Uttarakhand High Court
Ravi Kumar vs State Of Uttarakhand on 23 March, 2026
Author: Ravindra Maithani
Bench: Ravindra Maithani
Reserved on - 24.02.2026
Delivered on - 23.03.2026
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 357 of 2016
Ravi Kumar ........Appellant
Versus
State of Uttarakhand ........Respondent
Present:-
Ms. Pushpa Joshi, Senior Advocate assisted by Mr. Akram
Parvej, Advocate for the appellant.
Mr. Pankaj Joshi, AGA for the State.
JUDGMENT
Coram: Hon’ble Ravindra Maithani, J.
Hon’ble Siddhartha Sah, J.
Per: Hon’ble Ravindra Maithani, J.
Present appeal is preferred against the judgment and
order dated 11.07.2017 passed in Special Sessions Trial No. 61 of
2014, State of Uttarakhand v. Ravi Kumar, by the court of Fast Track
Court/Special Judge (POCSO)/Additional District and Sessions Judge,
Dehradun. By it, the appellant has been convicted under Sections 363,
366A, 376(2), 307 IPC and Section 4 of the Protection of Children from
Sexual Offences Act, 2012 (“the Act”) and sentenced under Sections
376(2), 363, 366A and 307 IPC as under:-
(i) Under Section 376(2) IPC – Life
imprisonment with a fine of Rs. 50,000/-. In
default of payment of fine, to undergo
additional imprisonment for a period of one
month.
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(ii) Under Section 363 IPC – Rigorous
imprisonment for a period of three years and
a fine of Rs. 500/-. In default of payment of
fine, to undergo additional imprisonment for
a period of fifteen days.
(iii) Under Section 366A IPC – Rigorous
imprisonment for a period of seven years and
a fine of Rs. 500/-. In default of payment of
fine, to undergo additional imprisonment for
a period of fifteen days.
(iv) Under Section 307 IPC – Rigorous
imprisonment for a period of ten years and a
fine of Rs. 10,000/-. In default of payment of
fine, to undergo additional imprisonment for
a period of one month.
2. According to the prosecution case, on 17.08.2014, at
about 09:30 in the late evening, the victim, a young girl of seven years,
along with her brother had left their home to go to a Shiva Temple. On
the way, the brother of the victim was given money by a person to
purchase toffee. Thereafter, he lifted the victim. Subsequent to it, the
victim returned to her home crying and revealed that that person took
her on the roof top and did wrong with her forcibly. The victim was in
pool of blood. Based on the FIR given by PW 1, father of the victim,
chik FIR was recorded and Case Crime No. 35/2014 under Sections
341, 366A, 376(2) (i) IPC and Section 3/4 of the Act was registered at
Reporting Out Post Selakui, P.S. Sahaspur, District Dehradun. The
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copy of the FIR is Ex. A-1, chik FIR is Ex. A-4 and the extract of
General Diary entry is Ex. A-5. After the incident, the Investigating
Officer visited the place of incident with PW 1, the father of the victim
and PW 2, the brother of the victim, where the blood was spread on
the floor. He took the blood sample and prepared its memo, Ex. A-2.
On 18.08.2014, the appellant was arrested, as he was identified by PW
2, the brother of the victim. His underwear was also taken into
custody, recovery memo of which is Ex. A-11. The victim and her
brother, both were examined under Section 164 of the Code of
Criminal Procedure, 1973 (“the Code”). They have reiterated the
prosecution story. The appellant was medically examined and his pant
was also taken into custody by the Investigating Officer. Recovery
memo of it is Ex. A-12. On 17.08.2014, at 11:40 p.m., the victim was
medically examined. Her underclothes (panty and undershirt) were
sealed and given to the police. There were following injuries on the
person of the deceased:-
"(i) Bruise on both cheeks more on right side.
(ii) Small subconjunctival haemorrhage Left eye.
(iii) Swelling over upper lip. Nasal bleed present.
(iv) Bruise on anterior surface of neck.
(v) P/A soft, tenderness lower abdomen.
L/E: IInd degree perineal tear. Bleeding. Vaginal smear
made and sent for spermatozoa. Mid line tear upto anus.”
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3. A supplementary medical report was also obtained. In
fact, the victim was referred to a very higher centre, where she was
operated also. The Investigating Officer prepared a site plan. He
collected the clothes of the appellant and the victim and sent them for
forensic examination. The Forensic Examination Report confirms
semen on the crime scene and the underwear of the accused. Blood
was also detected on crime scene, on the underwear of the victim, on
the T-shirt of the victim and on the underwear of the appellant. The
DNA examination also connected the prosecution case with the
appellant. The conclusion of the report qua DNA is as below:-
“CONCLUSION
The DNA test performed on the exhibits provided is sufficient to
conclude that,
1. The DNA obtained in a mixed autosomal DNA profile from the
Exhibit – 1 and 4 (Blood sample from crime scene and underwear
of accused) match with the DNA obtained in the autosomal DNA
profiles from the Exhibits – 7 and 8 (Blood sample of accused
and victim).
2. The DNA obtained in a female autosomal DNA profile from
Exhibit – 3 (T-shirt of victim) match with the DNA obtained in a
female autosomal DNA profile from Exhibit – 8 (Blood sample of
victim).
3. The DNA obtained in a another female autosomal DNA profile
from Exhibit – 2 (underwear of victim) do not match with the
5DNA obtained in a female autosomal DNA profile from Exhibit – 8
(Blood sample of victim).”
4. After investigation, charge sheet under Sections 376(2)(i),
366A, 341, 307 IPC and Section 3/4 of the Act was filed against the
appellant. On 24.12.2014, the charges under Sections 363, 366A, 376
(2), 307 IPC and Section 4 of the Act were framed against the
appellant, to which he denied and claimed trial.
5. In order to prove its case, the prosecution examined as
many as 10 witnesses, namely, PW 1, father of the victim, PW 2,
brother of the victim, PW 3, the victim, PW 4 constable Manoj Kumar,
PW 5 constable Amit Kavi, PW 6 Dr. Archna Pandey, PW 7 SI Dilbar
Singh Negi, PW 8 Dr. Nidhi Kumari, PW 9 Arvind Kumar Pandey and
PW 10 SI Pratibha.
6. The appellant was examined under Section 313 of the
Code. According to him, he has falsely been implicated. The appellant
has taken a plea of alibi. According to him, he was in Selakui office
and the police had forcibly arrested him on the next day in the
morning from the railway station. In his defence, the appellant has got
examined DW 1 Smt. Sushma.
7. Heard learned counsel for the parties and perused the
record.
8. Learned Senior Counsel for the appellant submits that
the prosecution has not been able to prove its case. Learned Senior
Counsel submits that the police has prepared the evidence; the police
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has planted the story with regard to as to who committed the offence.
She has also raised the following points in her submission:-
(i) The appellant is a poor person; he has falsely been
implicated.
(ii) Only DNA report has been made the basis of
conviction, which cannot be a basis of conviction.
(iii) The victim and her brother, both are tutored.
(iv) The victim and her brother has not stated
anywhere about the identity of the appellant, the
assailant.
(v) The site plan has been prepared at the instance of
the PW 1, father of the victim and PW 2, brother of
the victim; they are not eyewitnesses.
9. It is argued that in the instant case, the identity of the
appellant has not been established as the person, who committed rape
on the victim; therefore, it is a case of acquittal; accordingly, the
appeal deserves to be allowed.
10. On behalf of the appellant, it is also argued that with
regard to the story as to what happened after the incident, the sequel
is not correct as to how the victim came back; as to how she met with
her brother and father; there is contradiction as to how the appellant
was arrested; whether the PW 1, father of the victim, was present or
not.
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11. On the other hand, learned State Counsel submits that
the PW 2, brother of the victim had identified the appellant. It is he,
who spotted the appellant with the police and, thereafter, the police
arrested the appellant. Learned State Counsel also raised the following
points in his submission:-
(i) The victim has identified the appellant in
court.
(ii) The appellant was arrested within twenty-
four hours of the incident.
(iii) There is no question of falsely implicating the
appellant and letting the real assailant go
through.
(iv) The place of incident was quite close to the
place from where the victim was lifted by the
appellant after inducing her brother PW 2 to
go to purchase some articles; therefore, the
site inspection by the Investigating Officer in
the presence of PW 2, brother of the victim
and PW 1, father of the victim, does not
doubt the prosecution case. The place of
incident was quite close in the vicinity.
(v) The Investigating Officer collected blood from
the site of inspection on 17.08.2014; the
clothes of the accused and the victim were
lawfully taken into custody; they were
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forwarded for forensic examination and the
forensic examination report confirms the
prosecution case.
12. It is also argued by the learned State Counsel that there
are minor contradictions, which do not create any doubt in the
prosecution story. Accordingly, learned State Counsel submits that
the prosecution has been able to prove its case beyond reasonable
doubt and the appeal deserves to be dismissed.
13. PW 1 is the father of the victim. According to him, on
17.08.2014, on the occasion of Janamashtami, his son, PW 2 and his
daughter, the victim, PW 3 wanted to go to temple. On the way, a boy
met them, who sent PW 2, brother of the victim to purchase toffee.
Thereafter, the boy lifted the victim in his lap and took her in a
complex and raped her, due to which she bled profusely. The victim
returned, she met her brother and thereafter they revealed the entire
story to this witness, who took the victim to a doctor in Selakui. The
doctor told that it is a police case and thereafter, he lodged a report at
police station, Ex. A-1.
14. According to PW 1, father of the victim, on the same day,
at 11:10 p.m., he along with his son PW 2, joined the company of the
Investigating Officer and took him to the place of incident, where the
police took sample of fresh blood and prepared a recovery memo, Ex.
A-2. This witness has also proved the photographs of the place of
incident, which are Exs. 1 to 4. This witness has also stated that on
the same day, the victim was medically examined. According to PW 1,
father of the victim, the appellant was arrested on the next day at
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08:40 a.m., when his son, PW 2 had identified the appellant. He has
proved the arrest memo, Ex. A-3 as well.
15. According to PW 1, father of the victim, the clothes worn
by the victim were taken into custody by the doctor. He has proved
the undershirt, Ex. 8 and T-shirt, Ex. 10. According to him, the
victim is still under shock due to the act committed on her.
16. PW 2 is the brother of the victim. He was in the company
of the victim, when the incident took place. It would be appropriate to
refer to the statement of the PW 3, the victim first.
17. PW 3 is the victim. She is a young girl of 6-7 years. She
was examined by the court first before ascertaining as to whether she
is able to give statement on oath. She has narrated as to what had
happened on the date of incident. According to her, on the date of
incident, she along with PW 2, her brother, was going to temple. They
met a person, who gave Rs. 10/- note to her brother and asked him
to bring Dilbagh and toffee. When her brother denied, he slapped
him. Thereafter, her brother proceeded to get Dilbagh. According to
the victim, thereafter that person lifted her in his lap, muffled her
mouth, made her jump to a wall and took her on a roof top, where he
inserted his penis in her vagina due to which she bled. Thereafter,
according to PW 3, the victim, that person made her lay down on the
ground, tried to strangulate her and attacked her with his fists. He
hit the victim on her chest and warned her not to name him and ran
away. Thereafter, this witness also ran away from there. She was
bleeding from her vagina. She met her brother. This witness has
identified the appellant in the court. She says that she had identified
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the appellant in the light where she was caught and where she was
raped. She has stated that her statement was recorded by the
Magistrate also.
18. PW 2, brother of the victim has corroborated the
statement of PW 3, the victim. According to him, after the incident, he
met his sister and thereafter they also met their parents. He has also
stated about the features of the person, who assaulted the victim, in
para 7 of his statement. According to PW 2, brother of the victim, on
the same day, he joined the police and the police recovered blood
from the roof top and took the samples. He has also proved the
statement given to the Magistrate, which is Ex. A 4.
19. PW 4 constable Manoj Kumar has proved the chik FIR,
Ex. A 4, extract of GD, Ex. A 5. He has also proved the GD report,
when the Investigating Officer returned after the investigation,
making site plan and collecting the blood sample, Ex. A6. He has also
proved the extract of GD Report No. 12 of 12:10 hours, by which after
medical examination, the clothes of the victim were also lodged at
police station, Ex. A7. He has also proved the extract of GD report, by
which the appellant was arrested and confined to police station, Ex.
A-8. Ex. A 9 is another GD by which the offence under Section 307
IPC was added. GD report No. 27 is of 17:45 hours of 18.09.2024, by
which the report was lodged that the articles have been submitted at
the Forensic Science Laboratory, recovery memo, Ex. A-11 by which
underwear of the appellant was taken into custody by the
Investigating Officer, Ex. A-12, by which the Investigating Officer had
collected the clothes of the victim.
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20. PW 5 constable Amit Kavi is the person, who took the
articles to Forensic Science Laboratory for examination, where he
deposited them on 05.09.2014.
21. PW 6 Dr. Archna Pandey did the medical examination of
the victim on 17.08.2014 at 11:40 p.m. The contents of the report
have already been narrated hereinabove. She has proved the medical
report, Ex. A-14 and supplementary medical report, Ex. A 15.
According to her, the victim was referred to higher centre to be
examined by the gynaecologist.
22. PW 8 Dr. Nidhi Kumari was working in Mahant Indresh
Hospital, Dehradun on 18.08.2014, when the victim was admitted in
the hospital at 03:00 p.m. The victim was complaining of bleeding.
Thereafter, under general anaesthesia, procedure was done and
perineal tear was repaired. According to this witness, there were two
deep tears in the lateral vaginal wall, which could not be repaired,
therefore, the vagina was packed. This witness has proved all those
documents, Ex. A-18 to Ex. A 23.
23. PW 7 Dilbar Singh Negi had initiated investigation in the
matter. He prepared site plan, which is Ex. A 16. This witness took
the appellant into custody. He collected the blood samples from the
place of incident, which is Ex. A-2. According to this witness, on
18.08.2014, they spotted the appellant, as identified by the PW 2, the
brother of the victim and he was arrested at 08:40 p.m. and its
memo, Ex. A-13 was prepared. He also stated that the underwear of
the appellant was taken into custody and thereafter, according to this
witness, investigation was completed by PW 10 SI Pratibha.
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24. PW 9 Arvind Kumar Pandey was the Sub Divisional
Magistrate on 28.08.2014. According to him, on that day, he
recorded the statement of the victim under Section 164 of the Code.
PW 10 SI Pratibha is the Investigating Officer, who finally
submitted the charge sheet, Ex. A-31, in the case. This witness has
also stated that the blood samples of the appellant and the victim
were also taken in the presence of the court. The samples were
taken and forwarded for examination to Forensic Science
Laboratory, from where the report had been received.
25. DW 1 Smt. Sushma is the cousin of the appellant.
According to her, her father died on 02.08.2014. The appellant had
reached at the railway station from where the police took him. In
her cross-examination, she says that a day after Janmashtami, the
appellant was apprehended. This witness has not stated that on the
day of Janmashtami, which is the date of incident, the appellant
was at any other place. In last sentence of her cross-examination,
she also admits that the appellant was not arrested before her. Her
testimony has less significance.
26. Admittedly, in the instant case, the Test Identification
Parade (“TIP”) has not been done. What would be its effect? It is
also admitted that the appellant was not known to the victim prior
to the date of incident.
27. Law is well settled that the TIP helps to decide the
direction of investigation. It is not substantive evidence. It is also
settled that identification in the court, which is generally known as
dock identification is substantive evidence. If it precedes TIP, it
gains a little more weight. But, if without TIP, dock identification is
done, though it is substantive evidence, it needs to be cautiously
scrutinized. It may require corroboration from other facts.
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28. In the case of Sidhartha Vashisht v. State (NCT of Delhi),
(2010) 6 SCC 1, the Hon’ble Supreme Court has laid down the
principle on the subject and in para 255 to 257, observed as follows:-
“255. Mr Jethmalani has further argued on the proposition
that mere dock identification is no identification in the eye of the law
unless corroborated by previous TIP before the Magistrate. It has
been further argued that in any case, even identification in court is
not enough and that there should be something more to hold the
accused liable. In support of his arguments, he placed heavy reliance
on the decision of this Court in Hari Nath v. State of U.P. [(1988) 1
SCC 14 : 1988 SCC (Cri) 14] and Budhsen v. State of U.P. [(1970) 2
SCC 128 : 1970 SCC (Cri) 343] A close scrutiny of these judgments
will reveal that they in fact support the case of the prosecution.
These judgments make it abundantly clear that even where
there is no previous TIP, the court may appreciate the dock
identification as being above board and more than conclusive.
256. The law as it stands today is set out in the following
decisions of this Court which are reproduced as hereinunder:
Munshi Singh Gautam v. State of M.P. [(2005) 9 SCC
631 : 2005 SCC (Cri) 1269] : (SCC pp. 642-45, paras 16-17
& 19)
“16. As was observed by this Court in Matru v. State
of U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri) 391]
identification tests do not constitute substantive evidence.
They are primarily meant for the purpose of helping the
investigating agency with an assurance that their progress
with the investigation into the offence is proceeding on the
right lines. The identification can only be used as
corroborative of the statement in court. (See Santokh
Singh v. Izhar Hussain [(1973) 2 SCC 406 : 1973 SCC (Cri)
828] .) The necessity for holding an identification parade
can arise only when the accused are not previously known
to the witnesses. The whole idea of a test identification
parade is that witnesses who claim to have seen the
culprits at the time of occurrence are to identify them from
the midst of other persons without any aid or any other
source. The test is done to check upon their veracity. In
other words, the main object of holding an identification
parade, during the investigation stage, is to test the
memory of the witnesses based upon first impression and
also to enable the prosecution to decide whether all or any
of them could be cited as eyewitnesses of the crime. The
identification proceedings are in the nature of tests and
significantly, therefore, there is no provision for it in the
Code and the Evidence Act. It is desirable that a test
identification parade should be conducted as soon as after
the arrest of the accused. This becomes necessary to
eliminate the possibility of the accused being shown to the
witnesses prior to the test identification parade. This is a
very common plea of the accused and, therefore, the
prosecution has to be cautious to ensure that there is no
scope for making such an allegation. If, however,
circumstances are beyond control and there is some delay,
it cannot be said to be fatal to the prosecution.
17. It is trite to say that the substantive evidence is
the evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in
law is well settled by a catena of decisions of this Court.
The facts, which establish the identity of the accused
persons, are relevant under Section 9 of the Evidence Act.
As a general rule, the substantive evidence of a witness is
the statement made in court. The evidence of mere
identification of the accused person at the trial for the first
time is from its very nature inherently of a weak character.
The purpose of a prior test identification, therefore, is to
test and strengthen the trustworthiness of that evidence. It
14
is, accordingly, considered a safe rule of prudence to
generally look for corroboration of the sworn testimony of
witnesses in court as to the identity of the accused who are
strangers to them, in the form of earlier identification
proceedings. This rule of prudence, however, is subject to
exceptions, when, for example, the court is impressed by a
particular witness on whose testimony it can safely rely,
without such or other corroboration. The identification
parades belong to the stage of investigation, and there is no
provision in the Code which obliges the investigating
agency to hold or confers a right upon the accused to claim
a test identification parade. They do not constitute
substantive evidence and these parades are essentially
governed by Section 162 of the Code. Failure to hold a
test identification parade would not make inadmissible
the evidence of identification in court. The weight to
be attached to such identification should be a matter
for the courts of fact. In appropriate cases it may
accept the evidence of identification even without
insisting on corroboration. (See Kanta Prashad v. Delhi
Admn. [AIR 1958 SC 350 : 1958 Cri LJ 698] , Vaikuntam
Chandrappa v. State of A.P. [AIR 1960 SC 1340 : 1960 Cri
LJ 1681] , Budhsen v. State of U.P. [(1970) 2 SCC 128 :
1970 SCC (Cri) 343] and Rameshwar Singh v. State of
J&K [(1971) 2 SCC 715 : 1971 Cri LJ 638] .)
……………………………………………………………………………
……………………………………………………………………………
……………………………………………………………………………
…………………………………………………………………………..Malkhansingh v. State of M.P. [(2003) 5 SCC 746 : 2003
SCC (Cri) 1247] : (SCC pp. 751-52, para 7)
“7. It is trite to say that the substantive evidence is
the evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in
law is well settled by a catena of decisions of this Court.
The facts, which establish the identity of the accused
persons, are relevant under Section 9 of the Evidence Act.
As a general rule, the substantive evidence of a witness is
the statement made in court. The evidence of mere
identification of the accused person at the trial for the
first time is from its very nature inherently of a weak
character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness
of that evidence. It is accordingly considered a safe rule of
prudence to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of the
accused who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence, however,
is subject to exceptions, when, for example, the court is
impressed by a particular witness on whose testimony it
can safely rely, without such or other corroboration. The
identification parades belong to the stage of investigation,
and there is no provision in the Code of Criminal Procedure
which obliges the investigating agency to hold, or confers a
right upon the accused to claim a test identification
parade. They do not constitute substantive evidence and
these parades are essentially governed by Section 162 of
the Code of Criminal Procedure. Failure to hold a test
identification parade would not make inadmissible the
evidence of identification in court. The weight to be
attached to such identification should be a matter for the
courts of fact. In appropriate cases it may accept the
evidence of identification even without insisting on
corroboration.”
257. Mr Ram Jethmalani has further placed heavy reliance
on two books by foreign authors, namely, Proof of Guilt by Glanville
15
Williams, 3rd Edn. and Eye Witness Identification in Criminal
Cases by Patrick M. Wall, to urge that identification of an accused
in court is a serious matter and the chances of a false
identification are very high. These texts only reiterate what the
various courts have held time and again. The view of the said
author has been quoted by this Court, the earliest judgment
being Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2
SCC 793 : 1973 SCC (Cri) 1033] : (SCC p. 799, para 6)
“6. … The evil of acquitting a guilty person light
heartedly as a learned author (Glanville Williams in Proof of
Guilt) has sapiently observed, goes much beyond the
simple fact that just one guilty person has gone
unpunished. If unmerited acquittals become general, they
tend to lead to a cynical disregard of the law, and this in
turn leads to a public demand for harsher legal
presumptions against indicted ‘persons’ and more severe
punishment of those who are found guilty. Thus, too
frequent acquittals of the guilty may lead to a ferocious
penal law, eventually eroding the judicial protection of the
guiltless. For all these reasons it is true to say, with
Viscount Simon, that ‘a miscarriage of justice may arise
from the acquittal of the guilty no less than from the
conviction of the innocent. …’ “
(emphasis supplied)
29. Identification in the court also depends as to what was
the opportunity for a person to identify the accused. The duration of
earlier encounter is another determining factor. But, before that,
arguments have also been raised as to how the incident took place?
What was the sequel of it? It may be examined by reading the
statement of PW 3, the victim herself.
30. The victim has categorically stated that she along with
her brother was going to temple; in the way, a person intercepted them
and sent her brother to purchase toffee and Dilbagh, after slapping
him. He took the victim at a place and raped her, beat her, tried to
press her neck, she bled profusely and thereafter the victim ran away
from there and met her brother.
31. PW 2, brother of the victim has also corroborated the
statement of PW 2, the victim and material particulars. In para 6 of the
16statement, PW 2, brother of the victim tells that after return, he met
her sister first and thereafter their parents also came.
32. PW 1, father of the victim has been asked on this aspect.
In his examination, page 11, para 18, PW 1, father of the victim tells
that when the children did not return after twenty minutes, they
proceeded to search them and in para 19, he says that they met PW 2,
their son first, who narrated as to what happened to him and after five
minutes, the victim also met them. She was crying and was drenched
in the blood.
33. The sequel is not any different. All the witnesses are
consistent that the appellant first forcibly sent PW 2, brother of the
victim to purchase Dilbagh and toffee, lifted the victim, took her at the
roof top and raped her. The victim returned. She met PW 2, her
brother, first and meanwhile, their parents were also out in search of
them. They met them and went to hospital, etc.
34. There is one more aspect. PW 3, the victim has stated
that the appellant took her in the lap, muffled her mouth and made
her to jump on the wall. He also jumped on the wall and thereafter he
took the victim on the roof top of a house and raped her. PW 3, the
victim, in page 4, last paragraph of her statement tell that after raping
her, when the appellant ran away, she walked down through stairs
and then she somehow jumped the wall, and thereafter they met their
parents.
35. PW 7 SI Dilbar Singh Negi is the Investigating Officer,
who initially investigated the matter. He corroborates the statement of
17the victim, wherein in page 4 of the statement, he tells that there is a
wall in between and there are staircases also and there only they
found the blood.
36. The statements of the witnesses are consistent with
regard to the sequence of the events.
37. An argument is made that the victim did not identify the
place of incident, which was visited by PW 7 SI Dilbar Singh Negi with
PW 1, father of the victim and PW 2, brother of the victim. The
incident has to be looked into the totality. What is the distance
between the temple and the house of the victim? PW 1, father of the
victim tells that there are 3-4 shops in between and PW 2, brother of
the victim tells that it takes them five minutes to reach the temple
from their home.
38. Site plan, Ex. A-16 is on record. It is proved by the
Investigating Officer. From the place of incident through stair cases
on the roof top, the place of incident is shown by Letter ‘A’. PW 1,
father of the victim and PW 2, brother of the victim have categorically
stated that after the incident, when PW 3, the victim returned, she
narrated as to how she was lifted and taken to roof top through the
stairs and raped. The distance between the place from where the
victim was lifted and where she was raped was not far. It was in close
proximity. It was in the commercial complex near a temple, on the
date of Janamashtami. Immediately, PW 7, Dilbar Singh Negi visited
the place of incident and found fresh blood. The photographs
have also been proved by the Investigating Officer. There has
been no cross-examination on it. The Forensic Science
Laboratory report connects the appellant with the blood, that was
18found on the place of incident. On the underwear of the accused and
the crime scene, blood was detected. Merely because, PW 7 Dilbar
Singh Negi had taken the blood sample from the place without
presence of the victim does not doubt the prosecution story on this
aspect.
39. The most important question is of identity.
40. PW 1, father of the victim, in para 13 of his statement,
has stated that on the way to temple from home, there are shops,
residences and electricity lights. He has stated that from where the
appellant lifted the victim, there was electricity light. Although, in the
site plan, no electricity pole has been shown, but, can it doubt the
prosecution case on this aspect? The evidence has to be examined in
totality.
41. PW 2, brother of the victim is categorical. In page 7 of his
statement, he tells that at the place where the appellant gave him
money, it was dark. But, according to him, when the appellant held
the hand of his sister, he could see the appellant because there was
light. The appellant was identifiable.
42. PW 3 is the victim. In answer to a question, in page 3 of
her statement, she identifies the appellant in court. She tells that
where the appellant had held her, there was light and there was also
light at the place of incident, where she was raped. PW 2, brother of
the victim and the PW 3, the victim had immense opportunity and
occasion to identify the appellant. After all, it was not hit and go case.
The appellant first induced and forcibly sent PW 2, brother of the
19victim, away from her under the pretext of getting Dilbagh/toffee and
thereafter he lifted the victim in his lap, took her at a distance and
raped her. There was light on those places, as stated by the victim.
They had identified the appellant in court. Therefore, this dock
identification is credible. The identity of the appellant is not in crisis.
Moreover, the prosecution case is further supported by the forensic
examination report.
43. The prosecution has proved that the blood samples that
were taken from the spot were lodged at the police station. Ex. A 6 is
the general diary entry. The underwear and the undershirt of the
victim were also handed over to the lady constable by the doctor, who
lodged them into police station and thereafter they were sent for
forensic examination. These articles were placed before the court from
police custody. The court’s letter is on the trial court record, paper no.
24A. A judicial notice shall be taken that the court had forwarded the
articles in accordance with law.
44. Not only this, after the articles were sent for forensic
examination, an application was given by the Investigating Officer for
taking of the blood samples of the appellant and the victim on
09.12.2014. An order of the trial court dated 09.12.2014 (Paper No.
87A) records that the court had permitted to take the blood samples
and the court had recorded that the blood samples were taken in the
court in the presence of Dr. A.K. Mishra and were sent for forensic
examination. The forensic examination report records that the seals
were intact. The DNA of the accused and the victim both were matched
with the blood samples that were taken from the crime scene and the
underwear of the accused. It confirms the complicity of the appellant
20with the offence, coupled with the oral testimonies of PW 3, the victim
and PW 2, brother of the victim.
45. Arguments have also been raised as to how the appellant
was arrested?
46. According to the prosecution case, on 18.08.2014, when
the search of the appellant was made, he was spotted by PW 2, brother
of the victim and in his presence the appellant was arrested. Though
PW 1, father of the victim, at one stage, states that he was also
present, but at another stage, he says that he was not with the police
when the arrest of the appellant was made (statement of PW 1, father
of the victim, para 30). Whatever contradictions have been indicated
on behalf of the appellant, they are much minor. They do not affect the
prosecution case.
47. In view of the foregoing discussions, this Court is of the
view that in fact the prosecution has been able to prove its case
beyond reasonable doubt. The court below has not committed any
error in convicting and sentencing the appellant. Accordingly, the
appeal deserves to be dismissed.
48. The criminal appeal is dismissed.
49. Let a copy of this judgment along with lower court record
be forwarded to the court concerned for onward compliance.
(Siddhartha Sah, J.) (Ravindra Maithani, J.)
23.03.2026 23.03.2026
Avneet/