabal Singh. Thereafter, appellant/accused Sunder Lal out of these four goats, sold three goats to Babu Ram (P.W.3) and one goat to Mohd. Yaseen (P.W.4) in Rs. 1,000/- and Rs. 250/- respectively. For the purchase of these goats from the appellant/accused, these two persons have also filed the receipts given by the appellant/accused to them, which show that these goats were also intentionally stolen by the appellant/accused from the possession of Mohan Singh without his consent so as to sell them and thereafter to derive the benefit. 18. Thus, from the evidence discussed above and also as per the facts and circumstances narrated above, it is proved by the prosecution beyond reasonable doubt that the victim Sabal Singh (P.W.6), who was about 9-10 years of age at the time of the said incident on 21.10.1987, was kidnapped from the lawful guardianship of his father Mohan Singh by the appellant/accused and was also recovered from his possession after 20-21 days by P.W.1 Kundan Singh brother of the victim. Hence, the offence punishable u/s 363 I.P.C. (not u/s 365 IPC) is proved against the appellant/accused Sunder Lal beyond reasonable doubt. Apart from this, four goats of Mohan Singh, father of victim, were also stolen by the appellant/accused without his consent and thereafter the appellant/accused Sunder Lal sold three of them to P.W.3 Babu Ram and one goat to P.W.4 Mohd. Yaseen and received Rs. 1,000/- and Rs. 250/- respectively. In this way, the appellant/accused has committed an offence punishable u/s 379 I.P.C. 19. Yaseen and received Rs. 1,000/- and Rs. 250/- respectively. In this way, the appellant/accused has committed an offence punishable u/s 379 I.P.C. 19. From the facts and circumstances narrated and discussed above, it is proved by the prosecution beyond reasonable doubt that the appellant/accused has committed offence u/s 363/379 I.P.C. However, the charge u/s 365 is not proved against the appellant/accused and is hereby acquitted of the charge punishable u/s 365 I.P.C. 20. Learned counsel for the appellant/accused has submitted that the appellant/accused Sunder Lal is about 40 years old and is a married person and living with his wife and children peacefully. It was further submitted that he has remained in jail in the aforesaid crime from 15.11.1987 to 14.4.1988, 11.8.1989 to 6.2.1990 and 14.4.2004 to 22.4.2004, during the course of the investigation, trial and appeal. In this way, the appellant/accused Sunder Lal has remained in jail for about 11 months during the period of the investigation, trial and appeal. Hence, he prayed the sentence against the appellant/accused Sunder Lal may be reduced to the sentence already undergone by him. Sri M.A. Khan, brief holder for the State has also conceded to this point. 21. After considering all the facts and circumstances narrated above, the conviction and sentence awarded by the trial court u/s 365 is set aside. However, the appellant/accused Sunder Lal is convicted u/s 363 IPC and u/s 379 IPC. Thus, after considering the facts of the case that the appellant/accused Sunder Lal is a married person and is living with his family happily and peacefully and also the fact that he remained in jail for about 11 months, the Court is of the view that it would be in the interest of justice to reduce the sentence of appellant/accused Sunder Lal to the sentence already undergone by him. 22. For the reasons recorded above, the appeal is partly allowed. The appellant/accused Sunder Lal is acquitted of the charge punishable u/s 365 IPC, but he is convicted for the offences punishable under Sections 363 IPC and 379 I.P.C. However, the sentence of appellant/accused Sunder Lal as awarded by the trial court is hereby set aside, instead his sentence is reduced to the sentence already undergone by him. 23. Let a copy of this order be sent to the trial court concerned for compliance of the order forthwith.