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2024 DIGILAW 283 (UTT)

State of Uttarakhand v. Saleem

2024-04-29

RAKESH THAPLIYAL, RITU BAHRI

body2024
JUDGMENT : RITU BAHRI, C.J. 1. The State has come up in appeal against the judgment dated 03.10.2023 passed by Learned FTSC/Additional Sessions Judge, Roorkee, District Haridwar in Special Sessions Trial No. 187 of 2021, State Vs. Saleem, whereby the accused was acquitted under section 376 (A)(B) of the Indian Penal Code (I.P.C.) and under Section 5(l)/6 and section 5(m)/6 of Protection of Children from Sexual Offences(POCSO) Act, 2012. 2. The case setup by the prosecution is that Complainant/mother of the victim submitted a written report at Police Station Kotwali, Roorkee, District Haridwar with the contents that she along with her family earns living by begging and often sleeps on the footpath on the Nigam Bridge at night. On 28.10.2021 also she slept with her three children along with the victim. The complainant further averred that PW-3-victim had earlier told her that the watchman i.e. accused misbehaves with her by sexually assaulting her, but she did not believe her daughter earlier but today after watching the CCTV footage, she fully believes her daughter. 3. A charge-sheet was filed against the accused on 21.12.2021and on 02.04.2022 learned F.T.S.C/Additional Judge, Roorkee, District Haridwar framed charges against the accused under section 5(l)/6 and 5(m)/6 of POCSO Act. 4. The prosecution has examined the following witnesses: “PW-1-Complainant/mother of the victim PW-2-Father of the victim PW-3-Victim PW-4-Doctor Sanjay Tyagi PW-5-Doctor Ayushi Sharma PW-6-Lady Constable Sweety PW-7-Lady Constable Sunita PW-8-Sub-Inspector Karuna Ronkalia (Investigating Officer).” 5. The statements of the accused were recorded under section 313 of the Code of Criminal Procedure, 1973, wherein the accused denied the truthfulness of the evidence adduced by the prosecution against him and stated that he has been falsely implicated in this case. The accused was afforded the opportunity for adducing evidence in his defence but no defence evidence was adduced by the accused. 6. On 03.10.2023 Learned FSTC/Additional Sessions Judge, Roorkee, District Haridwar after hearing both the parties acquitted accused Saleem from the charges levelled against him under section 376 of the I.P.C. and sections 5(l)/6 and 5(m)/6 of the POCSO Act. 7. The complaint was lodged by the mother of the victim, however in her examination she has stated that her daughter did not tell her that the accused used to do wrong things with her. 7. The complaint was lodged by the mother of the victim, however in her examination she has stated that her daughter did not tell her that the accused used to do wrong things with her. She further stated that the police did not show her any CCTV footage in which the accused was seen doing wrong things with her daughter (victim). She further stated that the accused did not give her daughter 20 rupees. She also stated that she did not give any complaint against the accused to the police. In her cross examination this witness has stated that the police took her finger prints on papers and she did not file any case against the accused. 8. PW-2-Father of the victim in his cross-examination stated that “my wife did not tell me that our daughter says bad things about the accused. Salim would give things to eat and some money to my daughter. My wife never told me that Salim was seen doing dirty things with our daughter”. 9. PW-5-Dr. Ayushi Sharma stated in her examination that on 29.10.2021, she conducted the external and internal examination of the accused with the consent of the mother of the victim. She further stated that no fresh injury marks of any kind were found in the external examination of the victim. In her cross-examination this witness has stated that she did not conduct internal examination of the victim and the clothes that were taken from the body of the victim, did not have any marks on them. 10. PW.7-Lady Constable Sunita Mehta in her statements has stated that she was posted from 28.10.2021 in Police Control Room, Roorkee, District Haridwar. She further stated that government cameras are installed at Nagar Nigam Chowk. The cameras and their D.B.R. are operational. The footage from the D.B.R. dated 29.10.2021 was given to the investigating officer by her. She further stated that the said D.B.R has not been tampered with by anyone. A certificate in respect of the same was given by her to the investigating officer, which is in her hand writing and bears her signature. 11. The victim in her statements under Section 164 of Cr.P.C. has stated that she told her parents about the said incident however the parents of the victim have denied the victim having talked about the incident to them. 12. 11. The victim in her statements under Section 164 of Cr.P.C. has stated that she told her parents about the said incident however the parents of the victim have denied the victim having talked about the incident to them. 12. The trial court after going through all the evidences on record concluded that the non-existence of any injury on the genitals of the victim raises doubts on the credibility of the statements of the victim and hence not wholly reliable. The trial court further concluded that since the mother of the victim has not supported the prosecution’s case and has stated the case to be false, the situation requires the court to be careful in accepting the testimony of the victim. The trial court further concluded that the statements of the victim in the present case are not wholly reliable and hence cannot be made the sole basis for conviction of the accused especially when the statement of the victim is not corroborated by other evidences. 13. The trial court observed that the case was registered on the basis of the CCTV footage, however when the Learned Judge tested the pen drive at the Judicial Service Centre, no obscene footage was found inside it. 14. The trial court concluded that since the forensic report of the clothes of the victim and the accused, and the blood samples of the victim and the accused, that were sent to the Forensic Science Laboratory for testing, has come out to be negative, this raises doubt on the prosecution’s case. 15. The learned Trial Court concluded that PW-1-mother of the victim/complainant and PW-2-father of the victim did not support the prosecution case and were declared hostile by the prosecution as the complainant has refused to be shown any CCTV footage of the victim and the accused by the police. Further the father of the victim (PW-2) has also denied the victim narrating any incident to him, which casts serious doubt on the veracity and the story of the prosecution. 16. The trial court further concluded that the CCTV footage which was taken on pen drive was not sent to the Forensic Science Laboratory. Also, when the pen drive was examined at the Judicial Services Centre, no obscene footage was found inside it. 16. The trial court further concluded that the CCTV footage which was taken on pen drive was not sent to the Forensic Science Laboratory. Also, when the pen drive was examined at the Judicial Services Centre, no obscene footage was found inside it. Therefore, on the basis of the main evidence/CCTV footage, on which the case has been registered, no such footage was found on the pen drive which would prove that the accused had molested the victim or had committed any sexual assault, which casts doubt on the story of prosecution. 17. The trial court further concluded that the PW-5-Doctor Ayushi Sharma found no external injuries or fresh mark of injury on the body part of the victim therefore the prosecution story comes under doubt. 18. The trial court after going through all the documentary and oral evidences available on the record acquitted the accused as the prosecution failed in proving the guilt of the accused beyond reasonable doubt. 19. From the evidence available on record and upon hearing the learned counsel for the appellant, this court finds that except the testimony of the victim, there is no evidence to support the case of the prosecution. The medical evidence as well as the forensic evidence shows that there is no sign of sexual assault. Also, the parents of the victim in their testimony denied the accused having committed any offence with their daughter and stated that they didn’t file any complaint. There is no evidence on record to corroborate the testimony of the victim. In the case of Lallu Manjhi and Another vs. State of Jharkhand, (2003) 2 SCC 401 , the Hon’ble Supreme court has held as follows: “The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely: (i) wholly reliable. (ii) wholly unreliable. (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. [See: Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 ].” 20. Applying the aforesaid principles pertaining to appreciation of evidence of witnesses, particularly a child witness, it will have to be first examined as to under which category would the testimony of PW-2 i.e. victim fall in the present case. If the testimony is found to be wholly reliable, there would be no necessity of corroboration and if it was found to be wholly unreliable, it would have to be discarded. But, if it was found neither wholly reliable nor wholly unreliable, it would definitely require corroboration. In the present case, there is no single evidence to support the case of the prosecution and to corroborate the testimony of the victim. Even the F.I.R was lodged on the basis of the C.C.T.V. footage but there is no footage available on record to prove the case. In the facts and circumstances of the present case, the testimony of the victim cannot be formed the sole basis for convicting the accused. 21. For the reasons stated hereinabove, there is no merit in this appeal, and the same is, accordingly, dismissed. 22. Pending application, if any, also stands disposed of.