No Acts & Articles mentioned in this case
2025 INSC 1097 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). OF 2025
(Arising out of SLP (Criminal) No(s). 14-15 of 2020)
AKHTAR ALI @ ALI AKHTAR
@ SHAMIM @ RAJA USTAD ….APPELLANT(S)
VERSUS
STATE OF UTTARAKHAND ...RESPONDENT(S)
WITH
CRIMINAL APPEAL NO(S). OF 2025
(Arising out of SLP(Criminal) No(s). 6573 of 2020)
J U D G M E N T
Mehta, J.
1.Heard.
2.Leave granted.
3.The present appeals by special leave are
preferred on behalf of appellant No. 1-Akhtar Ali
1
alias Ali Akhtar alias Shamim alias Raja Ustad
1
and
appellant No. 2-Prem Pal Verma
2
, assailing the
common judgment dated 18
th
October 2019, passed
by the Division Bench of the High Court of
Uttarakhand at Nainital
3
in Criminal Appeals
4
,
partially upholding the conviction and sentence
awarded to the appellants by the Special Judge
(POCSO)/ Fast Track Court/ Additional District &
Sessions Judge, Haldwani, District Nainital
5
vide
judgment and order of sentence dated 11
th
March,
2016 in Session Trial Case
6
, whereby accused-
appellant No.1-Akhtar Ali was convicted for the
offences punishable under Sections 376A, 363, and
201 of the Indian Penal Code, 1860
7
; under Section
3 read with Section 4, Section 5 read with Section 6
and Section 7 read with Section 8 of the Protection
1 Hereinafter, being referred to as ‘accused-appellant No.1-Akhtar Ali’;
appellant in Criminal Appeals @ SLP(Crl.) No(s). 14-15 of 2020.
2 Hereinafter, being referred to as ‘accused-appellant No.2-Prem Pal
Verma’; appellant in Criminal Appeal @ SLP(Crl.) No(s). 6573 of 2020.
3 Hereinafter, being referred to as ‘High Court’.
4 Criminal Appeal No. 104 of 2016 along with Criminal Reference No.1. of
2016 and others.
5 Hereinafter, being referred to as ‘the trial Court’.
6 Session Trial No. 09 of 2015.
7 Hereinafter, being referred to as ‘the IPC.’
2
of Children from Sexual Offences Act, 2012
8
; and
Section 66C of the Information Technology Act,
2000
9
. Accused-appellant No. 2-Prem Pal Verma was
convicted under Sections 212 of the IPC and Section
66C of the IT Act; however, he was acquitted of the
charges under Sections 363, 201, 120-B, 376A of
the IPC and Sections 16/17 read with Sections 4, 5,
6, 7 of the POCSO Act. The accused-appellants were
sentenced as under:
8 Hereinafter, being referred to as ‘the POCSO Act.’
9 Hereinafter, being referred to as ‘IT Act’.
3
Accused/
appellant
Provision
under which
convicted
Sentence awarded
by the trial Court
The High
Court
Accused-
Appellant
No. 1-
Akhtar Ali
Section 376A
of the IPC;
and Sections
16 and 17
read with
Sections 4, 5,
6, and 7 of
the POCSO
Act.
Death Sentence Affirmed
Section 363
of the IPC
Rigorous
imprisonment for
seven years and a
fine of Rs.5000/-
and in default of
payment of fine,
simple
imprisonment for a
further period of
one month.
Affirmed
Section 201
of the IPC
Rigorous
imprisonment for
seven years and a
fine of Rs.5000/-
and in default of
payment of fine,
simple
imprisonment for a
further period of
one month.
Affirmed.
Section 66C
of the IT Act
Rigorous
imprisonment for
three years and a
fine of Rs.20,000/-
and in default of
payment of fine,
simple
imprisonment for a
further period of
two months.
Acquitted
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Section 120B
of the IPC
Acquitted. Acquitted
Accused-
Appellant
No. 2 Prem
Pal Verma
Section 212
of the IPC
Rigorous
imprisonment for
seven years and a
fine of Rs.10,000/-
and in default of
payment of fine,
simple
imprisonment for a
further period of
one month.
Affirmed
Section 66C
of the IT Act
Rigorous
imprisonment for
three years and a
fine of Rs.20,000/-
and in default of
payment of fine,
simple
imprisonment for a
further period of
two months.
Acquitted
Sections 363,
201, 120-B,
376A of the
IPC; and
Sections 16,
17 read with
Sections 4,
5, 6, and 7 of
the POCSO
Act.
Acquitted. Affirmed
Accused-
Junior
Masih
alias Foxy
Section 212
of the IPC;
Section 66 of
the IT Act;
and Sections
16, 17 read
with Sections
4, 5, 6, and
7 of the
POCSO Act.
Acquitted Affirmed.
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4.Briefly stated, the case of the prosecution, giving
rise to the present appeals, is as under:
4.1 On 21
st
November, 2014, at 11:30 am, the
victim's father (PW-1) lodged a report
10
under
Section 365 of the IPC, at Kathgodam Police
Station, alleging inter alia that he and his family
had travelled from Pithoragarh to Haldwani to
attend the wedding of a relative which was to be
solemnized at Sheeshmahal in Ramlila Maidan,
Kathgodam, on 20
th
November, 2014. During the
said ceremony at around 07:45 pm, his daughter,
Ms. K, along with other children, was playing in
the pandal (venue). When Ms. K was called for a
group photograph, she could not be found and
appeared to have gone missing. Ishwar Singh Sah
(PW-36), an attendee at the function,
telephonically registered a missing complaint with
Constable Subodh Sharma (PW-4) about Ms. K’s
disappearance. Subodh Sharma (PW-4) recorded
the information in the Police Station’s General
10 Case Crime No. 73 of 2014. The same is Exhibited as Exhibit Ka-1.
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Diary Report No. 51
11
and alerted on-duty officers
to try and locate the informant’s daughter, Ms. K.
The Police officials questioned the people who
attended the wedding and the individuals in
nearby vehicles and searched the area, but the
child, Ms. K, was nowhere to be found.
4.2. Four days later, i.e., on 25
th
November, 2014,
Rajesh Kumar Yadav (PW-6), Station House
Officer, received a phone call from an individual,
named Nikhil Chand (cousin of the informant’s
daughter, Ms. K), who informed that the dead
body of the victim girl was lying near Gaula River
in the Forest in front of Sheeshmahal. Based on
the said information, Sub-Inspector Shanti Kumar
Gangwar (PW-5), along with Constables Mamta
Arya, Devki Bisht, Subodh Sharma (PW-4) and
Suresh Chandra, proceeded to the said location
and found the dead body of a small girl, which
was identified and confirmed to be that of the
informant’s daughter, Ms. K, by the public present
11 Exhibit Ka-17.
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at the location, as well as by her relatives. Sub-
Inspector Suman Pant (PW-3) prepared the
panchayatnama
12
of the body, which was then
sent for autopsy. Dr. C.P. Bhaisora (PW-7)
conducted post-mortem examination and found
that all the organs of the victim girl were pale with
early signs of putrefaction. He opined that the
cause of death was shock and haemorrhage
resulting from injuries to the vaginal and perianal
region caused by sexual assault and blunt force
trauma, which were sufficient to cause death in
the ordinary course of nature. Consequently,
offences under Sections 363, 376, 302, and 201 of
the IPC and Section 4 of the POCSO Act were
added to Case Crime No. 73 of 2014.
4.3On 25
th
November, 2014, the investigation
of the case was assigned
13
to Vipin Chandra
Pant (PW-40), the Investigating Officer. During
the investigation, it was found that on the
evening of 20
th
November, 2014, the nearby
12 Exhibit Ka-9.
13 Vide Order No. 03 of 2014.
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shopkeeper, i.e., Kishan Singh Bora (PW-16),
Bal Krishan (PW-19), and Shahadat Ali (PW-20)
saw the accused-appellant No. 2-Prem Pal
Verma, who is a driver by profession, drinking
liquor with another person. Both were seen
buying chocolates and toffees from a nearby
shop. Further inquiries revealed that Shankar
Dutt Padalia (PW-18), owner of a Dumper, which
operated in the Gaula River, had employed a
man from Bihar on the recommendation of the
accused-appellant No. 2-Prem Pal Verma. The
investigating agency obtained the mobile phone
number of this unidentified person from
Shankar Dutt Padalia (PW-18) and placed it
under surveillance. Similarly, the accused-
appellant No. 2-Prem Pal Verma’s mobile
number was retrieved from his employer,
Manish Gaur @ Mannu Gaur (PW-39) and was
also placed under surveillance.
4.4 Two teams from the Special Task Force
(STF) were formed to uncover the details of the
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crime. One team, led by Sub-Inspector Yogesh
Kumar Chand (PW-10), proceeded to Ludhiana
(Punjab), based on call detail records of the
suspected numbers, while another team, led by
Sub-Inspector Naresh Chauhan, headed to
Champaran (Bihar) and Delhi. On 27
th
November, 2014, at around 11:00 am, the team
led by Sub-Inspector Yogesh Kumar Chand (PW-
10) traced the location of one suspected mobile
number to Guru Amardas Colony in Ludhiana
(Punjab). They then began searching for the
user of the mobile phone and eventually
detained the suspect at Sethi Market, who
identified himself as Akhtar Ali, i.e., accused-
appellant No. 1. During a personal search, the
police recovered a railway ticket from Haldwani
to Delhi, an identity card, and a mobile phone
from the possession of accused-appellant No. 1-
Akhtar Ali. The team also claimed to have
recovered the blanket used in the alleged crime
from the possession of accused-appellant No. 1-
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Akhtar Ali, who was formally arrested and then
was taken to the Police Station, Kathgodam,
Haldwani on 28
th
November, 2014. Upon arrival,
the Investigating Officer, Vipin Chandra Pant
(PW-10), interrogated accused-appellant No.1-
Akhtar Ali, who confessed that accused-
appellant No.2-Prem Pal Verma and a Junior
Masih alias Foxy
14
, were his accomplices and
were also involved in the crime. He admitted
that his friend, accused-appellant No.2-Prem Pal
Verma, had helped him secure a job as a
dumper driver with Shankar Datt Padalia (PW-
18) of Sheeshmahal, Kathgodam. On 20
th
November, 2014, accused-appellant No.1-Akhtar
Ali, accused-appellant No.2-Prem Pal Verma,
and Junior Masih alias Foxy, consumed whisky
(alcohol) together. Around 07:30 pm, a young
girl came out of the wedding Pandal (venue). All
three threatened the victim girl with a
Tamancha (a country-made pistol), took her to a
14 Accused No. 3 in Session Trial No. 09 of 2015.
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nearby forest, wrapped her in a blanket, and
committed sexual assault on her. When the girl
became unconscious, they abandoned her body,
after covering it with leaves, and left the scene.
The accused-appellant No. 1-Akhtar Ali,
purportedly led the police to the crime scene
and recovered the victim girl’s hairband. A
seizure memo
15
was prepared as proof of the
same.
4.5On 28
th
November, 2014, Sub-Inspector
Shanti Kumar Gangwar (PW-5) and his team
arrested the accused-appellant No. 2-Prem Pal
Verma, and accused No. 3-Junior Masih alias
Foxy.
4.6 After recording the statements of
witnesses and concluding the investigation, the
Officer-in-charge of the police station proceeded
to file a charge sheet against all three accused
persons. The accused-appellant No. 1-Akhtar Ali
was charge-sheeted under Sections 363, 376,
15 Exhibit Ka-16.
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302, 201, and 120-B of the IPC, along with
Sections 4, 5, and 6 of the POCSO Act, and
Section 66(C) of the IT Act. The accused-
appellant No. 2-Prem Pal Verma was charge-
sheeted under Sections 363, 376, 302, 201,
120-B, and 212 of the IPC, along with Sections
4, 5, and 6 of the POCSO Act and Section 66(C)
of the IT Act. Junior Masih alias Foxy was
charge-sheeted under Section 212 of the IPC
and Section 66(C) of the IT Act. On 27
th
January, 2015, the trial Court took cognizance
of the offences and provided the accused
persons copies of the documents relied upon by
the prosecution in compliance with the
provisions of Section 207 of the Code of
Criminal Procedure, 1973.
16
4.7 The trial Court then proceeded to frame
charges against all the charge-sheeted accused
persons for the above offences, who abjured
their guilt and claimed trial. The prosecution
16 Hereinafter, referred to as the ‘CrPC’.
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examined 40 witnesses, exhibited 87
documents, and 27 material objects to prove its
case and establish the guilt of the accused
persons. The accused persons were questioned
under Section 313 of the CrPC and were
confronted with the circumstances appearing
against them in the prosecution case, which
they denied and claimed to be innocent.
4.8After hearing the parties and evaluating
the evidence, the trial Court, vide its judgment
dated 11
th
March, 2016, held that the
prosecution had successfully established its
case beyond a reasonable doubt and, therefore,
convicted the accused-appellant No. 1-Akhtar
Ali, and accused-appellant No. 2-Prem Pal
Verma, as noted above.
17
The trial Court
acquitted the accused No. 3-Junior Masih alias
Foxy, on the ground of insufficient evidence
against him. Vide an order, passed on the same
17 Supra, Para No.3.
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day, the accused-appellants were sentenced in
the terms indicated above.
18
4.9Aggrieved by their conviction and
sentences, accused-appellant No. 1-Akhtar Ali,
and accused-appellant No. 2-Prem Pal Verma,
preferred an appeal
19
under Section 374(2) CrPC
to the High Court. The informant/father (PW-1)
of the victim girl also filed a criminal appeal
20
against the acquittal of Junior Masih alias Foxy,
as well as against the acquittal of Prem Pal
Verma and Akhtar Ali for certain offences.
21
The
State also filed two identical appeals
22
against
the acquittal of Junior Masih alias Foxy, as well
as against the acquittal of accused-appellant
No.1-Akhtar Ali and accused-appellant No. 2-
Prem Pal Verma, for certain offences.
23
A
Criminal Reference
24
was forwarded by the trial
Court to the High Court under Section 366 of
18 Ibid.
19 Criminal Appeal No. 104 of 2016.
20 Criminal Appeal No. 318 of 2016.
21 Supra, Para No. 3.
22 Government Appeals No. 7 and 8 of 2017.
23 Supra, Para No. 3.
24 Criminal Reference No. 1 of 2016.
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CrPC, for confirmation of the death sentence
awarded to accused-appellant No. 1-Akhtar Ali.
The High Court, vide the common impugned
judgment dated 18
th
October, 2019, upheld the
conviction and sentences awarded to accused-
appellant No. 1-Akhtar Ali, and accused-
appellant No. 2-Prem Pal Verma for the offences
punishable under the IPC and POCSO Act.
However, both were acquitted of the charge
under Section 66C of the IT Act. Consequently,
the High Court dismissed the appeals filed by
the father of the victim girl (PW-1) and the State
and upheld the acquittal of the accused-Junior
Masih alias Foxy and the partial acquittal of the
accused-appellants. In Criminal Reference, the
High Court also upheld the death sentence
awarded to the accused-appellant No. 1-Akhtar
Ali.
25
The impugned common judgment of the High Court
dated 18
th
October 2019, is subjected to challenge by
25 Supra, Para No. 3.
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the accused-appellants in these appeals by special
leave.
Submissions on behalf of the appellants: -
5. Ms. Manisha Bhandari, learned counsel for the
accused-appellants, submitted that the entire
prosecution case is based on circumstantial
evidence, the chain of which remains incomplete
and shattered as the material evidence has been
fabricated, and gotten up witnesses were deliberately
introduced by the prosecution, to bolster its case.
Learned counsel for the accused-appellants
advanced the following pertinent submissions to
urge that the conviction of the accused-appellants
as recorded by the trial Court and affirmed by the
High Court is unsustainable on the face of the
record: -
5.1.That the prosecution’s case has, from the
very beginning, been inconsistent and self-
contradictory. The original version of the
prosecution alleged that the victim girl, Ms. K,
was kidnapped at gunpoint by the accused-
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appellants on the evening of 20
th
November
2014, and was taken to a secluded forest area,
where she was subjected to brutal sexual
assault. However, during the course of the
investigation, the Investigating Officer, Vipin
Chandra Pant (PW-40) admitted that no firearm
was ever recovered and even conceded that the
accused-appellant No. 1-Akhtar Ali, himself, in
his extra-judicial confession, denied the use of
any weapon. The prosecution, in order to fill
this glaring lacuna, abruptly substituted its
earlier story with a new version that the victim
girl, Ms. K, was lured away by the accused-
appellant with sweets and toffees. Such a
fundamental and unexplained departure from
the original prosecution narrative cannot be
brushed aside, and it goes to the root of the
case, demonstrating that the evidence has been
tailored to suit the needs of the prosecution.
5.2.That the prosecution failed to examine
one of the most material witnesses, namely, the
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cousin of the victim girl, Nikhil Chand. It is
borne out from the record that Nikhil Chand
was the first person who telephonically informed
the Superintendent of Police, Rajesh Kumar
(PW-6) about the location of the dead body of
the victim girl in the Gaula River forest. It is also
reflected in the case diary that Nikhil Chand
had claimed to have seen the victim near a
dumper on the date of the incident. In such
circumstances, Nikhil was the only person who
had knowledge both of the victim, Ms. K’s, last
known movements and of the exact location of
her dead body, which could not be found despite
the fervent efforts of the other relatives and a
number of police teams. Despite this, he was
neither interrogated during the investigation nor
examined during the trial. The prosecution
offered no explanation for this grave omission.
The deliberate exclusion to examine such a
pivotal witness, whose testimony could have
either confirmed or demolished the
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prosecution’s version, casts a deep shadow over
the fairness of the investigation and trial,
warranting raising of an adverse inference
against the prosecution.
5.3. That the manner of recovery of the victim
girl’s body itself is shrouded in serious doubt.
The record shows that immediately after the
disappearance of the girl child on the evening of
20
th
November 2014, an extensive search was
conducted by the police and local residents in
and around the wedding venue, the Gas Godam
area, and the banks of the Gaula River. The
efforts to search continued for several days
without yielding any results. Yet, on 25
th
November 2014, the body was suddenly
discovered mere 800 steps away from the venue
by none other than the victim’s cousin, Nikhil
Chand. This circumstance is highly suspicious,
for it is inconceivable that despite repeated
searches, the police could not locate the body
which was lying in such close proximity, only for
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it to be fortuitously found by the very relative
whose own conduct remains under grave doubt
compounded by the medical evidence
demonstrating that injuries on the dead body of
the victim girl were concentrated on the left side
of the body suggestive of dragging, which gives
rise to a grave doubt that the situs of the crime
was shifted, and that the body was planted at
the spot later shown. The shifting of the situs
irretrievably demolishes the chain of
incriminating circumstances.
5.4.That the condition of the crime scene was
wholly inconsistent with the prosecution’s
allegation of repeated sexual assault on the
victim girl by three fully grown men. According
to the prosecution, the victim was raped and
sodomised and then left in the bushes after
being covered with leaves. However, the police
did not find any bloodstains or signs of struggle
at the alleged crime scene, although the post-
mortem clearly records that the death was due
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to excessive bleeding, which occurred within
minutes of the assault. The total absence of
blood stains on the ground at or around the site
renders the prosecution’s version implausible.
Equally unexplained is the forensic finding that
blood was detected only on the red jacket found
on the dead body, but not on the blanket or the
ground. Such discrepancies belie the story that
the crime was committed there and suggest that
the crime scene was staged.
5.5.That the alleged recovery of a hair-band at
the instance of the accused-appellant No.1-
Akhtar Ali, is another circumstance that cannot
be believed. The FIR itself mentions that the
victim girl had a boy-cut hairstyle, and no
reference to any hairband was ever made at the
initial stage. The recovery memo is riddled with
irregularities. It bears overwriting of the time of
recovery, does not mention the date, and has no
independent witnesses. Even the trial Court
and the High Court expressed doubt regarding
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this recovery. The improbability of the accused-
appellant No. 1-Akhtar Ali, recalling the precise
spot where such a trivial item was discarded
days earlier, in a dense jungle, adds to the
suspicion of the so-called recovery, which is
thus nothing but planted evidence.
5.6. That the arrest of the accused-appellant
No.1-Akhtar Ali, from Ludhiana on 27
th
November 2014, is also surrounded by grave
doubt. The prosecution relies upon a “secret
source” who, without any prior familiarity with
the accused’s appearance, is alleged to have
identified him in a crowded city. No Ravanagi or
Aamad entry of the arresting team was made at
the local police station at Ludhiana. The only
local officer, Inspector K.R. Pandey, who could
have corroborated the arrest and prepared the
site map of the arrest, was withheld from the
witness box. The Naksha Najri of the place of
arrest was curiously prepared much later, on 6
th
January, 2015, by the Investigating Officer
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himself, who was not even part of the team that
allegedly apprehended the accused-appellant
No. 1-Akhtar Ali. To make matters worse, the
photograph of the accused-appellant No. 1-
Akhtar Ali, was published in the newspapers on
28
th
November, 2014, even though the
prosecution claims he was produced at
Haldwani, only that very morning. These
circumstances leave no room for doubt that the
accused-appellant No. 1-Akhtar Ali had, in fact,
been picked up earlier from Haldwani
(Uttarakhand) and falsely shown as arrested in
Ludhiana (Punjab). The purpose of this
fabricated exercise was clearly to justify the
collection of samples and to facilitate the
planting of DNA material of the accused-
appellant No. 1-Akhtar Ali, on the forensic
samples collected from the victim girl’s body.
5.7.That the DNA report, on which the
conviction of the accused-appellant No.1-Akhtar
Ali primarily rests, is neither consistent nor
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reliable. The prosecution claims that the semen
of the accused-appellant No. 1-Akhtar Ali
matched the cervical swab, undershirt, and
underwear of the deceased. However, the same
semen was conspicuously absent in the cervical
smear prepared from the very same source, as
well as in the vaginal swab, vaginal wash, and
the shirt worn by the victim girl. Such selective
presence of semen of the accused-appellant No.
1-Akhtar Ali is inexplicable unless the samples
were tampered with and the fluids/blood of the
accused-appellants were planted onto the same.
The defence case that semen was forcibly
obtained from the accused-appellant No. 1-
Akhtar Ali after his illegal detention much
before 27
th
November, 2014, and planted on
certain exhibits, is fully supported and
corroborated by these anomalies. Further,
although the prosecution’s case was of gang
rape by three individuals, the semen of the
other two alleged perpetrators was not detected
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on any forensic exhibit, which wholly
demolishes the allegation of collective assault.
The chain of custody of the exhibits is equally
suspect: there is no record of where the samples
were kept between 26
th
November 2014 and 27
th
November 2014, discrepancies exist in the
forwarding letters, and several key documents
bear no specimen seals at the time of seizure
and sampling. Such glaring lapses make the
scientific/forensic evidence inadmissible and
incapable of sustaining a conviction, much less
the imposition of the death penalty.
5.8.That the trial Court erred in sentencing
the accused-appellant No.1-Akhtar Ali, and
passing the conviction order, awarding the
death penalty, on the very same date. It was
urged that the trial Court made no effort
whatsoever to consider the aggravating and
mitigating circumstances before awarding the
death penalty. Reliance was placed on the case
26
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of Manoj & Ors. v. State of Madhya
Pradesh
26
, wherein it has been categorically
held that before imposing a sentence of death,
the Court is duty-bound to conduct a careful
and meaningful evaluation of both aggravating
and mitigating factors, including the possibility
of reform and rehabilitation of the accused. The
omission of the trial Court to undertake this
exercise vitiates the sentencing process and
renders the award of the death penalty
unsustainable in law.
On these grounds, learned counsel appearing for
the accused-appellants implored the Court to accept
the appeals, set aside the impugned judgments, and
acquit the accused-appellants of the charges levelled
against them.
Submission on behalf of the Respondent/State: -
6. Per contra, Ms. Vanshaja Shukla, learned counsel
appearing for the respondent-State, vehemently and
fervently opposed the submissions advanced on
26 (2022) SCC OnLine SC 677.
27
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behalf of the accused-appellants and advanced the
following pertinent submissions imploring this
Court to dismiss the appeals: -
6.1. That the arrest of accused-appellant No.1-
Akhtar Ali was based on meticulous mobile
surveillance and investigative findings, as
evidenced by multiple prosecution witnesses.
Yogesh Kumar Chand (PW-10), head of the
Special Task Force, testified that accused-
appellant No.1-Akhtar Ali had been missing
from the crime scene since the date of the
incident, prompting the investigation officer to
place his mobile number (75xxxxxx90) under
surveillance. The Call Details Records (‘CDR’)
confirmed that on 20
th
November, 2014, and 21
st
November, 2014, his cellphone was active within
the tower range of the crime scene.
Furthermore, another number operating from
the same device (both numbers having IMEI
Nos. 911352501735790 and
911352501735780) traced his location to
28
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Ludhiana, where he was apprehended by
Yogesh Kumar Chand (P W-10) and his team.
The testimony of Amar Chand Sharma (PW-11),
Radhey Shyam Shukla (PW-26), and Arun
Kumar (PW-27) corroborates the same, affirming
the accuracy of the mobile location tracking.
Additionally, Ravindra Kumar Yadav (PW-35), in
charge of the Special Operations Group,
confirmed that the accused-appellant No.1-
Akhtar Ali, was identified through surveillance.
These findings unequivocally establish that the
arrest of the accused-appellant No.1-Akhtar Ali,
was lawful and based on concrete evidence,
which is corroborated by the testimonies of the
prosecution witnesses.
6.2. That the recovery of the victim-girl's dead
body and subsequent observations made in
post-mortem examination provide irrefutable
evidence of a brutal sexual assault and murder.
Sabir Ali (PW-29), who was tending to his horses
in the forest, was the first to locate the
29
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deceased’s body and immediately informed the
local residents near Ram Leela Ground,
Sheeshmahal, establishing the discovery as
spontaneous and untainted. Moreover, Suman
Pant (PW-3), Sub-Inspector, identified the dead
body and conducted the inquest proceedings,
noting visible injuries to the vaginal region,
indicating that the victim girl was subjected to
sexual violence before being done to death. The
post-mortem examination further corroborates
this conclusion, which was proved by Dr. C.P.
Bhaisora (PW-7), i.e., the Medical jurist, who
conducted an autopsy upon the victim girl’s
dead body. The post-mortem examination
conclusively notes that the cause of death was
shock and haemorrhage due to injuries inflicted
on the vaginal and perianal region associated
with grave sexual assault, caused by blunt force
impact, and that these injuries were sufficient in
the ordinary course of nature to cause death.
This medical evidence not only confirms the
30
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horrific nature of the crime but also aligns with
the prosecution's case that the victim girl was
subjected to forcible sexual assault and brutal
violence, thereby directly implicating the
accused-appellants for the heinous and
premeditated crime.
6.3. That the scientific and DNA evidence
conclusively establishes the involvement of
accused-appellant No.1-Akhtar Ali, in the crime,
leaving no room for doubt. Dr. Sanjeev
Kharkwal (PW-13), a Senior Medical Officer at
District Hospital, Nainital, collected the blood
samples of all the accused persons on 30
th
November, 2014 and ensured that the said
samples were properly sealed and documented
before being handed over to Constable Ashutosh
Kumar (PW-15), who deposited them at the
Forensic Science Laboratory (FSL), Dehradun,
on 2
nd
December, 2014. The forensic analysis
conducted by Dr. Manoj Kumar Agarwal (PW-34)
at FSL Dehradun resulted in a DNA profiling
31
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report
27
that unequivocally confirmed the
presence of human semen on the cervical swab,
undershirt, and underwear of the victim girl.
Crucially, the profile of the DNA extracted from
these exhibits was an exact match with the DNA
profile obtained from the blood sample of
accused-appellant No.1-Akhtar Ali, conclusively
proving his physical involvement in the crime.
This scientific evidence, which is objective and
beyond human manipulation, serves as the
strongest link connecting the accused-appellant
No.1-Akhtar Ali to the sexual assault and
murder of the victim girl, Ms. K. The DNA
report
28
provides irrefutable affirmation of
accused-appellant No.1-Akhtar Ali’s role in this
heinous crime, strengthening the prosecution’s
case beyond the pale of doubt.
6.4. That the conduct of the accused-
appellant No.1-Akhtar Ali before and after the
incident supports the prosecution’s case and
27 DNA Report dated 12
th
December, 2014 (Exhibit Ka-75) and DNA
Report dated 15
th
December, 2014 (Exhibit Ka-76)
28 Ibid.
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conclusively establishes his involvement in the
crime. Prior to the victim’s disappearance,
multiple witnesses, including Kishan Singh
Bora (PW-16), Balkrishna (PW-19), and Sahadat
Ali Hasan (PW-20), saw accused-appellant No.1-
Akhtar Ali near the location of the crime,
corroborating that he was in the vicinity at the
relevant time. Vipin Chandra Pant (PW-40), the
Investigating Officer (IO), further confirmed this
through the site plan, which aligns with the
testimony of these witnesses. Additionally, two
minor girls who were with the victim girl at the
time were offered toffees by accused-appellant
No.1-Akhtar Ali, and accused-appellant No.2-
Prem Pal Verma, suggesting a deliberate attempt
to lure away the victim; however, the families of
these children did not allow them to testify due
to societal ramifications. The accused-appellant
No.1-Akhtar Ali’s suspicious conduct in
absconding following the crime further fortifies
the prosecution’s case.
33
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6.5. That the site plan prepared by Vipin
Chandra Pant (PW-40) establishes that the
victim girl was kidnapped from about 800 steps
away from where her body was later found.
Several witnesses, viz., Veer Bahadur Chand
(PW-23, victim’s uncle), Deepak Sharma (PW-
25), and Manoj Singh Dewri (PW-31), saw
accused-appellant No.1-Akhtar Ali near a
dumper (No. 8711) parked close to the crime
scene. Shankar Dutt Padalia (PW-18), the
dumper owner, confirmed that accused-
appellant No.1-Akhtar Ali was employed as a
driver on 20
th
November, 2014, but disappeared
soon after the crime. His sudden disappearance,
as testified by Hariom Sharma (PW-24) (a
railway employee), who stated that accused-
appellant No.1-Akhtar Ali boarded a train from
Haldwani on 21
st
November, 2014, and fled to
Ludhiana, further points to accused-appellant
No.1-Akhtar Ali’s guilty state of mind. The CCTV
footage handed over by Subhash Singh (PW-21),
34
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Assistant General Manager, IDBI Bank, was
reviewed by the Investigating Officer, Vipin
Chandra Pant (PW-40), confirming that
accused-appellant No.1-Akhtar Ali and accused-
appellant No.2-Prem Pal Verma, entered the
bank together on 21
st
November, 2014 at 02:04
pm, just after the crime. Thus, the chain of
circumstances, as noted by the trial Court and
High Court, is complete, leaving no room of
doubt about the involvement of the accused-
appellants in the crime. The ocular testimonies,
scientific/forensic (i.e., DNA examination)
evidence, findings of post-mortem examination,
and the accused persons’ conduct before and
after the incident collectively establish a
consistent and unbroken sequence linking
accused-appellant No. 1-Akhtar Ali and
accused-appellant No. 2-Prem Pal Verma to the
crime. Proximity of the accused-appellants to
the victim girl during the wedding function,
suspicious absconding, and corroborative
35
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forensic evidence decisively point to the guilt of
accused-appellant No.1-Akhtar Ali.
On these grounds, the learned counsel for the
respondent-State contended that the present
appeals should be dismissed, as both Courts below
have applied the law to the facts on record correctly
and reached the only possible conclusion pointing
towards the guilt of the accused-appellants.
Discussion: -
7. We have given our thoughtful consideration to
the submissions advanced at the bar and have
carefully scanned the record with the assistance of
learned counsel representing the accused-appellants
and the learned counsel appearing for the
respondent-State. We have also analysed and
evaluated the evidence available on record.
8. In order to appreciate whether the conviction of
the accused-appellants, as recorded by the trial
Court and affirmed by the High Court, deserves to
be upheld or whether the appeals merit acceptance,
thereby entitling the accused-appellants to
36
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acquittal, it is necessary to examine the evidence in
greater detail.
9.There is no dispute that the case of the
prosecution is based purely on circumstantial
evidence in the form of motive, the theory of last
seen together, and scientific/forensic evidence, since
no witness claims to have seen the alleged incident
wherein the victim girl was subjected to sexual
assault and violence. The fact that the death of the
victim girl, Ms. K, was homicidal in nature was duly
proved by the medical evidence on record. Dr. C.P.
Bhaisora (PW-7), who conducted the examination,
proved the post-mortem report
29
wherein multiple
injuries were noted on the dead body of the victim
girl, particularly on the vaginal and perianal
regions. He opined that the cause of death of the
victim girl was shock and haemorrhage as a result
of the injuries caused by sexual assault and blunt
force trauma, which were sufficient in the ordinary
course of nature to cause death. Thus, there is no
29 Exhibit No. Ka24.
37
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doubt on the aspect that the death of Ms. K was
homicidal in nature.
10.It is a well-established principle of criminal
jurisprudence that a conviction may be based purely
on circumstantial evidence, provided that such
evidence is deemed credible and trustworthy. In
cases based purely on circumstantial evidence, it is
imperative to ensure that the facts leading to the
conclusion of guilt are fully established and that all
the established facts point irrefutably to the accused
person’s guilt. The chain of incriminating
circumstances must be conclusive and should
exclude any hypothesis other than the guilt of the
accused. In other words, from the chain of
incriminating circumstances, no reasonable doubt
can be entertained about the accused person's
innocence, demonstrating that it was the accused
and none other who committed the offence. The law
with regard to conviction based on circumstantial
evidence has been crystallised by this Court in the
case of Sharad Birdhichand Sharda v. State of
38
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Maharashtra
30
, wherein the following golden
principles, governing cases based on circumstantial
evidence, were laid down:
“153. A close analysis of this decision would
show that the following conditions must be
fulfilled before a case against an accused can be
said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court indicated
that the circumstances concerned “must or
should” and not “may be” established. There is
not only a grammatical but a legal distinction
between “may be proved” and “must be or
should be proved” as was held by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793] where the
observations were made: [SCC para 19, p. 807]
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
30 (1984) 4 SCC 116.
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ground for the conclusion consistent with
the innocence of the accused and must show
that in all human probability the act must
have been done by the accused.
(emphasis supplied)
11.Having noted the principles governing a case
based purely on circumstantial evidence, we now
proceed to discuss the evidence led by the
prosecution in order to bring home the charges
against the accused-appellants. The prosecution
portrayed the following circumstance in its
endeavour to establish the charge of murder against
the accused-appellants:-
(i) “Motive”, i.e., to say that the accused-appellants
harboured an intention to satisfy their lust upon the
young girl, Ms. K, and that this depraved motive
formed the basis of the brutal assault which
ultimately led to her death.
(ii) “Last Seen Theory ”, i.e., to say that the
accused-appellants were seen in close proximity to
the victim girl, shortly before the time when she
went missing, and that in the absence of any
plausible explanation from the accused-appellants,
40
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the burden lies upon them to account for the fate of
the victim girl. The prosecution, therefore, relies on
this circumstance as an important link in the chain
of events connecting the accused-appellants to the
crime.
(iii) Scientific Evidence (including DNA and FSL
Reports), i.e., to say that the scientific analysis of
samples collected from the body and clothes of the
victim girl established a match with the DNA profile
of the accused-appellant No. 1-Akhtar Ali, thereby
providing direct forensic corroboration of his
involvement in the offence. The prosecution argues
that such evidence, being objective and scientific in
nature, lends strong support to its case and
completes the chain of circumstances.
12. The entire process of apprehension of the
accused-appellants, collection of the forensic
material, recovery of the CCTV footage, call details
record, and the Caller-ID records has been
41
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delineated in the above paragraphs
31
, and thus, the
same need not be repeated.
13.To ascertain whether the alleged ‘motive’
attributed to the accused-appellants has any
foundation in fact, it is necessary at the outset to
examine the manner in which the accused-
appellants were first brought into the ambit of
suspicion and investigation. Unless the initial link
connecting the accused-appellants with the
occurrence is firmly established, the question of
‘motive’ and its probative value cannot be
appreciated in its proper perspective. We shall,
therefore, first advert to the evidence relied upon by
the prosecution to show how the accused-appellants
came into the picture and were associated with the
alleged crime.
14. The first suspect to be associated in this case
was the accused-appellant No.1-Akhtar Ali, against
whom suspicion cropped up when the statement of
Shankar Datt Padalia (PW-18), the owner of the
31 Supra Note, Para No. 4.
42
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dumper, came to be recorded. We, therefore, shall
first discuss the evidence of the aforesaid Shankar
Datt Padalia (PW-18). The witness stated that he
was engaged in the work of hauling sand and gravel
from the Gaula River and used his dumper, bearing
registration No. UP02A8711, for the said purpose.
15. Accused-appellant No.1-Akhtar Ali was
allegedly introduced to Shankar Datt Padalia (PW-
18) by accused-appellant No. 2-Prem Pal Verma, the
driver of Manish Gaur @ Mannu Gaur’s (PW-39)
dumper, on 20th November, 2014. Accused-
appellant No. 2-Prem Pal Verma, assured Shankar
Datt Padalia (PW-18) that Akhtar Ali knew how to
drive a dumper. Since the witness (PW-18) did not
have a driver for his dumper at that time, he hired
accused-appellant No.1-Akhtar Ali, as a driver and
handed over the keys of the dumper to him, without
any further verification. At that time, Akhtar Ali was
using mobile number 75xxxxxx90, which he shared
with Shankar Datt Padalia (PW-18). On the
following day, i.e., 21st November, 2014, the
43
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accused-appellant No. 1-Akhtar Ali approached
Shankar Datt Padalia (PW-18) in the afternoon and
told him that he had to take a room on rent and buy
some stuff, and required money for this purpose.
The witness (PW-18) gave him Rs. 3,000/- and,
thereafter, the accused-appellant No. 1-Akhtar Ali
did not meet him again. When the witness (PW-18)
attempted to contact the accused-appellant No. 1-
Akhtar Ali, on his mobile number, the same was
found to be switched off. The witness (PW-18) stated
that his dumper was parked at Gas Godam road
near Ramlila Ground, and that the accused-
appellant No.1-Akhtar Ali was supposed to sleep in
the dumper that night. Since the accused-appellant
No.1-Akhtar Ali did not respond to phone calls, the
witness (PW-18) went to the dumper on 21
st
November, 2014, at about 06:00 pm, but found the
driver missing. Thereupon, the witness (PW-18)
became suspicious that something was wrong. He
came to know from some sources that accused-
appellant No. 1-Akhtar Ali, and accused-appellant
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No. 2-Prem Pal Verma, had been seen roaming
together on 20
th
November, 2014.
16. In his cross-examination, Shankar Datt
Padalia (PW-18) stated that at the time of the
incident, the process of extraction of sand and
gravel from the Gaula river had not commenced. He
further deposed that the police officials recorded his
statement 2-3 days after the incident. The witness
added that he had been operating dumpers for the
extraction of sand and gravel from the Gaula river
for the last 5-6 years prior to the incident and that
he owned two dumpers, which were usually driven
by his brothers. However, since one of his brothers
had fallen ill, he felt the need for another driver. He
admitted that he did not previously know the
accused-appellant No. 1-Akhtar Ali. At the same
time, he also stated that about two years earlier,
accused-appellant No. 1-Akhtar Ali had worked with
another person on the Gaula Extraction Gate, and
therefore, he was acquainted with him from that
time. He had seen the accused-appellant No. 1-
45
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Akhtar Ali, because he used to drive the vehicle of
Manish Gaur @ Mannu Gaur (PW-39). When he
engaged the accused-appellant No. 1-Akhtar Ali on
20
th
November, 2014, he did not give any money for
expenses, etc.
17.On a minute perusal of the deposition of
Shankar Datt Padalia (PW-18), it emerges that he
informed the police for the first time about the
engagement of accused-appellant No. 1-Akhtar Ali,
for his vehicle, only 2–3 days after the incident. This
aspect assumes significance in light of the
admission made by the witness that he had also
participated in the search for the missing girl on 21
st
November, 2014. Had there been an iota of truth in
his version, it is difficult to accept that he would
have remained silent about the fact that the driver,
he had newly engaged had suddenly gone missing
immediately after being employed on 20
th
November,
2014. Such a fact was far too important to have
been ignored altogether.
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18.Another significant fact discernible from the
statement of Shankar Datt Padalia (PW-18) is that
he attempted to identify the accused-appellant No.
1-Akhtar Ali by projecting a theory that the said
accused used to drive the vehicle of one Manish
Gaur @ Mannu Gaur (PW-39) two years earlier.
However, the said Manish Gaur @ Mannu Gaur (PW-
39), upon being examined, categorically stated that
accused-appellant No. 2-Prem Pal Verma, had been
driving his dumper for the last 10–12 years. He did
not utter a single word to support the theory that
accused-appellant No. 1-Akhtar Ali had ever worked
on his vehicle.
19.Thus, we have no hesitation in holding that
Shankar Datt Padalia (PW-18) did not know the
accused-appellant No. 1-Akhtar Ali, from before. It is
highly improbable and palpably doubtful that, on
the mere recommendation of a driver employed on
another person’s dumper, Shankar Datt Padalia
would so casually entrust an expensive earth-
moving vehicle to an unknown person without any
47
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verification or assurance. Equally doubtful is the
version of the witness that, on the mere asking of
accused-appellant No. 1-Akhtar Ali, he gave him a
sum of Rs. 3,000/- (Rupees Three Thousand only)
on 21
st
November, 2014. The witness did not notice
any suspicious conduct or traces of panic in the
demeanour of the accused-appellant No.1-Akhtar Ali
when he came to ask for expense money. This
conduct is inconsistent with the guilt of the said
accused. These fishy circumstances cast a serious
doubt on the credibility of the testimony of Shankar
Datt Padalia (PW-18). Since the statement of
Shankar Datt Padalia (PW-18) was recorded only 2-3
days after the incident, there was initially no
material available with the police to raise any
suspicion against the accused-appellant No. 1-
Akhtar Ali.
20. We are, therefore, of the view that the
prosecution utterly failed to attribute any clear or
convincing motive to the accused-appellant No. 1-
Akhar Ali. The evidence of Shankar Datt Padalia
48
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(PW-18), even if taken at its highest, merely shows
that accused-appellant No. 1-Akhar Ali was a
temporary driver who disappeared on the day next
to his engagement, which by itself cannot establish
the depraved motive alleged by the prosecution.
21.The name of the accused-appellant No. 2-Prem
Pal Verma was introduced in the evidence of Manish
Gaur @ Mannu Gaur (PW-39), who stated that the
said accused had been driving his dumper for the
last 10-12 years. Though the witness (PW-39) did
not attend the marriage ceremony, he admitted that
he participated in the search for the missing child.
In his cross-examination, he admitted that there
was widespread discontentment over the incident
and considerable pressure on the administration to
apprehend the culprits. His statement, however, was
recorded by the Investigating Officer 8-10 days after
the incident. His evidence also shows that the
accused-appellant-No. 2-Prem Pal Verma, continued
to drive his dumper even after the incident. When
the S.O.G. team contacted the witness (PW-39) to
49
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ascertain accused-appellant No. 2-Prem Pal Verma’s
whereabouts, the witness called him to his house
and handed him over to the S.O.G. team. On 20
th
November, 2014, i.e., the date on which the victim
girl went missing, accused-appellant No. 2-Prem Pal
Verma had parked the dumper, handed over the
keys to the witness, and returned to his home.
Apparently, therefore, there is nothing in the
conduct of accused-appellant No. 2-Prem Pal Verma,
to raise suspicion against him.
22.It thus becomes apparent from the testimony
of the material prosecution witnesses, Shankar Datt
Padalia (PW-18) and Manish Gaur @ Mannu Gaur
(PW-39), that the prosecution was unable to lay any
convincing foundation so far as motive is concerned.
In a case resting purely on circumstantial evidence,
the establishment of motive assumes significance,
as it forms the psychological link in the chain of
circumstances.
23.Having found that the prosecution has failed to
establish ‘motive’, we now turn to examine the next
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circumstance relied upon, namely the ‘last seen
theory’. According to the prosecution, the accused-
appellants were seen in close proximity to the victim
girl shortly before she went missing, and this
circumstance is projected as a vital link in the chain
of events connecting them with the crime. It is,
therefore, necessary to scrutinise the testimony of
the witnesses who have spoken regarding the
presence of the accused-appellants near the scene of
the occurrence and to assess whether such
evidence, in the absence of motive, can safely be
accepted to fasten guilt upon them.
24. The first witness pressed into service by the
prosecution regarding the theory of ‘last seen’ is
Kishan Singh Bora (PW-16), who runs a tea stall in
the vicinity of the Ramlila Ground. This witness
deposed that on the evening of 20
th
November 2014,
at about 7:00-7:30 pm, he had seen the accused-
appellants in an inebriated condition purchasing
cigarettes and toffees from his stall. While this
assertion ostensibly seeks to establish the presence
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of the accused-appellants near the venue, it is
significant that in his cross-examination, the
witness (PW-16) admitted that his statement was
recorded by the police only on 25
th
November, 2014,
i.e., five days after the disappearance of the victim
girl. The unexplained delay in recording his
statement, coupled with the fact that the witness
did not divulge this vital information to anyone
during the period of extensive search operations
being conducted from 20
th
November 2014 onwards,
renders his testimony unsafe to be relied upon for
establishing the last seen circumstance.
Furthermore, the witness doesn’t note the presence
of any victim girl in proximity to the accused-
appellants, thereby negating the ‘last seen theory’.
25.The next witness relied upon by the
prosecution is Balkrishna (PW-19), a shopkeeper
whose establishment is also located near the
Sheeshmahal. He too stated that on the same
evening, i.e., around 7:00-7:30 pm on 20
th
November, 2014, he saw the accused-appellants in a
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drunken state, moving around in the area and
making small purchases. However, in cross-
examination, the witness (PW-19) admitted that he
did not inform anyone, not even the victim’s family
or the police, about this fact until his statement was
formally recorded on 25
th
November, 2014. Given
that by then the body of the victim girl had already
been recovered, the possibility of these witnesses
being a product of subsequent padding cannot be
ruled out. The credibility of the witness (PW-19) is
further diminished by his admission that he could
not say with certainty whether the accused-
appellants were accompanied by the victim girl at
that time.
26.Sahadat Ali Hasan (PW-20), another resident of
the locality, deposed on similar lines, asserting that
he had noticed the accused-appellants in an
inebriated state near the Ramlila Ground on the
contemporaneous evening. His testimony suffers
from the same infirmity as that of Kishan Singh
Bora (PW-16) and Balkrishna (PW-19), namely that
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it was introduced only on 25
th
November 2014, after
the recovery of the dead body of the victim girl, Ms.
K. The belated introduction of these witnesses, all
purporting to speak to the same fact after a lapse of
five days, gives rise to a legitimate apprehension that
the ‘last seen’ circumstance was subsequently
manufactured to bolster the prosecution’s case.
Even otherwise, the evidence of these witnesses,
taken at its highest, does not indicate that the
victim girl was seen in the company of the accused-
appellants. At best, it places the accused-appellants
in the general vicinity, which by itself is insufficient
to sustain the ‘last seen theory’ in a case of this
gravity.
27. This weakness in the prosecution’s narrative
becomes more pronounced when one turns to the
evidence of the key witness, Constable Naushad
Ahmed (PW-2), posted at Police Station Kathgodam,
whose testimony assumes pivotal importance in the
present case. He deposed that on 20
th
November,
2014, at about 09:10 pm, Ishwar Singh Sah (PW-36)
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informed Constable Subodh Sharma (PW-4), who
was then on sentry duty at the said police station,
that a minor girl had gone missing from the
marriage function at Sheeshmahal, Ramlila Ground.
This information was forthwith entered in General
Diary No. 51
32
at 09:10 pm and was thereafter
communicated to the Station House Officer through
the R.T. set on the same date. The informant (PW-1),
the father of the victim girl, lodged a formal
complaint on 21
st
November, 2014, at 11:30 am
regarding the disappearance of his daughter. On the
basis of this complaint, Case Crime No. 73 of 2014
was registered under Section 365 IPC against
unknown persons.
28. The testimony of Constable Naushad Ahmed
(PW-2) further reveals that on 25
th
November, 2014,
while he was on official duty at the police station at
about 02:30 pm, Nikhil Chand (cousin brother of
the missing girl child) informed the Sub-Inspector
Rajesh Yadav (PW-6), Station House Officer from his
32 Exhibit Ka-17.
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mobile phone No. 783xxxx001 that the dead body of
the victim girl was lying in the forest of Gaula river
near Sheeshmahal, Ramlila Ground. On receiving
this information, the Sub-Inspector Shanti Kumar
Gangwar (PW-5) along with his companion police
officials proceeded to the spot. The entry of this fact
was made by the Constable in the general diary
33
of
the police station vide Rapat No. 26. The witness
(PW-2) further stated that the Investigating Officer,
Inderjeet Singh (PW-33) returned to the Police
Station on 25
th
November, 2014, after the
investigation and deposited two sealed bundles, one
containing plain and blood-stained soil and the
other containing clothes of the victim. The witness
also made a General Diary Entry No. 28
34
regarding
the departure of the investigating team, which
proceeded to arrest the accused-appellant No. 2-
Prem Pal Verma, and Junior Masih alias Foxy.
29.It is portrayed in the evidence of the witness
(PW-2) that both these accused persons were
33 Exhibit Ka-3.
34 Exhibit Ka-33.
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attempting to abscond but were apprehended based
on prior secret information regarding their
whereabouts. It needs a mention that this version of
events, as given out by the witness, is completely
contradicted by the evidence of Manish Gaur @
Mannu Gaur (PW-39), as mentioned earlier. In
cross-examination, the witness denied the
suggestion put forth by the defence regarding the
alleged falsity of the theory concerning the arrest of
accused-appellant No.2-Prem Pal Verma, and Junior
Masih alias Foxy.
30.At this stage, it is relevant to refer to the
evidence of Sub-Inspector Rajesh Yadav (PW-6),
Station House Officer, who was associated with the
process of recovery of the victim’s body. He stated
that upon receiving the information regarding the
missing child on 20
th
November, 2014, he intimated
the Police Station Kathgodam, to deploy all available
police forces to search for the missing child. The
messages were sent through the control room via
wireless as well as telephone. The witness (PW-6)
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further stated that he was engaged in the search for
the missing girl on 25
th
November 2014, and that at
approximately 12:30 pm, he was informed by Nikhil
Chand (cousin of the victim girl) over phone that the
dead body of the victim girl was lying in the forest of
the Gaula river at Sheeshmahal. Upon receiving this
information, the witness proceeded to the spot. In
the meantime, he informed the Kathgodam Police
Station as well as higher police officials. Upon
reaching the said spot, he saw the dead body of the
victim girl and undertook the requisite investigation,
including drawing up the Panchayatnama, etc. He
also claims to have seized the forensic material from
the site. Thus, it is clear as daylight that the first
person who shared the precise location of the body
was none other than Nikhil Chand (cousin of the
victim girl).
31. What emerges, therefore, is that the entire
prosecution case linking the accused-appellants to
the crime through the ‘last seen theory’ rests not on
any consistent testimony, but upon the belated
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introduction of interested witnesses after the body
was recovered, upon the information given by Nikhil
Chand.
32.Despite being a close relative who first
disclosed the situs of the victim girl’s dead body,
Nikhil Chand was never examined or interrogated by
the investigating officers. This omission is of grave
significance. The utter failure of the Investigating
Officer to question Nikhil Chand so as to find out
the source of his knowledge about the dead body of
the victim girl depicts gravely tainted and suspicious
actions of the Investigating agencies. It needs to be
noted that the victim girl was not being traced out
despite the frantic efforts of numerous police teams,
and, therefore, it became imperative to determine
the manner in which Nikhil Chand came to know
about the place where the dead body of the victim
was lying. If at all the Investigating Officer’s actions
had been bona fide, his immediate attention would
have focused upon Nikhil Chand to discover the
manner in which he gained information about the
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location of the victim girl’s dead body. Had this
exercise been undertaken, the Court could have
ascertained whether the information stemmed from
innocent circumstances or from direct involvement
in the events of the fateful night. The Investigating
Officer’s failure to record a statement of Nikhil
Chand during the investigation and the omission of
the prosecution to present him for deposition at the
trial deprived the Court of the most vital link in the
chain of circumstances. This intentional and
calculated omission not only undermines the ‘last
seen theory’ but also causes serious prejudice, as it
deprives the Court and the defence of the
opportunity to test whether the knowledge of Nikhil
Chand was innocent or otherwise. In the absence of
this crucial testimony, the last seen circumstance
must be held to have completely collapsed. Non-
examination of Nikhil Chand compels the Court to
draw an adverse inference against the prosecution.
33. Despite his pivotal role, neither the trial Court
nor the High Court considered it necessary to
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examine why Nikhil Chand’s statement was not
recorded or why he was not interrogated, thereby
overlooking a material circumstance that directly
impacts the credibility of the prosecution’s case. The
High Court, while noticing that Rajesh Kumar Yadav
(PW-6), Station House Officer, had been informed by
Nikhil Chand about the recovery, dismissed the
contention by opining that such knowledge was
“natural” and did not affect the prosecution’s case.
The trial Court, on its part, proceeded mechanically
by merely recording that information was received
by the police on 25
th
November 2014, regarding the
body being found near the Gaula River, without
examining how such information emanated. The
omission of both the Courts below, to scrutinize this
significant aspect strikes at the root of the
prosecution’s version of recovery and renders the
investigation vulnerable to serious doubt.
34.Having found that the prosecution has failed to
establish ‘motive’ and that the ‘last seen theory’, we
now proceed to examine the third circumstance
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relied upon by the prosecution, namely, the alleged
scientific and forensic evidence. However, before
considering the scientific/forensic evidence, it is
necessary to examine the circumstances
surrounding the arrest of accused-appellant No. 1-
Akhtar Ali, for the reason that the credibility of the
DNA samples collected by the Investigating Officers
is directly dependent upon the legality and
authenticity of the arrest and subsequent seizure
proceedings. It may be noted that as per the
evidence of Dr. Manoj Kumar Agarwal (PW-34), the
forensic samples from the victim girl’s dead body
were drawn on 26
th
November, 2014. The
prosecution claims that accused-appellant No.1-
Akhtar Ali was apprehended in Ludhiana (Punjab)
on 27
th
November 2014 by Yogesh Chand (PW-10) on
the basis of information supplied by a secret
informer. However, fervent arguments were
advanced by learned counsel appearing on behalf of
the accused-appellants, regarding the grave
discrepancies in the process of detention and arrest
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of the accused-appellant No.1-Akhtar Ali, and it was
contended that he was illegally detained much prior
to his formal arrest, which was shown in documents
on 27
th
November, 2014.
35.We have already concluded that the manner in
which the arrest of the accused-appellant No.2-Prem
Pal Verma, was projected by the prosecution is
seriously dubious.
35
We shall now proceed to
analyse the evidence of the officials associated with
the arrest of the accused-appellant No.1-Akhtar Ali.
36.The accused-appellant No.1-Akhtar Ali was
allegedly apprehended from Ludhiana (Punjab) by
Yogesh Kumar Chand, Head of the Special Task
Force (PW-10). The said witness stated that he was
instructed to investigate the said crime on 26
th
November, 2014. He received secret information to
the effect that a person named Raja Ustaad, a
resident of Bihar, who used to drive a dumper near
the crime scene, had been missing since the
incident. His mobile No. 754xxxx390 was traced and
35 Supra Note, Para No. 22.
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found to belong to one Lakshmi, resident of Haridya
East Champaran, Bihar. The call details records
indicated that the mobile number was in use near
the crime scene between 20
th
November, 2014 and
21
st
November, 2014, and was connecting with two
IMEI Nos. 911352501735790 and
911352501735780. Both the IMEI Nos. were
scanned, and another mobile no. 753xxxx910
issued in the name of Md. Iqbal, a resident of West
Champaran, Bihar, cropped up and was found to be
in operation. The location of the said mobile number
was found to be in Ludhiana (Punjab). Accordingly,
the witness (PW-10) proceeded to Ludhiana and
reached there on 27
th
November 2014, at around
11:00 am. Efforts were made to locate the mobile
user operating the mobile No. 753xxxx910, which
was found to be functioning in Guru Amardas
Colony, Ludhiana (Punjab).
37.The witness (PW-10) further claims that some
informants were also engaged to trace out the
suspect. One of the informants engaged for that
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purpose came and apprised the witness (PW-10)
that the suspect would come to the shop of Deepu
Bijliwala (Electrician) in search of work. Based on
the said information, surveillance was started at the
Sethi market, and within five minutes, a man draped
in a red-coloured floral blanket was seen coming.
The informer identified him as the same individual
whom the officers were attempting to locate. The
police team approached the said person, who got
nervous and attempted to flee, but was surrounded
and apprehended at around 05:15 pm. On inquiry,
he disclosed his name to be Akhtar Ali (accused-
appellant No. 1 herein).
38.On being interrogated, the apprehended
suspect, Akhtar Ali, confessed to the crime. It was
stated in the confession that upon seeing the victim
girl coming out of the wedding Pandal, he and his
companions (i.e., accused-appellant No.2-Prem Pal
Verma and accused-Junior Masih alias Foxy) minds
got vitiated by lust and thus decided to engage in
carnal acts. Accused-appellant No. 2-Prem Pal
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Verma, used a tamancha (a country-made pistol) to
scare and kidnap the victim girl. Thereupon, the
victim girl was wrapped up in a blanket and was
forcibly taken into the bushes near the Gaula river,
at around 7:30 pm, where all three accused persons
repeatedly subjected her to sexual assault.
Ultimately, the girl fainted because of profuse
bleeding from her genitals. He also confessed that
scratches were caused on his thighs in this process.
Thereafter, they abandoned the place, leaving the
unconscious girl covered with leaves in the bushes.
While he came back and slept in the dumper, the
other two accused persons (i.e., accused-appellant
No. 2-Prem Pal Verma and Junior Masih alias Foxy)
went back to their homes. Apprehending his
discovery in the crime, he absconded to Delhi via
train, and from there he further went to Ludhiana
(Punjab). A mobile handset with two SIM cards, a
railway ticket from Haldwani to Delhi dated 21
st
November, 2014, and an identity card in the name
of Shameem, son of Maqsood, were found during the
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personal search of accused-appellant No. 1-Akhtar
Ali. The blanket allegedly used in the incident was
also recovered from the possession of the accused-
appellant No. 1-Akhtar Ali, and the same was seized
and sealed. Likewise, the mobile phone, SIM cards,
railway ticket, and ID card were also seized and
sealed. The accused-appellant no. 1-Akhtar Ali was
arrested vide memo
36
dated 28
th
November, 2014.
Allegedly, the local people refused to stand witness
to the whole process, and therefore, Yogesh Kumar
Chand (PW-10) associated his companion police
officials as the witnesses to the said process.
39. In cross-examination, the witness (PW-10)
admitted that the mobile number 753xxxx910 being
used by the accused-appellant No. 1-Akhtar Ali was
placed in a different handset from the one being used
earlier. Both the SIMs were earlier used in different
handsets whose location was found to be near the
crime scene. The witness (PW-10) further admitted
that there was no recording in the General Diary
36 Exhibit Ka-25.
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regarding the departure of the police team to
Ludhiana on 26
th
November, 2014. He could not say
as to who was investigating the case when he arrived
at Haldwani on 26
th
November, 2014. Before
proceeding to Ludhiana, he did not receive any
authorisation to arrest the accused-appellant No.1-
Akhtar Ali. He admitted that the railway ticket is
collected from the passenger by the Railway
Officer/T.T. at the station after completion of the
journey. Very crucial admissions as appearing in the
evidence of the witness (PW-10) in the cross-
examination relating to the calls and caller-ID are
extracted hereinbelow: -
“13. The information about the location of the
above mobile number of Raju Ustad was found
in the nearby place at the incident spot on
dated 20-11-2014 and 21-11-2014, was made
available to me by the technical team on my
behest. The information of IMEI
911352501735790 and 11352501735780 of the
handset on which the above mobile number was
used was also collected by me. I have not
received the information as to who was the
owner of the handset with the above mentioned
IMEI. This information was also compiled by me
from the technical team that the above
mentioned IMEI number 911352501735780
was used from phone number 7533079910 on
dated 20-11-2014 and 21-11-2014. On
collecting the information of this mobile
number 7533079910, it was found that this
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number is the allotted number of Aircel Delhi
region. On the Customer I.D. of the said
number was found to be of Md. Iqbaal S/o
Shekh Shabbir c/o Rakesh Khands, Local City
Gurgaon, Local State Haryana, Permanent City
Champaran, Permanent State Bihar. The above
information was made available to me by the
technical team only on my behest. No
interrogation was made by me from the said
Md. Iqbaal in whose name this customer I.D.
was.
14. The Investigating Officer of this case came
to Dehradun and interrogated me on dated 07-
01-2015. I have told the Investigating Officer in
my statement that the above information has
been obtained by me, but had not told from
which source the information was obtained. In
the statements given to the Investigating Officer,
I have told about this thing that ‘I have collected
information about this person from the
Investigating Officer and other sources’. But
now I cannot say that in the above statements
from which Investigating Officer I had got the
information. It is correct to say that when I
attended the proceedings of this case on dated
26-11-2014, who was the investigation officer
on that day. I don't know about this.”
40.On a plain reading of the evidence of the
witness (PW-10), we find many suspicious
circumstances surrounding the theory of
apprehension and arrest of the accused-appellant
No.1-Akhtar Ali. The so-called source who identified
the accused-appellant No.1-Akhtar Ali could not
have had any idea about him because the accused-
appellant No. 1-Akhtar Ali was a resident of Bihar
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and had gone to Ludhiana (Punjab) for the first time,
allegedly in order to escape being caught in the
crime. The witness (PW-10) admitted that he had
not been authorised by anyone to proceed to
Ludhiana (Punjab) to arrest the accused-appellant
No.1-Akhtar Ali. There was no note for his departure
to Ludhiana in the General Diary maintained at the
police station. Moreover, he claimed that local people
(including the owner of the shop, in front of whom
the accused-appellant No.1-Akhtar Ali was arrested)
refused to witness the process of arrest and search
of the accused-appellant No. 1-Akhtar Ali, and thus,
only his team members were associated in the
process.
41.The story regarding the Call Details Records is
dubious and suspicious. The Investigating Officer
(PW-10) claimed that the location of accused-
appellant No. 1-Akhtar Ali, was traced by placing
his mobile number under surveillance. However, no
evidence whatsoever has been brought on record to
substantiate this claim. Vishal Pathak, Assistant
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Nodal Officer (PW-28), categorically deposed that the
call detail records of accused-appellant No. 1-Akhtar
Ali were applied for and procured only in January
2015, i.e., much after his arrest. Thus, the very
theory advanced by the prosecution, that accused-
appellant No. 1-Akhtar Ali was traced based on his
mobile location, is rendered false and without
foundation.
42.The prosecution has further sought to connect
accused-appellant No.1-Akhtar Ali with two mobile
numbers, 754xxxx390 and 753xxxx910. However,
the subscriber details of these numbers reveal that
they stood in the names of Lakshmi and Md. Iqbal,
respectively. Crucially, neither of these individuals
was made to depose by the prosecution. The failure
to establish ownership or use of these mobile
numbers by the accused-appellant No.1-Akhtar Ali
fatally undermines the prosecution’s case. In the
absence of such proof, there exists no admissible
evidence linking accused-appellant No. 1-Akhtar Ali
with the said mobile phones numbers.
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43.Furthermore, the prosecution has alleged that
accused-appellant No. 1-Akhtar Ali, after his arrest,
made a disclosure statement to Vipin Chandra Pant
(PW-40), pursuant to which the hair band worn by
the victim girl was recovered from the forest.
However, this alleged recovery is ex facie dubious
and unworthy of credence and has also been
doubted by the Courts below. Allegedly, accused-
appellant No. 1-Akhtar Ali, and his companions,
driven by lust, were carrying away the victim girl in
hot haste at the long hours of the night. It is
inconceivable that in such circumstances, accused-
appellant No. 1-Akhtar Ali would have paused
deliberately to remove a hair band from the victim
girl. Even otherwise, the possibility that he would
later recall the exact spot in the forest, where he
supposedly discarded the hair band, is almost
impossible. Moreover, the testimony of
Superintendent of Police, Suman Pant (PW-3) would
show that the recovery memo of the hair band
allegedly prepared by her suffers from serious
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infirmities. The memo bears no date of preparation,
yet it is signed by the police personnel who were
allegedly present at the time of recovery, with their
signatures bearing the date 28
th
November 2014.
Such discrepancies not only cast grave doubt on the
authenticity of the recovery proceedings but also
reinforce the inference that the alleged recovery was
manipulated to suit the prosecution’s narrative.
44. In the backdrop of the aforesaid
contradictions, omissions, and investigative lapses,
the entire procedure of arrest and search of the
person of the accused-appellant No. 1-Akhtar Ali by
Yogesh Kumar Chand (PW-10) comes under a grave
cloud of doubt. The story which has been projected
in the evidence of the witness is something out of
fiction and is ex facie unbelievable.
45.In these circumstances, the very foundation on
which the DNA evidence is sought to be projected
stands gravely compromised, for if the arrest itself
was illegal and stage-managed, the process of
drawing samples from the accused-appellants
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cannot be regarded as either voluntary or reliable.
The prosecution, however, urges that the scientific
reports demonstrate a conclusive match for the DNA
of accused-appellant No. 1-Akhtar Ali with the
forensic material collected from the dead body of the
victim girl. It is, therefore, necessary to examine the
trustworthiness and credibility of the
scientific/forensic evidence. While we examine the
scientific/forensic evidence, it is imperative to
remain conscious of the very stark feature of the
scientific evidence in the form of DNA profiling and
its matching report, which bears directly on the
adjudication of the matter. This Court, in the case of
Mukesh & Anr. v. State for NCT of Delhi & Ors
37
,
while discussing the statutory and evidentiary
significance of DNA profiling in criminal trials,
observed as follows: -
“216. DNA technology as a part of Forensic
Science and scientific discipline not only
provides guidance to investigation but also
supplies the court accrued information about
the tending features of identification of
criminals. The recent advancement in modern
37 (2017) 6 SCC 1
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biological research has regularised Forensic
Science resulting in radical help in the
administration of justice. In our country also
like several other developed and developing
countries, DNA evidence is being increasingly
relied upon by courts. After the amendment in
the Criminal Procedure Code by the insertion of
Section 53-A by Act 25 of 2005, DNA profiling
has now become a part of the statutory scheme.
Section 53-A relates to the examination of a
person accused of rape by a medical
practitioner.
xxx
457. DNA evidence is now a predominant
forensic technique for identifying criminals
when biological tissues are left at the scene of
crime or for identifying the source of blood
found on any articles or clothes, etc. recovered
from the accused or from the witnesses. DNA
testing on samples such as saliva, skin, blood,
hair or semen not only helps to convict the
accused but also serves to exonerate. The
sophisticated technology of DNA fingerprinting
makes it possible to obtain conclusive results.
Section 53-A CrPC is added by the Code of
Criminal Procedure (Amendment) Act, 2005. It
provides for a detailed medical examination of
accused for an offence of rape or attempt to
commit rape by the registered medical
practitioners employed in a hospital run by the
Government or by a local authority or in the
absence of such a practitioner within the radius
of 16 km from the place where the offence has
been committed by any other registered medical
practitioner.”
46. The prosecution, as well as the Courts below in
the impugned judgments, placed implicit reliance on
the DNA evidence to conclude the guilt of the
accused-appellant No.1-Akhtar Ali. The prosecution
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came out with a categoric case that the victim girl
was subjected to rape by all three assailants, i.e.,
accused-appellant No.1-Akhtar Ali , accused-
appellant No. 2-Prem Pal Verma, and the co-
accused, Junior Masih alias Foxy. In the forensic
examination, only the DNA profile of the accused-
appellant No.1-Akhtar Ali, was found to be matching
with that of the cervical swab of the victim girl. It
does not require rocket science to understand that
during a penetrative sexual assault, the semen
would ordinarily be first deposited in the vaginal
tract and thereafter reach the cervix. That is a
simple conclusion to be drawn from the structural
anatomy of a female Homo Sapien. The total lack of
traces of semen in the vaginal samples makes the
presence of DNA of the accused-appellant No.1-
Akhtar Ali, in the cervical swab suspicious. Further,
there is a glaring inconsistency in the prosecution’s
case. While semen was allegedly found in the
cervical swab of the victim girl, no semen was
detected on the glass slides prepared from the
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cervical smear of the victim girl. It is inconceivable
that semen was found in the swab but was
completely absent in the smear slides, since both
the samples were collected simultaneously from the
same anatomical site in the cervix of the dead body
of the victim girl. The presence in one and absence
in the other defies scientific probability and
undermines the credibility of the prosecution’s
reliance on the DNA report. Such an inconsistency
strongly suggests that the presence of DNA of
accused-appellant No. 1-Akhtar Ali in the cervical
swab was engineered by the prosecution, pointing
towards the possibility that the sample was
tampered with or planted by the prosecution to
falsely implicate the accused-appellant No. 1-Akhtar
Ali.
47. The Medical Jurist, Dr. C.P. Bhaisora (PW-7)
opined that the cause of death of the victim girl was
excessive bleeding and that the death must have
ensued within a few minutes of the assault. In this
background, the jacket found on the body of the
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victim girl could not have remained untouched and
would definitely have received blood stains. However,
the FSL report
38
does not report the presence of
blood or semen of any of the accused-appellants on
the said jacket.
48. These circumstances, starting from the so-
called arrest of accused-appellant No. 1-Akhtar Ali
from Ludhiana (Punjab) taken cumulatively, are
sufficient to give rise to a strong inference of
tampering with the forensic samples and planting of
semen of the accused-appellant No.1-Akhtar Ali on
these samples, i.e., cervical swab, undershirt, and
underwear of the victim girl, so as to establish his
involvement in the crime. In our opinion, the entire
process of collection and examination of samples
and the consequent matching of the DNA becomes
suspicious and wholly unreliable. We are thus
convinced that the DNA report
39
cannot be treated
as a reliable piece of evidence. Once the said
document is eschewed from consideration, there
38 Exhibit Ka-15 and Exhibit Ka-16.
39 Exhibit Ka-75.
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remains no evidence whatsoever on record of the
case so as to connect the accused-appellant No.1-
Akhtar Ali with the crime.
49.There is yet another reason to discard the DNA
report. The credentials and qualifications of Dr.
Manoj Kumar Agarwal (PW-34), who conducted the
DNA examination and issued the DNA Report
40
, are
highly doubtful to place him in the category of a
DNA expert. The said witness admitted in his cross-
examination that his qualifications are M.Sc. in
Botany and Ph.D., which apparently do not equip
him with expertise in the field of human DNA
profiling, which is neither a core subject nor an
ancillary subject in Botany. The witness (PW-34)
denied the suggestion of the defence that human
DNA is not part of the subject of Botany.
50.As per the dictionary meaning, ‘botany’ subject
deals with the scientific study of the physiology,
structure, genetics, ecology, distribution,
classification, and economic importance of “plants”.
40 Ibid.
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It has nothing to do with DNA profiling, particularly
that of human beings. Upon examining the
curriculum structure of the Chaudhary Charan
Singh University, Meerut, (as available on its
website) from where the witness obtained his
degrees in M.Sc. (Botany) and Ph.D., it can be
discerned that the available curriculum does not
provide any specific focus on human DNA profiling.
The witness (PW-34) did not claim to have
undertaken any other specialised course in DNA
profiling. Thus, the very qualifications of a witness
as a DNA expert are under grave doubt. However, we
are not discarding the DNA report solely on this
ground, as there are several other factors, discussed
above, which convince us that the same is
unreliable.
Conclusion: -
51.Having considered the evidence in its entirety
and bearing in mind the principles governing cases
resting purely on circumstantial evidence, we are of
the opinion that the prosecution has failed to
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establish the complete and unbroken chain of
circumstances necessary to bring home the guilt of
the accused-appellants.
52.Firstly, as regards ‘motive’, the prosecution has
merely alleged that the accused-appellants were
driven by lust. However, no independent or credible
evidence has been adduced to substantiate such a
motive. A bald assertion without corroboration
cannot by itself form a safe basis for conviction.
Secondly, the ‘last seen theory’ relied upon by the
prosecution suffers from serious infirmities. The
prosecution has failed to prove the proximity of time
and place so as to shift the burden onto the
accused. Thirdly, the scientific evidence is itself
riddled with deficiencies. The alleged theory of DNA
found on the body of the victim girl matching with
the DNA of accused-appellant No. 1-Akhtar Ali, is ex
facie doubtful and unworthy of credence. The
prosecution’s claim that the accused-appellant No.1-
Akhtar Ali’s location was traced through mobile
surveillance is falsified by its own record, as the call
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detail records were procured much later and no
evidence exists to link the accused-appellant No.1-
Ahktar Ali, with the sim numbers in question.
Likewise, the omission to examine crucial witnesses,
including the subscribers of the relevant mobile
numbers and most importantly Nikhil Chand, who
first informed the police about the location of the
dead body of the victim girl, further weakens the
case of the prosecution.
53. It must be borne in mind that the present case
involves the imposition of the ultimate punishment
of death. The law is well settled that in cases resting
on circumstantial evidence, every link in the chain
must be firmly and conclusively established, leaving
no room for doubt. Where two views are possible,
the one favourable to the accused must be adopted.
In the instant case, the prosecution has failed to
prove motive, the last seen theory stands
contradicted, and the alleged scientific evidence is
marred by inconsistencies and serious loopholes. In
such circumstances, it would be wholly unsafe to
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uphold a conviction, much less the extreme penalty
of death.
54. Trial Courts, as well as High Courts, are
required to exercise the highest degree of
circumspection before awarding the death penalty.
The irreversible nature of capital punishment
demands that it be imposed only in the “rarest of
rare” cases, as held by this Court in Bachan Singh
v. State of Punjab
41
, and Machhi Singh v. State
of Punjab
42
, and only when the prosecution has led
unimpeachable, cogent, and convincing evidence
that excludes every hypothesis of innocence. Even
the slightest doubt or infirmity in the prosecution’s
case must weigh against the imposition of such a
sentence. Any hasty or mechanical application of
the death penalty, without ensuring the highest
standards of proof and procedural fairness, not only
undermines the rule of law but risks the gravest
miscarriage of justice by extinguishing a human life
irretrievably. In Manoj & Ors. v. State of Madhya
41 (1980) 2 SCC 684.
42 (1983) 3 SCC 470.
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Pradesh (supra), this Court emphasised the duty of
courts to consider mitigating circumstances and
conduct a detailed sentence hearing before awarding
the death penalty. Therefore, unless the
prosecution’s evidence forms an unbroken and
reliable chain of circumstances pointing only to the
guilt of the accused, the extreme penalty cannot be
justified.
55.Since the prosecution has failed to establish
the chain of circumstances against accused-
appellant No.1-Akhtar Ali, the very foundation of the
case against accused-appellant No. 2-Prem Pal
Verma is also destroyed. The prosecution itself
rested its case against accused-appellant No. 2-Prem
Pal Verma, primarily on the alleged extra-judicial
confession of accused-appellant No.1-Akhtar Ali.
Once the prosecution’s version against accused-
appellant No.1-Akhtar Ali is disbelieved, the
derivative case sought to be built against accused-
appellant No. 2-Prem Pal Verma loses all credibility.
Consequently, the prosecution has failed to prove
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the charges against accused-appellant No. 2-Prem
Pal Verma, beyond a reasonable doubt, and his
conviction cannot be sustained.
56.Given the above infirmities, the so-called links
in the chain of circumstances stand broken. The
prosecution has, therefore, failed to prove the guilt
of the accused-appellants beyond a reasonable
doubt.
57. The impugned common judgment dated 18
th
October, 2019, passed by the Division Bench of the
High Court of Uttarakhand at Nainital in Criminal
Reference No. 1 of 2016 and Criminal Appeal No.
104 of 2016 and the judgment dated 11
th
March,
2016 passed by the Special Judge (POCSO)/ Fast
Track Court/ Additional District & Sessions Judge,
Haldwani, District Nainital in Session Trial No. 09 of
2015, do not stand to scrutiny and the same are
hereby set aside.
58.The accused-appellants are acquitted of all
charges. They shall be released forthwith, if not
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required in any other case. Bail bonds are
discharged.
59.The appeals are, accordingly, allowed.
60.Pending Applications, if any, shall stand
disposed of.
….……………………J.
(VIKRAM NATH)
….……………………J.
(SANJAY KAROL)
...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
SEPTEMBER 10, 2025.
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In a significant ruling that underscores the meticulous standards of proof required in criminal jurisprudence, particularly concerning circumstantial evidence and capital punishment, the Supreme Court of India recently acquitted two appellants in the case of Akhtar Ali v. State of Uttarakhand. This judgment, now available on CaseOn, critically evaluates the prosecution's reliance on the "last seen" theory and scientific evidence, including DNA profiling, highlighting crucial deficiencies that led to the overturning of convictions. Legal professionals and students can explore further details of this pivotal decision on CaseOn.
The core issue before the Supreme Court was whether the convictions of Akhtar Ali (Accused-Appellant No. 1) and Prem Pal Verma (Accused-Appellant No. 2) for murder and sexual assault, based primarily on circumstantial evidence, could be sustained. This involved assessing if the prosecution successfully established a clear motive, an unbroken chain of events through the "last seen" theory, and the unquestionable reliability of DNA evidence, especially when numerous inconsistencies and investigative lapses marred the proceedings.
The Court reiterated established legal principles governing convictions based on circumstantial evidence, as laid down in the landmark case of Sharad Birdhichand Sharda v. State of Maharashtra (1984):
Regarding the "last seen" theory, it must demonstrate a close proximity of time and place between the accused and the victim to shift the burden of explanation. For DNA evidence, the Court referenced Mukesh & Anr. v. State for NCT of Delhi & Ors (2017), emphasizing its significance in identification but stressing that its credibility hinges on the legality and authenticity of sample collection and seizure.
Finally, for capital punishment, the Court recalled the "rarest of rare" doctrine from Bachan Singh v. State of Punjab (1980) and Machhi Singh v. State of Punjab (1983), requiring the highest circumspection, comprehensive evaluation of aggravating and mitigating factors (as in Manoj & Ors. v. State of Madhya Pradesh (2022)), and unimpeachable evidence that leaves no room for doubt about guilt.
The Supreme Court meticulously analyzed each piece of circumstantial evidence presented by the prosecution:
The prosecution's assertion of "lust" as a motive was deemed unsubstantiated. The testimony of Shankar Datt Padalia (PW-18), who allegedly hired Akhtar Ali as a dumper driver, was found highly suspicious due to unexplained delays in reporting crucial information and contradictions by another witness (PW-39) regarding Akhtar Ali's prior employment. The Court found it improbable that an expensive vehicle would be entrusted without verification based on a mere recommendation. Ultimately, the prosecution failed to lay a convincing foundation for motive, which is a critical psychological link in circumstantial cases.
The "last seen" theory was primarily based on the testimonies of three shopkeepers (PW-16, PW-19, PW-20) who claimed to have seen the accused-appellants in an inebriated state near the crime scene. However, their statements were recorded five days after the victim's disappearance and only after her body had been discovered. This belated introduction raised serious doubts about their credibility and suggested potential "padding" of evidence. Furthermore, none of these witnesses stated that the victim girl was seen in the company of the accused-appellants, merely placing them in the general vicinity.
A fatal blow to this theory was the non-examination of Nikhil Chand, the victim's cousin (PW-6), who was the first to inform the police about the body's location. Despite extensive police searches failing to locate the body, Nikhil Chand possessed precise knowledge. The Investigating Officer's (PW-40) failure to interrogate him or record his statement was a grave omission, leading the Court to draw an adverse inference against the prosecution. The High Court's dismissal of this omission as "natural knowledge" was also criticized as mechanical and unscrutinized.
The DNA evidence, which was the cornerstone of the prosecution's case against Akhtar Ali, was found to be riddled with inconsistencies and suspicions. While Akhtar Ali's DNA was allegedly found on the victim's cervical swab, undershirt, and underwear, semen was conspicuously absent from other related samples like the cervical smear and vaginal wash. This selective presence was deemed scientifically improbable and strongly suggested tampering or planting of samples. The fact that the prosecution alleged gang rape by three individuals, yet only Akhtar Ali's DNA was detected, further weakened this evidence.
Additionally, the FSL reports surprisingly showed no blood or semen on the victim's red jacket, despite medical evidence indicating excessive bleeding leading to death. The arrest of Akhtar Ali from Ludhiana was also highly dubious; there was no record of police departure, no authorization for arrest, and local witnesses reportedly refused to participate. The claim that his mobile location was traced was contradicted by evidence showing call detail records were procured *after* his arrest. The identity cards and mobile numbers linked to the accused were found to be registered in other individuals' names, none of whom were examined.
CaseOn.in's 2-minute audio briefs provide legal professionals with quick and precise analyses of these specific rulings, making complex judgments easily digestible for busy practitioners.
Adding to the unreliability, the DNA expert (PW-34), Dr. Manoj Kumar Agarwal, held M.Sc. and Ph.D. degrees in Botany, a field that does not inherently provide expertise in human DNA profiling. The Court found his qualifications for being a DNA expert to be gravely doubtful, casting further shadow on the scientific report.
The Supreme Court concluded that the prosecution utterly failed to establish a complete and unbroken chain of circumstances necessary to prove the guilt of the accused-appellants beyond a reasonable doubt. The alleged motive was not substantiated, the "last seen" theory collapsed due to critical inconsistencies and investigative lapses, and the scientific/DNA evidence was found to be unreliable, likely tainted by tampering and a dubious arrest procedure.
Given these profound infirmities and significant doubts, the Court held that it would be wholly unsafe to uphold the convictions, much less the extreme penalty of death. Consequently, the High Court's judgment affirming the convictions and the death sentence for Akhtar Ali, along with the conviction of Prem Pal Verma, were set aside. Both accused-appellants were acquitted of all charges and ordered to be released forthwith.
This judgment serves as a critical reminder of the fundamental principles of criminal law, especially concerning circumstantial evidence. For lawyers, it emphasizes the importance of meticulously scrutinizing every link in the chain of evidence, challenging inconsistencies, and ensuring the legality and authenticity of investigative procedures, particularly regarding forensic evidence and arrests. It provides a robust precedent for arguing against shaky "last seen" theories and unreliable DNA reports. For law students, it's an excellent case study on the application of the "golden principles" of circumstantial evidence, the burden of proof, the significance of motive, and the high standards required for expert testimony in scientific evidence. It also highlights the due diligence required from both the prosecution and the courts in capital punishment cases.
All information provided in this article is for informational purposes only and does not constitute legal advice. Readers should consult with a qualified legal professional for advice on specific legal issues.
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