JAVID Vs. STATE OF UTTARANCHAL
HIGH COURT OF UTTARAKHAND
STATE OF UTTARANCHAL
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Sudhanshu Dhulia, J. -
(1.) THIS criminal appeal arises out of a judgment and order dated 18.10.2003 passed by the learned Additional Sessions Judge/2nd F.T.C. Nainital in Sessions Trial No. 296 of 1998, by which trial court has convicted present appellant, namely, Javid under Sections 452, 363, 376 and 323 read with Section 34 of IPC as well as under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (from hereinafter referred to as "SC/ST Act") and consequently has sentenced accused/appellant Javid under Section 452 IPC for three years rigorous imprisonment and fine of Rs. 1000/ -, under Section 363 IPC for three years rigorous imprisonment and fine of Rs. 1000/ -, under Section 376 IPC for ten years rigorous imprisonment and fine of Rs. 1000/ -, under Section 323/34 IPC for one year rigorous imprisonment, and in default of payment of fine he was also directed to undergo rigorous imprisonment for six months in each case. The trial court has sentenced accused/appellant Javid under Section 3(2)(v) of SC/ST Act for life imprisonment and a fine of Rs. 2000/ - and in default of payment of fine he was also directed to undergo rigorous imprisonment for one year. All the sentences were ordered to run concurrently.
(2.) HEARD Ms. Pushpa Joshi, Senior Advocate assisted by Mr. Amit Kapri, Advocate for the appellant and Mr. P.S. Bohara, Brief Holder for the State. The complainant Man Singh (PW1) son of Madari resident of Village Baanskhera P.S. Kashipur District Nainital, is a "Harizan" (Scheduled Caste) by caste, reported to Station House Officer, Kashipur (Nainital) that his daughter "Nirmawati" was sleeping inside the "Chhappar" (thatched house), and he was sleeping in another room on the night of 23.3.1996. In the morning, his daughter could not be found in the house and he apprehends that someone took her away in the night itself. A search for the girl was made in the morning, but in vain. On 25.3.1996, the complainant along with some other persons again started searching for the girl when they finally discovered the girl in the graveyard. The girl was in a semiconscious state. There were visible injuries on the neck and head of the girl and she was taken to the hospital, where she was admitted. The report further states that the age of girl is 12 years and after the girl came to her senses she was taking name of a man called Javid (the present appellant before this Court). Javid son of Folde @ Chhannu resident of village Baanskhera, Nainital, who is also a Wrestler ("Pahalwan") took away his daughter in the night of 23.3.1996. While the girl was sleeping in her quilt her mouth was clasped and she was lifted and taken to a graveyard and according to the girl she was continuously kicked and slapped. Then, she was forced to take alcohol. She also vomited. Thereafter, her mouth and eyes were closed by a red cloth. The girl further takes a name of a person who had moustaches, who was amongst the persons who were assaulting her. Later she was also raped. The assailants also tried to throttle her but later gave up the idea. The complainant Man Singh has narrated all these facts in the First Information Report (from hereinafter referred to as FIR). The chik FIR shows that the FIR though was lodged on 26.3.1996 at 6.45 AM and case was registered being crime No. 294 of 1996 against Javid son of Folde @ Chhannu and another persons whose name is not known. The FIR itself has stated that the girl was discovered on 25.3.1996.
(3.) DURING the investigation, "Fard" memo of clothes recovered from the girl was also prepared by the police according to which - (1) one white cardigan of which both the sleeves were torn and it had blood stains, (2) one red colour sahvar which was torn and having blood stains and (3) one "kurta" which was also torn and having bloodstains.;
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