Akhtar Ali vs State of Uttarakhand

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). OF 2025 (Arising out of SLP (Criminal) No(s). 14-15 of 2020)

AKHTAR ALI @ ALI AKHTAR @ SHAMIM @ RAJA USTAD ….APPELLANT(S)

VERSUS

STATE OF UTTARAKHAND ...RESPONDENT(S)

WITH

CRIMINAL APPEAL NO(S). OF 2025 (Arising out of SLP(Criminal) No(s). 6573 of 2020)

JUDGMENT

Mehta, J.

1. Heard.

2. Leave granted.

3. The present appeals by special leave are Signature Not Verified Digitally signed by preferred on behalf of appellant No. 1-Akhtar Ali POOJA SHARMA Date: 2025.09.10 19:06:25 IST Reason:

1

alias Ali Akhtar alias Shamim alias Raja Ustad1 and

appellant No. 2-Prem Pal Verma2, assailing the

common judgment dated 18th October 2019, passed

by the Division Bench of the High Court of

Uttarakhand at Nainital3 in Criminal Appeals4,

partially upholding the conviction and sentence

awarded to the appellants by the Special Judge

(POCSO)/ Fast Track Court/ Additional District &

Sessions Judge, Haldwani, District Nainital 5 vide

judgment and order of sentence dated 11th March,

2016 in Session Trial Case6, whereby accused-

appellant No.1-Akhtar Ali was convicted for the

offences punishable under Sections 376A, 363, and

201 of the Indian Penal Code, 18607; under Section

3 read with Section 4, Section 5 read with Section 6

and Section 7 read with Section 8 of the Protection

1 Hereinafter, being referred to as ‘accused-appellant No.1-Akhtar Ali’; appellant in Criminal Appeals @ SLP(Crl.) No(s). 14-15 of 2020. 2 Hereinafter, being referred to as ‘accused-appellant No.2-Prem Pal Verma’; appellant in Criminal Appeal @ SLP(Crl.) No(s). 6573 of 2020. 3 Hereinafter, being referred to as ‘High Court’. 4 Criminal Appeal No. 104 of 2016 along with Criminal Reference No.1. of 2016 and others.

5 Hereinafter, being referred to as ‘the trial Court’. 6 Session Trial No. 09 of 2015. 7 Hereinafter, being referred to as ‘the IPC.’

2 of Children from Sexual Offences Act, 2012 8; and

Section 66C of the Information Technology Act,

20009. Accused-appellant No. 2-Prem Pal Verma was

convicted under Sections 212 of the IPC and Section

66C of the IT Act; however, he was acquitted of the

charges under Sections 363, 201, 120-B, 376A of

the IPC and Sections 16/17 read with Sections 4, 5,

6, 7 of the POCSO Act. The accused-appellants were

sentenced as under:

8 Hereinafter, being referred to as ‘the POCSO Act.’ 9 Hereinafter, being referred to as ‘IT Act’.

3 Accused/ Provision Sentence awarded The High appellant under which by the trial Court Court convicted

Accused- Section 376A Death Sentence Affirmed Appellant of the IPC; No. 1- and Sections Akhtar Ali 16 and 17 read with Sections 4, 5, 6, and 7 of the POCSO Act.

Section 363 Rigorous Affirmed of the IPC imprisonment for seven years and a fine of Rs.5000/- and in default of payment of fine, simple imprisonment for a further period of one month.

Section 201 Rigorous Affirmed. of the IPC imprisonment for seven years and a fine of Rs.5000/- and in default of payment of fine, simple imprisonment for a further period of one month.

Section 66C Rigorous Acquitted of the IT Act imprisonment for three years and a fine of Rs.20,000/- and in default of payment of fine, simple imprisonment for a further period of two months.

4

Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 Section 120B Acquitted. Acquitted of the IPC

Accused- Section 212 Rigorous Affirmed Appellant of the IPC imprisonment for No. 2 Prem seven years and a Pal Verma fine of Rs.10,000/-

and in default of payment of fine, simple imprisonment for a further period of one month.

Section 66C Rigorous Acquitted of the IT Act imprisonment for three years and a fine of Rs.20,000/- and in default of payment of fine, simple imprisonment for a further period of two months.

Sections 363, Acquitted. Affirmed 201, 120-B, 376A of the IPC; and Sections 16, 17 read with Sections 4, 5, 6, and 7 of the POCSO Act.

Accused- Section 212 Acquitted Affirmed. Junior of the IPC; Masih Section 66 of alias Foxy the IT Act; and Sections 16, 17 read with Sections 4, 5, 6, and 7 of the POCSO Act.

5

Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020

4. Briefly stated, the case of the prosecution, giving

rise to the present appeals, is as under:

4.1 On 21st November, 2014, at 11:30 am, the

victim's father (PW-1) lodged a report10 under

Section 365 of the IPC, at Kathgodam Police

Station, alleging inter alia that he and his family

had travelled from Pithoragarh to Haldwani to

attend the wedding of a relative which was to be

solemnized at Sheeshmahal in Ramlila Maidan,

Kathgodam, on 20th November, 2014. During the

said ceremony at around 07:45 pm, his daughter,

Ms. K, along with other children, was playing in

the pandal (venue). When Ms. K was called for a

group photograph, she could not be found and

appeared to have gone missing. Ishwar Singh Sah

(PW-36), an attendee at the function,

telephonically registered a missing complaint with

Constable Subodh Sharma (PW-4) about Ms. K’s

disappearance. Subodh Sharma (PW-4) recorded

the information in the Police Station’s General

10 Case Crime No. 73 of 2014. The same is Exhibited as Exhibit Ka-1.

6

Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 Diary Report No. 5111 and alerted on-duty officers

to try and locate the informant’s daughter, Ms. K.

The Police officials questioned the people who

attended the wedding and the individuals in

nearby vehicles and searched the area, but the

child, Ms. K, was nowhere to be found.

4.2. Four days later, i.e., on 25 th November, 2014,

Rajesh Kumar Yadav (PW-6), Station House

Officer, received a phone call from an individual,

named Nikhil Chand (cousin of the informant’s

daughter, Ms. K), who informed that the dead

body of the victim girl was lying near Gaula River

in the Forest in front of Sheeshmahal. Based on

the said information, Sub-Inspector Shanti Kumar

Gangwar (PW-5), along with Constables Mamta

Arya, Devki Bisht, Subodh Sharma (PW-4) and

Suresh Chandra, proceeded to the said location

and found the dead body of a small girl, which

was identified and confirmed to be that of the

informant’s daughter, Ms. K, by the public present

11 Exhibit Ka-17.

7 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 at the location, as well as by her relatives. Sub-

Inspector Suman Pant (PW-3) prepared the

panchayatnama12 of the body, which was then

sent for autopsy. Dr. C.P. Bhaisora (PW-7)

conducted post-mortem examination and found

that all the organs of the victim girl were pale with

early signs of putrefaction. He opined that the

cause of death was shock and haemorrhage

resulting from injuries to the vaginal and perianal

region caused by sexual assault and blunt force

trauma, which were sufficient to cause death in

the ordinary course of nature. Consequently,

offences under Sections 363, 376, 302, and 201 of

the IPC and Section 4 of the POCSO Act were

added to Case Crime No. 73 of 2014.

4.3 On 25th November, 2014, the investigation

of the case was assigned13 to Vipin Chandra

Pant (PW-40), the Investigating Officer. During

the investigation, it was found that on the

evening of 20th November, 2014, the nearby

12 Exhibit Ka-9.

13 Vide Order No. 03 of 2014. 8 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 shopkeeper, i.e., Kishan Singh Bora (PW-16),

Bal Krishan (PW-19), and Shahadat Ali (PW-20)

saw the accused-appellant No. 2-Prem Pal

Verma, who is a driver by profession, drinking

liquor with another person. Both were seen

buying chocolates and toffees from a nearby

shop. Further inquiries revealed that Shankar

Dutt Padalia (PW-18), owner of a Dumper, which

operated in the Gaula River, had employed a

man from Bihar on the recommendation of the

accused-appellant No. 2-Prem Pal Verma. The

investigating agency obtained the mobile phone

number of this unidentified person from

Shankar Dutt Padalia (PW-18) and placed it

under surveillance. Similarly, the accused-

appellant No. 2-Prem Pal Verma’s mobile

number was retrieved from his employer,

Manish Gaur @ Mannu Gaur (PW-39) and was

also placed under surveillance.

4.4 Two teams from the Special Task Force

(STF) were formed to uncover the details of the

9 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 crime. One team, led by Sub-Inspector Yogesh

Kumar Chand (PW-10), proceeded to Ludhiana

(Punjab), based on call detail records of the

suspected numbers, while another team, led by

Sub-Inspector Naresh Chauhan, headed to

Champaran (Bihar) and Delhi. On 27 th

November, 2014, at around 11:00 am, the team

led by Sub-Inspector Yogesh Kumar Chand (PW-

10) traced the location of one suspected mobile

number to Guru Amardas Colony in Ludhiana

(Punjab). They then began searching for the

user of the mobile phone and eventually

detained the suspect at Sethi Market, who

identified himself as Akhtar Ali, i.e., accused-

appellant No. 1. During a personal search, the

police recovered a railway ticket from Haldwani

to Delhi, an identity card, and a mobile phone

from the possession of accused-appellant No. 1-

Akhtar Ali. The team also claimed to have

recovered the blanket used in the alleged crime

from the possession of accused-appellant No. 1-

10 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 Akhtar Ali, who was formally arrested and then

was taken to the Police Station, Kathgodam,

Haldwani on 28th November, 2014. Upon arrival,

the Investigating Officer, Vipin Chandra Pant

(PW-10), interrogated accused-appellant No.1-

Akhtar Ali, who confessed that accused-

appellant No.2-Prem Pal Verma and a Junior

Masih alias Foxy14, were his accomplices and

were also involved in the crime. He admitted

that his friend, accused-appellant No.2-Prem Pal

Verma, had helped him secure a job as a

dumper driver with Shankar Datt Padalia (PW-

18) of Sheeshmahal, Kathgodam. On 20th

November, 2014, accused-appellant No.1-Akhtar

Ali, accused-appellant No.2-Prem Pal Verma,

and Junior Masih alias Foxy, consumed whisky

(alcohol) together. Around 07:30 pm, a young

girl came out of the wedding Pandal (venue). All

three threatened the victim girl with a

Tamancha (a country-made pistol), took her to a

14 Accused No. 3 in Session Trial No. 09 of 2015. 11 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 nearby forest, wrapped her in a blanket, and

committed sexual assault on her. When the girl

became unconscious, they abandoned her body,

after covering it with leaves, and left the scene.

The accused-appellant No. 1-Akhtar Ali,

purportedly led the police to the crime scene

and recovered the victim girl’s hairband. A

seizure memo15 was prepared as proof of the

same.

4.5 On 28th November, 2014, Sub-Inspector

Shanti Kumar Gangwar (PW-5) and his team

arrested the accused-appellant No. 2-Prem Pal

Verma, and accused No. 3-Junior Masih alias

Foxy.

4.6 After recording the statements of

witnesses and concluding the investigation, the

Officer-in-charge of the police station proceeded

to file a charge sheet against all three accused

persons. The accused-appellant No. 1-Akhtar Ali

was charge-sheeted under Sections 363, 376,

15 Exhibit Ka-16.

12 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 302, 201, and 120-B of the IPC, along with

Sections 4, 5, and 6 of the POCSO Act, and

Section 66(C) of the IT Act. The accused-

appellant No. 2-Prem Pal Verma was charge-

sheeted under Sections 363, 376, 302, 201,

120-B, and 212 of the IPC, along with Sections

4, 5, and 6 of the POCSO Act and Section 66(C)

of the IT Act. Junior Masih alias Foxy was

charge-sheeted under Section 212 of the IPC

and Section 66(C) of the IT Act. On 27th

January, 2015, the trial Court took cognizance

of the offences and provided the accused

persons copies of the documents relied upon by

the prosecution in compliance with the

provisions of Section 207 of the Code of

Criminal Procedure, 1973.16

4.7 The trial Court then proceeded to frame

charges against all the charge-sheeted accused

persons for the above offences, who abjured

their guilt and claimed trial. The prosecution

16 Hereinafter, referred to as the ‘CrPC’.

13 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 examined 40 witnesses, exhibited 87

documents, and 27 material objects to prove its

case and establish the guilt of the accused

persons. The accused persons were questioned

under Section 313 of the CrPC and were

confronted with the circumstances appearing

against them in the prosecution case, which

they denied and claimed to be innocent.

4.8 After hearing the parties and evaluating

the evidence, the trial Court, vide its judgment

dated 11th March, 2016, held that the

prosecution had successfully established its

case beyond a reasonable doubt and, therefore,

convicted the accused-appellant No. 1-Akhtar

Ali, and accused-appellant No. 2-Prem Pal

Verma, as noted above.17 The trial Court

acquitted the accused No. 3-Junior Masih alias

Foxy, on the ground of insufficient evidence

against him. Vide an order, passed on the same

17 Supra, Para No.3. 14 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 day, the accused-appellants were sentenced in

the terms indicated above.18

4.9 Aggrieved by their conviction and

sentences, accused-appellant No. 1-Akhtar Ali,

and accused-appellant No. 2-Prem Pal Verma,

preferred an appeal19 under Section 374(2) CrPC

to the High Court. The informant/father (PW-1)

of the victim girl also filed a criminal appeal 20

against the acquittal of Junior Masih alias Foxy,

as well as against the acquittal of Prem Pal

Verma and Akhtar Ali for certain offences. 21 The

State also filed two identical appeals 22 against

the acquittal of Junior Masih alias Foxy, as well

as against the acquittal of accused-appellant

No.1-Akhtar Ali and accused-appellant No. 2-

Prem Pal Verma, for certain offences.23 A

Criminal Reference24 was forwarded by the trial

Court to the High Court under Section 366 of

18 Ibid.

19 Criminal Appeal No. 104 of 2016.

20 Criminal Appeal No. 318 of 2016.

21 Supra, Para No. 3. 22 Government Appeals No. 7 and 8 of 2017. 23 Supra, Para No. 3. 24 Criminal Reference No. 1 of 2016.

15 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 CrPC, for confirmation of the death sentence

awarded to accused-appellant No. 1-Akhtar Ali.

The High Court, vide the common impugned

judgment dated 18th October, 2019, upheld the

conviction and sentences awarded to accused-

appellant No. 1-Akhtar Ali, and accused-

appellant No. 2-Prem Pal Verma for the offences

punishable under the IPC and POCSO Act.

However, both were acquitted of the charge

under Section 66C of the IT Act. Consequently,

the High Court dismissed the appeals filed by

the father of the victim girl (PW-1) and the State

and upheld the acquittal of the accused-Junior

Masih alias Foxy and the partial acquittal of the

accused-appellants. In Criminal Reference, the

High Court also upheld the death sentence

awarded to the accused-appellant No. 1-Akhtar

Ali.25

The impugned common judgment of the High Court

dated 18th October 2019, is subjected to challenge by

25 Supra, Para No. 3. 16 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 the accused-appellants in these appeals by special

leave.

Submissions on behalf of the appellants: -

5. Ms. Manisha Bhandari, learned counsel for the

accused-appellants, submitted that the entire

prosecution case is based on circumstantial

evidence, the chain of which remains incomplete

and shattered as the material evidence has been

fabricated, and gotten up witnesses were deliberately

introduced by the prosecution, to bolster its case.

Learned counsel for the accused-appellants

advanced the following pertinent submissions to

urge that the conviction of the accused-appellants

as recorded by the trial Court and affirmed by the

High Court is unsustainable on the face of the

record: -

5.1. That the prosecution’s case has, from the

very beginning, been inconsistent and self-

contradictory. The original version of the

prosecution alleged that the victim girl, Ms. K,

was kidnapped at gunpoint by the accused-

17 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 appellants on the evening of 20th November

2014, and was taken to a secluded forest area,

where she was subjected to brutal sexual

assault. However, during the course of the

investigation, the Investigating Officer, Vipin

Chandra Pant (PW-40) admitted that no firearm

was ever recovered and even conceded that the

accused-appellant No. 1-Akhtar Ali, himself, in

his extra-judicial confession, denied the use of

any weapon. The prosecution, in order to fill

this glaring lacuna, abruptly substituted its

earlier story with a new version that the victim

girl, Ms. K, was lured away by the accused-

appellant with sweets and toffees. Such a

fundamental and unexplained departure from

the original prosecution narrative cannot be

brushed aside, and it goes to the root of the

case, demonstrating that the evidence has been

tailored to suit the needs of the prosecution.

5.2. That the prosecution failed to examine

one of the most material witnesses, namely, the

18 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 cousin of the victim girl, Nikhil Chand. It is

borne out from the record that Nikhil Chand

was the first person who telephonically informed

the Superintendent of Police, Rajesh Kumar

(PW-6) about the location of the dead body of

the victim girl in the Gaula River forest. It is also

reflected in the case diary that Nikhil Chand

had claimed to have seen the victim near a

dumper on the date of the incident. In such

circumstances, Nikhil was the only person who

had knowledge both of the victim, Ms. K’s, last

known movements and of the exact location of

her dead body, which could not be found despite

the fervent efforts of the other relatives and a

number of police teams. Despite this, he was

neither interrogated during the investigation nor

examined during the trial. The prosecution

offered no explanation for this grave omission.

The deliberate exclusion to examine such a

pivotal witness, whose testimony could have

either confirmed or demolished the

19 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 prosecution’s version, casts a deep shadow over

the fairness of the investigation and trial,

warranting raising of an adverse inference

against the prosecution.

5.3. That the manner of recovery of the victim

girl’s body itself is shrouded in serious doubt.

The record shows that immediately after the

disappearance of the girl child on the evening of

20th November 2014, an extensive search was

conducted by the police and local residents in

and around the wedding venue, the Gas Godam

area, and the banks of the Gaula River. The

efforts to search continued for several days

without yielding any results. Yet, on 25th

November 2014, the body was suddenly

discovered mere 800 steps away from the venue

by none other than the victim’s cousin, Nikhil

Chand. This circumstance is highly suspicious,

for it is inconceivable that despite repeated

searches, the police could not locate the body

which was lying in such close proximity, only for

20 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 it to be fortuitously found by the very relative

whose own conduct remains under grave doubt

compounded by the medical evidence

demonstrating that injuries on the dead body of

the victim girl were concentrated on the left side

of the body suggestive of dragging, which gives

rise to a grave doubt that the situs of the crime

was shifted, and that the body was planted at

the spot later shown. The shifting of the situs

irretrievably demolishes the chain of

incriminating circumstances.

5.4. That the condition of the crime scene was

wholly inconsistent with the prosecution’s

allegation of repeated sexual assault on the

victim girl by three fully grown men. According

to the prosecution, the victim was raped and

sodomised and then left in the bushes after

being covered with leaves. However, the police

did not find any bloodstains or signs of struggle

at the alleged crime scene, although the post-

mortem clearly records that the death was due

21 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 to excessive bleeding, which occurred within

minutes of the assault. The total absence of

blood stains on the ground at or around the site

renders the prosecution’s version implausible.

Equally unexplained is the forensic finding that

blood was detected only on the red jacket found

on the dead body, but not on the blanket or the

ground. Such discrepancies belie the story that

the crime was committed there and suggest that

the crime scene was staged.

5.5. That the alleged recovery of a hair-band at

the instance of the accused-appellant No.1-

Akhtar Ali, is another circumstance that cannot

be believed. The FIR itself mentions that the

victim girl had a boy-cut hairstyle, and no

reference to any hairband was ever made at the

initial stage. The recovery memo is riddled with

irregularities. It bears overwriting of the time of

recovery, does not mention the date, and has no

independent witnesses. Even the trial Court

and the High Court expressed doubt regarding

22 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 this recovery. The improbability of the accused-

appellant No. 1-Akhtar Ali, recalling the precise

spot where such a trivial item was discarded

days earlier, in a dense jungle, adds to the

suspicion of the so-called recovery, which is

thus nothing but planted evidence.

5.6. That the arrest of the accused-appellant

No.1-Akhtar Ali, from Ludhiana on 27th

November 2014, is also surrounded by grave

doubt. The prosecution relies upon a “secret

source” who, without any prior familiarity with

the accused’s appearance, is alleged to have

identified him in a crowded city. No Ravanagi or

Aamad entry of the arresting team was made at

the local police station at Ludhiana. The only

local officer, Inspector K.R. Pandey, who could

have corroborated the arrest and prepared the

site map of the arrest, was withheld from the

witness box. The Naksha Najri of the place of

arrest was curiously prepared much later, on 6 th

January, 2015, by the Investigating Officer

23 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 himself, who was not even part of the team that

allegedly apprehended the accused-appellant

No. 1-Akhtar Ali. To make matters worse, the

photograph of the accused-appellant No. 1-

Akhtar Ali, was published in the newspapers on

28th November, 2014, even though the

prosecution claims he was produced at

Haldwani, only that very morning. These

circumstances leave no room for doubt that the

accused-appellant No. 1-Akhtar Ali had, in fact,

been picked up earlier from Haldwani

(Uttarakhand) and falsely shown as arrested in

Ludhiana (Punjab). The purpose of this

fabricated exercise was clearly to justify the

collection of samples and to facilitate the

planting of DNA material of the accused-

appellant No. 1-Akhtar Ali, on the forensic

samples collected from the victim girl’s body.

5.7. That the DNA report, on which the

conviction of the accused-appellant No.1-Akhtar

Ali primarily rests, is neither consistent nor

24 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 reliable. The prosecution claims that the semen

of the accused-appellant No. 1-Akhtar Ali

matched the cervical swab, undershirt, and

underwear of the deceased. However, the same

semen was conspicuously absent in the cervical

smear prepared from the very same source, as

well as in the vaginal swab, vaginal wash, and

the shirt worn by the victim girl. Such selective

presence of semen of the accused-appellant No.

1-Akhtar Ali is inexplicable unless the samples

were tampered with and the fluids/blood of the

accused-appellants were planted onto the same.

The defence case that semen was forcibly

obtained from the accused-appellant No. 1-

Akhtar Ali after his illegal detention much

before 27th November, 2014, and planted on

certain exhibits, is fully supported and

corroborated by these anomalies. Further,

although the prosecution’s case was of gang

rape by three individuals, the semen of the

other two alleged perpetrators was not detected

25 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 on any forensic exhibit, which wholly

demolishes the allegation of collective assault.

The chain of custody of the exhibits is equally

suspect: there is no record of where the samples

were kept between 26th November 2014 and 27th

November 2014, discrepancies exist in the

forwarding letters, and several key documents

bear no specimen seals at the time of seizure

and sampling. Such glaring lapses make the

scientific/forensic evidence inadmissible and

incapable of sustaining a conviction, much less

the imposition of the death penalty.

5.8. That the trial Court erred in sentencing

the accused-appellant No.1-Akhtar Ali, and

passing the conviction order, awarding the

death penalty, on the very same date. It was

urged that the trial Court made no effort

whatsoever to consider the aggravating and

mitigating circumstances before awarding the

death penalty. Reliance was placed on the case

26 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 of Manoj & Ors. v. State of Madhya

Pradesh26, wherein it has been categorically

held that before imposing a sentence of death,

the Court is duty-bound to conduct a careful

and meaningful evaluation of both aggravating

and mitigating factors, including the possibility

of reform and rehabilitation of the accused. The

omission of the trial Court to undertake this

exercise vitiates the sentencing process and

renders the award of the death penalty

unsustainable in law.

On these grounds, learned counsel appearing for

the accused-appellants implored the Court to accept

the appeals, set aside the impugned judgments, and

acquit the accused-appellants of the charges levelled

against them.

Submission on behalf of the Respondent/State: -

6. Per contra, Ms. Vanshaja Shukla, learned counsel

appearing for the respondent-State, vehemently and

fervently opposed the submissions advanced on

26 (2022) SCC OnLine SC 677.

27 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 behalf of the accused-appellants and advanced the

following pertinent submissions imploring this

Court to dismiss the appeals: -

6.1. That the arrest of accused-appellant No.1-

Akhtar Ali was based on meticulous mobile

surveillance and investigative findings, as

evidenced by multiple prosecution witnesses.

Yogesh Kumar Chand (PW-10), head of the

Special Task Force, testified that accused-

appellant No.1-Akhtar Ali had been missing

from the crime scene since the date of the

incident, prompting the investigation officer to

place his mobile number (75xxxxxx90) under

surveillance. The Call Details Records (‘CDR’)

confirmed that on 20th November, 2014, and 21st

November, 2014, his cellphone was active within

the tower range of the crime scene.

Furthermore, another number operating from

the same device (both numbers having IMEI

Nos. 911352501735790 and

911352501735780) traced his location to

28 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 Ludhiana, where he was apprehended by

Yogesh Kumar Chand (PW-10) and his team.

The testimony of Amar Chand Sharma (PW-11),

Radhey Shyam Shukla (PW-26), and Arun

Kumar (PW-27) corroborates the same, affirming

the accuracy of the mobile location tracking.

Additionally, Ravindra Kumar Yadav (PW-35), in

charge of the Special Operations Group,

confirmed that the accused-appellant No.1-

Akhtar Ali, was identified through surveillance.

These findings unequivocally establish that the

arrest of the accused-appellant No.1-Akhtar Ali,

was lawful and based on concrete evidence,

which is corroborated by the testimonies of the

prosecution witnesses.

6.2. That the recovery of the victim-girl's dead

body and subsequent observations made in

post-mortem examination provide irrefutable

evidence of a brutal sexual assault and murder.

Sabir Ali (PW-29), who was tending to his horses

in the forest, was the first to locate the

29 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 deceased’s body and immediately informed the

local residents near Ram Leela Ground,

Sheeshmahal, establishing the discovery as

spontaneous and untainted. Moreover, Suman

Pant (PW-3), Sub-Inspector, identified the dead

body and conducted the inquest proceedings,

noting visible injuries to the vaginal region,

indicating that the victim girl was subjected to

sexual violence before being done to death. The

post-mortem examination further corroborates

this conclusion, which was proved by Dr. C.P.

Bhaisora (PW-7), i.e., the Medical jurist, who

conducted an autopsy upon the victim girl’s

dead body. The post-mortem examination

conclusively notes that the cause of death was

shock and haemorrhage due to injuries inflicted

on the vaginal and perianal region associated

with grave sexual assault, caused by blunt force

impact, and that these injuries were sufficient in

the ordinary course of nature to cause death.

This medical evidence not only confirms the

30 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 horrific nature of the crime but also aligns with

the prosecution's case that the victim girl was

subjected to forcible sexual assault and brutal

violence, thereby directly implicating the

accused-appellants for the heinous and

premeditated crime.

6.3. That the scientific and DNA evidence

conclusively establishes the involvement of

accused-appellant No.1-Akhtar Ali, in the crime,

leaving no room for doubt. Dr. Sanjeev

Kharkwal (PW-13), a Senior Medical Officer at

District Hospital, Nainital, collected the blood

samples of all the accused persons on 30 th

November, 2014 and ensured that the said

samples were properly sealed and documented

before being handed over to Constable Ashutosh

Kumar (PW-15), who deposited them at the

Forensic Science Laboratory (FSL), Dehradun,

on 2nd December, 2014. The forensic analysis

conducted by Dr. Manoj Kumar Agarwal (PW-34)

at FSL Dehradun resulted in a DNA profiling

31 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 report27 that unequivocally confirmed the

presence of human semen on the cervical swab,

undershirt, and underwear of the victim girl.

Crucially, the profile of the DNA extracted from

these exhibits was an exact match with the DNA

profile obtained from the blood sample of

accused-appellant No.1-Akhtar Ali, conclusively

proving his physical involvement in the crime.

This scientific evidence, which is objective and

beyond human manipulation, serves as the

strongest link connecting the accused-appellant

No.1-Akhtar Ali to the sexual assault and

murder of the victim girl, Ms. K. The DNA

report28 provides irrefutable affirmation of

accused-appellant No.1-Akhtar Ali’s role in this

heinous crime, strengthening the prosecution’s

case beyond the pale of doubt.

6.4. That the conduct of the accused-

appellant No.1-Akhtar Ali before and after the

incident supports the prosecution’s case and 27 DNA Report dated 12th December, 2014 (Exhibit Ka-75) and DNA Report dated 15th December, 2014 (Exhibit Ka-76) 28 Ibid.

32 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 conclusively establishes his involvement in the

crime. Prior to the victim’s disappearance,

multiple witnesses, including Kishan Singh

Bora (PW-16), Balkrishna (PW-19), and Sahadat

Ali Hasan (PW-20), saw accused-appellant No.1-

Akhtar Ali near the location of the crime,

corroborating that he was in the vicinity at the

relevant time. Vipin Chandra Pant (PW-40), the

Investigating Officer (IO), further confirmed this

through the site plan, which aligns with the

testimony of these witnesses. Additionally, two

minor girls who were with the victim girl at the

time were offered toffees by accused-appellant

No.1-Akhtar Ali, and accused-appellant No.2-

Prem Pal Verma, suggesting a deliberate attempt

to lure away the victim; however, the families of

these children did not allow them to testify due

to societal ramifications. The accused-appellant

No.1-Akhtar Ali’s suspicious conduct in

absconding following the crime further fortifies

the prosecution’s case.

33 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 6.5. That the site plan prepared by Vipin

Chandra Pant (PW-40) establishes that the

victim girl was kidnapped from about 800 steps

away from where her body was later found.

Several witnesses, viz., Veer Bahadur Chand

(PW-23, victim’s uncle), Deepak Sharma (PW-

25), and Manoj Singh Dewri (PW-31), saw

accused-appellant No.1-Akhtar Ali near a

dumper (No. 8711) parked close to the crime

scene. Shankar Dutt Padalia (PW-18), the

dumper owner, confirmed that accused-

appellant No.1-Akhtar Ali was employed as a

driver on 20th November, 2014, but disappeared

soon after the crime. His sudden disappearance,

as testified by Hariom Sharma (PW-24) (a

railway employee), who stated that accused-

appellant No.1-Akhtar Ali boarded a train from

Haldwani on 21st November, 2014, and fled to

Ludhiana, further points to accused-appellant

No.1-Akhtar Ali’s guilty state of mind. The CCTV

footage handed over by Subhash Singh (PW-21),

34 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 Assistant General Manager, IDBI Bank, was

reviewed by the Investigating Officer, Vipin

Chandra Pant (PW-40), confirming that

accused-appellant No.1-Akhtar Ali and accused-

appellant No.2-Prem Pal Verma, entered the

bank together on 21st November, 2014 at 02:04

pm, just after the crime. Thus, the chain of

circumstances, as noted by the trial Court and

High Court, is complete, leaving no room of

doubt about the involvement of the accused-

appellants in the crime. The ocular testimonies,

scientific/forensic (i.e., DNA examination)

evidence, findings of post-mortem examination,

and the accused persons’ conduct before and

after the incident collectively establish a

consistent and unbroken sequence linking

accused-appellant No. 1-Akhtar Ali and

accused-appellant No. 2-Prem Pal Verma to the

crime. Proximity of the accused-appellants to

the victim girl during the wedding function,

suspicious absconding, and corroborative

35 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 forensic evidence decisively point to the guilt of

accused-appellant No.1-Akhtar Ali.

On these grounds, the learned counsel for the

respondent-State contended that the present

appeals should be dismissed, as both Courts below

have applied the law to the facts on record correctly

and reached the only possible conclusion pointing

towards the guilt of the accused-appellants.

Discussion: -

7. We have given our thoughtful consideration to

the submissions advanced at the bar and have

carefully scanned the record with the assistance of

learned counsel representing the accused-appellants

and the learned counsel appearing for the

respondent-State. We have also analysed and

evaluated the evidence available on record.

8. In order to appreciate whether the conviction of

the accused-appellants, as recorded by the trial

Court and affirmed by the High Court, deserves to

be upheld or whether the appeals merit acceptance,

thereby entitling the accused-appellants to

36 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 acquittal, it is necessary to examine the evidence in

greater detail.

9. There is no dispute that the case of the

prosecution is based purely on circumstantial

evidence in the form of motive, the theory of last

seen together, and scientific/forensic evidence, since

no witness claims to have seen the alleged incident

wherein the victim girl was subjected to sexual

assault and violence. The fact that the death of the

victim girl, Ms. K, was homicidal in nature was duly

proved by the medical evidence on record. Dr. C.P.

Bhaisora (PW-7), who conducted the examination,

proved the post-mortem report29 wherein multiple

injuries were noted on the dead body of the victim

girl, particularly on the vaginal and perianal

regions. He opined that the cause of death of the

victim girl was shock and haemorrhage as a result

of the injuries caused by sexual assault and blunt

force trauma, which were sufficient in the ordinary

course of nature to cause death. Thus, there is no

29 Exhibit No. Ka24. 37 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 doubt on the aspect that the death of Ms. K was

homicidal in nature.

10. It is a well-established principle of criminal

jurisprudence that a conviction may be based purely

on circumstantial evidence, provided that such

evidence is deemed credible and trustworthy. In

cases based purely on circumstantial evidence, it is

imperative to ensure that the facts leading to the

conclusion of guilt are fully established and that all

the established facts point irrefutably to the accused

person’s guilt. The chain of incriminating

circumstances must be conclusive and should

exclude any hypothesis other than the guilt of the

accused. In other words, from the chain of

incriminating circumstances, no reasonable doubt

can be entertained about the accused person's

innocence, demonstrating that it was the accused

and none other who committed the offence. The law

with regard to conviction based on circumstantial

evidence has been crystallised by this Court in the

case of Sharad Birdhichand Sharda v. State of

38 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 Maharashtra30, wherein the following golden

principles, governing cases based on circumstantial

evidence, were laid down:

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made: [SCC para 19, p. 807]

“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable 30 (1984) 4 SCC 116.

39 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(emphasis supplied)

11. Having noted the principles governing a case

based purely on circumstantial evidence, we now

proceed to discuss the evidence led by the

prosecution in order to bring home the charges

against the accused-appellants. The prosecution

portrayed the following circumstance in its

endeavour to establish the charge of murder against

the accused-appellants:-

(i) “Motive”, i.e., to say that the accused-appellants

harboured an intention to satisfy their lust upon the

young girl, Ms. K, and that this depraved motive

formed the basis of the brutal assault which

ultimately led to her death.

(ii) “Last Seen Theory”, i.e., to say that the

accused-appellants were seen in close proximity to

the victim girl, shortly before the time when she

went missing, and that in the absence of any

plausible explanation from the accused-appellants,

40 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 the burden lies upon them to account for the fate of

the victim girl. The prosecution, therefore, relies on

this circumstance as an important link in the chain

of events connecting the accused-appellants to the

crime.

(iii) Scientific Evidence (including DNA and FSL

Reports), i.e., to say that the scientific analysis of

samples collected from the body and clothes of the

victim girl established a match with the DNA profile

of the accused-appellant No. 1-Akhtar Ali, thereby

providing direct forensic corroboration of his

involvement in the offence. The prosecution argues

that such evidence, being objective and scientific in

nature, lends strong support to its case and

completes the chain of circumstances.

12. The entire process of apprehension of the

accused-appellants, collection of the forensic

material, recovery of the CCTV footage, call details

record, and the Caller-ID records has been

41 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 delineated in the above paragraphs31, and thus, the

same need not be repeated.

13. To ascertain whether the alleged ‘motive’

attributed to the accused-appellants has any

foundation in fact, it is necessary at the outset to

examine the manner in which the accused-

appellants were first brought into the ambit of

suspicion and investigation. Unless the initial link

connecting the accused-appellants with the

occurrence is firmly established, the question of

‘motive’ and its probative value cannot be

appreciated in its proper perspective. We shall,

therefore, first advert to the evidence relied upon by

the prosecution to show how the accused-appellants

came into the picture and were associated with the

alleged crime.

14. The first suspect to be associated in this case

was the accused-appellant No.1-Akhtar Ali, against

whom suspicion cropped up when the statement of

Shankar Datt Padalia (PW-18), the owner of the

31 Supra Note, Para No. 4.

42 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 dumper, came to be recorded. We, therefore, shall

first discuss the evidence of the aforesaid Shankar

Datt Padalia (PW-18). The witness stated that he

was engaged in the work of hauling sand and gravel

from the Gaula River and used his dumper, bearing

registration No. UP02A8711, for the said purpose.

15. Accused-appellant No.1-Akhtar Ali was

allegedly introduced to Shankar Datt Padalia (PW-

18) by accused-appellant No. 2-Prem Pal Verma, the

driver of Manish Gaur @ Mannu Gaur’s (PW-39)

dumper, on 20th November, 2014. Accused-

appellant No. 2-Prem Pal Verma, assured Shankar

Datt Padalia (PW-18) that Akhtar Ali knew how to

drive a dumper. Since the witness (PW-18) did not

have a driver for his dumper at that time, he hired

accused-appellant No.1-Akhtar Ali, as a driver and

handed over the keys of the dumper to him, without

any further verification. At that time, Akhtar Ali was

using mobile number 75xxxxxx90, which he shared

with Shankar Datt Padalia (PW-18). On the

following day, i.e., 21st November, 2014, the

43 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 accused-appellant No. 1-Akhtar Ali approached

Shankar Datt Padalia (PW-18) in the afternoon and

told him that he had to take a room on rent and buy

some stuff, and required money for this purpose.

The witness (PW-18) gave him Rs. 3,000/- and,

thereafter, the accused-appellant No. 1-Akhtar Ali

did not meet him again. When the witness (PW-18)

attempted to contact the accused-appellant No. 1-

Akhtar Ali, on his mobile number, the same was

found to be switched off. The witness (PW-18) stated

that his dumper was parked at Gas Godam road

near Ramlila Ground, and that the accused-

appellant No.1-Akhtar Ali was supposed to sleep in

the dumper that night. Since the accused-appellant

No.1-Akhtar Ali did not respond to phone calls, the

witness (PW-18) went to the dumper on 21st

November, 2014, at about 06:00 pm, but found the

driver missing. Thereupon, the witness (PW-18)

became suspicious that something was wrong. He

came to know from some sources that accused-

appellant No. 1-Akhtar Ali, and accused-appellant

44 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 No. 2-Prem Pal Verma, had been seen roaming

together on 20th November, 2014.

16. In his cross-examination, Shankar Datt

Padalia (PW-18) stated that at the time of the

incident, the process of extraction of sand and

gravel from the Gaula river had not commenced. He

further deposed that the police officials recorded his

statement 2-3 days after the incident. The witness

added that he had been operating dumpers for the

extraction of sand and gravel from the Gaula river

for the last 5-6 years prior to the incident and that

he owned two dumpers, which were usually driven

by his brothers. However, since one of his brothers

had fallen ill, he felt the need for another driver. He

admitted that he did not previously know the

accused-appellant No. 1-Akhtar Ali. At the same

time, he also stated that about two years earlier,

accused-appellant No. 1-Akhtar Ali had worked with

another person on the Gaula Extraction Gate, and

therefore, he was acquainted with him from that

time. He had seen the accused-appellant No. 1-

45 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 Akhtar Ali, because he used to drive the vehicle of

Manish Gaur @ Mannu Gaur (PW-39). When he

engaged the accused-appellant No. 1-Akhtar Ali on

20th November, 2014, he did not give any money for

expenses, etc.

17. On a minute perusal of the deposition of

Shankar Datt Padalia (PW-18), it emerges that he

informed the police for the first time about the

engagement of accused-appellant No. 1-Akhtar Ali,

for his vehicle, only 2–3 days after the incident. This

aspect assumes significance in light of the

admission made by the witness that he had also

participated in the search for the missing girl on 21 st

November, 2014. Had there been an iota of truth in

his version, it is difficult to accept that he would

have remained silent about the fact that the driver,

he had newly engaged had suddenly gone missing

immediately after being employed on 20th November,

2014. Such a fact was far too important to have

been ignored altogether.

46 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020

18. Another significant fact discernible from the

statement of Shankar Datt Padalia (PW-18) is that

he attempted to identify the accused-appellant No.

1-Akhtar Ali by projecting a theory that the said

accused used to drive the vehicle of one Manish

Gaur @ Mannu Gaur (PW-39) two years earlier.

However, the said Manish Gaur @ Mannu Gaur (PW-

39), upon being examined, categorically stated that

accused-appellant No. 2-Prem Pal Verma, had been

driving his dumper for the last 10–12 years. He did

not utter a single word to support the theory that

accused-appellant No. 1-Akhtar Ali had ever worked

on his vehicle.

19. Thus, we have no hesitation in holding that

Shankar Datt Padalia (PW-18) did not know the

accused-appellant No. 1-Akhtar Ali, from before. It is

highly improbable and palpably doubtful that, on

the mere recommendation of a driver employed on

another person’s dumper, Shankar Datt Padalia

would so casually entrust an expensive earth-

moving vehicle to an unknown person without any

47 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 verification or assurance. Equally doubtful is the

version of the witness that, on the mere asking of

accused-appellant No. 1-Akhtar Ali, he gave him a

sum of Rs. 3,000/- (Rupees Three Thousand only)

on 21st November, 2014. The witness did not notice

any suspicious conduct or traces of panic in the

demeanour of the accused-appellant No.1-Akhtar Ali

when he came to ask for expense money. This

conduct is inconsistent with the guilt of the said

accused. These fishy circumstances cast a serious

doubt on the credibility of the testimony of Shankar

Datt Padalia (PW-18). Since the statement of

Shankar Datt Padalia (PW-18) was recorded only 2-3

days after the incident, there was initially no

material available with the police to raise any

suspicion against the accused-appellant No. 1-

Akhtar Ali.

20. We are, therefore, of the view that the

prosecution utterly failed to attribute any clear or

convincing motive to the accused-appellant No. 1-

Akhar Ali. The evidence of Shankar Datt Padalia

48 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 (PW-18), even if taken at its highest, merely shows

that accused-appellant No. 1-Akhar Ali was a

temporary driver who disappeared on the day next

to his engagement, which by itself cannot establish

the depraved motive alleged by the prosecution.

21. The name of the accused-appellant No. 2-Prem

Pal Verma was introduced in the evidence of Manish

Gaur @ Mannu Gaur (PW-39), who stated that the

said accused had been driving his dumper for the

last 10-12 years. Though the witness (PW-39) did

not attend the marriage ceremony, he admitted that

he participated in the search for the missing child.

In his cross-examination, he admitted that there

was widespread discontentment over the incident

and considerable pressure on the administration to

apprehend the culprits. His statement, however, was

recorded by the Investigating Officer 8-10 days after

the incident. His evidence also shows that the

accused-appellant-No. 2-Prem Pal Verma, continued

to drive his dumper even after the incident. When

the S.O.G. team contacted the witness (PW-39) to

49 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 ascertain accused-appellant No. 2-Prem Pal Verma’s

whereabouts, the witness called him to his house

and handed him over to the S.O.G. team. On 20 th

November, 2014, i.e., the date on which the victim

girl went missing, accused-appellant No. 2-Prem Pal

Verma had parked the dumper, handed over the

keys to the witness, and returned to his home.

Apparently, therefore, there is nothing in the

conduct of accused-appellant No. 2-Prem Pal Verma,

to raise suspicion against him.

22. It thus becomes apparent from the testimony

of the material prosecution witnesses, Shankar Datt

Padalia (PW-18) and Manish Gaur @ Mannu Gaur

(PW-39), that the prosecution was unable to lay any

convincing foundation so far as motive is concerned.

In a case resting purely on circumstantial evidence,

the establishment of motive assumes significance,

as it forms the psychological link in the chain of

circumstances.

23. Having found that the prosecution has failed to

establish ‘motive’, we now turn to examine the next

50 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 circumstance relied upon, namely the ‘last seen

theory’. According to the prosecution, the accused-

appellants were seen in close proximity to the victim

girl shortly before she went missing, and this

circumstance is projected as a vital link in the chain

of events connecting them with the crime. It is,

therefore, necessary to scrutinise the testimony of

the witnesses who have spoken regarding the

presence of the accused-appellants near the scene of

the occurrence and to assess whether such

evidence, in the absence of motive, can safely be

accepted to fasten guilt upon them.

24. The first witness pressed into service by the

prosecution regarding the theory of ‘last seen’ is

Kishan Singh Bora (PW-16), who runs a tea stall in

the vicinity of the Ramlila Ground. This witness

deposed that on the evening of 20 th November 2014,

at about 7:00-7:30 pm, he had seen the accused-

appellants in an inebriated condition purchasing

cigarettes and toffees from his stall. While this

assertion ostensibly seeks to establish the presence

51 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 of the accused-appellants near the venue, it is

significant that in his cross-examination, the

witness (PW-16) admitted that his statement was

recorded by the police only on 25 th November, 2014,

i.e., five days after the disappearance of the victim

girl. The unexplained delay in recording his

statement, coupled with the fact that the witness

did not divulge this vital information to anyone

during the period of extensive search operations

being conducted from 20th November 2014 onwards,

renders his testimony unsafe to be relied upon for

establishing the last seen circumstance.

Furthermore, the witness doesn’t note the presence

of any victim girl in proximity to the accused-

appellants, thereby negating the ‘last seen theory’.

25. The next witness relied upon by the

prosecution is Balkrishna (PW-19), a shopkeeper

whose establishment is also located near the

Sheeshmahal. He too stated that on the same

evening, i.e., around 7:00-7:30 pm on 20th

November, 2014, he saw the accused-appellants in a

52 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 drunken state, moving around in the area and

making small purchases. However, in cross-

examination, the witness (PW-19) admitted that he

did not inform anyone, not even the victim’s family

or the police, about this fact until his statement was

formally recorded on 25th November, 2014. Given

that by then the body of the victim girl had already

been recovered, the possibility of these witnesses

being a product of subsequent padding cannot be

ruled out. The credibility of the witness (PW-19) is

further diminished by his admission that he could

not say with certainty whether the accused-

appellants were accompanied by the victim girl at

that time.

26. Sahadat Ali Hasan (PW-20), another resident of

the locality, deposed on similar lines, asserting that

he had noticed the accused-appellants in an

inebriated state near the Ramlila Ground on the

contemporaneous evening. His testimony suffers

from the same infirmity as that of Kishan Singh

Bora (PW-16) and Balkrishna (PW-19), namely that

53 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 it was introduced only on 25 th November 2014, after

the recovery of the dead body of the victim girl, Ms.

K. The belated introduction of these witnesses, all

purporting to speak to the same fact after a lapse of

five days, gives rise to a legitimate apprehension that

the ‘last seen’ circumstance was subsequently

manufactured to bolster the prosecution’s case.

Even otherwise, the evidence of these witnesses,

taken at its highest, does not indicate that the

victim girl was seen in the company of the accused-

appellants. At best, it places the accused-appellants

in the general vicinity, which by itself is insufficient

to sustain the ‘last seen theory’ in a case of this

gravity.

27. This weakness in the prosecution’s narrative

becomes more pronounced when one turns to the

evidence of the key witness, Constable Naushad

Ahmed (PW-2), posted at Police Station Kathgodam,

whose testimony assumes pivotal importance in the

present case. He deposed that on 20 th November,

2014, at about 09:10 pm, Ishwar Singh Sah (PW-36)

54 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 informed Constable Subodh Sharma (PW-4), who

was then on sentry duty at the said police station,

that a minor girl had gone missing from the

marriage function at Sheeshmahal, Ramlila Ground.

This information was forthwith entered in General

Diary No. 5132 at 09:10 pm and was thereafter

communicated to the Station House Officer through

the R.T. set on the same date. The informant (PW-1),

the father of the victim girl, lodged a formal

complaint on 21st November, 2014, at 11:30 am

regarding the disappearance of his daughter. On the

basis of this complaint, Case Crime No. 73 of 2014

was registered under Section 365 IPC against

unknown persons.

28. The testimony of Constable Naushad Ahmed

(PW-2) further reveals that on 25th November, 2014,

while he was on official duty at the police station at

about 02:30 pm, Nikhil Chand (cousin brother of

the missing girl child) informed the Sub-Inspector

Rajesh Yadav (PW-6), Station House Officer from his

32 Exhibit Ka-17.

55 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 mobile phone No. 783xxxx001 that the dead body of

the victim girl was lying in the forest of Gaula river

near Sheeshmahal, Ramlila Ground. On receiving

this information, the Sub-Inspector Shanti Kumar

Gangwar (PW-5) along with his companion police

officials proceeded to the spot. The entry of this fact

was made by the Constable in the general diary 33 of

the police station vide Rapat No. 26. The witness

(PW-2) further stated that the Investigating Officer,

Inderjeet Singh (PW-33) returned to the Police

Station on 25th November, 2014, after the

investigation and deposited two sealed bundles, one

containing plain and blood-stained soil and the

other containing clothes of the victim. The witness

also made a General Diary Entry No. 28 34 regarding

the departure of the investigating team, which

proceeded to arrest the accused-appellant No. 2-

Prem Pal Verma, and Junior Masih alias Foxy.

29. It is portrayed in the evidence of the witness

(PW-2) that both these accused persons were

33 Exhibit Ka-3.

34 Exhibit Ka-33.

56 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 attempting to abscond but were apprehended based

on prior secret information regarding their

whereabouts. It needs a mention that this version of

events, as given out by the witness, is completely

contradicted by the evidence of Manish Gaur @

Mannu Gaur (PW-39), as mentioned earlier. In

cross-examination, the witness denied the

suggestion put forth by the defence regarding the

alleged falsity of the theory concerning the arrest of

accused-appellant No.2-Prem Pal Verma, and Junior

Masih alias Foxy.

30. At this stage, it is relevant to refer to the

evidence of Sub-Inspector Rajesh Yadav (PW-6),

Station House Officer, who was associated with the

process of recovery of the victim’s body. He stated

that upon receiving the information regarding the

missing child on 20th November, 2014, he intimated

the Police Station Kathgodam, to deploy all available

police forces to search for the missing child. The

messages were sent through the control room via

wireless as well as telephone. The witness (PW-6)

57 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 further stated that he was engaged in the search for

the missing girl on 25th November 2014, and that at

approximately 12:30 pm, he was informed by Nikhil

Chand (cousin of the victim girl) over phone that the

dead body of the victim girl was lying in the forest of

the Gaula river at Sheeshmahal. Upon receiving this

information, the witness proceeded to the spot. In

the meantime, he informed the Kathgodam Police

Station as well as higher police officials. Upon

reaching the said spot, he saw the dead body of the

victim girl and undertook the requisite investigation,

including drawing up the Panchayatnama, etc. He

also claims to have seized the forensic material from

the site. Thus, it is clear as daylight that the first

person who shared the precise location of the body

was none other than Nikhil Chand (cousin of the

victim girl).

31. What emerges, therefore, is that the entire

prosecution case linking the accused-appellants to

the crime through the ‘last seen theory’ rests not on

any consistent testimony, but upon the belated

58 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 introduction of interested witnesses after the body

was recovered, upon the information given by Nikhil

Chand.

32. Despite being a close relative who first

disclosed the situs of the victim girl’s dead body,

Nikhil Chand was never examined or interrogated by

the investigating officers. This omission is of grave

significance. The utter failure of the Investigating

Officer to question Nikhil Chand so as to find out

the source of his knowledge about the dead body of

the victim girl depicts gravely tainted and suspicious

actions of the Investigating agencies. It needs to be

noted that the victim girl was not being traced out

despite the frantic efforts of numerous police teams,

and, therefore, it became imperative to determine

the manner in which Nikhil Chand came to know

about the place where the dead body of the victim

was lying. If at all the Investigating Officer’s actions

had been bona fide, his immediate attention would

have focused upon Nikhil Chand to discover the

manner in which he gained information about the

59 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 location of the victim girl’s dead body. Had this

exercise been undertaken, the Court could have

ascertained whether the information stemmed from

innocent circumstances or from direct involvement

in the events of the fateful night. The Investigating

Officer’s failure to record a statement of Nikhil

Chand during the investigation and the omission of

the prosecution to present him for deposition at the

trial deprived the Court of the most vital link in the

chain of circumstances. This intentional and

calculated omission not only undermines the ‘last

seen theory’ but also causes serious prejudice, as it

deprives the Court and the defence of the

opportunity to test whether the knowledge of Nikhil

Chand was innocent or otherwise. In the absence of

this crucial testimony, the last seen circumstance

must be held to have completely collapsed. Non-

examination of Nikhil Chand compels the Court to

draw an adverse inference against the prosecution.

33. Despite his pivotal role, neither the trial Court

nor the High Court considered it necessary to

60 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 examine why Nikhil Chand’s statement was not

recorded or why he was not interrogated, thereby

overlooking a material circumstance that directly

impacts the credibility of the prosecution’s case. The

High Court, while noticing that Rajesh Kumar Yadav

(PW-6), Station House Officer, had been informed by

Nikhil Chand about the recovery, dismissed the

contention by opining that such knowledge was

“natural” and did not affect the prosecution’s case.

The trial Court, on its part, proceeded mechanically

by merely recording that information was received

by the police on 25th November 2014, regarding the

body being found near the Gaula River, without

examining how such information emanated. The

omission of both the Courts below, to scrutinize this

significant aspect strikes at the root of the

prosecution’s version of recovery and renders the

investigation vulnerable to serious doubt.

34. Having found that the prosecution has failed to

establish ‘motive’ and that the ‘last seen theory’, we

now proceed to examine the third circumstance

61 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 relied upon by the prosecution, namely, the alleged

scientific and forensic evidence. However, before

considering the scientific/forensic evidence, it is

necessary to examine the circumstances

surrounding the arrest of accused-appellant No. 1-

Akhtar Ali, for the reason that the credibility of the

DNA samples collected by the Investigating Officers

is directly dependent upon the legality and

authenticity of the arrest and subsequent seizure

proceedings. It may be noted that as per the

evidence of Dr. Manoj Kumar Agarwal (PW-34), the

forensic samples from the victim girl’s dead body

were drawn on 26th November, 2014. The

prosecution claims that accused-appellant No.1-

Akhtar Ali was apprehended in Ludhiana (Punjab)

on 27th November 2014 by Yogesh Chand (PW-10) on

the basis of information supplied by a secret

informer. However, fervent arguments were

advanced by learned counsel appearing on behalf of

the accused-appellants, regarding the grave

discrepancies in the process of detention and arrest

62 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 of the accused-appellant No.1-Akhtar Ali, and it was

contended that he was illegally detained much prior

to his formal arrest, which was shown in documents

on 27th November, 2014.

35. We have already concluded that the manner in

which the arrest of the accused-appellant No.2-Prem

Pal Verma, was projected by the prosecution is

seriously dubious.35 We shall now proceed to

analyse the evidence of the officials associated with

the arrest of the accused-appellant No.1-Akhtar Ali.

36. The accused-appellant No.1-Akhtar Ali was

allegedly apprehended from Ludhiana (Punjab) by

Yogesh Kumar Chand, Head of the Special Task

Force (PW-10). The said witness stated that he was

instructed to investigate the said crime on 26 th

November, 2014. He received secret information to

the effect that a person named Raja Ustaad, a

resident of Bihar, who used to drive a dumper near

the crime scene, had been missing since the

incident. His mobile No. 754xxxx390 was traced and

35 Supra Note, Para No. 22.

63 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 found to belong to one Lakshmi, resident of Haridya

East Champaran, Bihar. The call details records

indicated that the mobile number was in use near

the crime scene between 20 th November, 2014 and

21st November, 2014, and was connecting with two

IMEI Nos. 911352501735790 and

911352501735780. Both the IMEI Nos. were

scanned, and another mobile no. 753xxxx910

issued in the name of Md. Iqbal, a resident of West

Champaran, Bihar, cropped up and was found to be

in operation. The location of the said mobile number

was found to be in Ludhiana (Punjab). Accordingly,

the witness (PW-10) proceeded to Ludhiana and

reached there on 27th November 2014, at around

11:00 am. Efforts were made to locate the mobile

user operating the mobile No. 753xxxx910, which

was found to be functioning in Guru Amardas

Colony, Ludhiana (Punjab).

37. The witness (PW-10) further claims that some

informants were also engaged to trace out the

suspect. One of the informants engaged for that

64 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 purpose came and apprised the witness (PW-10)

that the suspect would come to the shop of Deepu

Bijliwala (Electrician) in search of work. Based on

the said information, surveillance was started at the

Sethi market, and within five minutes, a man draped

in a red-coloured floral blanket was seen coming.

The informer identified him as the same individual

whom the officers were attempting to locate. The

police team approached the said person, who got

nervous and attempted to flee, but was surrounded

and apprehended at around 05:15 pm. On inquiry,

he disclosed his name to be Akhtar Ali (accused-

appellant No. 1 herein).

38. On being interrogated, the apprehended

suspect, Akhtar Ali, confessed to the crime. It was

stated in the confession that upon seeing the victim

girl coming out of the wedding Pandal, he and his

companions (i.e., accused-appellant No.2-Prem Pal

Verma and accused-Junior Masih alias Foxy) minds

got vitiated by lust and thus decided to engage in

carnal acts. Accused-appellant No. 2-Prem Pal

65 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 Verma, used a tamancha (a country-made pistol) to

scare and kidnap the victim girl. Thereupon, the

victim girl was wrapped up in a blanket and was

forcibly taken into the bushes near the Gaula river,

at around 7:30 pm, where all three accused persons

repeatedly subjected her to sexual assault.

Ultimately, the girl fainted because of profuse

bleeding from her genitals. He also confessed that

scratches were caused on his thighs in this process.

Thereafter, they abandoned the place, leaving the

unconscious girl covered with leaves in the bushes.

While he came back and slept in the dumper, the

other two accused persons (i.e., accused-appellant

No. 2-Prem Pal Verma and Junior Masih alias Foxy)

went back to their homes. Apprehending his

discovery in the crime, he absconded to Delhi via

train, and from there he further went to Ludhiana

(Punjab). A mobile handset with two SIM cards, a

railway ticket from Haldwani to Delhi dated 21st

November, 2014, and an identity card in the name

of Shameem, son of Maqsood, were found during the

66 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 personal search of accused-appellant No. 1-Akhtar

Ali. The blanket allegedly used in the incident was

also recovered from the possession of the accused-

appellant No. 1-Akhtar Ali, and the same was seized

and sealed. Likewise, the mobile phone, SIM cards,

railway ticket, and ID card were also seized and

sealed. The accused-appellant no. 1-Akhtar Ali was

arrested vide memo36 dated 28th November, 2014.

Allegedly, the local people refused to stand witness

to the whole process, and therefore, Yogesh Kumar

Chand (PW-10) associated his companion police

officials as the witnesses to the said process.

39. In cross-examination, the witness (PW-10)

admitted that the mobile number 753xxxx910 being

used by the accused-appellant No. 1-Akhtar Ali was

placed in a different handset from the one being used

earlier. Both the SIMs were earlier used in different

handsets whose location was found to be near the

crime scene. The witness (PW-10) further admitted

that there was no recording in the General Diary

36 Exhibit Ka-25.

67 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 regarding the departure of the police team to

Ludhiana on 26th November, 2014. He could not say

as to who was investigating the case when he arrived

at Haldwani on 26th November, 2014. Before

proceeding to Ludhiana, he did not receive any

authorisation to arrest the accused-appellant No.1-

Akhtar Ali. He admitted that the railway ticket is

collected from the passenger by the Railway

Officer/T.T. at the station after completion of the

journey. Very crucial admissions as appearing in the

evidence of the witness (PW-10) in the cross-

examination relating to the calls and caller-ID are

extracted hereinbelow: -

“13. The information about the location of the above mobile number of Raju Ustad was found in the nearby place at the incident spot on dated 20-11-2014 and 21-11-2014, was made available to me by the technical team on my behest. The information of IMEI 911352501735790 and 11352501735780 of the handset on which the above mobile number was used was also collected by me. I have not received the information as to who was the owner of the handset with the above mentioned IMEI. This information was also compiled by me from the technical team that the above mentioned IMEI number 911352501735780 was used from phone number 7533079910 on dated 20-11-2014 and 21-11-2014. On collecting the information of this mobile number 7533079910, it was found that this

68 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 number is the allotted number of Aircel Delhi region. On the Customer I.D. of the said number was found to be of Md. Iqbaal S/o Shekh Shabbir c/o Rakesh Khands, Local City Gurgaon, Local State Haryana, Permanent City Champaran, Permanent State Bihar. The above information was made available to me by the technical team only on my behest. No interrogation was made by me from the said Md. Iqbaal in whose name this customer I.D. was.

14. The Investigating Officer of this case came to Dehradun and interrogated me on dated 07-

01-2015. I have told the Investigating Officer in my statement that the above information has been obtained by me, but had not told from which source the information was obtained. In the statements given to the Investigating Officer, I have told about this thing that ‘I have collected information about this person from the Investigating Officer and other sources’. But now I cannot say that in the above statements from which Investigating Officer I had got the information. It is correct to say that when I attended the proceedings of this case on dated 26-11-2014, who was the investigation officer on that day. I don't know about this.”

40. On a plain reading of the evidence of the

witness (PW-10), we find many suspicious

circumstances surrounding the theory of

apprehension and arrest of the accused-appellant

No.1-Akhtar Ali. The so-called source who identified

the accused-appellant No.1-Akhtar Ali could not

have had any idea about him because the accused-

appellant No. 1-Akhtar Ali was a resident of Bihar

69 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 and had gone to Ludhiana (Punjab) for the first time,

allegedly in order to escape being caught in the

crime. The witness (PW-10) admitted that he had

not been authorised by anyone to proceed to

Ludhiana (Punjab) to arrest the accused-appellant

No.1-Akhtar Ali. There was no note for his departure

to Ludhiana in the General Diary maintained at the

police station. Moreover, he claimed that local people

(including the owner of the shop, in front of whom

the accused-appellant No.1-Akhtar Ali was arrested)

refused to witness the process of arrest and search

of the accused-appellant No. 1-Akhtar Ali, and thus,

only his team members were associated in the

process.

41. The story regarding the Call Details Records is

dubious and suspicious. The Investigating Officer

(PW-10) claimed that the location of accused-

appellant No. 1-Akhtar Ali, was traced by placing

his mobile number under surveillance. However, no

evidence whatsoever has been brought on record to

substantiate this claim. Vishal Pathak, Assistant

70 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 Nodal Officer (PW-28), categorically deposed that the

call detail records of accused-appellant No. 1-Akhtar

Ali were applied for and procured only in January

2015, i.e., much after his arrest. Thus, the very

theory advanced by the prosecution, that accused-

appellant No. 1-Akhtar Ali was traced based on his

mobile location, is rendered false and without

foundation.

42. The prosecution has further sought to connect

accused-appellant No.1-Akhtar Ali with two mobile

numbers, 754xxxx390 and 753xxxx910. However,

the subscriber details of these numbers reveal that

they stood in the names of Lakshmi and Md. Iqbal,

respectively. Crucially, neither of these individuals

was made to depose by the prosecution. The failure

to establish ownership or use of these mobile

numbers by the accused-appellant No.1-Akhtar Ali

fatally undermines the prosecution’s case. In the

absence of such proof, there exists no admissible

evidence linking accused-appellant No. 1-Akhtar Ali

with the said mobile phones numbers.

71 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020

43. Furthermore, the prosecution has alleged that

accused-appellant No. 1-Akhtar Ali, after his arrest,

made a disclosure statement to Vipin Chandra Pant

(PW-40), pursuant to which the hair band worn by

the victim girl was recovered from the forest.

However, this alleged recovery is ex facie dubious

and unworthy of credence and has also been

doubted by the Courts below. Allegedly, accused-

appellant No. 1-Akhtar Ali, and his companions,

driven by lust, were carrying away the victim girl in

hot haste at the long hours of the night. It is

inconceivable that in such circumstances, accused-

appellant No. 1-Akhtar Ali would have paused

deliberately to remove a hair band from the victim

girl. Even otherwise, the possibility that he would

later recall the exact spot in the forest, where he

supposedly discarded the hair band, is almost

impossible. Moreover, the testimony of

Superintendent of Police, Suman Pant (PW-3) would

show that the recovery memo of the hair band

allegedly prepared by her suffers from serious

72 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 infirmities. The memo bears no date of preparation,

yet it is signed by the police personnel who were

allegedly present at the time of recovery, with their

signatures bearing the date 28th November 2014.

Such discrepancies not only cast grave doubt on the

authenticity of the recovery proceedings but also

reinforce the inference that the alleged recovery was

manipulated to suit the prosecution’s narrative.

44. In the backdrop of the aforesaid

contradictions, omissions, and investigative lapses,

the entire procedure of arrest and search of the

person of the accused-appellant No. 1-Akhtar Ali by

Yogesh Kumar Chand (PW-10) comes under a grave

cloud of doubt. The story which has been projected

in the evidence of the witness is something out of

fiction and is ex facie unbelievable.

45. In these circumstances, the very foundation on

which the DNA evidence is sought to be projected

stands gravely compromised, for if the arrest itself

was illegal and stage-managed, the process of

drawing samples from the accused-appellants

73 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 cannot be regarded as either voluntary or reliable.

The prosecution, however, urges that the scientific

reports demonstrate a conclusive match for the DNA

of accused-appellant No. 1-Akhtar Ali with the

forensic material collected from the dead body of the

victim girl. It is, therefore, necessary to examine the

trustworthiness and credibility of the

scientific/forensic evidence. While we examine the

scientific/forensic evidence, it is imperative to

remain conscious of the very stark feature of the

scientific evidence in the form of DNA profiling and

its matching report, which bears directly on the

adjudication of the matter. This Court, in the case of

Mukesh & Anr. v. State for NCT of Delhi & Ors 37,

while discussing the statutory and evidentiary

significance of DNA profiling in criminal trials,

observed as follows: -

“216. DNA technology as a part of Forensic Science and scientific discipline not only provides guidance to investigation but also supplies the court accrued information about the tending features of identification of criminals. The recent advancement in modern

37 (2017) 6 SCC 1

74 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 biological research has regularised Forensic Science resulting in radical help in the administration of justice. In our country also like several other developed and developing countries, DNA evidence is being increasingly relied upon by courts. After the amendment in the Criminal Procedure Code by the insertion of Section 53-A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme.

Section 53-A relates to the examination of a person accused of rape by a medical practitioner.

xxx

457. DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at the scene of crime or for identifying the source of blood found on any articles or clothes, etc. recovered from the accused or from the witnesses. DNA testing on samples such as saliva, skin, blood, hair or semen not only helps to convict the accused but also serves to exonerate. The sophisticated technology of DNA fingerprinting makes it possible to obtain conclusive results. Section 53-A CrPC is added by the Code of Criminal Procedure (Amendment) Act, 2005. It provides for a detailed medical examination of accused for an offence of rape or attempt to commit rape by the registered medical practitioners employed in a hospital run by the Government or by a local authority or in the absence of such a practitioner within the radius of 16 km from the place where the offence has been committed by any other registered medical practitioner.”

46. The prosecution, as well as the Courts below in

the impugned judgments, placed implicit reliance on

the DNA evidence to conclude the guilt of the

accused-appellant No.1-Akhtar Ali. The prosecution

75 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 came out with a categoric case that the victim girl

was subjected to rape by all three assailants, i.e.,

accused-appellant No.1-Akhtar Ali, accused-

appellant No. 2-Prem Pal Verma, and the co-

accused, Junior Masih alias Foxy. In the forensic

examination, only the DNA profile of the accused-

appellant No.1-Akhtar Ali, was found to be matching

with that of the cervical swab of the victim girl. It

does not require rocket science to understand that

during a penetrative sexual assault, the semen

would ordinarily be first deposited in the vaginal

tract and thereafter reach the cervix. That is a

simple conclusion to be drawn from the structural

anatomy of a female Homo Sapien. The total lack of

traces of semen in the vaginal samples makes the

presence of DNA of the accused-appellant No.1-

Akhtar Ali, in the cervical swab suspicious. Further,

there is a glaring inconsistency in the prosecution’s

case. While semen was allegedly found in the

cervical swab of the victim girl, no semen was

detected on the glass slides prepared from the

76 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 cervical smear of the victim girl. It is inconceivable

that semen was found in the swab but was

completely absent in the smear slides, since both

the samples were collected simultaneously from the

same anatomical site in the cervix of the dead body

of the victim girl. The presence in one and absence

in the other defies scientific probability and

undermines the credibility of the prosecution’s

reliance on the DNA report. Such an inconsistency

strongly suggests that the presence of DNA of

accused-appellant No. 1-Akhtar Ali in the cervical

swab was engineered by the prosecution, pointing

towards the possibility that the sample was

tampered with or planted by the prosecution to

falsely implicate the accused-appellant No. 1-Akhtar

Ali.

47. The Medical Jurist, Dr. C.P. Bhaisora (PW-7)

opined that the cause of death of the victim girl was

excessive bleeding and that the death must have

ensued within a few minutes of the assault. In this

background, the jacket found on the body of the

77 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 victim girl could not have remained untouched and

would definitely have received blood stains. However,

the FSL report38 does not report the presence of

blood or semen of any of the accused-appellants on

the said jacket.

48. These circumstances, starting from the so-

called arrest of accused-appellant No. 1-Akhtar Ali

from Ludhiana (Punjab) taken cumulatively, are

sufficient to give rise to a strong inference of

tampering with the forensic samples and planting of

semen of the accused-appellant No.1-Akhtar Ali on

these samples, i.e., cervical swab, undershirt, and

underwear of the victim girl, so as to establish his

involvement in the crime. In our opinion, the entire

process of collection and examination of samples

and the consequent matching of the DNA becomes

suspicious and wholly unreliable. We are thus

convinced that the DNA report39 cannot be treated

as a reliable piece of evidence. Once the said

document is eschewed from consideration, there

38 Exhibit Ka-15 and Exhibit Ka-16.

39 Exhibit Ka-75.

78 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 remains no evidence whatsoever on record of the

case so as to connect the accused-appellant No.1-

Akhtar Ali with the crime.

49. There is yet another reason to discard the DNA

report. The credentials and qualifications of Dr.

Manoj Kumar Agarwal (PW-34), who conducted the

DNA examination and issued the DNA Report 40, are

highly doubtful to place him in the category of a

DNA expert. The said witness admitted in his cross-

examination that his qualifications are M.Sc. in

Botany and Ph.D., which apparently do not equip

him with expertise in the field of human DNA

profiling, which is neither a core subject nor an

ancillary subject in Botany. The witness (PW-34)

denied the suggestion of the defence that human

DNA is not part of the subject of Botany.

50. As per the dictionary meaning, ‘botany’ subject

deals with the scientific study of the physiology,

structure, genetics, ecology, distribution,

classification, and economic importance of “plants”.

40 Ibid.

79 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 It has nothing to do with DNA profiling, particularly

that of human beings. Upon examining the

curriculum structure of the Chaudhary Charan

Singh University, Meerut, (as available on its

website) from where the witness obtained his

degrees in M.Sc. (Botany) and Ph.D., it can be

discerned that the available curriculum does not

provide any specific focus on human DNA profiling.

The witness (PW-34) did not claim to have

undertaken any other specialised course in DNA

profiling. Thus, the very qualifications of a witness

as a DNA expert are under grave doubt. However, we

are not discarding the DNA report solely on this

ground, as there are several other factors, discussed

above, which convince us that the same is

unreliable.

Conclusion: -

51. Having considered the evidence in its entirety

and bearing in mind the principles governing cases

resting purely on circumstantial evidence, we are of

the opinion that the prosecution has failed to

80 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 establish the complete and unbroken chain of

circumstances necessary to bring home the guilt of

the accused-appellants.

52. Firstly, as regards ‘motive’, the prosecution has

merely alleged that the accused-appellants were

driven by lust. However, no independent or credible

evidence has been adduced to substantiate such a

motive. A bald assertion without corroboration

cannot by itself form a safe basis for conviction.

Secondly, the ‘last seen theory’ relied upon by the

prosecution suffers from serious infirmities. The

prosecution has failed to prove the proximity of time

and place so as to shift the burden onto the

accused. Thirdly, the scientific evidence is itself

riddled with deficiencies. The alleged theory of DNA

found on the body of the victim girl matching with

the DNA of accused-appellant No. 1-Akhtar Ali, is ex

facie doubtful and unworthy of credence. The

prosecution’s claim that the accused-appellant No.1-

Akhtar Ali’s location was traced through mobile

surveillance is falsified by its own record, as the call

81 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 detail records were procured much later and no

evidence exists to link the accused-appellant No.1-

Ahktar Ali, with the sim numbers in question.

Likewise, the omission to examine crucial witnesses,

including the subscribers of the relevant mobile

numbers and most importantly Nikhil Chand, who

first informed the police about the location of the

dead body of the victim girl, further weakens the

case of the prosecution.

53. It must be borne in mind that the present case

involves the imposition of the ultimate punishment

of death. The law is well settled that in cases resting

on circumstantial evidence, every link in the chain

must be firmly and conclusively established, leaving

no room for doubt. Where two views are possible,

the one favourable to the accused must be adopted.

In the instant case, the prosecution has failed to

prove motive, the last seen theory stands

contradicted, and the alleged scientific evidence is

marred by inconsistencies and serious loopholes. In

such circumstances, it would be wholly unsafe to

82 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 uphold a conviction, much less the extreme penalty

of death.

54. Trial Courts, as well as High Courts, are

required to exercise the highest degree of

circumspection before awarding the death penalty.

The irreversible nature of capital punishment

demands that it be imposed only in the “rarest of

rare” cases, as held by this Court in Bachan Singh

v. State of Punjab41, and Machhi Singh v. State

of Punjab42, and only when the prosecution has led

unimpeachable, cogent, and convincing evidence

that excludes every hypothesis of innocence. Even

the slightest doubt or infirmity in the prosecution’s

case must weigh against the imposition of such a

sentence. Any hasty or mechanical application of

the death penalty, without ensuring the highest

standards of proof and procedural fairness, not only

undermines the rule of law but risks the gravest

miscarriage of justice by extinguishing a human life

irretrievably. In Manoj & Ors. v. State of Madhya

41 (1980) 2 SCC 684.

42 (1983) 3 SCC 470.

83 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 Pradesh (supra), this Court emphasised the duty of

courts to consider mitigating circumstances and

conduct a detailed sentence hearing before awarding

the death penalty. Therefore, unless the

prosecution’s evidence forms an unbroken and

reliable chain of circumstances pointing only to the

guilt of the accused, the extreme penalty cannot be

justified.

55. Since the prosecution has failed to establish

the chain of circumstances against accused-

appellant No.1-Akhtar Ali, the very foundation of the

case against accused-appellant No. 2-Prem Pal

Verma is also destroyed. The prosecution itself

rested its case against accused-appellant No. 2-Prem

Pal Verma, primarily on the alleged extra-judicial

confession of accused-appellant No.1-Akhtar Ali.

Once the prosecution’s version against accused-

appellant No.1-Akhtar Ali is disbelieved, the

derivative case sought to be built against accused-

appellant No. 2-Prem Pal Verma loses all credibility.

Consequently, the prosecution has failed to prove

84 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 the charges against accused-appellant No. 2-Prem

Pal Verma, beyond a reasonable doubt, and his

conviction cannot be sustained.

56. Given the above infirmities, the so-called links

in the chain of circumstances stand broken. The

prosecution has, therefore, failed to prove the guilt

of the accused-appellants beyond a reasonable

doubt.

57. The impugned common judgment dated 18th

October, 2019, passed by the Division Bench of the

High Court of Uttarakhand at Nainital in Criminal

Reference No. 1 of 2016 and Criminal Appeal No.

104 of 2016 and the judgment dated 11 th March,

2016 passed by the Special Judge (POCSO)/ Fast

Track Court/ Additional District & Sessions Judge,

Haldwani, District Nainital in Session Trial No. 09 of

2015, do not stand to scrutiny and the same are

hereby set aside.

58. The accused-appellants are acquitted of all

charges. They shall be released forthwith, if not

85 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020 required in any other case. Bail bonds are

discharged.

59. The appeals are, accordingly, allowed.

60. Pending Applications, if any, shall stand

disposed of.

….……………………J. (VIKRAM NATH)

….……………………J. (SANJAY KAROL)

...…………………….J. (SANDEEP MEHTA) NEW DELHI;

SEPTEMBER 10, 2025.

86 Crl. Appeals @ SLP(Crl) No(s). 14-15/2020 with Crl. Appeal @ SLP(Crl.) No(s). 6573/2020