Uttarakhand High Court
Mool Chandra @ Moola vs State Of Uttarakhand on 12 February, 2026
Author: Ravindra Maithani
Bench: Ravindra Maithani
Judgment Reserved on:31.12.2025
Judgment delivered on:12.02.2026
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE MR. RAVINDRA MAITHANI, J.
HON'BLE MR. ASHISH NAITHANI, J.
Criminal Appeal No. 143 of 2019
Mool Chandra @ Moola ......Appellant
Vs.
State of Uttarakhand .....Respondent
With
Criminal jail Appeal No. 11 of 2019
Bhup Singh @ Bhupali ......Appellant
Vs.
State of Uttarakhand .....Respondent.
Presence:
Mr. Mahavir Kohli, Advocate for the Appellant Mool Chandra @ Moola.
Mr. Asif Ali, Advocate for the Appellant Bhup Singh @ Bhupali.
Mr. J.S. Virk, Deputy Advocate General for the State.
As Per Hon'ble Ashish Naithani, J.
1. These connected criminal appeals, namely Criminal Appeal No. 143 of
2019 and Criminal Jail Appeal No. 11 of 2019, have been preferred
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under Section 374(2) of the Code of Criminal Procedure by the
Appellants, challenging the common judgment and order of conviction
dated 18.02.2019 passed by the learned IInd Additional Sessions Judge,
Haldwani, District Nainital, in Sessions Trial No. 45 of 2018, arising
out of FIR No. 33 of 2018, Police Station Banbhulpura, District
Nainital. Since both appeals arise out of the same judgment, pertain to
the same incident, and are founded on common evidence, they are
being heard and decided together by this common judgment.
2. By the impugned judgment, the Appellants were convicted for
offences punishable under Sections 363, 366-A, 376(2)(l), and 376-D
of the Indian Penal Code, and were sentenced to undergo varying
terms of rigorous imprisonment,directing that all sentences shall run
concurrently.
3. The case of the State, in brief, is that a missing person report was
lodged by the brother of the victim at Police Station Banbhoolpura,
Haldwani, on 08.03.2018. The report stated that the victim was a girl
aged about 13 years (with the question of age being a matter arising on
the record) and that she was suffering from intellectual disability and
had difficulty with speech. It was reported that she had gone missing
from her residence on 07.03.2018 at about 4:00 p.m.
4. The victim was found the next day at about 11:30 p.m., at a distance of
approximately 50 meters ahead of Awla Chauki Gate, near a petrol
pump. She was found alone and in a frightened condition. She was
taken back to her home, where her mother noticed that she was
wearing a blood-stained pyjama and had black marks on her body. The
State case further is that the victim, through gestures and signs,
communicated to her mother that she had been sexually assaulted and
beaten by two persons.
5. While searching for the victim, her brother came across CCTV footage
obtained from a camera installed at the Power House situated on
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Himalayan School Road. In the said footage, the victim was seen being
led by a person holding her hand and taking her towards Awla Chauki
Gate on Gaula Bypass Road. The brother of the victim took a snapshot
of the CCTV footage on his mobile phone and, on the basis of this
clue, continued efforts to trace the victim.
6. Thereafter, on enquiries, the person seen accompanying the victim in
the footage was identified as Mool Chandra, son of Gothi Lal. It was
further stated that on the previous night, a girl with intellectual
disability and short hair was seen in the company of Mool Chandra and
his associate Bhup Singh, who was stated to be a driver, and that both
were seen loitering around in the area. These facts were reported at the
police station.
7. The victim was medically examined after about three days of the
incident at the Government Female Hospital, Haldwani, on 10.03.2018
at about 9:30 a.m.
8. The medico-legal record contains a structured questionnaire pertaining
to the history of sexual violence. The examining Medical Officer
recorded that the victim was not able to provide information in
response to the queries in the questionnaire, and the entries relating to
penetration, emission, condom use, use of any object, and allied
particulars were marked "not applicable", as the victim was not able to
comprehend or respond.
9. On internal examination, the hymen was found to be absent, and slight
lacerations were observed. It was further noted that there was bleeding
on touch and the presence of slight white discharge.
10. As the case was reported to involve sexual violence, during the
course of the medical examination, samples and swabs, along with the
clothes of the victim, were collected for pathological and forensic
examination.
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11. In the supplementary medical report, no spermatozoa were found
in the vaginal smear. The Senior Medical Officer reported that, taking
into account the history, clinical examination, and pathological reports,
no definite opinion regarding rape could be given. However, the
possibility thereof was not ruled out.
12. Seventeen exhibits relating to the victim and the Appellants were
sent for forensic examination to the Forensic Science Laboratory at
Dehradun, including the salwar of the victim (Exhibit 2), nail scrapings
of the victim (Exhibit 4), the green underwear of accused Bhup Singh
(Exhibit 11), and the jeans and blood samples of accused Mool
Chandra (Exhibits 13, 14, and 16), besides other exhibits.
13. The FSL report recorded that human semen and human blood
were detected on Exhibit 2 (the salwar of the victim) and Exhibit 11
(the green underwear of accused Bhup Singh).
14. The DNA obtained from the salwar and the nail scrapings of the
victim matched the DNA obtained from the blood samples of the
victim herself and did not match the DNA obtained from the blood
samples of either accused.
15. Significantly, the DNA obtained from the underwear of accused
Bhup Singh matched the DNA obtained from the blood sample of the
victim as well as the blood sample of Bhup Singh.
16. Insofar as Appellant Mool Chandra is concerned, the forensic
narrative placed on record states that no semen, blood, or DNA linking
him to the alleged sexual assault was detected on the victim's clothing,
nail scrapings, or any other incriminating exhibit, and there was no
scientific corroboration by DNA profiling linking him to the alleged
sexual assault.
17. Upon appreciation of the evidence on record, the learned trial
court returned findings of guilt against the Appellants and passed the
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impugned judgment of conviction and sentence, which is the subject
matter of challenge in the present connected appeals.
18. Learned counsel for the Appellants assailed the impugned
judgment and submitted that the conviction and sentence are
unsustainable on the evidence on record.
19. Learned counsel for Appellant Mool Chandra submitted that the
evidence does not establish his involvement in the act of sexual assault
beyond a reasonable doubt. It was urged that the conviction for sexual
assault has been recorded on a broad inference drawn from association
and suspicion, without proof that reaches the required standard.
20. Learned counsel for Appellant Mool Chandra emphasized that
the medical evidence is inconclusive. It was submitted that the victim
was medically examined about three days after the incident, and the
supplementary medical report records that no spermatozoa were found
in the vaginal smear and that no definite opinion regarding rape could
be given.It was therefore urged that the medical evidence does not
provide definitive corroboration identifying any particular assailant.
21. Learned counsel for Appellant Mool Chandra placed specific
reliance on the forensic material and submitted that it does not
implicate him in the act of sexual assault. It was urged that no semen,
blood, or DNA linking Mool Chandra to the alleged sexual assault was
detected on the victim's clothing, nail scrapings, or any other
incriminating exhibit, and that there is no scientific corroboration, by
DNA profiling, connecting him to the alleged sexual assault.
22. Learned counsel for Appellant Mool Chandra further submitted
that, at the highest, the circumstance of being seen in the company of
the victim may suggest presence or proximity; still, it cannot be
stretched to conclude participation in sexual assault in the absence of
scientific or other dependable linking evidence. It was therefore urged
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that the conviction of Mool Chandra is unsafe and deserves to be set
aside.
23. Learned counsel further submitted that the prosecution failed to
prove the authenticity and integrity of the electronic record in
accordance with the law and that mere production of CCTV footage,
without strict compliance with the requirements governing electronic
evidence, renders the same inadmissible and unsafe for reliance. It was
urged that the conviction cannot be founded, even partially, on such
infirm electronic evidence.
24. Additionally, Learned counsel for Appellant Bhup Singh
submitted that the learned trial court has erred in appreciating the
surrounding circumstances and has not examined the infirmities in the
State narrative with the caution required. It was urged that the State's
case contains inconsistencies on foundational aspects and that the
Court must evaluate the evidence as a complete chain before sustaining
a conviction.
25. Learned counsel for Appellant Bhup Singh also relied upon the
medical evidence and submitted that it is not definitive. It was urged
that the medical opinion does not conclusively establish the nature of
the act or identify the assailant, and therefore, conviction must rest
only on evidence that is certain and reliable.
26. Learned counsel for Appellant Bhup Singh addressed the forensic
finding relating to Exhibit 11, the green underwear attributed to Bhup
Singh, and submitted that even scientific evidence must be evaluated in
the context of the integrity of collection, seizure, sealing, custody, and
forwarding. It was urged that unless the Court is satisfied that the
exhibit remained protected from contamination or substitution, the
circumstance cannot be treated as conclusive to sustain a conviction.
27. Learned counsel for Appellant Bhup Singh lastly submitted that
the victim was stated to be a person with disability, and that the case
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therefore calls for heightened judicial sensitivity. However, it was
urged that even in such cases, conviction must be founded on proof
beyond a reasonable doubt and not on moral shock or suspicion.
28. Per contra, learned counsel appearing for the State supported the
impugned judgment and submitted that the State has proved its case
beyond a reasonable doubt. It was urged that the victim was a
vulnerable girl with intellectual disability and difficulty with speech,
and her inability to narrate in conventional terms cannot detract from
the occurrence when the surrounding circumstances and scientific
evidence provide strong corroboration.
29. Learned State counsel submitted that the sequence of events,
including the victim going missing, being recovered thereafter in a
frightened condition, and the circumstance of the victim being seen in
the company of the accused persons, establishes the case against the
Appellants. It was urged that the learned trial court has appreciated the
evidence in accordance with the law, and the conviction does not
warrant interference.
30. Learned State counsel placed strong reliance on the forensic
evidence, particularly against Bhup Singh, and submitted that human
semen and human blood were detected on his underwear and that the
DNA obtained therefrom matched the DNA of the victim as well as
Bhup Singh. According to the State counsel, this is strong scientific
corroboration of sexual contact with the victim and is sufficient to
sustain the conviction.
31. As regards Mool Chandra, learned State counsel submitted that
though the forensic linkage may not be available, the evidence
establishes his presence with the victim during the relevant period and
his association with Bhup Singh.
32. Learned State counsel refuted the aforesaid contention and
submitted that the CCTV footage was duly proved during trial in
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accordance with law. It was pointed out that a certificate under Section
65-B of the Indian Evidence Act was produced through Prosecution
Witness No. 6, and the electronic record was taken on file and marked
as an exhibit without any objection at the time when it was so marked.
33. It was urged that forensic evidence is corroborative in nature and
its absence does not by itself exonerate an accused if other
circumstances establish involvement. It was therefore contended that
the conviction recorded by the learned trial court calls for affirmation.
34. Heard learned counsel for the Parties and perused the records.
35. The case concerns a victim who was initially stated to be a minor
girl aged about 13 years at the inception of the proceedings. However,
upon medical and documentary assessment conducted during the
course of investigation, her age was subsequently determined to be
between 18 and 20 years, thereby rendering her a major in the eyes of
the law.
36. The foundational facts are not in dispute. A missing person
report was lodged by the brother of the victim on 08.03.2018, stating
that the victim, aged about 13 years, had gone missing from her
residence on the previous day. She was recovered the following night
at about 11:30 p.m., alone and in a frightened condition, near Awla
Chauki Gate, close to a petrol pump.
37. Upon being taken home, her mother noticed blood-stained
clothes and bodily marks. Through gestures, the victim indicated that
she had been subjected to physical and sexual assault. These facts
constitute the immediate backdrop of the case.
38. The victim was medically examined on 10.03.2018 at 9:30 a.m.
at the Government Female Hospital, Haldwani, approximately three
days after the incident. In the medico-legal examination, the victim
was unable to provide any history or respond to the structured
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questionnaire relating to sexual violence, including the nature of the
incident or the assailant.
39. On internal examination, the hymen was found absent, with slight
lacerations and bleeding on touch. No swelling was noted. The medical
findings were suggestive of sexual activity but did not identify the
perpetrator and, in the absence of reliable forensic linkage, were not by
themselves sufficient to sustain a conviction under Section 376 IPC.
40. In the supplementary medical report, no spermatozoa were
detected in the vaginal smear. The Senior Medical Officer opined that
no definite conclusion regarding rape could be drawn, though the
possibility was not ruled out. The time gap between the incident and
the medical examination is a relevant factor in appreciating these
findings.
41. During the medical examination and investigation, biological
samples of the victim and the Appellants, including vaginal swabs, hair
samples, nail scrapings, and clothing, were collected and forwarded for
pathological and forensic examination.
42. Seventeen samples were forwarded to the Forensic Science
Laboratory, Panditwari, Chakrata Road, Dehradun. The FSL report
marks these samples as distinct exhibits, as follows:
Exhibit-1: A black and military-coloured printed hood of the victim.
Exhibit-2: A light brown coloured salwar of the victim.
Exhibit-3: Scalp hair of the victim.
Exhibit-4: Nail scrapings of the victim.
Exhibit-5: Pubic hair of the victim.
Exhibit-6: Two vulval swabs of the victim.
Exhibit-7: Two vaginal swabs of the victim.
Exhibit-8: Two anal swabs of the victim.
Exhibit-9: Two vaginal washings of the victim.
Exhibit-10: Blood sample of the victim in an EDTA vial.
Exhibit-11: A green coloured underwear of accused Bhup Singh.
Exhibit-12: Pubic hair of accused Bhup Singh.
Exhibit-13: A blue-coloured pair of jeans of accused Mool Chandra.
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Exhibit-14: Blood sample of accused Mool Chandra in an EDTA vial.
Exhibit-15: Blood sample of the victim on an FTA card.
Exhibit-16: Blood sample of accused Mool Chandra on an FTA card.
Exhibit-17: Blood sample of accused Bhup Singh on an FTA card.
43. Before proceeding to evaluate the forensic results against the
individual Appellants and the corroborative circumstances relied upon
by the State, it is necessary to examine whether the State has
established an unimpeachable chain of custody in respect of the
forensic exhibits.The deficiencies noticed herein do not render the
forensic evidence wholly inadmissible; however, they require the
Court to exercise caution and to avoid resting a finding of guilt solely
upon such material.
44. The FSL report, dated 3rd July 2018, addresses the Court, namely
the Court of the learned FTC/Addl. District and Sessions Judge /
Special Judge (POCSO), Haldwani, District Nainital, stating that "with
reference to the forwarding memo dated 03.04.2018 in connection with
Crime No. 33 of 2018 under Sections 363, 366(क), 376(2)(ठ), 323 IPC
and Sections 5/6 of the POCSO Act, Police Station Banbhoolpura,
District Nainital, regarding the examination of exhibits received
through Constable No. 660 CP Trilok Singh dated 03.04.2018 for
laboratory examination."
45. Meaning thereby that, with the order of the trial court dated
02.04.2018, the samples were sent for examination to the FSL
laboratory, and Constable Trilok Singh handed over the said materials
on the next day, that is, 03 April 2018. Considering this, there is no
delay after the court's order up to the samples reaching the FSL,
Dehradun.
46. The evidentiary value of forensic material does not rest solely
upon the scientific conclusions drawn by the Forensic Science
Laboratory, but equally upon the sanctity, continuity, and transparency
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of the chain through which such exhibits pass, commencing from the
point of collection and culminating in forensic examination. Any
unexplained break or infirmity in this chain would have the potential to
erode the reliability of the scientific opinion.
47. As per the General Diary dated 10.03.2018, both the accused
were apprehended, and the said GD further mentions the time as 12:00
noon. A pink coloured shirt with blue stripes worn by the accused
Mool Chandra @ Moola, son of Thori Lal, which was captured in the
CCTV footage and reported to have been worn by the accused Mool
Chandra, was also noted.
48. Another point of consideration regarding the letter and the
material collected from the Appellant-accused-convict is that, as per
the statement of the Investigating Officer, namely Prosecution Witness
No. 6, Smt. Kumkum Dhanik has mentioned in her statement that
during the course of the arrest of the accused persons, their clothes
were taken into custody for the purpose of forensic examination.
49. As per her statement, the underwear of only one accused was
taken, i.e., of accused Bhup Singh @ Bhupali, marked as "A green
coloured underwear of accused Bhup Singh", Exhibit-11, whereas the
underwear of the other accused, namely Mool Chandra @ Moola, was
not collected.
50. Now the question that arises is that if the Investigating Officer
has collected and mentioned about the green coloured underwear of the
accused Mool Chandra, then why it was not sent for FSL examination.
51. It is also to be considered that entry in the malkhana was not
done. As whenever any material is collected, and before it has to be
sent for FSL examination, firstly it has to be noted and registered in the
malkhana register, unless it is promptly and straightaway taken before
the concerned Magistrate or competent authority for consideration.
52. Since there is an anomaly with regard to the chain of custody of
clothes that were taken from the accused on 10th March 2018, and as
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mentioned in the statement of the Investigating Officer, Prosecution
Witness No. 6, that they were taken for FSL and medical examination,
therefore, with regard to the first link of documentary evidence, the
same ought to have been examined.
53. Firstly, the malkhana moharrir, and thereafter the person
responsible for receiving sanction from the trial court for FSL
examination.
54. After the samples of the Appellant-accused were collected, that
is, clothes, DNA-related blood samples, FTA cards, and other
materials, the question over here is as to when they were handed over
to the malkhana moharrir, how they were placed before the court, and
how they were registered.
55. As per the FSL report, the sanction letter dated 02.04.2018
reached the laboratory situated at Dehradun on the very next day,
which was handed over by Constable Trilok Singh on 3rd April 2018.
There is no question of delay with respect to the samples being
received for forensic examination after they were sanctioned by the
court.
56. Now, to clarify this anomaly, Constable Trilok Singh was
required to testify to the chain of evidence, but he was not examined
before the court.
57. In the present case, the record establishes that the victim was
subjected to a medico-legal examination on 07.03.2018 at the
Government Female Hospital, Haldwani. During the said examination,
the Medical Officer collected the victim's clothes and other materials,
including her salwar, along with biological samples and nail scrapings,
strictly in accordance with prescribed medico-legal protocol. As per
the medico-legal examination and the statements of the Medical
Officer, the top (military coloured hoodie) and the light-coloured
salwar of the victim, which were worn at the time of the incident, were
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taken in the hospital on 10th March 2018, sealed, and handed over to
the police.
58. However, the Court notes that no independent DNA profiling
report explaining the methodology, parameters of matching, or expert
opinion has been formally proved during trial. The forensic finding,
therefore, cannot be treated as conclusive by itself and must be
evaluated as a corroborative circumstance.
59. However, the record does not disclose any contemporaneous
seizure memo or recovery document evidencing the collection of the
said underwear from the possession of accused Bhup Singh. In the
absence of a complete and demonstrable chain of custody, the forensic
reference to the said article cannot be treated as conclusive proof of
sexual assault
60. The Forensic Science Laboratory examined seventeen exhibits,
including, inter alia, the salwar of the victim (Exhibit-2), the nail
scrapings of the victim (Exhibit-4), and the green coloured underwear
of accused Bhup Singh (Exhibit-11), besides the blood samples of the
victim and the accused persons. The laboratory report does not record
any discrepancy in seals, packaging, or identification marks.
61. The Hon'ble Supreme court in,Criminal Appeal No. 1672 OF
2019; Kattavelai @ Devakar versus State of Tamil Nadu has recently
observed that,
"Para 44.....(4)Right from the point of collection to the logical
end, i.e., conviction or acquittal of the accused, a Chain of
Custody Register shall be maintained wherein each and every
movement of the evidence shall be recorded with counter sign
at each end thereof stating also the reason therefor. This Chain
of Custody Register shall necessarily be appended as part of
the Trial Court record. Failure to maintain the same shall
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render the I.O. responsible for explaining such lapse. The
Directors General of Police of all the States shall prepare
sample forms of the Chain of Custody Register and all other
documentation directed above and ensure its dispatch to all
districts with necessary instruction as may be required."
62. Now the main question that has to be looked into is whether there
is anything on record to indicate that the exhibits passed through any
unauthorised hands or were exposed to any condition capable of
compromising their integrity. At the same time, whether it holds the
chain of custody of the materials so sent to the FSL for examination;
that includes, at the outset, the medical examination of the
Appellants/Convicts. Then, whether there are any certified recovery
memo of the underwear of the accused Bhup Singh as indicated in the
FSL report as "Exhibit-11: A green coloured underwear of accused
Bhoop Singh", and whether there is a certification or memo of samples
as mentioned in the FSL report as "Exhibit-16: Blood sample of
accused Mool Chand on an FTA card" and "Exhibit-17: Blood sample
of accused Bhoop Singh on an FTA card".If these are found to be
present and verified, there ought to be corresponding entries in the
General Diary.
63. Significantly, during the course of the trial, no substantive
challenge was raised to the chain of custody. Neither the Medical
Officers who collected the samples nor PW-6 Smt. Kumkum Dhanik,
the Investigating Officer who handled and forwarded the exhibits,
were confronted with any suggestion of tampering, contamination,
substitution, or improper handling. No material contradiction has been
elicited to cast doubt upon the continuity of possession or the condition
of the seals at any stage.
64. Apart from the medical and forensic evidence, the State relies
upon electronic evidence in the form of CCTV footage.During the
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search for the victim, CCTV footage obtained from a camera installed
near the Power House on Himalayan School Road depicts the victim
being led by a person holding her hand in the direction of Awla Chauki
Gate. The electronic record was produced along with a certificate
under Section 65-B of the Indian Evidence Act by Prosecution Witness
No. 6, the Investigating Officer, Kumkum Dhanik, and was marked as
Exhibit 19-KA. The certificate and the accompanying electronic record
were taken on record during the chief examination of Prosecution
Witness No. 6.
65. It is borne out from the footage that accused Bhup Singh does not
appear therein. The footage captures only a limited segment of
movement and does not depict the place or time of the alleged sexual
assault.
66. No objection was raised by the defence at the time the Section
65-B certificate and the CCTV footage were taken on record, nor was
any suggestion put during the cross-examination of Prosecution
Witness No. 6 questioning the authenticity or correctness of the
electronic record. The CCTV footage, having been admitted in
evidence without objection, forms part of the evidentiary material on
record for appreciating the movement of the victim during the relevant
period.
67. While the vulnerability of the victim warrants heightened
judicial sensitivity, it does not dilute the fundamental requirement that
criminal liability must rest on proof of each essential ingredient of the
offence against each accused.
68. From the common evidentiary foundation already noticed, the
culpability of Appellant Bhup Singh now falls for consideration.
Insofar as this Appellant is concerned, the prosecution case rests
primarily on scientific and medical evidence, which assumes decisive
importance.
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69. The culpability of Appellant Bhup Singh must now be tested in
the light of the statutory framework. Section 376(2)(l) of the Indian
Penal Code treats rape as an aggravated offence where it is committed
upon a woman who is unable to communicate consent. The expression
"unable to communicate consent" is not confined to physical
incapacity alone, but extends to situations where, owing to intellectual
disability or severe impairment of comprehension and speech, a
woman is incapable of understanding the nature and consequences of
the act or of conveying consent in any meaningful manner.
70. So far as accused Bhup Singh is concerned, the prosecution case
rests substantially upon alleged forensic linkage. However, the
foundational requirement of an unbroken and duly proved chain of
custody of the incriminating exhibits has not been established. The
record does not disclose any contemporaneous seizure memo, sealing
certificate, or documentary proof demonstrating the safe custody,
transmission, and handling of the material exhibits from the point of
collection till their examination at the Forensic Science Laboratory. In
the absence of such proof, the possibility of tampering, substitution, or
contamination cannot be ruled out. Consequently, the forensic material
relied upon by the prosecution loses its evidentiary sanctity, and no
adverse inference can be drawn against Bhup Singh on the basis of
such unverified material.
71. At this juncture, it becomes necessary to examine the
applicability of Section 376-D of the Indian Penal Code. The said
provision postulates rape committed by more than one person acting in
furtherance of a common intention, and by a legal fiction, deems each
such person to have committed the offence of gang rape. The statutory
requirement is, therefore, twofold: first, participation of more than one
person in the commission of rape, and second, such participation being
in furtherance of a common intention.Once the evidence does not
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establish participation of more than one person in the act of sexual
assault, the statutory foundation for the offence under Section 376-D
IPC collapses
72. It is in this legal backdrop that the role and culpability of
Appellant Mool Chandra must now be examined on the basis of the
evidence as it stands.
73. So far as Appellant Mool Chandra is concerned, the forensic
evidence unequivocally excludes him from the act of sexual assault.
No semen, blood, or DNA connecting him with the alleged offence
was detected on any exhibit relating to the victim, including her
clothing, biological samples, or nail scrapings, nor was any
incriminating material found on his jeans. The blood samples taken for
comparison were purely exclusionary. In the absence of any scientific
linkage, his involvement in the offence of rape or aggravated rape is
not proved.
74. The case against Appellant Mool Chandra rests on circumstantial
and corroborative evidence. Prosecution Witness No. 1 established that
the victim, who was intellectually disabled and incapable of
independent movement, went missing from her residence on
07.03.2018, thereby proving that she was taken away without the
consent of her lawful guardian. This circumstance is supported by
electronic evidence. As per the CDR report dated 18.03.2018, proved
through Prosecution Witness No. 6, the mobile location of Appellant
Mool Chandra between 3:23 p.m. and 9:38 p.m. on the relevant date
was traced in proximity to the place where the victim was last seen and
later recovered.
75. Even independently of the electronic evidence relied upon by the
State, the fact that the victim was taken away from the custody of her
lawful guardian without consent stands established through the
testimony of Prosecution Witness No. 1 and the surrounding factual
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circumstances. The electronic evidence, including the CDR and CCTV
footage, merely lends corroborative assurance to this conclusion and
does not constitute the sole foundation of the culpability of Appellant
Mool Chandra.
76. Further, the CCTV footage, duly proved with a certificate under
Section 65-B of the Indian Evidence Act and marked as Exhibit 19-
KA, shows the victim being taken away by a person holding her hand,
identified during the trial as Appellant Mool Chandra. This evidence
establishes his presence with the victim at the time she went missing
and that he had taken her away from her residence.
77. Notwithstanding the victim being biologically a major, the
evidence on record consistently establishes that she suffered from
intellectual disability and was incapable of independent decision-
making. In this context, Section 361 of the Indian Penal Code assumes
relevance. The said provision defines kidnapping from lawful
guardianship to include the taking of a person of unsound mind out of
the keeping of the lawful guardian without consent. The protection
under Section 361 IPC is not confined to minors alone but extends to
persons who, by reason of mental unsoundness or intellectual
disability, are incapable of safeguarding their own interests and remain
under the care and protection of a guardian.
78. The medical and factual material on record clearly establishes
that, notwithstanding her biological age, the victim was unable to
comprehend the nature or consequences of her actions and remained
dependent upon her family for care and supervision. The act of taking
her out of the house without the consent of her lawful guardian,
therefore, squarely falls within the ambit of Section 361 IPC and
constitutes the offence punishable under Section 363 IPC. The
essential ingredients of kidnapping from lawful guardianship, namely
taking, absence of the guardian's consent, and lack of capacity on the
part of the victim to make an informed choice, stand fully satisfied.
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79. At the same time, the statutory limits of criminal liability must be
respected. The forensic evidence conclusively excludes Appellant
Mool Chandra from the act of sexual assault. There is no material to
show that he committed, participated in, or facilitated the act of rape.
The circumstance of last seen, even when coupled with proximity and
association, cannot substitute for proof of sexual assault.
Consequently, the offences punishable under Sections 376(2)(l) and
376-D IPC are not made out against Appellant Mool Chandra.
80. The culpability of Appellant Mool Chandra having thus been
conclusively determined and confined to the offence punishable under
Sections 363 IPC, the Court now proceeds to consider the case of the
co-accused separately.
81. On cumulative appreciation of the evidence on record, the Court
finds that while the circumstances raise grave suspicion, the
evidentiary threshold required for sustaining a conviction under
Section 376 IPC against accused Bhup Singh is not met.
82. Criminal law mandates that a conviction must rest on legally
proved evidence and not on suspicion, however strong. In the present
case, the absence of documentary proof establishing the seizure and
custody of the alleged forensic article creates a reasonable doubt as to
the authorship of the sexual act. Accused Bhup Singh is therefore
entitled to the benefit of such doubt insofar as the offence under
Section 376 IPC is concerned.
ORDER
In view of the foregoing discussion and findings, the connected appeals
are disposed of in the following terms.
The appeal filed by Appellant Bhup Singh is allowed.The conviction of
Appellant Bhup Singh under Section 376-D IPC and Section 376(2)(l) IPC is
set aside.
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The appellant Bhup Singh is in jail. Let he be set free forthwith, if not
wanted in any other case. He shall furnish personal bond and two sureties
each of the like amount, to the satisfaction of the court concerned under
Section 437A of the Code within a period of four weeks from today.
The appeal filed by Appellant Mool Chandra is partly allowed. His
conviction and sentence for offences punishable under Sections 376(2)(l) and
376-D IPC are hereby set aside. His conviction for the offence punishable
under Section 366-A IPC is also set aside. The conviction and sentence
awarded to Appellant Mool Chandra for offence punishable under Sections
363 IPC is hereby affirmed.
The appellant Mool Chandra has been sentenced to 4 years of rigorous
imprisonment with a fine of Rs. 2,500/- under Section 363 IPC. It is brought
to the notice of the Court that he has already undergone more than 4 years in
custody. Therefore, let the appellant Mool Chandra be set free forthwith, if
not wanted in any other case. He shall furnish personal bond and two sureties
each of the like amount, to the satisfaction of the court concerned under
Section 437A of the Code within a period of four weeks from today.
The record of the learned trial court be transmitted forthwith, along
with a certified copy of this judgment, for necessary compliance.
A copy of this judgment shall also be forwarded to the Superintendent
of the Jail concerned for immediate information and compliance.
(Ravindra Maithani, J.)
(Ashish Naithani, J.)
12-02-2026
NR/
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