Mohammad vs State Of Uttarakhand
2021 Latest Caselaw 146 UK

       IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

               Criminal Appeal No. 258 of 2014

Mohammad S/o Deen Mohammad
R/o Village-Mohammad Anetha,
P.S. Pensa, District-Kaushambi (U.P.)
Presently Canteen No.1 Mandir Parisar,
Haldwani, District-Nainital           ........Appellant

                                  Versus

State of Uttarakhand                           .........Respondent
Mr. Shakti Singh, Advocate for the appellant.
Mr. V.S. Rathore, A.G.A. with Ms. Shivangi Gangwar & Gajendra Tripathi, Brief
Holder for the State.


Hon'ble Lok Pal Singh, J.

This criminal appeal is directed against the judgment and order dated 15/16.7.2014 passed by Special Judge (POCSO Act)/Sessions Judge, Nainital, whereby the appellant has been convicted under Section 377 of IPC and has been sentenced to undergo rigorous imprisonment for a period of seven years alongwith a fine of Rs.20,000/-. He has been further convicted under Section 323 of I.P.C. and has been sentenced to undergo rigorous imprisonment for a period of one year. He has been further convicted under Section 506 of I.P.C. and has been directed to undergo rigorous imprisonment for a period of two years. It was directed that all the sentences were run concurrently. The appellant was further convicted under Section 6 of POCSO Act and was directed to undergo ten years rigorous imprisonment alongwith a fine of Rs. 20,000/-. All the sentences were directed to run concurrently.

2. Prosecution story in brief is that a report at P.S. Haldwani was lodged by PW1 with the averments that he is resident of Haldwani and is working

as Labourer in Mandi, Haldwani since 16-17 years. It is stated that his son was working with the accused- appellant for the last one year. His son told him that accused-Mohammed used to assault him and also committed unnatural sex by giving threats for the last five months and threatened him of dire consequences if he disclose to anyone. On the basis of same, F.I.R. No. 38 of 2014 was registered against accused-Mohammad in respect of offences punishable under Sections 377 & 506 I.P.C. and 3/4 POCSO Act. Investigation of the case was carried out and on completion of investigation charge sheet was filed against the accused under Sections 377, 506, 323 of I.P.C. & Section 3/4 of Protection of Children from Sexual Offences (POCSO) Act, 2012.

3. On receipt of charge sheet, the case was committed to the court of Sessions for trial. After hearing the parties, the charges under Section 377, 323, 506 I.P.C. and Section 3/4 of POCSO Act were framed against the accused. The charges were read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. On denial of guilt, the prosecution got examined P.W.1 complainant/father of the victim (name withheld), P.W.2 victim (name withheld), P.W.3 brother of the complainant(name withheld), P.W.4 Dr. Vipin Pant, P.W.5 Constable Deep Chander Joshi and P.W.6 S.I. Shanti Kumar Gangwar (Investigating Officer). Thereafter, oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he stated that he has falsely been implicated in the case due to animosity. However, in defence Shiv Kumar was examined as DW1 and

appellant examined himself as DW2. The trial court, after hearing the parties and perusal of evidence, by the impugned judgment and order, convicted and sentenced the accused/appellant Mohammad, as above. Feeling aggrieved, he has preferred this appeal.

4. PW1 in his statement has stated that his son was working in a Canteen situated in Haldwani Mandi. He stated that his son told him that accused-Mohammed used to assault him and after giving threat committed unnatural sex with him for the last five months.

5. PW2 (Victim) in his statement has stated that he was working as a labourer in a canteen situated at Haldwani Mandi where present appellant was also working. He further stated that appellant committed unnatural sex with him on several occasions and threatened him of dire consequences if he dares to disclose anyone. After sometime he disclosed the act of the appellant to his father and other family members and lodged the report at police station, after which medical examination of the victim was done.

6. PW3 uncle of the victim also corroborates the version of P.W.1.

7. PW4 Dr. Vipin Pant, Senior Radiologist who conducted the medical examination of the victim proved medical report (Ex.A4) and opined that there is no evidence of carnal intercourse as no internal and external injury was found in the rectum of the victim.

8. PW5 Constable Deep Chandra is the subscriber of chik report who proved chick report (Ex. A8).

9. PW6 Sub Inspector Shanti Kumar Gangwar is the Investigating Officer who, on completion of investigation submitted the charge sheet.

10. Learned counsel for the appellant would submit that there are several material contradictions in the testimonies of the prosecution witnesses and there is no independent witness of the alleged incident; the trial court did not considered the fact that the medical evidence does not support the case of the prosecution. It is further submitted that appellant has falsely been implicated in the instant crime due to enmity.

11. Per contra, learned counsel for the State would submit that the learned trial court after proper appreciation of the entire facts held the appellant guilty for the charges.

12. I have heard the learned counsel for the parties and perused the papers available on record.

13. The appellant has been convicted for the offences punishable under section 377, 323, 506 IPC and under section 6 of the POCSO Act. In his statement, PW1- father of the victim has stated that his son was working as a labourer in the canteen of the appellant and has specifically stated at the time of the incident he was 16 years old, but, the trial court ignored the fact that the prosecution had not adduced any evidence on record to establish that the victim was 16 years of age at the time of the incident. No cogent evidence has been adduced to prove the age of the victim which itself

create doubt whether on the date of the incident the accused was minor or not.

14. In his cross-examination PW2 (victim) has stated that Shivkumar and Ramesh also worked with him in the canteen and they used to sleep together in the canteen room. This version of PW2 creates doubt in his testimony due to the reason though both victim, Shivkumar, Ramesh and appellant sleep together in a common room but none of these two i.e. Shivkumar and Ramesh witnessed the alleged incident and make any allegation against the appellant. Rather in defence DW2 Shivkumar has stated in oath that he, appellant and victim sleep together in one room and he never seen the appellant committing wrong with the victim. He further stated that there was restaurant adjacent to the canteen which remained opened till 12 hrs.

15. Accused-appellant who examined himself as DW2 has stated that his partner Nandlal Sahu has falsely implicated him in the crime in order to grab the tender of the canteen.

16. P.W.4 Dr. Vipin Rawat, who conducted the medical examination of the victim has fairly stated that there is no evidence of commission of sodomy upon the victim. He also conducted the medical examined of the appellant and found no injury on his body and in his organ. As per the pathological report no dead or alive spermatozoa was found in the slide.

17. The medical evidence could be and should be definite against the accused person, but in the present

case, the medical evidence did not corroborate with the prosecution story. In the medical examination of the victim, no injury on his internal or external part has been found. Thus, this Court is of the view that the prosecution failed to produce any medical evidence to prove the allegation of sodomy.

18. PW2 (victim) has deposed that accused had committed carnal intercourse with him for last five months and threatened him not to disclose the incident to anyone otherwise he would kill him. If the appellant has committed something wrong, in such normal circumstances, PW2 would have shouted and called the people for help as there was restaurant adjacent to the canteen which remained opened till 12 hrs, as per the version of DW1, but in his statement victim has stated that no one resides near the canteen, which creates doubt in his testimony. The appellant in his statement recorded under section 313 Cr.P.C. has stated that he has falsely been implicated in the case due to enmity as his partner wants to grab and run the canteen alone.

19. This Court thinks that in absence of reliable evidence and also due to non-corroboration of medical evidence, benefit of doubt can be given to the accused appellant.

20. Hon'ble Apex Court in catena of judgments has held that if any reasonable doubt is created as to mens rea, the benefit of doubt shall go to the accused by holding that the charge had not been established beyond doubt. There is not cogent evidence to prove that the accused had carnal intercourse with the victim. It is

settled law that the solitary testimony of a victim is sufficient for convicting the accused provided the testimony is unimpeachable and trustworthy. It should be reliable so as to establish that the accused had committed the offence beyond any reasonable doubt. The prosecution has failed to convincingly establish the guilt of the accused beyond the shadow of all reasonable doubt, therefore, prosecution has failed to produce cogent evidence against the accused to convict him, taking the same into consideration, no case under Section 6 of POCSO can be made out.

21. In Krishan Kumar Malik v. State reported in (2011) 7 SCC 130, the Supreme Court had observed as under:

"31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality..."

22. In State of Rajasthan v. Babu Meen reported in (2013) 2 SCALE 479, the Supreme Court had explained that oral testimony can be classified into three categories, namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. An accused can be convicted on the basis of wholly reliable testimony of a single witness. However, testimony of a witness, which is neither wholly reliable nor wholly unreliable would require corroboration. The relevant extract of the said decision is set out below:

"8. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the

conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused."

23. Thus, considering the law laid down by the Apex Court in the above mentioned cases and in the facts and circumstances of the instant case that the prosecution was not able to prove the ingredients of Section 6 of POCSO Act and Sections 323 & 506 of I.P.C., I am of the considered opinion that the court below by ignoring the evidence on record or taking into consideration the inadmissible evidence convicted the accused/appellant for the aforesaid offences. Therefore, the judgment and order passed by the learned trial court convicting the appellant and to undergo imprisonment is liable to be set aside.

24. In the result, criminal appeal is allowed. Impugned judgment and order dated 16.7.2014 passed by Special Judge (POCSO Act)/Sessions Judge, Nainital in Session Trial No.15 of 2014, State vs. Mohammad is hereby by set aside. Appellant is on bail. He need not surrender. His bail bond is canceled. Sureties are discharged.

25. Let a copy of this judgment along with lower court record be sent back to the court below for ensuring compliance.

(Lok Pal Singh, J.) 13.01.2020 Mamta