V.K. Bist, J. -
(1.) THIS appeal, preferred under Section 378 of Code of Criminal Procedure, 1973, is directed against judgment and order dated 22.12.2002, passed by the learned Sessions Judge, Dehradun, in Sessions Trial No. 21 of 1998, whereby the said court has acquitted the accused/respondent Dilshad from the charge of offences punishable under Section 363, 366 and 376 of I.P.C. Heard learned counsel for the parties and perused the lower court record.
(2.) PROSECUTION story, in brief, is that the complainant Smt. Walrila lodged a First Information Report on 03.10.1997 at 5:30 p.m. at Police Station Sahaspur, stating therein that accused/respondent Dilshad eloped/kidnapped her daughter Rukhsana, aged about 16 years on 23/24.09.1997 night. On the next day, the complainant went to the house of Dilshad, where the brother of accused, namely, Irshad met her and told her that her daughter might be in the house of Mansaf and that he would help her in the search of her daughter. On reaching Mansaf's house, Mansaf turned them out of his house and said that her daughter was not there. Thereafter, Irshad took her at one place and another for two days, but her daughter could not be found. On the basis of said report, Chik report (Ex. A -11) was prepared and case crime No. 309 of 1997 was registered in respect of offences punishable under section 363 and 366 of I.P.C., against the accused Dilshad and one Mansaf. Investigation was taken up by P.W.7 S.I. Madan Pal Singh, who interrogated the witnesses and started investigation. During investigation, Rukhsana, daughter of the complainant, was recovered from the Court complex of S.D.M., Dehradun. On 10.10.1997, Rukhsana was sent for medical examination. Her statement under Section 164 Cr.P.C. was recorded on 14.10.1997. During investigation, it came into light that Hamid and Wahid helped the accused Dilshad in kidnapping of Rukhsana. The Investigation Officer also made them co -accused. After completion of investigation, the said Investigating Officer submitted charge sheet against the accused Dilshad, for his trial in respect of offences punishable under Section 363, 366 and 376 of I.P.C. and a separate charge sheet was also submitted against the co -accused Hamid and Wahid in respect of offences punishable under Sections 363, 366, 376 and 120 -B of I.P.C. The Additional Chief Judicial Magistrate IVth, Dehradun, on receipt of the charge sheet, after giving necessary copies to the accused, as required under section 207 Cr.P.C. committed the case to the court of Sessions for trial. After hearing the parties on 30.10.1998, learned Sessions Judge, Dehradun, framed charge of offences punishable under Section 363, 366 and 376 of I.P.C. to which the accused Dilshad pleaded not guilty and claimed to be tried. However taking cognizance on the charge sheet filed against the co -accused Hamid and Wahid, the learned Sessions Judge framed charge of offences punishable under Section 114 of I.P.C. read with Section 366 of I.P.C. against the co -accused. On this, prosecution got examined P.W. 1 Rukhsana, P.W. 2 Smt. Wakila (complainant), P.W.3 Salatun, P.W.4 Dr. Manju Sachan, P.W.5 Dr. V.K. Nautiyal, P.W.6 Dinesh Bahuguna, P.W.7 S.I. Madan Pal Singh (Investigating Officer), P.W.8 Con. Anil Kumar, P.W.9 Smt. Kanchan and P.W. 10 Asgar Ali. Oral and documentary evidence was put to the accused under Section 313 of Cr.P.C. in reply to which he alleged that the evidence adduced against him is false. However, no evidence in defence was adduced. The trial court after hearing the parties opined that prosecution could not prove the charge of offences punishable under Section 376 of I.P.C. against the accused, and the accused Dilshad was given benefit of doubt for the offences punishable under Section 363 and 366 I.P.C. and acquitted him of the charge. Aggrieved by judgment and order dated 22.12.2001, passed by the learned Sessions Judge, Dehradun, in Sessions Trial No. 21 of 1998, this appeal is filed by the State, against the order of acquittal before this Court. Thereafter, leave to appeal was granted and appeal was admitted and lower court record was summoned.
(3.) P .W. 1 Rukhsana is star eyewitness of the incident. She is the alleged victim of kidnapping and rape. In her statement, she has clearly stated that after kidnapping, when the accused Dilshad was taking her, at that moment, one lady of her locality Smt. Salatun met them on their way. On her asking, Dilshad told her that victim has stomach pain and he is taking her to doctor. Rukhsana neither resisted to come out of the clutches of the accused nor she screamed for her protection. She further disclosed that that she got married to accused Dilshad. At the time of her statement before the Court, the prosecutrix has registered her age as 16 -17 years. In the medical report, her age has been ascertained in between 17 -18 years. The Radiologist P.W. 5 Dr. V.K. Nautiyal, in his cross -examination, has admitted that at the time of incident, the age of the victim was below 18 years and it can be presumed that there may be difference of six months in both upper and lower age.;