Uttarakhand High Court
Arshad @ Ashad Khan ...... Appellant vs State Of Uttarakhand on 14 May, 2025
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI G. NARENDAR
AND
HON'BLE SRI JUSTICE ALOK MAHRA
CRIMINAL APPEAL NO. 313 OF 2023
with
Bail Application No. 01 of 2023
14TH MAY, 2025
Arshad @ Ashad Khan ...... Appellant - Applicant
Versus
State of Uttarakhand ...... Respondent
Counsel for the appellant : Mr. Vinod Sharma and Mr. Kamlesh
Budhlakoti, learned counsel
Counsel for the respondent : Mr. J.S. Virk, learned Deputy
Advocate General assisted by Mr.
Rakesh Kumar Joshi, learned Brief
Holder for the State
The Court made the following:
ORDER:
(per Hon'ble The Chief Justice Shri G. Narendar)
Heard the learned counsel for the appellant-
applicant and the learned Deputy Advocate General for the
State.
2. The case of the prosecution is that the complainant
approached the Police Station Thana Kotwali, Roorkee on
17.11.2021, at about 08:30 A.M., and complained that his
daughter-victim, aged about 15 years, had left her home for
school Kendriya Vidyalaya did not return home after school
ended, and despite his best efforts to search for his daughter
and on inquiries with other students, who had studied along
with his daughter, he came to know that one Arshad Khan had
taken the victim on a motorcycle, and that along with him
Aasif, Arif and Kanhaiya were also present, and that he does
not know who these people were and why they took the victim
and that he fears that the four boys have kidnapped his
daughter and may do something wrong with her.
3. On the basis of the above complaint, the police
registered case as FIR No. 725 of 2021 against the four
accused for offences punishable under Section 363, 366A, 34
of IPC, and Section 16 and 17 of the POCSO Act, and after
completion of investigation, the case came to be registered as
Crime No. 725 of 2021 and charges were framed against
accused Arshad @ Ashad Khan under Section 363, 366A,
376(3), 34 IPC and Section 3(b) and 4(2) of the POCSO Act;
and under Section 363, 366A and 34 of IPC and Section 16/17
of POCSO Act as against Aasif Khan and Arif Khan, and as
against the fourth accused Kanhaiya, as he was a minor, a
separate challan came to be filed against him in the Juvenile
Court.
4. Charges were framed separately against the three
accused, and by judgment dated 05.04.2023, the first accused
namely Arshad @ Ashad Khan alone was found guilty. He was
convicted for the offences punishable under Section 363,
366A, 376(3) of Indian Penal Code and Section 3(b) and
Section 4(2) of the POCSO Act, 2012. The other accused nos.
2 and 3 namely Aasif Khan and Arif Khan were acquitted of the
charges under Section 363, 366A, 34 IPC and Section 16/17 of
POCSO Act. The appellant-applicant has been found guilty of
the offences punishable under Section 3(b) and 4(2) of the
POCSO Act, 2012, and sentenced to undergo imprisonment for
a period of 20 years, along with fine of Rs.20,000/-, and out of
the total fine amount of Rs.60,000/- levied on the convict
Arshad @ Asad Khan, a sum of Rs.50,000/- has been directed
to be paid to the victim.
5. The learned counsel for the appellant-applicant
would submit that the applicant has been falsely implicated
and that the evidence on record would clearly demonstrate
that the victim has concocted a story, and that the trial court
despite the inherent contradictions in the statement of the
victim has proceeded to render a finding of guilt and imposed
the maximum punishment of 20 years imprisonment. It is
contended that there is not even an iota of material to
demonstrate the charges either under Section 3(b) or Section
4(2) which deal with penetrative sexual assault. That the
medical record and the very statement of the victim herself
and her admission in the cross-examination make it amply
clear that at the most a case of sexual assault and not
penetrative sexual assault can be made out, and that the
victim has clearly admitted that the accused only touched her
vagina, and though in her statement recorded by the police
she has stated that the accused has inserted his finger into her
vagina, but in the cross-examination has clearly admitted that
the accused merely touched her vagina and that the trial court
has glossed over this crucial admission and has erroneously
held the appellant-applicant guilty of committing the offence of
penetrative sexual assault, i.e. the POCSO Act.
6. He would submit that the statement of the girl does
not disclose any place or any place of seclusion where they
could have indulged in such an act. In fact, it is admitted by
the victim that they travelled on a public road and in a public
transport, i.e., a bus, after initially riding on a motorcycle. He
would also point out that there is no evidence placed before
the court stating as to where the incident or the assault took
place, and that in the absence of such material evidence the
trial court has seriously erred in blindly accepting the
statement of the victim contrary to the medical evidence on
record.
7. He would take the court to the brief history
recorded by the doctor in the course of the medical
examination, which is marked as Ext. P-6, wherein the doctor
has recorded that she went voluntarily and they stayed in a
friend's house till 07:00 P.M., and then came to the Police
Station Civil Lines, Roorkee, and it is recorded by the doctor
that the victim has so stated that there was kissing and
physical intimacy and finger was inserted in her vagina. No
penis insertion was done.
8. On a query the learned Deputy Advocate General
would fairly admit that no site plan of the said house was
prepared by the investigating police. The statement also does
not disclose as to where this physical intimacy or
insertion/penetration took place.
9. The medical examination report wherein the doctor
has recorded his opinion of post examination reads as under :
". I, Dr. Gaargi Tyagi, examined __, D/o Vijaypal on
18/Nov/2021
. No fresh injuries were noted externally.
. UPT (by kit method) - negative
. Intact hymen was examined at the time of MLC.
. No obvious fresh injuries were noted internally.
. Confidential report No. 73/21, Dated : 18/Nov/2021, by
Dr. Rajat Saini Pathologist, SDH Roorkee, no
spermatozoa seen in 2 vaginal smear slides."
10. Learned counsel for the appellant-applicant would
contend that despite this glaring material which was staring at
the trial court and which clearly enable the court to draw a
presumption of absence of penetrative sexual assault the court
has blindly proceeded further. There being no material to
demonstrate the accusation of insertion of the finger into the
vagina and the admission in the cross-examination that the
accused had merely touched her vagina have all been
discarded by the trial court without assigning any cogent
reason.
11. In the absence of assignment of cogent reason for
discarding the material evidence favouring the accused the
appreciation of evidence is prima facie rendered perverse.
That apart, as stated by the learned counsel, the narration of
the victim would show that they were always in a public place
or in a public transport and there being no description of the
place where the incident occurred, i.e., the incident of
penetrative sexual assault, the evidence or statement of the
victim ought to have been taken with a pinch of salt and the
benefit of doubt ought to have been extended to the accused.
The arguments canvassed by the learned counsel for the
appellant-applicant merit consideration in our opinion. It is
neither the case of the prosecution nor the case of the victim
that the assault was carried out in full public view or in any
particular place. The absence of a place or of a site of incident
assumes significance as it is well known that acts of intimacy,
much less acts which amount to a penetrative sexual assault,
would not be carried out in any public place or in public glare
by any sane thinking people. It has also not come out in the
statement that the victim made any attempt to seek help or
alert anybody. We are of the prima facie view that such an
action would have been a conditioned reaction and more
particularly, in view of the fact that there is no mention of any
seclusion of the accused and the victim in any private place
and definitely any attempt to act in such a perverted manner
in a public place would have been resisted the version of the
victim prima facie appears suspect. Be that as it may, the
medical evidence suggests of an intact hymen and does not
disclose any injuries also. That apart, the forensic evidence
also rules out commission of any penetrative sexual assault.
In that view of the matter, at the most even accepting the
admission of the victim being true that the accused touched
her private part, the same would constitute an offence only
under Section 7 of the POCSO Act, 2012, which defines sexual
assault, and entails punishment for imprisonment of either
description for a term which shall not be less than three years
but which may extend to five years along with fine.
12. It is submitted that the appellant-applicant had
already spent 3 years 7 months in incarceration, and in view of
the fact that the accused was also a teenager at the time of
the alleged commission of the offence, we are of the prima
facie opinion that the appellant-applicant has made out a case
for grant of bail.
13. Accordingly, the bail application is allowed. The
sentence imposed under the judgment and order dated
05.04.2023, in Special Sessions Trial No. 08 of 2022, by the
court of Additional District and Sessions Judge / Special Judge
POCSO, Haridwar hereby stands suspended. Consequently,
the application for bail stands allowed. The appellant-applicant
Arshad @ Ashad Khan is directed to be enlarged on bail
forthwith, if not required in any other case, subject to
executing a bond for a sum of Rs.20,000/- and furnishing one
surety for a like sum, to the satisfaction of the jurisdictional
Magistrate.
14. List the appeal in due course.
_______________
G. NARENDAR, C.J.
___________
ALOK MAHRA, J.
Dt: 14TH MAY, 2025
Negi
