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Judgment
Hon’ble Ravindra Maithani, J. (Oral)
Instant appeal is preferred against the judgment and order dated 17.08.2023, passed in Special Sessions Trial No. 48 of 2019, State of Uttarakhand Vs. Sadiq @ Chand and another, by the court of Additional District and Sessions Judge/FTSC (POCSO), Dehradun. By it, whereas the appellant no.1 Sadiq @ Chand has been convicted under Section 506 and 120B IPC and Section 5(j) (ii)/6 of the Protection of Children From Sexual Offences Act, 2012 (“the Act”), the appellant no.2 Hussnojahan @ Husanara has been convicted under Sections 506, 120B IPC and Section 17 of the Act, and sentenced as hereunder:-
Appellant no. 1 Sadiq @ Chand
Under Section 506 IPC:- to undergo rigorous imprisonment for a period of two years with a fine of Rs.1,000/-. In default of payment of fine, to undergo simple imprisonment for a further period of one month.
Under Section 120B IPC- to undergo rigorous imprisonment for a period of twenty years with a fine of Rs.1,000/-. In default of payment of fine, to undergo simple imprisonment for a further period of one month.
Under Section 5(j) (ii)/6 of the Act- to undergo rigorous imprisonment for a period of twenty years with a fine of Rs.25,000/-. In default of payment of fine, to undergo simple imprisonment for a further period of three months..
Appellant No.2 Hussnojahan @ Husanara
Under Section 506 IPC:- to undergo rigorous imprisonment for a period of two years with a fine of Rs.1,000/-. In default of payment of fine, to undergo simple imprisonment for a further period of one month.
Under Section 120B IPC- to undergo rigorous imprisonment for a period of twenty years with a fine of Rs.1,000/-. In default of payment of fine, to undergo simple imprisonment for a further period of one month.
Under Section 17 of the Act- to undergo rigorous imprisonment for a period of twenty years with a fine of Rs.1,000/-. In default of payment of fine, to undergo simple imprisonment for a further period of one month.
FIR in the instant case was lodged by the PW2, the father of the victim. According to it, the appellant no.1 Sadiq @ Chand established physical relations with the victim, a girl aged 14 years, in the month of April, 2018, on multiple occasions. This fact was known to the appellant no.2 Hussnojahan @ Husanara. Both the appellants are husband and wife. FIR records that the appellants also threatened the victim to life, in case, she reveals the incident to anyone. The day when the FIR was lodged, the victim was 7 months’ pregnant. Based on this FIR, Ex. A2, Chik FIR, Ex. A8 was lodged at the Police Station Nehru Colony, Dehradun on 07.01.2019 and a Case Crime No. 06 of 2019, under Sections 376, 506 IPC and Section 5/6 of the Act was lodged. Extract of General Diary is Ex. A9.
The victim was examined under Section 164 of the Code of Criminal Procedure, 1973 (“the Code”), when she stated that the appellant no.2 Hussnojahan @ Husanara telephonically called the victim at her home, where the appellant no.1 Sadiq @ Chand locked the door, established physical relation with her and handed over her Rs.100/-. Meanwhile, the appellant no.2 Hussnojahan @ Husanara returned. The victim revealed the incident to her. Thereafter, both the appellants threatened her to life. In her statement under Section 164 of the Code, the victim further revealed that twice again, the appellant no.1 Sadiq @ Chand established physical relations with her under the threat to her life.
The victim was medically examined on 08.01.2019 by PW4 Dr. Priyanka Uniyal. The history of the incident was narrated to the doctor by the victim. The medical examination report is Ex. A3. The Investigating Officer conducted the investigation and prepared site plan, Ex. A11. The Investigating Officer also procured the date of birth certificate of the victim, which is Ex. A5 and school leaving certificate, Ex. A6. The extract of scholars register is Ex. A7. In fact, the victim had delivered a child. The blood sample of the appellant no.1 Sadiq @ Chand was taken and it was sent for forensic examination. The Forensic Science Laboratory, Uttarakhand report, Ex. A17, did not connect the appellant with the child. It appears that another application was moved by the victim to the court concerned. Thereafter, the matter was further examined by the Forensic Science Laboratory, Uttarakhand and the Central Forensic Science Laboratory, Chandigarh, who submitted their reports, Ex. A-18 and Ex. A19, respectively. It also does not support the prosecution case and does not connect the appellant no.1 Sadiq @ Chand to the offence. After investigation, charge sheet, Ex. A16 under Sections 376, 506, 120B IPC and Section 5 (j) (ii)/6 and Section 16/17 of the Act was submitted against the appellants.
On 10.05.2019, charges under Sections 376, 506, 120B IPC and Section 5 (j)(ii)/6 of the Act were framed against the appellant no.1 Sadiq @ Chand, whereas charges under Sections 506, 120B IPC and Section 17 of the Act were framed against the appellant no.2 Hussnojahan @ Husanara, to which they denied and claimed trial.
In order to prove its case, the prosecution examined seven witnesses, namely, PW1 the victim, PW2 the father of the victim, PW3 the mother of the victim, PW4 Dr. Piyanka Uniyal, PW5 Anju Gangola, PW6 Constable 1220 C.P. Sumit Kumar and PW7 Sub Inspector, Pramila Bisht.
After prosecution evidence, the appellants were examined under Section 313 of the Code. According to them, they are innocent and they have falsely been implicated.
After hearing the parties, by the impugned judgment and order, the appellants have been convicted and sentenced, as stated hereinbefore. Aggrieved, the appeal.
Heard learned counsel for the parties and perused the record.
Learned senior counsel for the appellants submits that the prosecution has utterly failed to prove the case against the appellants. The court below did commit an error in convicting and sentencing the appellants. Therefore, while setting aside the impugned judgment and order, the appellants deserve to be acquitted of the charges leveled against them. He would raise the following points in his submissions:-
The DNA report does not connect the appellant no.1 Sadiq @ Chand to the offence.
It is not established that the appellant no.1 Sadiq @ Chand is biological father of the child delivered by the victim.
According to the PW1, the victim, she was telephonically called in the house of the appellants, whereas, it is argued that according to the PW2, the father of the victim, there was only one cell phone, which was with this witness. No call record was ever detected and produced before the court.
According to the FIR, on 07.01.2019, the victim was seven months’ pregnant and the incident took place in the month of April, 2018 on multiple occasions. He would argue that had the victim been conceived in the month of April, 2018, the seven months’ period runs in the month of November, 2018 and not in the month January, 2019. On this basis also, it is argued that the prosecution case is unbelievable. It is argued in the same breath that sensing this situation, when the victim was medically examined, the prosecution improvised the case when the victim told to the doctor that one more incident took place in the month of July also.
According to the statement of PW1, the victim under Section 164 of the Code, the appellant no.1 Sadiq @ Chand was all alone in his house when on the first occasion the offence was committed, whereas, in her statement, PW1, the victim has stated that on the first occasion when she visited the house of the appellants, the appellant no.2 Hussnojahan @ Husanara was getting ready to go to hospital and when, she left the house locking the doors from outside and, thereafter, rape was committed. It is argued that it also doubts the prosecution case.
The reasons for calling the victim are also divergent. Whereas, as per the statement given by the victim during her medical examination, the appellant no.1 Sadiq @ Chand called the victim for taking food, whereas in her statement under Section 164 of the Code, PW1, the victim has not stated as to why did she go to the house of the appellants on first occasion when rape was committed on her.
The statement of PW1, the victim is quite unreliable when she speaks that in the months of June and July, 2018, the appellant no.2 Hussnojahan @ Husanara again called the victim so that she may learn sewing and other skills and when the victim did not go, she came to her house, threatened her to life and took her in her house, where the appellant no.1 Sadiq @ Chand made her unconscious by putting a cloth on her mouth and threatened her to life. It is argued that it is totally unreliable story. Reference has been made on this aspect to the statement of PW2, the father of the victim to argue that he has not stated that he ever received any telephonic call from the phone of the appellants, instead he has said that when they detected that the victim is unwell, the victim revealed that twice, the appellant no.1 Sadiq @ Chand called her - once under the pretext of clothes and second time under the pretext of food. It is argued that both these reasons are unmatched with the statement of PW1, the victim.
The statement of PW1, the victim is totally unreliable. She is not clear as to how many times the sexual assault was done on her. As per medical history, which she revealed to the doctor, the act was done twice. In the court, she revealed about two incidents, but in her statement under Section 164 of the Code, she has stated about three incidents, without any dates. It is argued that this statement finds contradiction with the statement of the PW2, the father of the victim, who though in his examination-in-chief has stated that twice the act was done on the victim, but in page 3, 4th paragraph, 2nd line, PW2, the father of the victim tells that according to the victim, the incident took place only in the month of April, 2018. It is argued that it doubts the prosecution case.
The FIR is not supported by the PW1, the victim on dates, etc. and it is further not supported by PW2, the father of the victim.
The victim, PW1 is not a sterling quality witness. Her statement alone may not be basis for conviction. Her statement does not find any support from any other evidence. Hence, it is argued that the prosecution has failed to prove charges against the appellants and the appellants deserve to be acquitted.
In support of his contention, learned Senior Counsel has placed reliance upon the principles of law, as laid down in the case of Rai Sandeep @ Deepu and another vs. State of NCT of Delhi, (2012) 8 SCC 21, in which case, the Hon’ble Supreme Court considered the effect of the statements of the sterling witnesses and reiterated as to what amounts to sterling witnesses. In para 15 the Hon’ble Supreme Court observed as follows:-
“15.Keeping the above basic features of the offence alleged against the appellants in mind, when we make reference to the evidence of the so-called “sterling witness” of the prosecution, namely, the prosecutrix, according to her version in the chief examination when the persons who knocked at the door, were enquired they claimed that they were from the Crime Branch which was not mentioned in the FIR. She further deposed that they made a statement that they had come there to commit theft and that they snatched the chain which she was wearing and also the watch from Jitender (PW 11). While in the complaint, the accused are alleged to have stealthily taken the gold chain and wrist watch which were lying near the TV. It was further alleged that the appellant in Criminal Appeal No. 2486 of 2009 was having a knife in his hand which statement was not found in the complaint. After referring to the alleged forcible intercourse by both the appellants she stated that she cleaned herself with the red-coloured sock which was taken into possession under Exhibit PW-4/B in the hospital, whereas, Exhibit PW-4/B states that the recovery was at the place of occurrence. The police is stated to have apprehended the appellants at the instance of Jitender (PW 11) who knew the appellant in Criminal Appeal No. 2486 of 2009 even prior to the incident, that Jitender (PW 11) also revealed the name of the said accused to her and that, therefore, she was able to name him in her complaint. When the seized watch was shown to her in the court, the brand name of which was Omex, she stated that the said watch was not worn by her nephew Jitender (PW 11) as it was stated to be “Titan” and the chain was a gold chain having no pendant. She made it clear that that was not the chain which she was wearing and that it did not belong to her and that the watch found in the same parcel which was a women's watch was not the one which was worn by Jitender (PW 11).
On behalf of the appellants, learned Senior counsel further argued that, in fact, the statement of PW1, the victim under Section 164 of the Code and her statement in the court are not consistent. It is argued that it doubts the prosecution case. In support of his contention, learned senior counsel has placed reliance on the principles of law, as laid down in the case of Ashabul Hussain Vs. the State of Assam, 2026 Supreme (Gau) 646, wherein the Hon’ble Gauhati High Court referred to the principles of law, as laid down in the case of R. Shaji Vs. State of Kerala, (2013) 14 SCC 266, and in para 29 observed as follows:-
“29.On account of the contradiction in the statement of the victim made under section 164 Cr.P.C and her testimony before the learned Trial Court, we are of the view that the victim is not a sterling witness, as has been defined by the Hon’ble Supreme Court in the case of Rai Sandeep alias Deepu Vs. State (NCT of Delhi) report in (2012) 8 SCC 21. In the above case, the Hon’ble Supreme Court has held that a conviction can be based solely on a witness’s testimony if it is of very high quality, caliber and is unassailable. It held that the version of a sterling witness should be in a position to accept it at its face value without any hesitation. What would be relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution. In the present case, the statement of the victim under section 164 Cr.P.C is totally at variance with her testimony before the Court. There is no question of there being any pregnancy occurring on the basis of anal sex and the statement under section 164 Cr.P.C states that the only sex they had was anal sex.”
On the other hand, learned State counsel submits that the FIR may not be an encyclopaedia. It gives the description as to how the appellant no.1 Sadiq @ Chand committed the offence on PW1, the victim, in the month of April, 2018, on multiple occasions. He submits that in the medical examination report also, it is stated by PW1, the victim that an act was done with her in the months of April and June, 2018. Similarly, it is argued that PW1, the victim has stated so in the court. It is argued that PW2, the father of the victim has also stated about the incident that happened twice.
Before the evidence is examined, it would be apt to examine as to what the witnesses have stated.
PW1 is the victim. She has stated that she knows both the appellants. She was born on 13.03.2004. According to her, in the month of April, 2018, the appellant no.2 Hussnojahan @ Husanara telephoned her father, asking him to send PW1, the victim, so that the PW1, the victim could collect the food and take it to her home. PW1, the victim reached at the house of the appellants, where she found that the appellant no.2 Hussnojahan @ Husanara was getting ready to go to the hospital. At that moment, according to this witness, the appellant no.2 Hussnojahan @ Husanara told her that PW1, the victim should stay there, till she delivers meals to her daughter-in-law, who had delivered a child in the hospital and thereafter, she left the house, locking the door. It is stated by PW1, the victim that later on, the appellant no.1 Sadiq @ Chand bolted the door from inside, made her lay on the floor, untied her salwar and did galat-kaam with her. PW1, the victim wanted to come out and at that moment, the appellant no.1 Sadiq @ Chand handed her Rs.100 note and asked her not to reveal the incident to anyone or else threatened her to life. After a while, appellant no.2 Hussnojahan @ Husanara also came there and she also threatened her to life and put a knife on her shoulder that in case she reveals it to anyone, she would be killed. According to PW1, the victim, she did not reveal the incident to anyone.
PW1, the victim has stated about the second incident that after the first incident, in the months of June and July, 2018, the appellant no.2 Hussnojahan @ Husanara called her and asked her to learn sewing. This witness was busy in her school work. She did not go there. Subsequent to it, the appellant no.2 Hussnojahan @ Husanara came there and insisted PW1, the victim to accompany her and threatened her to life. Thereafter, PW1, the victim joined the company of the appellant no.1 Hussnojahan @ Husanara, where the appellant no.1 Sadiq @ Chand put a handkerchief on her mouth, due to which she became unconscious and when she regained consciousness, she found that she had no clothes on her body and there was white substance on the floor. She was further threatened to life and thereafter, this witness has stated as to how the appellants were questioned. She proved her statement under Section 164 of the Code before the Magistrate, which is Ex. A1.
PW2 is the father of the victim. According to him, the victim used to go to the house of the appellants. The victim was unwell, therefore, she was examined on 06.01.2019. She was pregnant. When asked, she was much scared. But after a while, she revealed that on two separate occasions, the appellant No.1 Sadiq @ Chand did rape her, on the first occasion, under the pretext of clothes and on the second occasion, under the pretext of food. Thereafter, according to this witness, the appellants were questioned.
PW3 is the mother of the victim. Her cross examination was not fully recorded. In the last paragraph, the court has recorded that the victim has started abusing the lawyers and the court. Therefore, the court recorded that at that stage, the witness is not able to depose and the evidence was closed. It is not full cross examination. It is admitted at Bar that thereafter, this witness, PW3, the mother of the victim was not called for further cross examination. Without full cross examination, the statement of PW3, the mother of the victim may not be termed as evidence. Therefore, it may not be read into evidence.
PW4 Dr. Priyanka Uniyal did medically examine PW1, the victim on 08.01.2019. She has proved the medical examination report, Ex. A3. She has also proved the pathological report, according to which, ultrasound reveals that PW1, the victim was 29 weeks and 4 days’ pregnant when her medical examination was conducted.
PW5 Anju Gangola is the school teacher, who has proved the school certificate, Ex. A5, extract of SR register and other documents Exs. A6 and A7.
PW6 Constable 1220 CP Sumit Kumar is the person, who lodged the FIR and recorded its entry in the General Diary. He has stated about it.
PW7 Sub Inspector, Pramila Bisht did conduct the investigation. She has stated about the steps taken during investigation and also proved the arrest memo, Ex. A10 and Site, Plan Ex. A11, which she prepared. She has given the application for taking blood samples of the appellant no. 1 Sadiq @ Chand, a newly born baby and PW1, the victim. She has proved those documents. Finally, she proved the charge sheet, Ex. A16.
Undoubtedly, the sole testimony of the victim may be the basis of conviction. In the case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain, (1990) 1SCC 550, the Hon’ble Supreme Court adverted to the status of the prosecutrix of a sex offence and held that she is really a very competent witness and the Evidence Act, 1872 nowhere stipulates that the statement of the prosecutix cannot be accepted, unless it is corroborated with the material particulars. In para 16, the Hon’ble Supreme Court observed as follows:-
“16.A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:
“It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary.” With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.”
Undoubtedly, the law on the subject is quite clear that the sole testimony of the prosecutrix may be a basis for conviction provided it inspires confidence and it is far away from inconsistencies, self-contradictions, etc. In cases, where the testimony of the victim is not fully reliable, at times the court seeks credence from other evidence as corroborative evidence. But corroboration is not a rule.
This Court will first and foremost examine as to whether the testimony of PW1, the victim is fully reliable or not. In other words, as to whether the sole testimony of PW1, the victim may be the basis for conviction?
Initially, when the DNA examination was done by the Forensic Science Laboratory, Uttarakhand, it was opined that the appellant no. 1 Sadiq @ Chand is not the biological father of the baby delivered by the victim. It is also stated by PW1, the victim herself as a witness that she gave another application to the court concerned for further taking of the samples and examination by the Forensic Science Laboratory. Second time, the examination was done by the Forensic Science Laboratory, Uttarakhand and the Central Forensic Science Laboratory, Chandigarh, which further concluded that, in fact, the appellant no.1 Sadiq @ Chand is not the biological father of the child delivered by the victim. This is one aspect of the matter.
It is true that according to the FIR, the incident took place on multiple occasions in the month of April, 2018. Soon after lodging of the FIR, on 08.01.2019, the victim was medically examined by PW4 Dr. Priyanka Uniyal. On that date, two dates were disclosed. Firstly, in the month of April, 2018, and secondly, in the month of month of June, 2018, when the appellant no.2 Hussnojahan @ Husanara called the victim for taking food in her house, this act was repeated by the appellant no.1 Sadiq @ Chand. It means, according to the medical examination, twice the sexual act was done by the appellant no.1 Sadiq @ Chand on the victim. But, in her statement recorded under Section 164 of the Code, PW 1, the victim has stated that thrice the sexual act was done by the appellant no.1 Sadiq @ Chand on her which is not consistent with the statement recorded in the FIR as well as the statement that was given by PW1, the victim before PW4 Dr. Priyanka Uniyal at the time of recording medical history.
In the court also PW1, the victim has further revealed that the appellant no.1 Sadiq @ Chand did commit sexual act on her twice; firstly, in the month of April, 2018 and, secondly, in the month of July, 2018. Therefore, PW1, the victim is not consistent about the occasion(s) when the sexual act was done on her.
The Court may not emphasize on the particular dates, when the sexual act is alleged because at times, the victim of such an offence, may not be in a position to remember the correct dates. But, fact remains that according to the FIR, the act was done only in the month of April, 2018 and it was done on multiple occasions. It is true that the FIR is not an encyclopedia, but material facts stated and found untrue makes the prosecution case doubtful. As stated, in her statement under Section 164 of the Code, PW1, the victim tells that thrice the sexual act was done with her, whereas in the court she tells that it was done twice in the months of April and July, 2018. Therefore, on this count, the statement of PW1, the victim is not fully reliable. It creates doubt in her testimony.
PW2, the father of the victim did not support the statement of PW1, the victim as to how many times the act was done because at one stage in his examination, PW2, the father of the victim says that twice the act was done; once under the pretext of clothes and again under the pretext of food. But, as stated, in his cross examination, he has admitted in page 3, para 4 that according to PW 1, the victim, the sexual act was done on her only in the month of April, 2018. Therefore, on the one hand, the statement of the victim is not as such believable and there are inherent contradictions in her statements, on the other hand, it is further not corroborated by the statement of PW2, the father of the victim. It doubts the prosecution case.
There are other aspects of the matter also. As to what was the occasion for the victim to visit the house of the appellants? The FIR does not record any reason on this aspect. Although, during her medical examination, PW1, the victim has stated that in the month of April, 2018, the appellant no.1 Sadiq @ Chand called her for taking food. In her statement under Section 164 of the Code, PW1, the victim did not tell as to why she was called. According to PW1, the victim, second time the appellant no.2 Hussnojahan @ Husanara called the victim so that she may learn sewing and when she did not go, the appellant no.2 Hussnojahan @ Husanara visited her house and under threat took her in her house. Was not there any other person in the house of PW1, the victim? Could not she raise any alarm?
According to PW1, the victim’s statement under Section 164 of the Code, for the first time, when she reached the house of the appellants, only the appellant no.1 Sadiq @ Chand was in the house when he raped her. But, in court PW1, the victim has not supported this part of her statement. In court, PW1, the victim said that for the first time, when she reached in the house of the appellants, both of them were there; appellant No.2 Hussnojahan @ Husanara was getting ready for hospital; she left for hospital locking the door and thereafter the appellant no.1 Sadiq @ Chand bolted the door and raped her. She further tells that thereafter, the appellant no.1 Sadiq @ Chand also threatened her and when appellant no.2 Hussnojahan @ Husanara came and she complained to her, she was threatened to life by placing a knife on her shoulder. Who was in the house, when for the first time PW1, the victim visited the house of the appellants? There is inconsistency in the statement of PW1, the victim. It creates doubt on the testimony of PW1, the victim.
The statement of PW1, the victim is not inspiring any confidence. There are multiple contradictions in the statement of PW1, the victim, which were put to her in her cross examination. Like, during her examination in the court, PW1, the victim has stated that for the second time when she was forcibly taken to the house of the appellants, the appellant no.1 Sadiq @ Chand put a handkerchief on her mouth, thereafter, she became unconscious. But when confronted, PW1, the victim has stated that she did not reveal this incident of becoming unconscious to the Investigating Officer. Similarly, in her statement PW1, the victim has stated that the appellant did put a knife on her shoulder and threatened her to life, but this was also not revealed to the Investigating Officer.
The statement of PW1, the victim is not like that of sterling witness. It has inherent inconsistencies and weaknesses. It may not be the sole basis for conviction. The statement of PW2, the father of the victim, in fact, does not support her statement so as to prove the case beyond reasonable doubt. PW3 the mother of the victim was not completely cross examined, hence, as stated, her statement may not be read in evidence. The DNA report also does not support the prosecution case. There is no other evidence.
In view of the foregoing discussion, this Court is of the view that the prosecution has utterly failed to prove the case against the appellants beyond reasonable doubt. The appellants deserve to be acquitted of the charge levelled against them. Accordingly, the appeal deserves to be allowed.
The appeal is allowed.
The impugned judgment and order dated 17.08.2023, passed in Special Sessions Trial No. 48 of 2019, State of Uttarakhand Vs. Sadiq @ Chand and another, by the court of Additional District and Sessions Judge/FTSC (POCSO), Dehradun is set aside.
Appellant no. 1 Sadiq @ Chand is acquitted of the charge under Sections 506 and 120B IPC and Section 5(j) (ii)/6 of the Act and the appellant no.2 Hussnojahan @ Husanara is also acquitted of the charge under Sections 506, 120B IPC and Section 17 of the Act.
Appellant no.2 Hussnojahan @ Husanara is on bail. She need not surrender. Her bonds are cancelled and sureties are discharged of their liability.
The appellant no.1 Sadiq @ Chand is in custody. Let he be released forthwith, if not wanted in any other case.
The appellants Sadiq @ Chand and Hussnojahan @ Husanara shall furnish a personal bond and two sureties each of the like amount, by each one of them, to the satisfaction of the court concerned under Section 437 A of the Code within one month from today.
Let a copy of this judgment along with Lower Court Record be sent to the court concerned.