IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 412 of 2001 (Old No. 2082/1998) Taufeeq Ahmad ..…. Appellant/Accused Versus State of U.P. …………… Respondent April 9, 2010 Mr. Ahrar Baig, Advocate for the appellant/accused. Mr. Amit Bhatt, Addl. GA for the State. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 4.8.1998 passed by the Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No. 122/1998, State v. Taufeeq Ahmad, whereby the appellant has been convicted under Section 377 and 308 of Indian Penal Code, 1860 (for short, IPC) and sentenced to undergo 4 years’ RI under each of the Sections and directed that both the sentences shall run concurrently. 2. In brief, the prosecution case is this that PW1 Anwar Hussain lodged the report in PS Kaladhungi on 29.12.1997 with the averments that on the same day i.e. 29.12.1997 at about 5 pm his child was playing in the courtyard aged about 3 years, namely Mohd. Azaz (PW4). The appellant accused has taken Mohd. Azaz in his laps towards Mazar to the forest. When his child could not come to the house up to long time, then he was worried. Then he inquired from Salim Ahmad (PW2) who also advised him to search his child. Then Asraf (PW3) has told him that he has seen accused appellant Taufeeq along with his child towards the Mazar. Meanwhile, he along 2 with Asraf and Salim has gone in the forest but Taufeeq has left his child in an unconscious condition in the door of his house and has ran away from the house. His son is in injured condition. He has told this incident to the people of the vicinity. Then Taufeeq was searched in his sister’s house where he was not met. To search Tafeeq, Aslam and Raees has gone to Kaladhungi. Then he was caught by them in Bazpur near bus station at about 7 pm and was taken to the police station. Child Azaz Ahmad was admitted in Kaladhungi Govt. Hospital for treatment. 3. With these averments, FIR Ex. Ka-1 was lodged on 29.12.1997 at 8.15 pm. On the basis of this, chick FIR Ex. Ka-5 was prepared by Constable Clerk Jagat Singh. He also made the necessary entry in the GD, copy of which is Ex. Ka-6. Investigation of this case was entrusted to SI SS Bisht (PW8). Victim was medically examined by PW7 Dr. Vinod Ratan who has prepared the medical examination report Ex. Ka-3. Appellant accused Taufeeq was also medically examined and his medical report Ex. Ka-4 was also prepared by the same Medical Officer Dr. Vinod Ratan. During the course of investigation, the I.O. has recorded the statements of the witnesses and prepared the fard Ex. Ka-2 of the recovery of clothes, site plan Ex. Ka-7 of the place of occurrence and after completing the investigation, he has filed the chargesheet Ex. Ka-8 against the appellant accused under Section 377 & 308 IPC. 4. Learned Judicial Magistrate, Haldwani after giving the necessary copies of the documents to the accused appellant as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 4.3.1998. Learned Sessions Judge transferred the case to Additional Sessions Judge for its disposal according to law. 3 5. Learned Special Judge/Additional Sessions Judge, Nainital framed the charges against the appellant accused on 24.4.1998 under Section 377 and 308 IPC. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Anwar Hussain, the complainant; PW2 Salim; PW3 Asraf; PW4 Mohd. Azaz, the victim; PW5 Mohd. Rafeeq; PW6 Mohd. Jahan; PW7 Dr. Vinod Ratan, who medically examined the victim and the appellant accused and PW8 SI SS Bisht, the I.O. of the case. 7. Thereafter, the statement of the accused appellant was recorded under Section 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. However, he has not produced any documentary or oral evidence in the defence. 8. After hearing learned counsel for the parties and after appreciating the evidence on record, learned Special Judge/Additional Sessions Judge, Nainital vide his judgment and order dated 4.8.1998 convicted and sentenced to the accused appellant as discussed above. Against the aforesaid judgment and order dated 4.8.1998, the accused appellant has preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 10. Victim Mohd. Azaz (PW4) was medically examined on 29.12.1997 at 8 pm by PW7 Dr. Vinod Ratan, 4 Medical Officer, Addl. PHC, Kaladhungi, who prepared the injury report Ex. Ka-3 and to prove the abovesaid medical report, the prosecution has examined PW7 Dr. Vinod Ratan, who has proved the same. 11. To further prove its case, the prosecution has examined PW1 Anwar Hussain, the complainant of the case who has reiterated the version made in the FIR and proved the report Ex. Ka-1. 12. PW2 Salim and PW3 Asraf have not supported the prosecution case and declared hostile. 13. PW4 Mohd. Azaz, the victim of the case who has stated that the accused was known to him. Appellant accused has taken him to the forest where he has received the injury. The appellant accused caused the injuries to him and the appellant accused has caused the injuries on his head and except this he has received no injury. He was taken to the Doctor for treatment. Doctor has examined him. He has further stated that the name of the accused is Mama. 14. PW5 Mohd. Rafeeq who has stated that he does not know where the I.O. has taken the clothes of the accused. He has identified his signature on the fard Ex. Ka-2. In cross-examination, he has stated that Ex. Ka-2 was not read before him. He has no knowledge from where police have recovered the clothes. 15. PW6 Mohd. Jahan who has also not supported the prosecution case and declared hostile. 16. PW8 SI SS Bisht, the I.O. of the case who has stated that on 29.12.1997, he was posted as SI in PS 5 Kaladhungi. The chick of this case was prepared by Constable Clerk Jagat Singh, that is Ex. Ka-5. Necessary entry was also made by him in the GD, copy of which is Ex. Ka-6. He has further stated that the investigation of this case was entrusted to him. During the course of investigation, he has recorded the statements of the witnesses, prepared the fard Ex. Ka-2 of the recovery of clothes of the accused appellant, also prepared site plan Ex. Ka-7 of the place of occurrence and after completing the investigation, filed the chargesheet Ex. Ka-8 against the accused appellant. 17. Thereafter, the statement of the accused appellant was recorded under Section 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. However, he has not produced any documentary or oral evidence in the defence. 18. Learned Counsel for the accused appellant submitted that on the basis of the evidence discussed above, the prosecution has not proved the case against the accused appellant beyond reasonable doubt. I find substance in the argument of learned Counsel for the accused appellant due to the following reasons: (i) That PW1 Anwar Hussain is the complainant of the case who is heresy witness. He is not an eyewitness of the case. (ii) That PW2 Salim, PW3 Asraf and PW6 Mohd. Jahan have not supported the prosecution case and declared hostile. (iii) That PW5 Mohd. Rafeeq is the only witness of proving the fard Ex. Ka-2, who has also stated that the clothes were not recovered before him and he has further stated that he does not 6 know that the police from where recovered the clothes. In this way he has also not supported the prosecution case. (iv) That now the only witness is the PW4 Mohd. Azaz, the victim of the case, who has also not stated anywhere in his statement that the accused appellant has committed carnal intercourse with him against order of nature. He has only stated that he has caused injury on his head. But medical examination report Ex. Ka-3 reveals that there is no injury on his head. He has even disclosed the name of the accused as Mama and the name of the appellant accused is Taufeeq Ahmad. Therefore, the victim and the eyewitnesses of the case have not supported the prosecution case. 19. For the reasons recorded above, the prosecution has miserably failed to prove its case against the accused appellant for the offence punishable under Section 377 and 308 IPC. Therefore, impugned judgment and order of the trial court is not correct and justified and the same is liable to be set aside. 20. In the result, the appeal is allowed. The judgment and order dated 4.8.1998 passed by the Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No. 122/1998, State v. Taufeeq Ahmad is set aside. Conviction of the appellant under Section 377 and 308 IPC is hereby quashed and sentence of four years’ RI under each of the aforesaid sections is hereby set aside. Appellant is on bail. He need not surrender unless required in any other case. His bail bonds are cancelled and sureties are discharged. 7 21. Let a copy of this judgment and order be sent to the trial court. Let the lower court record be also sent back. PRABODH (Dharam Veer, J.) 9.4.2010