NAFEES Vs. STATE OF UTTARAKHAND
HIGH COURT OF UTTARAKHAND
STATE OF UTTARAKHAND
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(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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