CHOTEY ALIAS DARGAHI Vs. STATE

JUDGEMENT

(1.) THIS criminal appeal, preferred u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 27.11.1990 passed by IVth Additional Sessions Judge, Nainital in Sessions Trial No. 260 of 1989, whereby the learned IVth Additional Sessions Judge has convicted the appellants -accused Chotey and Asgar under Section 366 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to three years R.I. Both the sentences were directed to run concurrently. However, co -accused Smt. Parvin was acquitted of the charge framed against her. I have heard Sri Rajeev Sharma, learned counsel for the appellant No. 1 and Sri S.K. Mandal, learned counsel for appellant No. 2 as well as Sri Harish Pujari, learned Additional G.A. for the State/respondent and perused the entire material available on record.

(2.) IN brief, the prosecution case is that on 13.07.1988, the father and mother of victim Km. Mehrulnisha had gone to forest for cutting grass and she was alone at her house and at the time of the incident, she was about 18 years old. When Ali Hussain, father of victim Km. Mehrulnisha came back, then he did not find his daughter at home. After that he started searching his daughter. Then, Jamil Ahmad and Sabir Sah met him and informed that at 9:00 A.M., they had seen Km. Mehrulnisha while standing with appellants/accused Chottey and Asgar near Khudaganj. They also informed that when they asked from appellants/accused that where they were taking Km. Mehrulnisha, then they told that her father Ali Hussain has received the injury in Pilibhit and her father has called her. With the same averments, the FIR was lodged by P.W. 3 Ali Hussain on 15.07.1988, in Police Chowki, Majhola, that FIR is Ex.Ka -1. On the basis of this FIR, Chik FIR was prepared by Head Moharrir Raghuvir Narayan Gupta, that Chik FIR is Ex.Ka -7. The FIR of the incident was lodged in Police Chowki, Majhola on 15.07.1988 at 7:15 P.M. and the distance of the Police Chowki from the place of occurrence is about 31/2 kilometers. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka -8. The primary investigation of the case was entrusted to S.I. D.C. Goley. The victim Km. Mehrunisha was recovered by the police along with appellants -accused at Majhola on 21.07.1988 and the recovery memo was prepared, i.e. Ex.Ka -2. The victim was given in the Supurdagi of her father Ali Hussain on the same date and Supurdaginama was prepared by the Investigating Officer, i.e. Ex.Ka. 3. Thereafter, victim Km. Mehrunisha was sent for medical examination and she was medically examined by the lady doctor P.W. 4. Smt. H.L. Pal, Upgraded P.H.C., Khatima on 21.07.1988 at 4:15 P.M. and she also prepared the medical report, that medical report is Ex.Ka. 4. Victim Km. Mehrulnisha was also sent for the X -ray and after the X -ray, the supplementary report was prepared, that supplementary report is Ex.Ka. 5. The Investigating Officer during the course of the investigation has prepared the site plan of the place of occurrence, that site plan is Ex.Ka. 6. Later on, investigation was transferred to another Investigating Officer P.W. 6 P.C. Pandey, who during the course of the investigation has recorded the statements of the witnesses and examined the relevant papers and after completing the investigation, he has submitted the charge sheet against the appellants -accused Chotey, Asgar and also against co -accused Smt. Parvin (who has been acquitted by the trial court) u/Ss. 363/366/376 I.P.C., that charge sheet is Ex.Ka. 9.

(3.) THE learned Sessions Judge has transferred the case to the IVth Additional Sessions Judge for hearing and disposal according to law.