Shakir v. State of Uttarakhand

Code was filed. Based on it, after order of investigation, chick FIR was recorded on 18.10.2015 at 06:10 P.M. at Reporting Out Post Barhaini, Tehsil Bajpur, District Udham Singh Nagar. The victim was medically examined on 16.05.2016. Nothing was detected as such. In the history column, the victim has stated that, on the date of incident, appellant took her in the forest, disrobed her; she cried and resisted, but he did not yield to it. Junaid also resisted for it, but appellant tied her hands and feet and threatened Junaid also. As such, commission of rape has not been revealed to the Doctor examining the victim on 16.05.2016. The Investigating Officer conducted the investigation, prepared the site plan, took into custody the educational certificate of the victim and, after investigation, submitted charge sheet under Sections 363 ,366, 376 (i) & 506 IPC and Section 4/6 of the Act against the appellant.

4. On 27.08.2016, charges under Sections 363, 366, 376 & 506 IPC and Section 4 of the Act were framed against the appellant, to which, the appellant denied and claimed trial.

5. In order to prove its case, the prosecution examined seven witnesses, namely, PW 1- the victim, PW 2- the father of the victim, 4 PW3- Mohd. Junaid, PW 4- mother of the victim, PW 5-Dr. Tanuja Sinha, PW 6- S.I. Govind Singh Adhikari and PW 7- Chhaya Bhatt.

6. After prosecution evidence was over, the appellant was examined under Section 313 of the Code. According to him, he has been falsely implicated and the witnesses have falsely deposed against him. He admits that he had gone in the forest to get the woods and he was accompanied by Junaid and some four-five other boys. But, he denied the allegations. According to the appellant, the victim wanted to marry his younger brother and, in the Panchayat, it was subsequently settled also. Interestingly, in his examination under Section 313 of the Code, the documents, that were filed along with the bail application of the appellant, which includes a Nikahanama, a compromise and some affidavits, were put to him. He expressed ignorance. According to him, he was in jail; he does not know about these documents. But, he identified the signature of his father and younger brother on some documents. In essence, appellant has stated that he has been falsely implicated.

7. After hearing the parties, by the impugned judgment and order, the appellant has been convicted under Sections 363, 366, 376 & 506 IPC & under Section 4 of the Act and sentenced as stated hereinbefore. Aggrieved by it, the instant appeal is preferred.

8. Learned counsel for the appellant would submit that the entire case is false. He would submit that the victim has been examined as PW1. In her cross-examination, she has not supported the prosecution case. But thereafter, she has not been cross- examined, therefore, whatever has been stated by PW1-the victim in 5 her cross-examination, the prosecution cannot deny of it and it binds the prosecution.

9. In support of his contention, learned counsel for the appellant has relied on the principle of law, as laid down by the Hon’ble Supreme Court in the case of K. Anbazhagan v. Superintendent of Police and others, (2004) 3 SCC 767.

10. In the case of K. Anbazhagan (supra), the Hon’ble Supreme Court discussed the situation where a witness does not support the prosecution case in his cross-examination and he is not cross- examined by the prosecution, the Hon’ble Supreme Court held that the subsequent testimony of the witness remains uncontroverted. In Para 31, the Hon’ble Supreme Court observed as follows:- “31………………………………………………………………… ………………………………………………………………………………… It is further observed that normally when the Public Prosecutor requested for the permission to put cross-questions to a witness called by him the court used to grant it. It was further pointed out that if the Public Prosecutor had sought permission at the end of the chief examination itself the trial court would have no good reason for declining the permission sought for. On a combined reading of the aforesaid decisions of this Court, it emerges clearly that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross- examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. The decisions by this Court in the above-referred cases are rendered in cases where 6 the Public Prosecutor sought permission to question his own witnesses by resorting to Section 154 of the Evidence Act and the court allowed the Public Prosecutor to cross-examine his own witnesses. In such cases the trial Judge has discretionary power to examine the entire testimony and accept that part of testimony which he finds to be creditworthy and act upon it. But in the present case, the Public Prosecutor has not sought permission from the Court by resorting to Section 154 of the Evidence Act even though the witnesses have resiled from their earlier testimony. In such a situation the subsequent testimony of the witnesses remains uncontroverted. Just to take an example, when the witness now states that his earlier evidence was given under pressure and no attempt is made to cross-examine such a witness, the court may find it difficult if not impossible to accept the earlier statement. The trial Judge may find it difficult not to accept the subsequent testimony of the witness, which has remained uncontroverted. This causes great prejudice to the prosecution culminating in great miscarriage of justice.”

11. Learned counsel for the appellant further argued that, even if, it is accepted, as recorded in the impugned judgment that the prosecution has cross-examined PW1 after her cross-examination by the defence. The testimony of PW1 is not totally reliable. It cannot be the sole basis of conviction and there is no other material to support her evidence. No other witness has supported the prosecution case. Junaid, according to the FIR, also molested the victim on the date of incident, who, according to the victim’s statement recorded in examination-in-chief, had tried to save her from the clutches of the appellant, has also not supported the prosecution case. Therefore, it is argued that the prosecution has failed to prove its case beyond reasonable doubt. The appellant is liable to be acquitted of charges leveled against him. The court below has committed an illegality, while convicting and sentencing the appellant, therefore, the appeal deserves to be allowed. 7

12. On the other hand, learned State Counsel submits that on the date of incident, the victim was 13 years 8 months and 8 days old. She has supported the prosecution case in her statement given under Section 164 of the Code and in the trial. He submits that, in fact, after her examination-in-chief, the victim as PW1 has not supported the prosecution case in her cross-examination. Learned State Counsel submits that it is not a case that the prosecution has not cross-examined the victim after her cross-examination by the defence, where she has not supported the prosecution case. He submits that the impugned order, in paragraphs 35 and 49 categorically records that the victim was cross-examined further, after her cross-examination by the defence.

13. Learned State Counsel further submits prosecution has been able to prove its case based on the testimony of PW1-the victim and the statement of the appellant given under Section 313 of the Code lend credence to it, where the appellant has admitted that, on the date of incident, he has visited forest and, thereafter, Panchayat took place and the victim was married to his younger brother. He submits that the prosecution has been able to prove its case beyond reasonable doubt and no interference is warranted in the instant case.

14. Before the Court proceeds to appreciate the arguments, it would be apt to examine the evidence adduced by the prosecution.

15. PW1 is the victim. In her examination-in-chief, she states that, on the date of incident at 10:00 in the morning, when she returned from the tuition, the appellant came and told her that her 8 mother is calling her in the forest. Thereafter, she accompanied the appellant on his bicycle. They were followed by PW3-Junaid also. When they reached in the forest, the appellant asked PW3-Junaid to move towards other direction and raped her. She cried. When PW3- Junaid came, he threatened her to life. Thereafter, Junaid did not do anything. This witness was raped and, thereafter, she was threatened that, in case, she reveals the incident to anyone, she would be killed. She also submits that, at the time of incident, her hands and feet were tied by the appellant. Significantly, this PW1- the victim tells that, after that, both left, which means appellant and PW3- Junaid left the scene of occurrence together. Thereafter, according to this witness, a Panchayat was held in the village, where the victim was pressurized to marry with the appellant. To which, she denied due to age difference and, on the ground that she was raped by the appellant. Subsequently, it was agreed that the victim would marry the younger brother of the appellant. They were married also. But, younger brother of the appellant did not take the victim alongwith him, as his mother has objected to it. PW1-the victim also tells that, at the time of incident, she had sustained certain injuries. She also had bleedings in her lower parts. She has proved her statement recorded under Section 164 of the Code, which is Ext.A-1. At this stage, it may be stated that, during investigation, the statement of the victim as well as PW3-Mohd. Junaid was recorded under Section 164 of the Code.

16. PW2 is the father of the victim and PW4 is the mother of the victim. Both of them have not supported the prosecution case. In fact, PW2 has lodged the F.I.R. According to him, he is illiterate. Villagers did ask him to put his thumb impression on a report which 9 he has proved, that is the F.I.R. They have been cross-examined by the prosecution.

17. PW-3 Mohd. Junaid has also not supported prosecution. PW-5 Dr. Tanuja Sinha had conducted the medical examination of the victim on 16.05.2016. She did not find anything in the report. She has proved the medical examination report. PW-6 is the Investigating Officer. He has proved various police documents and charge sheet Ext.-A-7. PW-7 is the Principal of the School, where the victim had studied. He has proved the educational documents pertaining to age of the victim. According to him, the date of birth of the victim as per school record is 03.06.2000. This is the entire evidence.

18. Perusal of the impugned order reveals that, in fact, in paragraph no.69, the Court has observed that, in his examination under Section 313 of the Code, the appellant has stated that he has been falsely implicated, but he has not proved his ignorance.

19. Appellant has also been convicted under the provisions of Act. Sections 29 and 30 of the Act makes provision with regard to presumption, it reads as follows: “29. Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

30. Presumption of culpable mental state.—(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an 10 offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.”

20. But presumption does not mean that prosecution has not to prove its case beyond reasonable doubt. Prosecution, in fact, has to prove its case beyond reasonable doubt.

21. In the case of Noor Aga vs. State of Punjab & another, reported in (2008) 16 SCC 417, the Hon’ble Supreme Court has discussed the concept of presumption of guilt and the role of prosecution in such matters and, the Hon’ble Supreme Court observed as follows: “58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.” (emphasis supplied)

22. In view of the settle law even in the cases under the Act, where there is a provision of presumption of guilt, firstly the prosecution has to prove the case beyond reasonable doubt. Once it is proved only thereafter the role of defence begins. It is a case of 11 sexual assault on a girl child. Except the victim, all other witnesses have not supported the prosecution case. The question that arises is as to whether the statement of the victim, in such cases may be the sole basis of conviction.

23. In the case of State of Maharashtra vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550, the Hon’ble Supreme Court observed “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 corroborated in material particulars”…“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”.

24. In the case of Vijay @ Chinee Vs. State of Madhya Pradesh, reported in (2010) 8 SCC 191, this aspect has further been considered by the Hon’ble Supreme Court, where the Hon’ble Court observed “Thus, the law that emerges on the issue is to the effect that the statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.”

25. What is to be seen, as to whether the testimony of PW-1 is evidence of to that level, which may be the sole basis of conviction? A 12 statement of prosecutrix to be sole basis of conviction should be beyond any doubt, consistent, without any wavering effect in the testimony.

26. In the instant case, according to the application under Section 156(3) of the Code, which is basis of the FIR, soon after the incident, the victim has given report to Police Chowki In-charge, Barhaini as well as to Kotwali Bajpur. Where are those reports? They are important piece of evidence. It has not been adduced.

27. In the application under Section 156(3) of the Code, it is stated that, on the date of incident, it is the applicant alongwith PW- 3 Mohd. Junaid, who forcibly and by enticing, made the victim to sit on the bicycle and took her in the forest, where appellant raped her and PW-3 Mohd. Junaid molested her. But, in her statement under Section 164 of the Code and during trial as PW1 the victim has changed her version. There, she states that, on the date of incident, it is the appellant, who took her alongwith him on false pretext that her mother is calling her in the forest. It may be noted that, in the FIR, the allegations are against the appellant and PW-3 Mohd. Junaid that it is they both, who forcibly and by enticing took her away. This is beginning of alleged crime and there is a huge and material difference in the FIR and the statement of the victim recorded under Section 164 of the Code and in the court.

28. According to the FIR, not only appellant raped her, but, PW-3 Mohd. Junaid also molested her. But, in her statement under Section 164 of the Code and in the court, the victim tells that when the appellant raped her, PW-3-Mohd. Junaid tried to save her, but, 13 he was threatened by the appellant and he did not intervene thereafter and went away. This is another significant fact.

29. In the Court, the victim has more or less stated what she has stated in her statement under Section 164 of the Code, but, there is another material contradiction on that aspect also.

30. In her statement under Section 164 of the Code, the victim tells that when the appellant raped her, PW-3 Mohd. Junaid tried to save her. He was threatened by the appellant and thereafter PW-3 Mohd. Junaid left that place and went away. But, in her examination in the Court, the victim tells that when she was raped by the appellant, PW-3 Mohd. Junaid tried to intervene, but, he was threatened and he thereafter did not intervene and stood nearby and, after the incident, according to PW-1 the victim, both i.e. the appellant and PW-3 Mohd. Junaid went together. This is really material contradiction.

31. It may further be noted that, as per application under Section 156(3) of the Code, PW-3 Mohd. Junaid also molested the victim. This is not the prosecution case at trial. It may be noted that post examination-in-chief, when the victim was cross-examined, she did not support the prosecution case. She denied that any rape was committed on her. Thereafter, there is a dispute. According to learned counsel for the appellant, the PW-1 victim was not cross- examined; whereas, according to learned State Counsel, the victim was thereafter examined. In fact, as such, it is not recorded in the statement of the victim that after her cross-examination by the defence, she was further cross-examined by the prosecution. But, because after it, what is stated is through court and court observation, but, there are multiple paragraphs, which are in the nature of suggestions that she is telling a lie. Court cannot give such 14 suggestions. This Court is making this observation in view of the fact that in paragraph 35 and 49 of the impugned judgment, it is recorded that the prosecution did examine PW-1 the victim after her cross-examination by the defense. It may also be noted that the Presiding Judge, who recorded the statement of PW-1 the victim and who authored the impugned judgment, is one and the same. Therefore, it cannot be said that, after cross-examination of the victim by the defense, the prosecution did not cross-examine PW-1 the victim. The victim was cross-examined by the prosecution. It cannot be said that the statement of PW-1 the victim given in her cross-examination by the defense remained uncontroverted.

32. In view of the foregoing discussion, this Court is of the view that, in fact, there are material contradictions in the statement of PW-1 the victim. The prosecution case is not consistent. The statement of PW-1 the victim is wavering. It may not be the sole basis of conviction. Is there any corroboration to it? In the impugned judgment, reference has been made to certain documents that were placed alongwith the bail application of the appellant to suggest that, in fact, some Panchayat took place, in which it was settled that the younger brother of the appellant would marry the victim and, based on it, in the impugned judgment, inferences have been made.

33. The impugned judgment in paragraph 73 records that, in fact, in the compromise that took between the parties in the Panchayat, there was no allegation of rape. There were allegations of molestation. Does not it further falsifies the prosecution case and creates doubt in its credibility? In paragraph 98 of the impugned judgment, the Court has made inferences that, had the appellant not raped the victim, there would not have been any compromise to 15 marry the victim with the younger brother of the appellant. Based on such inferences, conviction cannot be had in a criminal case.

34. Prosecution has to prove its case beyond reasonable doubt. The prosecution case may be possible, but, the word ‘may be’ is not sufficient to convict a person in a criminal charge. It should be to the extent of ‘must be’.

35. In view of the forgoing discussion, this Court is of the view that prosecution has utterly failed to prove the charges leveled against the appellant. The appellant is liable to be acquitted of the charges leveled against him. Accordingly, the present criminal appeal deserves to be allowed.

36. The appeal is allowed. The judgment and order dated

11.11.2016, passed by Fast Track Court/Additional Sessions Judge/ Special Judge POCSO, Rudrapur, District Udham Singh Nagar in Special Sessions Trial No.124 of 2016, State Vs. Shakir, is set aside.

37. The appellant Shakir is acquitted of the charges under Sections 376(2), 363, 366 & 506 IPC & Section 4 of the Act.

38. The appellant is in jail. Let he be released forthwith, if not wanted in any other case, subject to his furnishing personal bond and to sureties each of the like amount to the satisfaction of the court concerned under Section 437A of the Code. 16

39. Let a copy of this judgment along with the trial court record be sent to the court concerned. (Alok Mahra, J.) 23.09.2025 Arpan ARPAN JAISWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eabb68a3895e41937c266c23964c0485365445e3a20ddd b7393398f9fe45ba3e, postalCode=263001, st=UTTARAKHAND, serialNumber=060FC17022BEAE3DE215D68D9D454C5109CB9874 46351E4DF04AADAA2C2CEA66, cn=ARPAN JAISWAL (Ravindra Maithani, J.)

23.09.2025