IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 303 of 2007 Nazmul Islam S/o Siraj Kaji R/o H.No. 127-E Block, Seemapuri, Delhi. ...…………. Appellant Versus State of Uttarakhand. ...…………. Respondent Mr. R.K.S. Verma, Advocate, present for the appellant. Mr. M.A. Khan, Brief Holder, present for respondent State. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 04.08.2007, passed by III Fast Track Court / Addl. Sessions Judge, Haridwar, in Sessions trial No. 320 of 2005, whereby accused / appellant Nazmul Islam has been convicted of the offence punishable under Section 366-A of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to rigorous imprisonment for a period of five years, and also directed to pay fine of Rs. 2,000/-. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that P.W. 1 Mohd. Nadeem (brother of the victim girl), P.W. 2 Baby (aunt of the victim girl), P.W. 3 Mohd. Naeem (father of the victim girl) along with victim Kasifa Khatoon, aged 14 years, all residents of Kathghar, Moradabad, had gone for ‘JIYARAT’ (pilgrimage) to ‘Kaliyar Sharif Dargah’ (Tehsil Roorkee), District Haridwar, on 28th of April 2005. At about 08:00 P.M., on said day, accused / appellant Nazmul Islam came and requested the above witnesses to have community meals (LANGAR). The above witnesses declined to have food. On this, the accused / appellant Nazmul Islam took the victim Kasifa Khatoon for meals. Since then, the girl could not be found and never returned. The case of the prosecution is that a search was made for the girl, but she could not be traced. A first information report (Ext. A –1) was got lodged by P.W. 1 Mohd. Nadeem on 30th of April 2005, at police station Kotwali Roorkee against accused / appellant Nazmul Islam, in respect of offences punishable under Section 363, 366 of I.P.C., alleging that he has enticed away the minor girl, and kidnapped her. Sub Inspector Surya Bhushan Negi (P.W. 5) started investigation, which was handed over to Sub Inspector Mohd. Yunus (P.W. 6), who completed the investigation, and submitted charge sheet (Ext. A –5) against accused / appellant Nazmul Islam, for his trial. 4) The Judicial Magistrate, Roorkee, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions, for trial of the accused in respect of offences punishable under Section 363, 366 of I.P.C. Learned Sessions Judge, Haridwar, after hearing the parties, framed charge of offences punishable under Section 363 and 366-A of I.P.C. against accused Nazmul Islam, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Mohd. Nadeem (complainant and brother of the victim), P.W. 2 Smt. Baby (aunt of the victim); P.W. 3 Mohd. Naeem (father of the victim); P.W. 4 Sub Inspector Jagdish Kumar (who registered the first information report); P.W. 5 Sub Inspector Surya Bhushan Negi (who started the investigation) and P.W. 6 Sub Inspector Mohd. Yunus (who completed the investigation). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C. by the Addl. Sessions Judge / III Fast Tract Court, Haridwar, to whom the case was transferred, for further trial. The accused / appellant Nazmul Islam in his reply under Section 313 of Cr.P.C. alleged that the evidence adduced against him is false. He pleaded that he is falsely implicated in the crime. 5) The trial court, after hearing the parties, found accused / appellant Nazmul Islam guilty of charge of offence punishable under Section 366-A of I.P.C. After hearing on sentence, the trial court sentenced the convict to rigorous imprisonment for a period of five years, and also directed to pay fine of Rs. 2,000/-. In default of payment of fine the convict was directed to undergo further imprisonment for a period of one year. Aggrieved by said judgment and order dated 04.08.2007, passed by III Fast Track Court / Addl. Sessions Judge, Haridwar, in Criminal Appeal No. 320 of 2005, this appeal is preferred by the convict. 6) Learned counsel for the appellant argued that the girl said to have been eloped was never recovered from the accused / appellant Nazmul Islam. It is further pointed out that from the statement of P.W. 1 Mohd. Nadeem, P.W. 2 Smt. Baby and P.W. 3 Mohd. Naeem it is clear that accused / appellant requested all of them to have food in the ‘LANGAR’ (community dinner), and when they declined, the girl Kasifa Khatoon was requested, and she had gone to take her meals in the ‘LANGAR’. Learned counsel for the appellant contended that had the accused / appellant any intention to kidnap the girl or to elope her for having illicit intercourse with anyone, he would have easily left the place, but the prosecution story itself shows that the girl was missing, while the accused / appellant remained there. Not only this, from the statement of P.W. 2 Smt. Baby (aunt of the victim) it has come on the record that Kashifa Khatoon (victim) was suffering from mental illness. This fact gets further corroboration from the cross examination of P.W. 3 Mohd. Naeem, father of the victim, who has stated that for 5-6 years the family used to come to ‘Kaliyar Sharif Dargah’ for her treatment, as the victim was ill and used to complain headache. P.W. 3 Mohd. Naeem, father of the victim, has himself admitted that in the ‘Kaliyar Sharif Dargah’ due to the fair, the place was crowded. 7) Having re-examined the evidence on record and after considering the facts and circumstances of the case, this Court finds that the trial court has erred in law in holding that the prosecution has successfully proved the charge of offence punishable under Section 366-A of I.P.C. against accused / appellant Nazmul Islam. It has come on the record that the girl was never recovered from the accused. It has also come on the record that though after the girl left to take her meals in LANGAR, on the day of incident, she got lost and could not be traced out, while the accused remained in the fair. Had he got any intention to elope the girl or kidnap her, the accused himself must have gone from the fair. The accused was not known to the victim. It has also come on the record that the victim was suffering from mental illness, and it cannot be ruled out that in the crowded place where the fair was on, the girl might get lost without there being any fault on the part of the accused Nazmul Islam. In the circumstances, it cannot be said that prosecution has successfully proved the charge of offence punishable under Section 366-A of I.P.C. against the accused / appellant Nazmul Islam, beyond reasonable doubt. 8) For the reasons as discussed above, this appeal deserves to be allowed. Accordingly, the same is allowed. The impugned judgment and order dated 4th of August 2007, passed by III Fast Track Court / Addl. Sessions Judge, Haridwar, in Sessions Trial No. 320 of 2005, is hereby set aside. The accused / appellant Nazmul Islam is acquitted of the charge of offence punishable under Section 366-A of I.P.C. The accused / appellant Nazmul Islam be set at liberty, if not required in connection with any other crime. Lower court record be sent back. Copy of this judgment be sent to the Superintendent of jail concerned, where the appellant was serving out his sentence. (Prafulla C. Pant, J.) [[ Dt. July 12, 2010. H. Negi