State Of Uttarakhand vs Nafees

Sudhanshu Dhulia, J

This Government Appeal has been filed by the State against the order dated 29.01.2013 passed by 4th Additional Sessions Judge, Haridwar in Session Trial No.172 of 2006, where the accused/respondent has been acquitted by the trial court under Sections 363, 366-A, 376 and 344 of IPC. Leave has already been granted by this Court.

Heard the learned State Counsel. No one is present in the Court to represent the accused/respondent.

A first information report was lodged by the father of the prosecutrix, called Rodha on 16.02.2005 at 01.30 pm at Police Station Jwalapur, District Haridwar which said that his daughter "Ms. A", who is about 14 years of age has been kidnapped by the respondent/accused, on the night of 13.02.2005 at 08.00 pm. No particular reasons have been assigned as to why the first information report has been lodged belatedly. The prosecutrix was recovered on 20.06.2005 at Dhanauri Road in Haridwar after four months. She was medically examined on 20.06.2005 at Female Hospital at Jwalapur, District Haridwar. The medical report states that there are no marks of injuries on any part of the prosecutrix. Further radiological examination of the prosecutrix was also done which shows her age to be of 18 years. There is no statement of the prosecutrix under Section 164 CrPC on record.

The police after its investigation filed the charge-sheet against the accused/respondent under Sections 363, 366-A, 376 and 344 of IPC on 13.07.2005. Thereafter, the matter was committed to the Sessions Court and subsequently charges were framed against the accused/respondent under Sections 363, 366-A, 376 and 344 of IPC by the learned District & Sessions Judge, Haridwar on 30.08.2006.

In order to prove its case, the prosecution has examined as many as 10 witnesses, out of which PW1 Rodha is the complainant and the father of the prosecutrix/victim, PW2 is the prosecutrix herself, PW 3 is the doctor who had examined the prosecutrix and conducted her medical examination on 20.06.2005. PW4 Chota is the brother of the complainant and is a witness of last seen. PW5 is a lady constable Darshan Kaur, PW6 is Ahmad Hasan, PW7 is Dr. Yogesh Kumar, PW8 is Sub Inspector Nanda Ballabh Bhatt, PW9 is Sub Inspector Chandramohan Singh Negi and PW10 is Constable Pradeep Maithani. All these witnesses are more or less formal witnesses.

After the examination of the prosecution witnesses, the accused/respondent was also examined under Section 313 CrPC, where he denied all the charges and said that the prosecutrix was being compelled to marry someone else, though she wanted to marry him. He denied all the charges of rape, kidnapping, etc.

What is important in this case is the age of the prosecutrix. It has clearly come in the medical report that the prosecutrix was 18 years of age. Moreover, the first information report was lodged belatedly, with no explanation as to the delay. The prosecutrix was recovered after a period of four months and the medical report does not support the case of the prosecution as to rape.

PW1 Rodha the complainant, has reiterated his version in the examination-in-chief as given by him in the first information report.

The testimony of the prosecutrix PW2 is important here. She evidently showed no resistance to the alleged act of kidnapping, even though there was no one else with the accused Nafees. Admittedly, she stayed with the accused for a period of four months. The medical examination of the prosecutrix does not suggest that she was traumatized, tortured or inflicted any kind of injury during this period. No injuries were found on the body of the prosecutrix in her medical examination, conducted on 20.06.2005. There was no other person admittedly with the accused either in the act of kidnapping or while she was taken to different places in Dehradun and Haridwar, where prosecutrix showed no resistance, and no explanation has come forward of this unusual behaviour, on the part of the prosecutrix.

PW 4 Chota is the witness of last seen, as he had last seen the accused and the prosecutrix together on 13.02.2005. This witness does not inspire our confidence inasmuch as not only he is the brother of the complainant but no reasons have been assigned by him as to why he did not report matter to the police when he had already seen his niece being kidnapped at the hands of the accused. Why he had not raised any alarm at the relevant time and why did he not inform his brother promptly. The FIR is delayed as it was lodged on 16.02.2005. There is no mention even in the FIR, that PW4 Chota had last seen the prosecutrix and the accused.

There is another witness of last seen i.e. PW 6 Ahmad Hasan who has turned hostile. Under these circumstances, we are of the view that this Government Appeal has no merit. The accused has rightly been acquitted by the trial court as there was no evidence placed by the prosecution on which the accused could have been convicted.

In view of the above observations, the Government Appeal is dismissed.

Let a copy of this judgment along with the lower court record be sent back to the court concerned for onward compliance.