Amal Baroi v. State of Uttarakhand

According to the FIR, which was lodged by PW 1, the maternal grandmother of the young victim, on 26.02.2016 at about 07:00 p.m., her daughter PW 2 had gone to market along with her 8 years old daughter so as to get medicines. PW2 and her daughter visited the appellant’s shop and asked for cold drink. The appellant spiked the cold drink of PW 2 and made her lay down on the roof top. Thereafter, the appellant offered some eatables to the daughter of PW 2, who has been examined as PW3, and raped her. The appellant made 3 PW 2 and PW 3 as hostages the whole night. When PW 2, the mother of the young victim gained consciousness, they any how returned their home the next day. They were threatened by the appellant.

3. The report of the incident was lodged by PW 1, the maternal grandmother of the young victim on 08.04.2016 at Police Station Dineshpur, District Udham Singh Nagar, based on which, Chik FIR was lodged and Case Crime No. 41 of 2016 under Sections 363, 366, 342, 328, 376(2), 504, 506 IPC and Section 6 of the POCSO Act was registered against the appellant. PW 3, young victim of 8 years was examined under Section 164 of the Code of Criminal Procedure, 1973 (“the Code”) on 30.05.2016. She was medically examined on

08.04.2016. She narrated the story to the doctor, according to which the appellant did ganda kam not only with PW 3 the young victim, but with PW 2, the mother of PW 3 also. In the pathological examination, nothing was found, though the doctor noted that her hymen was torn with old tear. The Investigating Officer also collected the document pertaining to the date of birth of the young victim, which is Ex. A-7. According to it, the date of birth of PW 3, the young victim, is

28.05.2007.

4. After investigation, the charge sheet was submitted against the appellant under Sections 376/342/328/ 352/363/366(A)/ 504/506 IPC and Section 5/6 of the POCSO Act. Based on which, the proceeding of the case was initiated. On 21.07.2016, charges under Sections 363, 366, 328, 352, 342, 376(2), 504, 506 IPC and Section 5/6 of the POCSO Act were framed against the appellant.

5. In order to prove its case, the prosecution examined as many as 6 witnesses, namely, PW 1, maternal grandmother of the 4 young victim, PW 2 mother of the young victim, PW 3 the young victim, PW 4 Dr. Sonali Mandal, PW 5 Deepak Asmola and PW 6 SI Kumkum Dhanik.

6. After the prosecution witnesses were examined, the statement of the appellant was recorded under Section 313 of the Code. According to him, he has falsely been implicated.

7. After hearing the parties, by the impugned judgment and order, the appellant has been convicted and sentenced, as stated hereinbefore. Hence, this appeal.

8. Heard learned counsel for the parties and perused the record.

9. Learned counsel for the appellant submits that it is a case of no evidence; the court below has picked up some part of the statement of PW 3, the young victim from her cross-examination and read them out of context to convict the appellant. He submits that PW 3 (the young victim), PW 2 (mother of the young victim) as well as PW 1 (maternal grandmother of the victim) have not supported the prosecution case; in fact, PW 2 was not able to narrate about the incident and she was discharged by the prosecution and PW 1 (maternal grandmother of the victim) and PW 2 (the young victim) were declared hostile.

10. Learned State counsel submits that PW3, the young victim has stated about her statement recorded under Section 164 of the Code. She has stated that on the date of incident, she had visited the shop of the appellant. She has also stated that after return, she 5 had told it to PW1, her maternal grandmother that the appellant did galat kaam with them. It is argued that PW3, the young victim at Page 4, 3rd paragraph of her statement has also stated that in order to save the appellant, she is giving such statement before the court. Learned State counsel also submits that PW4 Dr. Sonali Mandal has also supported the prosecution case.

11. Before the arguments are appreciated, it would apt to examine as to what the witnesses have stated?

12. PW1 is the informant, who is the maternal grandmother of PW 3, the young victim. She has not supported the prosecution case in her examination-in-chief. She has denied everything. Though, she has admitted her signature on the FIR, Ex. A1. She denied her statement under Section 161 of the Code. She denied every suggestion given by the prosecution. She has been declared hostile, as stated.

13. PW2 is the mother of the young victim. According to the prosecution, she accompanied PW3, the young victim to the market on

26.02.2016, when allegedly the incident took place with them. The statement records that when she was asked, she said that nothing has happened with them. Thereafter, the court recorded that PW2, the mother of the young victim, is not coherent and her mental condition does not sound well. Thereafter, she was discharged. The statement of PW2, the mother of the young victim, does not help the prosecution at all. 6

14. PW3 is the young victim of 8 years. In her examination- in-chief, she has not supported the prosecution case. She was declared hostile by the prosecution. In her cross-examination by the prosecution, she was consistent in saying that nothing had happened to her. But, in her cross-examination at page 3, 3rd paragraph, she tells that after return she revealed to her maternal grandmother that the appellant did galat kaam with her. Although, in the last page at Page 3 of her cross-examination, she tells that she did not tell anything to the police that the appellant did galat kaam with her. At Page 4, 2nd paragraph, PW3, the young victim, in her cross- examination by the prosecution has denied to the suggestion she had any compromise with the appellant. Although, in the next paragraph, she admits the suggestion that in order to save the appellant, she is giving such statement.

15. PW4 is Dr. Sonali Mandal. She has proved the medical examination reports, which are Ex. A3 and A4. She has also proved the supplementary examination report and other documents. In an answer to a question by the court, PW4 Dr. Sonali Mandal admits that it is a case of rape because hymen of PW3, the young victim was torn.

16. PW5 Deepak Asmola has proved the scholar register of PW3, the young victim. According to him, the date of birth in the school register of the victim is recorded as 28.05.2007.

17. PW6 SI Kumkum Dhanik is the Investigating Officer. She has stated about the steps taken during investigation. She has proved the site plan Ex. A9 and other documents. She has also proved the charge sheet Ex. A10. 7

18. PW1, the informant has not supported the prosecution case. PW2, the mother of PW3, the young victim, has also not supported the prosecution case. According to the FIR, sexual assault was done on PW3, the young victim only. Whereas, in the medical examination report, it is stated that galat kaam was done with both PW3, the young victim and PW2, the mother of the young victim. It is recorded on the history of sexual assault, in Column 15 of the medical report.

19. PW3 is the young victim. Her statements were read by the court below alongwith her statements recorded during investigation under Sections 161 and 164 of the Code, while convicting the appellant.

20. PW4 Dr. Sonali Mandal has proved the medical examination report, which also records the history of assault which is qua PW 3, the young victim girl as well as PW 2, mother of the young victim, which is not a case of the prosecution otherwise also. According to the FIR, the sexual assault was only done with the PW 3, the young victim.

21. The question is as to who did the act with PW3, the young victim as observed by PW4 Dr. Sonali Mandal in her medical examination report? But, before it is adverted to, what is be noted is that according to the prosecution the incident allegedly took place on

26.02.2016, whereas, the FIR which is enclosed on record and proved by PW1 as Ex. A1 was given to police on 03.04.2016. But, according to the chik FIR, it was lodged on 08.04.2016. 8

22. Prompt FIR in such cases is generally not expected of due to variety of reasons, which include the family honour, threat, career and future prospects of the victim, etc. Nothing has been stated as to why FIR was not lodged promptly? Had it been considered by the informant or her family member at any point of time so as to not lodge the FIR? Did they take time to lodge the FIR? Even it is not suggested by anyone.

23. The scrutiny of examination of PW3, the young victim falls for consideration. As stated, in her examination-in-chief, she has not supported the prosecution case. In her cross-examination, she was persistently asked as to whether the appellant has done anything to her? She has denied to it. It is true that during her cross-examination recorded at Page 3, at top para 1, she has stated that she had visited the shop of the appellant, where her mother had taken cold drink. But, she says that there she slept and her mother also slept. She also tells that the appellant took them on the roof and in the next paragraph, she denies of having committed any galat kaam with her by the appellant. She denied the suggestion that she was lying. But, in the next paragraph, she tells that on her return, she told it to her maternal grandmother that the appellant did galat kaam with them. Again, it records the word “them”, which means galat kaam with more than one person. But, it is not the case in the FIR. In the FIR, it is the case of sexual assault against the young victim only. In page 4, 2nd paragraph, PW3, the young victim denies the situation that due to compromise she is giving wrong statement. But, in the next sentence, she admits the suggestion that in order to save the appellant, she is giving such statement. 9

24. The court below has taken recourse to the statements of the victim recorded under Sections 161 and 164 of the Code to connect it. In fact, it has been so quoted in paras 46 and 47 of the judgment.

25. The law is well settled that the statement under Section 161 of the Code can only be used for the purpose of contradiction and the statement under Section 164 of the Code can be used for both corroboration and contradiction. But, it is also well settled that as the defence has no opportunity to cross-examine the witnesses, whose statements are recorded under Section 164 of the Code, such statements cannot be treated as substantive evidence. In fact, in the case of R. Shaji v. State of Kerala, (2013) 14 SCC 266, the Hon’ble Supreme Court has discussed this aspect quite in detail and in para 26 observed as follows:- “26. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction. In a case where the Magistrate has to perform the duty of recording a statement under Section 164 CrPC, he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 CrPC. Hence, the Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case.”

26. A conviction cannot be held merely based on the statements of the witnesses recorded under Sections 161 and 164 of the Code. PW3, the young victim has not supported the prosecution case during trial. She has given some statements based 10 on which, learned State counsel has tried to draw inferences that perhaps she was lying before the court. Prosecution has to prove the case beyond reasonable doubt. Even if, it is a case of circumstantial evidence, the chain of circumstances should be so closely connected that may draw only one and the one conclusion that it is the accused and the accused alone, who has committed the offence. Based on the inferences from some statements of the witnesses recorded in the court with the help of the statements recorded under Sections 161 and 164 of the Code, conviction cannot be had.

27. In the instant case, if the statements of PW3, the young victim are read in totality, it does not prove the case against the appellant beyond reasonable doubt. There is no material against the appellant. As stated, some inference may be drawn from the statements that have been made by the PW3, the young victim in her cross-examination. But, they are far below than the standard of ‘proof beyond the reasonable doubt’.

28. In view of the foregoing discussions, this Court is of the view that the prosecution has utterly failed to prove the charges levelled against the appellant and he ought to have been acquitted of the charges levelled against him. Learned court below has committed an error in convicting and sentencing the appellant. Therefore, the appeal deserves to be allowed.

29. The appeal is allowed. The judgment and order dated 22-11-2016/23-11-2026 passed in Special Sessions Trial No. 100 of 2016, State v. Amal Badoi, whereby the appellant has been convicted under Sections 363, 366, 376(2), 342, 328 IPC & Section 11 6 of the POCSO Act, and sentenced under Sections 363, 366, 376(2), 342, 328 IPC is set aside.

30. The appellant Amal Baroi is acquitted of the charges under Sections 363, 366, 376(2), 342, 328 IPC & Section 6 of the POCSO Act.

31. The appellant Amal Baroi is in jail. Let he be released forthwith, if not wanted in any other case. He shall furnish personal bond and two sureties each of the like amount, to the satisfaction of the court concerned under Section 437A of the Code within a period of one month from today.

32. Let a copy of this judgment along with the trial court record be sent to the court concerned. (Alok Mahra, J.) 24.11.2025 (Ravindra Maithani, J)

24.11.2025 Avneet/