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2024 DIGILAW 631 (UTT)

Nikhil Kumar v. State of Uttarakhand

2024-10-15

ALOK KUMAR VERMA

body2024
JUDGMENT : (Alok Kumar Verma, J.) Present Appeal has arisen from the judgment dated 24.06.2017, passed by learned Fast Track Court/ Special Judge (POCSO)/ Additional District and Sessions Judge, Dehradun in Special Sessions Trial No.32 of 2016, “State Vs. Nikhil Kumar”, whereby, the appellant - accused has been convicted and sentenced to undergo rigorous imprisonment for a period of seven years along with a fine of Rs.5,000/- under Section 376 of the Indian Penal Code, 1860 (in short, “IPC”) read with Section 511 IPC, and, he has been further convicted and sentenced to undergo rigorous imprisonment for a period of two years along with a fine of Rs.5,000/-under Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 with default imprisonment. Both the sentences have been directed to run concurrently. 2. Briefly stated the prosecution case as it emerges from re-appreciation of the evidence on record is that a written information (Ext. Ka. 11) was given to the police by the victim’s mother (PW1) that today, on 08.05.2016, her daughter (PW2) was playing with the children outside her house at around 5:00 p.m. When she did not see her daughter, she asked the children about her daughter. The children told her that Nikhil had taken her daughter to his room to give her something. When she went to Nikhil’s room, she saw that he was trying to do wrong thing to her daughter. She made a noise. Nikhil ran away from there. Her daughter started crying. She informed about this incident to her husband and her brother-in-law (Dever). The said information (Ext. Ka. 11) was written by Bablu Sahni (PW7). 3. The victim, aged about 5 years, was medically examined on 08.05.2016 at 09:00 p.m. by Dr. Utkarsha Singh (PW5). 4. The First Information Report (Ext. Ka. 10) was registered on 08.05.2016 at 19:05 hrs. 5. The investigation was handed over to Sub-Inspector Uma Madhwal (PW6). 6. The statement under Section 164 of the Code of Criminal Procedure, 1973 of the victim was recorded on 11.05.2016. 7. The appellant-accused was arrested on 08.05.2016 at 10:45 p.m. 8. An underwear of the victim (Material Ext. 1) and an underwear of the accused (Material Ext. 3) were taken by the investigating officer. The said clothes were sent to the Forensic Science Laboratory Uttarakhand, Dehradun for examination. 9. 7. The appellant-accused was arrested on 08.05.2016 at 10:45 p.m. 8. An underwear of the victim (Material Ext. 1) and an underwear of the accused (Material Ext. 3) were taken by the investigating officer. The said clothes were sent to the Forensic Science Laboratory Uttarakhand, Dehradun for examination. 9. The statements of the witnesses were recorded and after concluding the investigation, a charge-sheet (Ext. Ka.9) was filed by the investigating officer (PW6). 10. The trial court framed the charges against the appellant-accused under Section 376 IPC read with Section 511 IPC and Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012. As the appellant-accused pleaded innocence, the trial was held. 11. In order to establish the accusation, the prosecution has examined seven witnesses. 12. The statement under Section 313 of the Code of Criminal Procedure, 1973 of the accused was recorded. The appellant-accused has denied all the incriminating evidence, produced by the prosecution. 13. The appellant-accused did not produce any evidence in his defense. 14. Heard Mr. Pooran Singh Rawat, learned Amicus Curiae for the appellant and Mr. V.K. Gemini, learned Deputy Advocate General assisted by Mr. Rakesh Negi, learned Brief Holder for State. 15. Mr. Pooran Singh Rawat, learned Amicus Curiae, has contended that though the informant, the mother of the alleged victim (PW1) and the alleged victim (PW2) have not supported the prosecution case in their examination-in-chief and the medical report of the alleged victim also does not support the prosecution case, the trial court has wrongly appreciated the evidence and convicted the appellant on the basis of the report of the Forensic Science Laboratory (Ext. Ka.12). The impugned judgment is not sustainable, and, therefore, deserves to be set-aside. 16. Mr. V.K. Jemini, learned Deputy Advocate General appearing for the State, on the other hand, has supported the impugned judgment. 17. I have carefully assessed the evidence adduced by the prosecution. 18. PW1 the informant, the mother of the victim, stated on 08.08.2016 that about three months ago the children were playing in Nikhil’s house at 2:00 - 2:30 p.m. She did not see her daughter. Someone told her that her daughter was in Nikhil’s room. She went towards Nikhil’s room and saw that Nikhil and her daughter were coming out. She was declared hostile by the prosecution. Someone told her that her daughter was in Nikhil’s room. She went towards Nikhil’s room and saw that Nikhil and her daughter were coming out. She was declared hostile by the prosecution. On cross-examination by the prosecution, she stated that she had not seen Nikhil doing anything wrong with the victim. 19. PW2 the victim has stated in her examination-in-chief that Nikhil resides next to her house. She calls him uncle. He used to come to her house. He took her to his room. He had made her sit on the bed and kissed her cheek but he had not removed her underwear. He had not removed any of his clothes or underwear. He was not lying on her and she did not cry. The conduct of the appellant does not fall within the expression of attempt to commit rape. Even according to the statement of the victim, no sexual intent is found in the conduct of the appellant. 20. The victim stated under Section 164 of the Code of Criminal Procedure, 1973 on 11.05.2016 that she was playing at 04:00 p.m. on 09.05.2016. Nikhil came there and told her that he would give her coconut. He took her to his house. He took her to his room. He took off his and her underwear. Her mother called her so he and she ran, but she stated in her examination-in-chief that she lied because her mother was not inside and she was scared. 21. PW3 is the father of the victim. He has stated that his wife had informed him about the incident. According to him, the police had seized the victim’s underwear in front of him. 22. PW4 is a resident of the village of the accused. As per his statement, his wife had informed him about the incident. 23. PW5 Dr. Utkarsha Singh had conducted the medical examination of the victim on 08.05.2016. While proving the medical report (Ext. Ka.1), she has stated that the victim was medically examined six hours after the incident. She has stated that the victim was normal during medical examination. There was an old injury on her lip. Her mother told her that the said injury was caused by a fight between brother and sister. There was no other injury on the victim’s body. No signs related to sexual assault were found on her body. 24. She has stated that the victim was normal during medical examination. There was an old injury on her lip. Her mother told her that the said injury was caused by a fight between brother and sister. There was no other injury on the victim’s body. No signs related to sexual assault were found on her body. 24. PW6 Sub-Inspector Uma Madhwal, the investigating officer, has stated that the accused was arrested on 08.05.2016. On the same day, she took the underwear of the victim and the accused. The said underwear of the victim and the accused were sealed and memo were prepared. The said sealed underwear were sent to the Forensic Science Laboratory on 11.05.2016 by the order of the court. 25. PW7 had written the information (Ext. Ka.11) at the instance of the informant (PW1). 26. Statement under Section 164 of the Code of Criminal Procedure, 1973 is not a substantive piece of evidence. It can be used to corroborate the statement of a witness and it can also be used to contradict a witness. 27. In the present case, when the appellant cross-examined about the statement of the victim recorded under Section 164 of the Code of Criminal Procedure, 1973, she stated that she had lied because her mother was not inside and she was scared. 28. The doctor did not find any injury on the victim’s body. The report of the Forensic Science Laboratory is also in the nature of opinion evidence as envisaged under Section 45 of the Indian Evidence Act, 1872 and like any other opinion evidence, its probative value varies from case to case. 29. PW6 Sub-Inspector Uma Madhwal, the investigating officer, has stated that she had taken the underwear of the victim and the underwear of the accused and sent them to the laboratory for examination. 30. The parcels of the said clothes were made available to the Forensic Science Laboratory with the seal of District Judge, Dehradun on 11.05.2016. As per the report of the Laboratory dated 23.08.2016 (Ext. Ka.12), the DNA obtained from the underwear of the victim and the underwear of the accused are from a single male human source and matching with each other. 31. The onus was on the prosecution to establish that the underwear of the victim and the accused were properly taken, properly stored and properly transmitted to the Forensic Science Laboratory. Ka.12), the DNA obtained from the underwear of the victim and the underwear of the accused are from a single male human source and matching with each other. 31. The onus was on the prosecution to establish that the underwear of the victim and the accused were properly taken, properly stored and properly transmitted to the Forensic Science Laboratory. Sub-Inspector Uma Madhwal, the investigating officer, (PW6) has not stated whose seal was put on the bundle of the underwear of the victim and the accused on 08.05.2016. Where were these clothes kept from 08.05.2016 to 11.05.2016? Even the Malkhana register of the police station was not produced. Therefore, the prosecution utterely failed to establish that the said clothes were properly taken, properly stored and properly transmitted to the Forensic Science Laboratory. The chain of custody of the same has not been established. In the absence of the same, the said report based on the opinion would be of no value. 32. Therefore, on basis of foregoing discussion, this Court is of the view that the prosecution has not been able to prove its case beyond reasonable doubt against the appellant. 33. As a result, this Court accepts the case of the appellant. Accordingly, the appeal is allowed. The impugned judgment of conviction and sentence dated 24.06.2017, passed by learned Fast Track Court/ Special Judge (POCSO)/ Additional District and Sessions Judge, Dehradun in Special Sessions Trial No.32 of 2016, “State Vs. Nikhil Kumar”, is set-aside. The appellant is acquitted of the charge under Section 376 IPC read with Section 511 IPC and Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012. 34. Mr. V.K. Jemini, learned Deputy Advocate General, on instruction, informed that the appellant has already been released from the jail. His bail bonds are cancelled and the sureties are discharged. 35. Let a copy of the judgment along with Original Record be sent to the trial court.