FAEEM Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) SINCE both the above titled appeals have been preferred against the same judgment and order dated 3.4.2013, therefore, these are being adjudicated together by this common judgment. Appellants Faeem @ Firoz and Ghaffar are under incarceration ever since the date of their arrest on 30.5.2012. They faced the trial in the Court of Additional Sessions Judge, Kotdwar for the offences of Section 376, 511, 325/34 and 506 IPC. These charges were levelled by the learned Sessions Judge, Pauri Garhwal on 4.9.2012. Witnesses were called. PW1 Ms. Samina, the prosecutrix and the main/star witness and her mother PW2 Niyajan were examined on 14.3.2013. PW3 Dr. Sangeeta Negi and PW4 Sub Inspector Narendra Singh were examined on 16.3.2013. PW5 Investigation Officer Mohd. Yunus was examined on 18.3.2013, while PW6 Dr. JC Dhyani and PW7 KC Sharma were examined on 20.3.2013.

(2.) AFTER examination of all the prosecution witnesses, an additional charge was levelled for the offence of Section 326/34 IPC against both the appellants and the learned Trial Judge was pleased enough to find the appellants guilty for the so amended charge under Section 326/34 IPC. It is very appalling that how the learned Additional Sessions Judge could satisfy herself to find the appellant guilty for the offence of Section 326/34 IPC, wherefor they were charged on 3.4.2013 while all the prosecution witnesses have been examined prior to the levelling of the said charge. It is obvious that the appellants/accused did not have any occasion to know that they were being tried for the offence of Section 326/34 IPC. So, their learned Counsel could not make the line of his cross -examination to the witness on that aspect.

(3.) LOOKING to the evidence of PW2 Smt. Niyajan, the prosecution story again becomes doubtful. She has stated that her daughter Ms. Samina regained her consciousness after 2 -3 days of the incident. Only then she could know as to what happened with her. It is quite strange, if the incident could be known by the PW2 only after regaining the consciousness by Ms. Samina after 2 -3 days of the incident, then the facts as have been stated in the FIR themselves become doubtful. Furthermore, she has stated that she (PW2) also lost her consciousness seeing the condition of her daughter and in that state, it is only the police personnel who recorded this FIR and she was made to put her thumb impression while she was still unconscious. Besides, the doctor has stated that Ms. Samina when brought in the hospital was though fully conscious but unable to speak, then how she could narrate the entire story to her mother has not been clarified anywhere by the prosecution. It shows that the averments in the FIR have been stated by her mother at her own and not at the verbose of Ms. Samina.