Safeek Qureshi vs State Of Uttarakhand on 16 March, 2026

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    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.

    SPONSORED

    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
    4

    medically 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



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