Decided on September 06,2013

NAFEES Appellant


- (1.) This appeal preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 28.11.2006 passed by Additional District & Session Judge/Ist Fast Track Court, Haldwani, District Nainital in Session Trial No.129 of 2004, whereby accused/appellant Nafees has been convicted under Sections 363, 366 and 376 I.P.C. and sentenced to undergo rigorous imprisonment under Section 363 I.P.C. for a period of three years with fine of Rs. 2,000/-, five years rigorous imprisonment under section 366 I.P.C. with fine of Rs. 2,000/- and rigorous imprisonment for a period of 10 years under Section 376 I.P.C. with fine of Rs. 10,000/-. It was directed that all the sentences shall run concurrently. The period already undergone during investigation and trial shall be adjusted. It was also directed that in default of payment of fine the appellant will have to undergo six months further imprisonment. Out of the fine, the prosecutrix shall be entitled to get a sum of Rs. 10,000/-.
(2.) Heard learned counsel for the parties.
(3.) Prosecution story is that on 29.07.2004 the complainant lodged F.I.R. with the allegation that on 29.07.2004 at around 02:00 in the night, when complainant and his wife were sleeping over the roof, suddenly rain started and they came into the room where their daughter was sleeping. There they did not find their minor daughter Km. Nasim Jahan. They also found the lock of the box opened. When the complainant saw the box he found Rs. 50,000/- missing. They went out to search out their daughter and they were informed by their neighbour Chotan, Babu that accused Nafees accompanied by some unknown persons ran away with their daughter. Inspite of search, their daughter was not found. Thereafter, the complainant lodged F.I.R. Chik report was prepared on 29.07.2004 against the accused appellant Nafees under Section 363 I.P.C. Prosecutrix was recovered after six days. She was sent for medical examination. Dr. Tara Arya examined her. She, in her medical report reported that index finger was inserted inside vagina easily but two fingers with difficulty. She also reported that exact comment about rape could not be given. For determination of age of the girl, she advised radiological examination. Dr. M.S. Sharma, Radiologist on the basis of X-Ray report opined that the age of the girl was between 16-18 years (Ext.Ka-9). Investigation was conducted by R.C. Lohani, S.H.O. (P.W.6), who made entry of report in the C.D. and prepared the case diary on the basis of the statements of the witnesses. He prepared recovery memo (Ext.-Ka-3) and also prepared site map of the place (Ext.Ka-5 and Ext.Ka-6). Matter was investigated and charge sheet was filed.;

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