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2024 Supreme(UK) 611
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
ALOK KUMAR VERMA, J.
Nikhil Kumar - Appellant
Versus
The State of Uttarakhand - Respondent
Criminal Appeal No.326 Of 2017
Decided On : 15-10-2024
For the Appellant : Mr. Pooran Singh Rawat, Amicus Curiae.
For the Respondent:Mr. V.K. Gemini, Deputy Advocate General assisted by Mr. Rakesh Negi, Brief Holder.
IMPORTANT POINT
The prosecution must establish a proper chain of custody for forensic evidence; failure to do so creates reasonable doubt, leading to acquittal.
Headnote:
(A) Indian Penal Code, 1860 - Section 376 and Section 511 - Protection of Children from Sexual Offences Act, 2012 - Sections 7 and 8 - Conviction and sentencing of appellant for attempted rape and sexual assault - The trial court's conviction was based on forensic evidence, despite the victim and her mother not supporting the prosecution case. The prosecution failed to establish the chain of custody for evidence. (Paras 32, 33)
(B) Evidence - The probative value of forensic evidence varies and must be supported by proper chain of custody. (Paras 28, 31)
Facts of the case:
The appellant was accused of attempting to sexually assault a 5-year-old girl. The victim's mother reported the incident, but both she and the victim later recanted their statements in court. (Paras 2, 19)
Findings of Court:
The prosecution did not prove its case beyond reasonable doubt, leading to the acquittal of the appellant. (Paras 32, 33)
Issues: The main issues were the credibility of the forensic evidence and the lack of support from the victim and her mother. (Paras 15, 19)
Ratio Decidendi: The court emphasized the necessity of establishing a proper chain of custody for forensic evidence, which was not done in this case, leading to reasonable doubt regarding the prosecution's claims. (Paras 31, 32)
Result: Appeal allowed; conviction set aside and appellant acquitted.
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. 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 t
