The prosecution failed to prove the charges of kidnapping and gang rape beyond a reasonable doubt due to contradictory evidence and lack of medical corroboration.

JUDGMENT :

Sanjeev KumarJ

1. This appeal by the two persons, namely, Mohd Aris and Mohammamad Shakeel, [“the appellants”], is directed against a judgment dated 25-10-2018 passed by the learned Sessions Judge (Principal District Judge) Poonch, [„the trial Court‟] in File No. 10/Sessions titled State v. Mohd Aris and ors, whereby the trial Court has convicted the appellants for commission of offences punishable under Sections 363 and 376D RPC . The order dated 30- 10-2018 passed in the aforesaid matter, sentencing the appellants to undergo Rigorous Imprisonment for 25 years and fine of Rs. 50000/- for offence under Section 376 (D) RPC and to undergo Rigorous Imprisonment for a term of 3 years and a fine of Rs. 10000/- for offence under Section 363 RPC is also subject matter of challenge in this appeal.

2. Before we advert to the grounds of challenge urged by Mr. Rajesh Kotwal, learned counsel appearing for the appellants, we deem it appropriate to set out the prosecution story as was put up before the trial Court.

3. On 05-07-2016 at 7.30 pm, PW-3 Mehmood Ahmad lodged a written complaint in Police Station Mendhar alleging therein that, the appellants were his neighbors and on 04-07-2016, the appellant No.1 came to their house with butter milk (Lassi). He along with his mother took said Lassi at the time of Iftaari. Meanwhile, the appellants along with sister of appellant No.1- Nusrat Bi, who stands acquitted by the trial Court, entered their house and asked the sister of the complainant (Z) aged about 17 years to smell from a bottle and to tell what type of scent was coming from it. It was alleged that after taking Lassi, the PW-3 and his mother turned unconscious. The appellants forcibly took his sister by holding her arm to their home. It was only at 10.30 PM, when complainant and his mother gained consciousness, it was found that his sister was not there. He narrated the whole story to his uncle and thereafter he along with his uncle went to the house of appellant No.1 where they found appellant No.1 and sister of the complainant (Z) lying on a cot in a naked position. It was alleged that when they entered into the room, the appellant No.1 was committing rape upon the sister of PW-3 and she was crying. On noticing him and others, the appellant No.1 jumped out of the window and ran away. The appellant No.2 and the sister of appellant No.1 raised hue and cry upon which about 200 persons assembled there. In the written complaint, it was also alleged by PW-3 that, he then put clothes on his sister and brought her home. In addition to the written complaint, PW-3 stated orally before the police that the appellants had kidnapped his sister with common intention of committing rape upon her.

4. On receiving the aforesaid information in writing as well as orally, case FIR No. 102/2016 for commission of offences under Sections 363/109 RPC came to be registered against the appellants. The investigation was set in motion by the police and the same was entrusted to Dy. Superintendent of Police Shahid Nayeem. The IO recovered the prosecutrix (Z) from the house of the appellant No.1 on the identification of PW-3 and proper recovery memo was prepared. The site plan and recovery memos with regard to one bed sheet and wearing apparels of the prosecutrix were prepared. The seized material was sent to the Forensic Science Laboratory for chemical examination. The statements of the witnesses under Section 161 Cr.P.C and 164-A Cr.P.C, wherever required, were also recorded. The arrest of both the appellants was affected in presence of the witnesses. Later on, on the identification of the prosecutrix, site map was also prepared. The prosecutrix and the appellants were taken to Government hospital for medical examination and the medical reports were obtained. The prosecutrix was thereafter handed over to her uncle PW-4. After about 17 days i.e. on 21-07- 2016, the statement of the prosecutrix under Section 164-A Cr.P.C was recorded before the Court in which