Uttarakhand High Court
Safeek Qureshi vs State Of Uttarakhand on 16 March, 2026
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 35 of 2021
Safeek Qureshi ...... Appellant
Vs.
State of Uttarakhand ..... Respondent
Present:
Mr. Vikas Kumar Guglani, Advocate for the appellant.
Mr. B.N. Molakhi, D.A.G. for the State of Uttarakhand.
Criminal Appeal No. 91 of 2021
Rohit ...... Appellant
Vs.
State of Uttarakhand ..... Respondent
Present:
Mr. Vikas Anand, Advocate for the appellant.
Mr. B.N. Molakhi, D.A.G. for the State of Uttarakhand.
Criminal Appeal No. 100 of 2021
Amir Mohammad @ Chotu ...... Appellant
Vs.
State of Uttarakhand ..... Respondent
Present:
Mr. Vikas Anand, Advocate for the appellant.
Mr. B.N. Molakhi, D.A.G. for the State of Uttarakhand.
Criminal Appeal No. 101 of 2021
Nizamuddin ...... Appellant
Vs.
State of Uttarakhand ..... Respondent
Present:
Ms. Khushi Chaudhary, Advocate holding brief of Mr. B.D. Pande, Advocate for
the appellant.
Mr. B.N. Molakhi, D.A.G. for the State of Uttarakhand.
Criminal Appeal No. 137 of 2021
Shaukin Mewati ...... Appellant
Vs.
State of Uttarakhand ..... Respondent
Present:
Mr. Vikas Kumar Guglani, Advocate for the appellant.
Mr. B.N. Molakhi, D.A.G. for the State of Uttarakhand.
2
JUDGMENT
Coram: Hon'ble Ravindra Maithani, J.
Hon'ble Siddhartha Sah, J.
Hon'ble Ravindra Maithani, J. (Oral)
Since all the appeals arise from common
judgment, they are heard together and are being decided by this
common judgment.
2. The instant appeals are preferred against the
judgment and order dated 21.01.2021, passed in Special Sessions
Trial No.53 of 2016, State Vs. Rohit and others, by the court of
Special Judge, POCSO/Additional Sessions Judge/FTC, Haldwani
District Nainital. By it, the appellants have been convicted under
Sections 395, 376-D, and Section 5(g)/6 of the Protection of
Children from Sexual Offences Act, 2012 (the POCSO Act). They
have been sentenced as hereunder:-
A. Under Section 395 IPC, to undergo rigorous
imprisonment for a period of 10 years, with a fine of
Rs.10,000/- each. In default of payment of fine, to
undergo simple imprisonment for a further period
of two months.
B. Under Section 376-D IPC, to undergo rigorous
imprisonment for life with a fine of Rs.20,000/-
each. In default of payment of fine, to undergo
simple imprisonment for a further period of two
months.
C. Under Section 5(g)/6 of the POCSO Act, to undergo
rigorous imprisonment for life with a fine of
Rs.20,000/-each. In default of payment of fine, to
undergo simple imprisonment for a further period
of two months.
3
The appellants Nizamuddin and Safeek Qureshi
have also been convicted under Section 412 IPC and sentenced to
undergo rigorous imprisonment for a period of 10 years with a fine
of Rs.10,000/-each. In default of payment of fine, to undergo
simple imprisonment for a further period of two months.
The appellant Nizamuddin has also challenged the
judgment and order dated 21.01.2021, passed in Special Sessions
Trial No.45 of 2016, State Vs. Nizamuddin, by the court of Special
Judge, POCSO/Additional Sessions Judge/FTC, Haldwani District
Nainital. By it, the appellant Nizamuddin has been convicted
under Section 4/25 of the Arms Act, 1959 (“the Arms Act“), and
sentenced to undergo rigorous imprisonment for a period of 6
months with a fine of Rs.1,000/-each. In default of payment of
fine, to undergo simple imprisonment for a further period of one
month.
3. Heard learned counsel for the parties and perused
the record.
4. The prosecution case, briefly stated, is as follows:
In the intervening night of 23/24.07.2016, at 2:00 in the morning,
10-12 miscreants, armed with lathi, danda and country made
pistols entered into the house of PW1, the mother of the victims,
and assaulted the family members and looted various articles,
including the jewelleries, etc.. They also committed rape on the
daughters of PW1, namely PW3, victim S, and PW5, victim U. The
report of the incident was lodged by PW1, the mother of the
victims, on 24.07.2016, at Police Station Ramnagar, District
Nainital, on the same date. PW3, victim S and PW5, victim U, were
4medically examined on 24.07.2016. PW3, victim S, was examined
at 01:18 p.m. She refused for internal examination. In the history
of her medical examination, she has stated that one of the
assailants did insert his finger in her vagina, but there was no
bleeding and no injury on any part of the body. PW5, victim U,
was examined on 24.07.2016, at 1:28 p.m. She also did not have
any injury on her person. She has also narrated the same story,
as was told by another victim, PW3, victim S.
5. It is the prosecution case that both the victims
were again medically examined. PW3, victim S, was examined on
26.07.2016, at 12:30 p.m. and certain injuries were found on her
person, though she narrated the same story about the incident
which she had narrated on 24.07.2016, and PW5, victim U, was
again medically examined on 24.07.2016, at 12:30 p.m. At that
time also, certain injuries were noted on her person. He has also
narrated the same story, which she had narrated at the time of
her medical examination on 24.07.2016. The statements of both
these victims were recorded under Section 164 of the Code of
Criminal Procedure, 1973 (“the Code”). The clothes, which they
wore at the time of the incident, were taken into custody.
6. According to the prosecution case, the appellant
Rohit, on his own, approached the Police at Chowki Peerumdara
on 26.08.2016. He revealed that he was involved in the offence.
He named other appellants also. Thereafter, at the instance of the
appellant Rohit, a vehicle driven by Guddu was intercepted, where
the appellant Nizamuddin was one of the occupants. From the
possession of the appellant Nizamuddin, a knife was recovered.
5
The appellant Nizamuddin and Guddu had then revealed that they
had kept the looted articles in the shop of Guddu. Thereafter, at
the instance of appellant Nizamuddin and Guddu, from the
possession of the appellant Nizamuddin, jewellery was recovered.
According to the prosecution, jewellery was also recovered at the
instance of Guddu. The recovery memo of it was also prepared.
Based on recovery of knife from the possession of the appellant
Nizamuddin, a separate Case Crime No. 251 of 2016, under
Section 4/25 of the Arms Act, was also lodged against the
appellant Nizamuddin. The Investigation Officer (“IO”) prepared
site plan of the place of incident, place of recovery, etc. The
clothes of the victims and that of the accused persons were sent
for forensic examination, but it did not support the prosecution
case. Nothing was detected on those clothes.
7. After completion of the investigation, the IO
submitted chargesheet against the appellants and one Guddu for
offence under Sections 395, 376-D, 412 read with Section 34 and
3/4/16 of the POCSO Act. Separate charge sheet was submitted
under Section 4/25 of the Arms Act against the appellant
Nizamuddin and one Guddu. Initially on 02.06.2017, charges
under Sections 395, 376D and 5(g)/6 of the POCSO Act was
framed against the appellants Rohit, Shaukin Mewati, Safeek
Qureshi and Amir Mohammad alias Chotu, and charges under
Sections 395, 376D, 412 IPC and 5(g)/6 of the POCSO Act was
framed against the appellant Nizamuddin and one Guddu charge
under Section 4 read with 25 of the Arms Act was also framed
against the appellant Nizamuddin. But, subsequently, by the
order dated 22.07.2019, the court framed joint charges against all
6
the appellants and one Guddu under Sections 395, 376D IPC and
Section 5(g)/6 of the POCSO Act and Section 412 IPC was framed
against the appellant Nizamuddin and Safeek Qureshi. One
Guddu was also charged under Section 412 IPC. The appellant
Nizamuddin was also charged for the offences under Section 25 of
the Arms Act. The appellants did not admit the charges. They
claimed trial.
8. In order to prove its case, the prosecution examined
15 witnesses namely:-PW1, the mother of the victims; PW2, the
father of the victims; PW3, victim S; PW4, Jagmohan Singh Rawat;
PW5, victim U; PW6, S.I. Shweta Negi; PW7, Dr. Archna Kaushik;
PW8, Dr. Chandra Pant; PW9, brother of the victims; PW10, S.I.
Ravindra Kumar Kaushal; PW11, Sanjay Kumar Pandey; PW12,
Dinkar Singh; PW13, Bharat Singh Sammal; PW14, Paritosh
Verma; PW15, the sister of the victims.
9. During trial, by the order dated 07.12.2020, the court
recorded that since Guddu was declared a juvenile, therefore, his
file was separated.
10. It is admitted at Bar that enquiry of Guddu was
referred to the Juvenile Justice Board, Nainital, but he was tried
as an adult in Special Sessions Trial No.12 of 2021, State Vs.
Guddu, in the court of FTC/Additional Sessions Judge/Special
Judge (POCSO), Haldwani, District Nainital (“the connected trial”),
and in the connected trial, on 05.05.2022, Guddu had been
acquitted of the charges under Sections 395, 376D, 412 IPC and
Section 5(g)/6 of the POCSO Act.
7
11. The appellants were examined under Section 313 of
the Code. According to them, they have been falsely implicated in
the case.
12. After hearing the parties, by the impugned judgment
and order, the appellants have been convicted and sentenced as
stated hereinbefore.
13. Learned counsel appearing for the appellants
submits that it is a no evidence case; the appellants have been
convicted without any evidence. He raised the following points in
his submission:-
a) The FIR is not named.
b) The witnesses of facts have stated that
they did not see the assailants, as they had
masked their faces.
c) No test identification was done. The
appellants have not been identified in the court.
d) With regard to identification whatever has
been stated by PW3, victim S, that is not reliable.
It is not credible.
e) During the initial medical examination of
the victims held on 24.07.2016, no injuries were
found on their person by PW8, Dr. Chandra Pant,
which she has confirmed also, but, subsequently,
when their medical examination was done on
26.07.2016, injuries were found. Those injuries
cannot be connected with the alleged offence.
f) The sequel of events is also much doubtful
as PW3, victim S, has stated that one of the
8
miscreants had inserted his finger in her vagina,
which she told in her statement recorded under
Section 164 of the Code and in court also,
whereas, PW1, the mother of the victims, tells in
court that the PW3, victim S, was raped before
her.
g) PW5, victim U, in her statements recorded
during investigation tells that she was raped, but
in court she tells that one of the miscreants had
inserted his finger in her vagina, and explains that
it is rape.
h) The alleged recovery from appellant
Nizamuddin with regard to a knife and jewellery is
totally non-reliable.
i) Insofar as recovery of jewellery from
appellant Nizamuddin on 26.08.2016 is
concerned, it cannot be connected with the
offence. Whatever has been stated by PW11,
Sanjay Kumar Pandey, PW13, Bharat Singh
Sammal and PW14, Paritosh Verma, about the
identification of articles allegedly recovered from
the appellant Nizamuddin cannot be read into
evidence because according to the PW14, Paritosh
Verma, the IO, PW11, Sanjay Kumar Pandey, had
brought all the articles for recovery, and it was
done in his presence. But it is stated that any
statement given by the witness, even at the time of
identification of articles in the presence of the IO,
9
is hit by the provisions of Section 162 of the Code,
and it is inadmissible.
14. In support of his contentions, learned counsel for
the appellants has placed reliance upon the principles of law, as
laid down by the Hon’ble Supreme Court in the case of
Chunthuram Vs. State of Chattisgarh, (2020) 10 SCC 733.
15. In the case of Chunthuram (supra), the Hon’ble
Supreme Court has discussed the situation when the police is
present at the time of identification, and held that any statement
given by witnesses under such circumstances could be hit by
Section 162 of the Code. In Para 11, the Hon’ble Supreme Court
observed as follows:-
“11. The infirmities in the conduct of the test
identification parade would next bear scrutiny. The major
flaw in the exercise here was the presence of the police
during the exercise. When the identifications are held in
police presence, the resultant communications tantamount
to statements made by the identifiers to a police officer in
course of investigation and they fall within the ban of
Section 162 of the Code. (See Ramkrishan Mithanlal Sharma
v. State of Bombay, AIR 1955 SC 104.)”
16. It is further argued that the evidence of PW3,
victim S, with regard to identification, bare no weightage under
such circumstances, particularly when it is admitted case that the
assailants had masked their faces and their faces were not visible
when allegedly the dacoity was done. In this regard, learned
counsel for the appellants has placed reliance on the principles of
law as laid down by the Hon’ble Supreme Court in the case of
Dana Yadav alias Dahu and Others v. State of Bihar, (2002) 7
SCC 295. In the case of Dana Yadav (supra), the Hon’ble Supreme
10
Court curled up the principles with regard to test identification. In
Para 38(e), the Hon’ble Supreme Court observed as follows:-
“38(e) Failure to hold test identification parade does not
make the evidence of identification in court inadmissible,
rather the same is very much admissible in law, but
ordinarily identification of an accused by a witness for the
first time in court should not form the basis of conviction,
the same being from its very nature inherently of a weak
character unless it is corroborated by his previous
identification in the test identification parade or any other
evidence. The previous identification in the test identification
parade is a check valve to the evidence of identification in
court of an accused by a witness and the same is a rule of
prudence and not law.”
17. On the other hand, learned State Counsel submits
that one of the appellants, Rohit, approached the IO on his own
admitting that the offence was committed by him and other
appellants; based upon it, on 26.08.2016, appellant Nizamuddin
and one Guddu were apprehended, and from the possession of the
appellant Nizamuddin, jewellery and a knife was recovered. It is
argued that the identification of the appellants is based on the
statement of appellant Rohit for himself and for other appellants.
18. With regard to injuries, and discrepancies on the
medical examination of PW3, victim S, and PW5, victim U, held on
24.07.2016 and 26.07.2016, learned State Counsel submits that
on 24.07.2016, both the victims did not agree for internal
examination and in a cursive manner that examination was done.
Subsequently, when the medical examination was done on
26.07.2016, the injuries were noted. It supports the prosecution
case.
11
19. Before the arguments are appreciated, it would be
apt to examine as to what the witnesses have stated in their
deposition.
20. PW1 is the mother of the victims. She has stated
that on the date of incident, 10-12 miscreants entered in their
house. They started beating the family members. They were armed
with country-made pistols, knife and sabbal. One of them, took
the PW3, victim S in the room and raped her. Thereafter, they
caught hold of PW5, victim U and raped her also. They looted
various articles. Thereafter, they took the PW5, victim U alongwith
them towards temple and she was dropped in the state of
unconsciousness. They also threatened her to life. The PW5,
victim U, when she regained consciousness, revealed that the
miscreants took her towards temple and disrobed her. This
witness has lodged the FIR, Ex. A1. This is what she has proved.
21. PW2 is the father of the victims. He has
corroborated the statement of PW1 mother of the victims. He is
not eyewitness. But according to him, he was called in the
Ramnagar court for identification of the articles. He had identified
the jewelery, but one Hansuli, he did not identify.
22. PW3 is victim S and PW5 is victim U. Both have
supported the statement of PW1 their mother as to what had
happened on the date of incident. According to PW3 the victim S,
one of the miscreants took her inside. He inserted his finger in her
vagina. Thereafter, he also took PW5 victim U inside the room,
where she was crying. She has stated that she was mercilessly
12
beaten up and their belongings were taken up by those
miscreants. Thereafter, they went to police. She has also proved
her statement recorded under Section 164 of the Code, which is
Ex. A2. Just above her cross examination, this witness PW3, the
victim S has identified three persons, namely, appellants Rohit,
Nizamuddin and one Guddu. She has also identified the appellant
Safeek Qureshi as the person, who inserted his finger in her
vagina.
23. PW5 is another victim U. She has also
corroborated the statement of PW1 her mother. According to her,
one of the miscreants entered his finger in her vagina. It may be
noted that PW5 victim U in statement recorded under Section 164
of the Code has stated that she was raped. According to PW5
victim U, after looting and beating the family members, she was
taken by the miscreants at a distance. She was harassed, tortured
and subsequently dropped by them in her house.
24. PW6 Shweta Negi is the Inspector, Police. She had
taken into custody the clothes worn by the victims at the time of
incident and prepared recovery memo Ex. A6. She prepared the
site plan Ex. A7. According to her, on 26.08.2016, PW11 Sanjay
Kumar Pandey, Inspector, was informed that the appellant Rohit
wants to give certain information to Police with regard to the
offence. Thereafter, the appellant Rohit told the police that he had
committed the offence alongwith other appellants. PW6 Shweta
Negi has stated that on that date, at the instance of the appellant
Rohit, a car driven by Guddu was intercepted. Appellant
Nizamuddin was one of its occupants. From the possession of the
13
appellant Nizamuddin, a knife was recovered and a separate
offence under Section 4/25 of the Arms Act, was lodged against
him. She also tells that at the instance of the appellant
Nizamuddin and Guddu, jewellery was also recovered.
25. PW4 Head Constable, Jagmohan Singh Rawat
recorded chik FIR and made its entry in the General Diary of the
Police Station. He has stated about it.
26. This Court is not discussing the evidence qua
Guddu because he has already been acquitted in the connected
trial.
27. PW8 Dr. Chandra Pant did examine PW3 victim S
on 24.07.2018 at 1:18 p.m., She has stated that on that date, the
victim had told it to her that the miscreants had entered into their
house in the midnight. They were assaulted and one of the
miscreants had inserted his finger in his vagina and thereafter,
left her. She has proved her examination report qua PW3 victim S
Ex. A12 and tells that there were no marks of injury on her
person. She has also proved the injury report of PW5 victim U,
which is Ex. A13. Similarly, according to her, the victim had told
her that one of the miscreants has entered his finger in her
vagina.
28. PW7 Dr. Archana Kaushik did examine the victims
on 26.07.2016. According to her, the same story was told to her
by both the victims. She had noted many contusions, abraded
contusions in the person of the PW3 victim S. She has proved the
14
medical examination report Ex. A8. She has also proved the
pathology report Ex. A9. PW7 Dr. Archana Kaushik has also
examined PW5 victim U on 26.07.2016. She has noted injuries on
her cheeks which were contusions, but there was no internal
injury. She has proved the medical examination report Ex. A10
and pathological report Ex. A11.
29. PW9 is the witness of recovery memo, by which
the IO had taken the clothes of the victims and masks of the
miscreants, which this witness later on found in the forest. He has
stated about those articles.
30. PW10 SI, Ravindra Kumar Kaushal is the IO of the
case under Arms Act against the appellant Nizamuddin. He has
proved his site plan Ex. A14 and charge sheet Ex. A15. He has
stated about Guddu, but as stated, the trial of Guddu has already
been concluded.
31. PW11 Sanjay Kumar Pandey was Inspector, Police.
He has stated that the appellant Rohit had approached him and
revealed that he had committed the offence alongwith other
appellants. At his instance, thereafter, a car driven by Guddu was
intercepted. The appellant Nizamuddin was one of its occupants.
Then a search was made and from the possession of the appellant
Nizamuddin, a knife was recovered. They were arrested. He has
proved those articles. According to PW11 Sanjay Kumar Pandey,
the appellant Nizamuddin and Guddu had then told that they had
kept the looted jewellery in the shop of Guddu. They visited the
place and at the instance of the appellant Nizamuddin, jewellery
15
was recovered, of which recovery memo Ex. A21 was prepared.
This witness has also stated about the recovery of jewellery made
at the instance of the appellant Safeek Qureshi on 20.09.2016. It
may be noted that, in fact, this jewellery was not identified by any
of the witnesses, even as per the prosecution.
32. PW12 Dinkar Singh has proved the date of birth of
the PW5 victim U. He has also proved the extract of the school
register, which is Ex. A25.
33. PW13 Bharat Singh Sammal is the witness of test
identification of the articles. He was a prosecution officer.
34. PW14 Paritosh Verma was SDM, in whose
presence, the identification was done when articles were brought
by the IO alongwith the witness wherein he works. He has proved
the memo of it Ex. A26.
35. PW15 is the sister of the victims. She has stated
about the incident and had told that she had identified the
appellant Rohit, who happens to be her maternal uncle.
36. FIR does not reveal as to who were the miscreants.
First and foremost, it has to be seen as to whether the appellants
or any of them have been identified by witnesses or any of them.
37. There are four witnesses of fact, which are PW1
mother of the victims, PW3 victim S, PW5 victim U and PW15
sister of the victims. PW1 is mother of the victims, she has stated
16
about the incident, but in the very beginning lines of her
examination-in-chief, she tells that the miscreants had masked
their faces and in Page 3 middle lines of her statement, she tells
that all the miscreants have masked their faces with cloth. She
could not identify any of them. PW3 victim S at one stage in page
5 bottom line to page 6 top of her examination has identified some
of the appellants. But the question is as to how they were
identified? In her cross examination recorded on 20.02.2018, in
the beginning paragraph, PW3 victim S says that on the date of
incident, she could not identify any of the miscreants. They had
masked their faces. Only their eyes were visible. This is what PW5
another victim U has stated. In page 5 of her statement, she tells
in para 10 that the miscreants had masked their faces, only their
eyes were visible. But in para 27, she explains that she had seen
the miscreants coming from the gate, therefore, she can now
identify them. The question is if at the time of incident these
victims have not identified the miscreants, how could on
subsequent day, they could identify the miscreants.
38. Interestingly, there is another witness PW15, who
is sister of the victims, as stated, she has also stated about the
incident and had told that she had identified the appellant Rohit,
who happens to be her maternal uncle (statement of PW15 sister
of the victims 2nd page midlines). The question is if PW15, the
sister of the victims has identified his maternal uncle Rohit as one
the miscreants, what prevented her to reveal it ot PW1, her
mother, that Rohit was one of the miscreants The statement of
PW15 the sister of the victims with regard to the identification of
17
the appellant Rohit at the time of incident is not inspiring any
confidence.
39. There is another aspect of the matter also.
According to PW15, the appellant Rohit was her maternal uncle,
whose mask was slipped during the incident and she could
identify him. He was not a stranger to the family as per PW15
sister of the victims. He was her maternal uncle, which means,
there was an opportunity for the PW1 mother of the victim, PW3
victim S and PW5 victim U, to identify the appellant Rohit, but
none of them have stated that they identified any of the
miscreants. In fact, as stated, according to the PW1, mother of the
victims, PW3 victim S and PW5 victim U, all the miscreants have
masked their faces with cloths and they could not identify any of
them except to see their eyes. Therefore, there is no material
which could suggest even that the appellants or any of them was
ever identified. There have been no test identification parade
conducted, as stated by the IO. According to the IO, there was no
purpose to conduct test identification parade of the appellants as
the miscreants had masked their faces at the time of incident. It
also does not support the statements of PW15, the sister of the
victims, who tells that the mask of the Rohit had slipped at the
time of incident and therefore, she could identify him.
40. There has been no identification of the appellants
and in view of it, in fact, on this count alone, the entire
prosecution case fails and make the appellants liable for acquittal.
18
41. There is another aspect of the matter. According to
PW1 mother of the victim, PW3 victim S and PW5 U, they were
badly beaten up by the miscreants. But when PW3 victim S and
PW5 U were examined on 24.07.2016, there was no injury on
their persons. In fact, specifically when PW8 Dr. Chandra Pant
was asked, in para 3 of her cross examination PW8 Dr. Chandra
Pant has stated when she examined the victims there were no
injury on their persons. If it is so, how could injuries were
detected on their persons by PW7 Dr. Archana Kaushik on
26.07.2016? Where those injuries post alleged incident? It further
doubts the prosecution case.
42. Insofar as, recovery from the appellant
Nizamuddin is concerned, according to the witnesses, the test
identification of the recovered jewellery was done by the PW14
Paritosh Verma in the presence of PW13 Bharat Singh Sammal
and PW Ravindra Kumar Kaushal, the IO.
43. In view of the principles of law, as laid down by the
Hon’ble Supreme Court in the case of Chunthuram (supra), the
presence of IO vitiates the identification proceedings because any
communication made by the witness is hit by 162 of the Code,
which is same position in the instant case.
44. The appellant Nizamuddin has also been charged
for keeping a knife without any valid authority. PW6 Shweta Negi
and PW11 Sanjay Kumar Pandey are witnesses to it. According to
them, on 26.08.2016, they were told by the appellant Rohit about
the commission of offence by him other appellants and thereafter,
19
the appellant Nizamuddin and one Guddu were intercepted. It is
admitted to both these witnesses that there were other people
around from public, but none of them is a witness. PW11 Sanjay
Kumar Pandey has categorically stated that before search of the
appellant Nizamuddin, the police party had searched each other
to ensure that none carries any prohibited article. But, he admits
in page 2 of his cross examination done on 04.09.2018 that PW6
Shweta Negi was not searched by anyone because there was no
other lady police officer. In fact, the recovery memo of the knife
Ex. A17 does not record that the police party did search each
other to avoid possibility of any planting of prohibited articles.
45. Having considered the statements of PW6 Shweta
Negi and PW11 Sanjay Kumar Pandey and other attending factors,
we are of the view that their evidence is not such credible which
may bring home the guilt of the appellant Nizamuddin for offence
under Section 25 of the Arms Act.
46. In view of the foregoing discussion, we are of the
view that the prosecution has not been able to prove the charge
levelled against the appellants and all the appellants ought to
have been acquitted of the charges. Learned court below
committed an error in convicting and sentencing them. Therefore,
the appeals deserve to be allowed.
47. All the appeals are allowed.
48. The judgment and order dated 21.01.2021, passed
in Special Sessions Trial No.53 of 2016, State Vs. Rohit and
20
others, and Special Sessions Trial No. 45 of 2016, State Vs.
Nizamuddin by the court of Special Judge, POCSO/Additional
Sessions Judge/FTC, Haldwani District Nainital are set aside.
49. The appellants are acquitted of the charge under
Sections 395, 376D and 5(g)/6 of the POCSO Act. The appellants
Nizamuddin and Safeek Qureshi are acquitted of the charge under
Section 412 IPC. The appellant Nizamuddin is also acquitted of
the charge under Section 4/25 of the Arms Act.
50. Appellants are in jail. Let they be released
forthwith, if not wanted in any other case, subject to their
furnishing personal bonds and two sureties by each one of them,
each of the like amount to the satisfaction of the court concerned
under Section 437 A of the Code.
51. Let a copy of this judgment be sent to the court
below along with the original records.
(Siddhartha Sah, J.) (Ravindra Maithani, J.)
16.03.2026
Jitendra/Ravi