- (1.) POLICE of Police Station Rajouri challaned accused Mohd Taj and ten others in the court of A. D. M. Rajouri, for the commission of offence punishable under section 395, 366, 149 and 376 R. P. C. The prosecution case was that during the intervening night of May 4/5, 1976. accused persons 1 to 10 excluding Triloki Nath Razdan, formed an unlawful assembly and with a criminal intention in furtherence of their common object to commit dacoity and abduction of the wife of Nazir Hussain complainant in the case, entered into his house situate in Village Palam Nagrotta, armed with dealy weapons. After breaking open the door and windows of the house, kidnapped Fazilat Begum wife of the complainant and also took away clothes, ornaments etc. They then took the lady to the Jungle where Mohd Taj, Mohd Sadiq and Mohd Razaq accused had sexual intercourse with her against her will Triloki Nath Razdan, advocate accused too had intervening night of 16th/17th. May, 1976 at Rajouri when she had been brought to him by the accused persons for making legal consultations. The police during the investigation recovered certain stolen articles and also Fazilat Begum. Learned A. D. M. Rajouri, after an enquiry committed the accused persons to stand their trial before the court of Session at Rajouri offence under section 395, 366 and 376 RFC. Learned Sessions Judge, however, during the trial amended the charge and Mohd Taj, Mohd Sadiq and Mohd Razaq were charged under sectirn 395, 366 read with Section 149 and 376 RPC. while the other accused Sarwar Khan, Mohd Nazeer, Mohd Hussain, Kaloo, Fazal Hussain, Abdul Rehman, and Manzoor Hussain were charged under section 395, 366 read with sec. 149 RPC Triloki Nath Razdan Nath Rzzdan accused was charged under section 376 RPC. During the trial, Mohd Taj and Abdul Rehman absconded and proceedings under section 512 Cr. P.C. were initiated against them. It is also on record that during the trial, Fazilat Begum prosecutrix and Nazir Hussain complainant in the case also crossed over to Pakistan and on an application moved by the public prosecutor, their statement recorded in the committal court were brought on record of the trial court and read in evidence.
(2.) LEARNED Sessions Judge after having trial, convicted all the accused persons and sentenced them to various terms of imprisonment. Mohd Razaq, Mohd Sadiq, Manzoor Hussain, Fazal Hussain, Kaloo, Mohd Hussain, Mohd Nazeer and Sarwan Khan were sentenced to undergo rigorous imprisonment of five years each and to pay a fine of Rs 1, 000 each under section 395/149 RFC. They were further sentenced to rigorous imprisonment for three years and a fine of Rs 1000/ -each under section 366,149 R. P. C. Mohd Racaq. Mohd Sadiq and Triloki Nath Razdan, were sentenced to undergo rigorous imprisonment for a period of three years each and a fine of Rs. 1GOC/ -each section 376 R. P. C. Triloki Naih Rardan has filed criminal 1st appeal No. 17/82 against the order of his conviction whereas the other accused persons have filed separate criminal first appeal No. 18 of 1982 against their convictions and sentences. As both the appeals arise out of the same Judgement, same are being disposed of by the common Judgment.
(3.) I have heard learned counsel for the appellants and the learned Chief Govt. Advocate. I have also perused the record before me. Nazir Hussain is the complainant in this case. He filed a complaint before A. D. M. Rajouri, on 5.5.76 that he was married to Mst. Fazilat Begum and the marriage was solemnised only two months back. On May 4, 1976, when he was sleeping in his house. Sain, Taj Mohd. Razaq, Mah Sadiq, Sarwar Khan, Naseeb,. Ranbaaz, two cobblers and two bakarwals, entered into his house armed with riles, axes and sticks and they after pressing his throat as well as the throat of his grandfather Lal Din, took away two suits of terry -cot ladies suit, torch, each of Rs 12.00/ - and ornaments weighing three , tolas and also abducted his wife. The police has, however, not challaned Sain, Rangbaaz and other mentioned cobblers and Bakanvais. The police have recovered certain clothes during the investigation. The complainant had not mentioned about the particulars and identity of the clothes in the first information report (FIR) and recovery of the clothes under such circumstances does loose its importance and this fact cannot be taken into consideration for the conviction of the accused persons. The other circumstances mentioned in the FIR is that Lal Din, grand father of complainant was sleeping in Varandah of the house whose throat was pressed and he was made unconscious. Lal Din has appeared as a witness in the case and according to him the accused persons beat him and after that they broken open the door. His statement to this extent does not get any support from medical evidence. Pie is an old man and his throat was pressed as also he was beaten but there is no medical evidence on record to show the presence of any injury on his person.;