Judgment Reserved on:31.12.2025

Judgment delivered on:12.02.2026

IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

HON’BLE MR. RAVINDRA MAITHANI, J.

HON’BLE MR. ASHISH NAITHANI, J.

Criminal Appeal No. 143 of 2019

Mool Chandra @ Moola ......Appellant

Vs.

State of Uttarakhand …..Respondent

With

Criminal jail Appeal No. 11 of 2019

Bhup Singh @ Bhupali ......Appellant

Vs.

State of Uttarakhand …..Respondent.

Presence:

Mr. Mahavir Kohli, Advocate for the Appellant Mool Chandra @ Moola.

Mr. Asif Ali, Advocate for the Appellant Bhup Singh @ Bhupali.

Mr. J.S. Virk, Deputy Advocate General for the State.

As Per Hon’ble Ashish Naithani, J.

1. These connected criminal appeals, namely Criminal Appeal No. 143 of

2019 and Criminal Jail Appeal No. 11 of 2019, have been preferred

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under Section 374(2) of the Code of Criminal Procedure by the

Appellants, challenging the common judgment and order of conviction

dated 18.02.2019 passed by the learned II

nd

Additional Sessions Judge,

Haldwani, District Nainital, in Sessions Trial No. 45 of 2018, arising

out of FIR No. 33 of 2018, Police Station Banbhulpura, District

Nainital. Since both appeals arise out of the same judgment, pertain to

the same incident, and are founded on common evidence, they are

being heard and decided together by this common judgment.

2. By the impugned judgment, the Appellants were convicted for

offences punishable under Sections 363, 366-A, 376(2)(l), and 376- D

of the Indian Penal Code, and were sentenced to undergo varying

terms of rigorous imprisonment,directing that all sentences shall run

concurrently.

3. The case of the State, in brief, is that a missing person report was

lodged by the brother of the victim at Police Station Banbhoolpura,

Haldwani, on 08.03.2018. The report stated that the victim was a girl

aged about 13 years (with the question of age being a matter arising on

the record) and that she was suffering from intellectual disability and

had difficulty with speech. It was reported that she had gone missing

from her residence on 07.03.2018 at about 4:00 p.m.

4. The victim was found the next day at about 11:30 p.m., at a distance of

approximately 50 meters ahead of Awla Chauki Gate, near a petrol

pump. She was found alone and in a frightened condition. She was

taken back to her home, where her mother noticed that she was

wearing a blood -stained pyjama and had black marks on her body. The

State case further is that the victim, through gestures and signs,

communicated to her mother that she had been sexually assaulted and

beaten by two persons.

5. While searching for the victim, her brother came across CCTV footage

obtained from a camera installed at the Power House situated on

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Himalayan School Road. In the said footage, the victim was seen being

led by a person holding her hand and taking her towards Awla Chauki

Gate on Gaula Bypass Road. The brother of the victim took a snapshot

of the CCTV footage on his mobile phone and, on the basis of this

clue, continued efforts to trace the victim.

6. Thereafter, on enquiries, the person seen accompanying the victim in

the footage was identified as Mool Chandra, son of Gothi Lal. It was

further stated that on the previous night, a girl with intellectual

disability and short hair was seen in the company of Mool Chandra and

his associate Bhup Singh, who was stated to be a driver, and that both

were seen loitering around in the area. These facts were reported at the

police station.

7. The victim was medically examined after about three days of the

incident at the Government Female Hospital, Haldwani, on 10.03.2018

at about 9:30 a.m.

8. The medico-legal record contains a structured questionnaire pertaining

to the history of sexual violence. The examining Medical Officer

recorded that the victim was not able to provide information in

response to the queries in the questionnaire, and the entries relating to

penetration, emission, condom use, use of any object, and allied

particulars were marked “not applicable”, as the victim was not able to

comprehend or respond.

9. On internal examination, the hymen was found to be absent, and slight

lacerations were observed. It was further noted that there was bleeding

on touch and the presence of slight white discharge.

10. As the case was reported to involve sexual violence, during the

course of the medical examination, samples and swabs, along with the

clothes of the victim, were collected for pathological and forensic

examination.

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11. In the supplementary medical report, no spermatozoa were found

in the vaginal smear. The Senior Medical Officer reported that, taking

into account the history, clinical examination, and pathological reports,

no definite opinion regarding rape could be given. However, the

possibility thereof was not ruled out.

12. Seventeen exhibits relating to the victim and the Appellants were

sent for forensic examination to the Forensic Science Laboratory at

Dehradun, including the salwar of the victim (Exhibit 2), nail scrapings

of the victim (Exhibit 4), the green underwear of accused Bhup Singh

(Exhibit 11), and the jeans and blood samples of accused Mool

Chandra (Exhibits 13, 14, and 16), besides other exhibits.

13. The FSL report recorded that human semen and human blood

were detected on Exhibit 2 (the salwar of the victim) and Exhibit 11

(the green underwear of accused Bhup Singh).

14. The DNA obtained from the salwar and the nail scrapings of the

victim matched the DNA obtained from the blood samples of the

victim herself and did not match the DNA obtained from the blood

samples of either accused.

15. Significantly, the DNA obtained from the underwear of accused

Bhup Singh matched the DNA obtained from the blood sample of the

victim as well as the blood sample of Bhup Singh.

16. Insofar as Appellant Mool Chandra is concerned, the forensic

narrative placed on record states that no semen, blood, or DNA linking

him to the alleged sexual assault was detected on the victim’s clothing,

nail scrapings, or any other incriminating exhibit, and there was no

scientific corroboration by DNA profiling linking him to the alleged

sexual assault.

17. Upon appreciation of the evidence on record, the learned trial

court returned findings of guilt against the Appellants and passed the

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impugned judgment of conviction and sentence, which is the subject

matter of challenge in the present connected appeals.

18. Learned counsel for the Appellants assailed the impugned

judgment and submitted that the conviction and sentence are

unsustainable on the evidence on record.

19. Learned counsel for Appellant Mool Chandra submitted that the

evidence does not establish his involvement in the act of sexual assault

beyond a reasonable doubt. It was urged that the conviction for sexual

assault has been recorded on a broad inference drawn from association

and suspicion, without proof that reaches the required standard.

20. Learned counsel for Appellant Mool Chandra emphasized that

the medical evidence is inconclusive. It was submitted that the victim

was medically examined about three days after the incident, and the

supplementary medical report records that no spermatozoa were found

in the vaginal smear and that no definite opinion regarding rape could

be given. It was therefore urged that the medical evidence does not

provide definitive corroboration identifying any particular assailant.

21. Learned counsel for Appellant Mool Chandra placed specific

reliance on the forensic material and submitted that it does not

implicate him in the act of sexual assault. It was urged that no semen,

blood, or DNA linking Mool Chandra to the alleged sexual assault was

detected on the victim’s clothing, nail scrapings, or any other

incriminating exhibit, and that there is no scientific corroboration, by

DNA profiling, connecting him to the alleged sexual assault.

22. Learned counsel for Appellant Mool Chand ra further submitted

that, at the highest, the circumstance of being seen in the company of

the victim may suggest presence or proximity; still, it cannot be

stretched to conclude participation in sexual assault in the absence of

scientific or other dependable linking evidence. It was therefore urged

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that the conviction of Mool Chandra is unsafe and deserves to be set

aside.

23. Learned counsel further submitted that the prosecution failed to

prove the authenticity and integrity of the electronic record in

accordance with the law and that mere production of CCTV footage,

without strict compliance with the requirements governing electronic

evidence, renders the same inadmissible and unsafe for reliance. It was

urged that the conviction cannot be founded, even partially, on such

infirm electronic evidence.

24. Additionally, Learned counsel for Appellant Bhup Singh

submitted that the learned trial court has erred in appreciating the

surrounding circumstances and has not examined the infirmities in the

State narrative with the caution required. It was urged that the State's

case contains inconsistencies on foundational aspects and that the

Court must evaluate the evidence as a complete chain before sustaining

a conviction.

25. Learned counsel for Appellant Bhup Singh also relied upon the

medical evidence and submitted that it is not definitive. It was urged

that the medical opinion does not conclusively establish the nature of

the act or identify the assailant, and therefore, conviction must rest

only on evidence that is certain and reliable.

26. Learned counsel for Appellant Bhup Singh addressed the forensic

finding relating to Exhibit 11, the green underwear attributed to Bhup

Singh, and submitted that even scientific evidence must be evaluated in

the context of the integrity of collection, seizure, sealing, custody, and

forwarding. It was urged that unless the Court is satisfied that the

exhibit remained protected from contamination or substitution, the

circumstance cannot be treated as conclusive to sustain a conviction.

27. Learned counsel for Appellant Bhup Singh lastly submitted that

the victim was stated to be a person with disability, and that the case

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therefore calls for heightened judicial sensitivity. However, it was

urged that even in such cases, conviction must be founded on proof

beyond a reasonable doubt and not on moral shock or suspicion.

28. Per contra, learned counsel appearing for the State supported the

impugned judgment and submitted that the State has proved its case

beyond a reasonable doubt. It was urged that the victim was a

vulnerable girl with intellectual disability and difficulty with speech,

and her inability to narrate in conventional terms cannot detract from

the occurrence when the surrounding circumstances and scientific

evidence provide strong corroboration.

29. Learned State counsel submitted that the sequence of events,

including the victim going missing, being recovered thereafter in a

frightened condition, and the circumstance of the victim being seen in

the company of the accused persons, establishes the case against the

Appellants. It was urged that the learned trial court has appreciated the

evidence in accordance with the law, and the conviction does not

warrant interference.

30. Learned State counsel placed strong reliance on the forensic

evidence, particularly against Bhup Singh, and submitted that human

semen and human blood were detected on his underwear and that the

DNA obtained therefrom matched the DNA of the victim as well as

Bhup Singh. According to the State counsel, this is strong scientific

corroboration of sexual contact with the victim and is sufficient to

sustain the conviction.

31. As regards Mool Chandra , learned State counsel submitted that

though the forensic linkage may not be available, the evidence

establishes his presence with the victim during the relevant period and

his association with Bhup Singh.

32. Learned State counsel refuted the aforesaid contention and

submitted that the CCTV footage was duly proved during trial in

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accordance with law. It was pointed out that a certificate under Section

65-B of the Indian Evidence Act was produced through Prosecution

Witness No. 6, and the electronic record was taken on file and marked

as an exhibit without any objection at the time when it was so marked.

33. It was urged that forensic evidence is corroborative in nature and

its absence does not by itself exonerate an accused if other

circumstances establish involvement. It was therefore contended that

the conviction recorded by the learned trial court calls for affirmation.

34. Heard learned counsel for the Parties and perused the records.

35. The case concerns a victim who was initially stated to be a minor

girl aged about 13 years at the inception of the proceedings. However,

upon medical and documentary assessment conducted during the

course of investigation, her age was subsequently determined to be

between 18 and 20 years, thereby rendering her a major in the eyes of

the law.

36. The foundational facts are not in dispute. A missing person

report was lodged by the brother of the victim on 08.03.2018, stating

that the victim, aged about 13 years, had gone missing from her

residence on the previous day. She was recovered the following night

at about 11:30 p.m., alone and in a frightened condition, near Awla

Chauki Gate, close to a petrol pump.

37. Upon being taken home, her mother noticed blood- stained

clothes and bodily marks. Through gestures, the victim indicated that

she had been subjected to physical and sexual assault. These facts

constitute the immediate backdrop of the case.

38. The victim was medically examined on 10.03.2018 at 9:30 a.m.

at the Government Female Hospital, Haldwani, approximately three

days after the incident. In the medico-legal examination, the victim

was unable to provide any history or respond to the structured

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questionnaire relating to sexual violence, including the nature of the

incident or the assailant.

39. On internal examination, the hymen was found absent, with slight

lacerations and bleeding on touch. No swelling was noted. The medical

findings were suggestive of sexual activity but did not identify the

perpetrator and, in the absence of reliable forensic linkage, were not by

themselves sufficient to sustain a conviction under Section 376 IPC.

40. In the supplementary medical report, no spermatozoa were

detected in the vaginal smear. The Senior Medical Officer opined that

no definite conclusion regarding rape could be drawn, though the

possibility was not ruled out. The time gap between the incident and

the medical examination is a relevant factor in appreciating these

findings.

41. During the medical examination and investigation, biological

samples of the victim and the Appellants, including vaginal swabs, hair

samples, nail scrapings, and clothing, were collected and forwarded for

pathological and forensic examination.

42. Seventeen samples were forwarded to the Forensic Science

Laboratory, Panditwari, Chakrata Road, Dehradun. The FSL report

marks these samples as distinct exhibits, as follows:

Exhibit– 1: A black and military-coloured printed hood of the victim.

Exhibit– 2: A light brown coloured salwar of the victim.

Exhibit– 3: Scalp hair of the victim.

Exhibit– 4: Nail scrapings of the victim.

Exhibit– 5: Pubic hair of the victim.

Exhibit– 6: Two vulval swabs of the victim.

Exhibit– 7: Two vaginal swabs of the victim.

Exhibit– 8: Two anal swabs of the victim.

Exhibit– 9: Two vaginal washings of the victim.

Exhibit– 10: Blood sample of the victim in an EDTA vial.

Exhibit– 11: A green coloured underwear of accused Bhup Singh.

Exhibit– 12: Pubic hair of accused Bhup Singh.

Exhibit– 13: A blue-coloured pair of jeans of accused Mool Chandra.

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Exhibit– 14: Blood sample of accused Mool Chandra in an EDTA vial.

Exhibit– 15: Blood sample of the victim on an FTA card.

Exhibit– 16: Blood sample of accused Mool Chandra on an FTA card.

Exhibit– 17: Blood sample of accused Bhup Singh on an FTA card.

43. Before proceeding to evaluate the forensic results against the

individual Appellants and the corroborative circumstances relied upon

by the State, it is necessary to examine whether the State has

established an unimpeachable chain of custody in respect of the

forensic exhibits.The deficiencies noticed herein do not render the

forensic evidence wholly inadmissible; however, they require the

Court to exercise caution and to avoid resting a finding of guilt solely

upon such material.

44. The FSL report, dated 3rd July 2018, addresses the Court, namely

the Court of the learned FTC/Addl. District and Sessions Judge /

Special Judge (POCSO), Haldwani, District Nainital, stating that “with

reference to the forwarding memo dated 03.04.2018 in connection with

Crime No. 33 of 2018 under Sections 363, 366(क), 376(2)(ठ), 323 IPC

and Sections 5/6 of the POCSO Act, Police Station Banbhoolpura,

District Nainital, regarding the examination of exhibits received

through Constable No. 660 CP Trilok Singh dated 03.04.2018 for

laboratory examination.”

45. Meaning thereby that, with the order of the trial court dated

02.04.2018, the samples were sent for examination to the FSL

laboratory, and Constable Trilok Singh handed over the said materials

on the next day, that is, 03 April 2018. Considering this, there is no

delay after the court’s order up to the samples reaching the FSL,

Dehradun.

46. The evidentiary value of forensic material does not rest solely

upon the scientific conclusions drawn by the Forensic Science

Laboratory, but equally upon the sanctity, continuity, and transparency

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of the chain through which such exhibits pass, commencing from the

point of collection and culminating in forensic examination. Any

unexplained break or infirmity in this chain would have the potential to

erode the reliability of the scientific opinion.

47. As per the General Diary dated 10.03.2018, both the accused

were apprehended, and the said GD further mentions the time as 12:00

noon. A pink coloured shirt with blue stripes worn by the accused

Mool Chandra @ Moola, son of Thori Lal, which was captured in the

CCTV footage and reported to have been worn by the accused Mool

Chandra , was also noted.

48. Another point of consideration regarding the letter and the

material collected from the Appellant -accused-convict is that, as per

the statement of the Investigating Officer, namely Prosecution Witness

No. 6, Smt. Kumkum Dhanik has mentioned in her statement that

during the course of the arrest of the accused persons, their clothes

were taken into custody for the purpose of forensic examination.

49. As per her statement, the underwear of only one accused was

taken, i.e., of accused Bhup Singh @ Bhupali, marked as “A green

coloured underwear of accused Bhup Singh”, Exhibit–11, whereas the

underwear of the other accused, namely Mool Chandra @ Moola, was

not collected.

50. Now the question that arises is that if the Investigating Officer

has collected and mentioned about the green coloured underwear of the

accused Mool Chandra , then why it was not sent for FSL examination.

51. It is also to be considered that entry in the malkhana was not

done. As whenever any material is collected, and before it has to be

sent for FSL examination, firstly it has to be noted and registered in the

malkhana register, unless it is promptly and straightaway taken before

the concerned Magistrate or competent authority for consideration.

52. Since there is an anomaly with regard to the chain of custody of

clothes that were taken from the accused on 10th March 2018, and as

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mentioned in the statement of the Investigating Officer, Prosecution

Witness No. 6, that they were taken for FSL and medical examination,

therefore, with regard to the first link of documentary evidence, the

same ought to have been examined.

53. Firstly, the malkhana moharrir, and thereafter the person

responsible for receiving sanction from the trial court for FSL

examination.

54. After the samples of the Appellant-accused were collected, that

is, clothes, DNA- related blood samples, FTA cards, and other

materials, the question over here is as to when they were handed over

to the malkhana moharrir, how they were placed before the court, and

how they were registered.

55. As per the FSL report, the sanction letter dated 02.04.2018

reached the laboratory situated at Dehradun on the very next day,

which was handed over by Constable Trilok Singh on 3rd April 2018.

There is no question of delay with respect to the samples being

received for forensic examination after they were sanctioned by the

court.

56. Now, to clarify this anomaly, Constable Trilok Singh was

required to testify to the chain of evidence, but he was not examined

before the court.

57. In the present case, the record establishes that the victim was

subjected to a medico-legal examination on 07.03.2018 at the

Government Female Hospital, Haldwani. During the said examination,

the Medical Officer collected the victim’s clothes and other materials,

including her salwar, along with biological samples and nail scrapings,

strictly in accordance with prescribed medico-legal protocol. A s per

the medico-legal examination and the statements of the Medical

Officer, the top (military coloured hoodie) and the light-coloured

salwar of the victim, which were worn at the time of the incident, were

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taken in the hospital on 10th March 2018, sealed, and handed over to

the police.

58. However, the Court notes that no independent DNA profiling

report explaining the methodology, parameters of matching, or expert

opinion has been formally proved during trial. The forensic finding,

therefore, cannot be treated as conclusive by itself and must be

evaluated as a corroborative circumstance.

59. However, the record does not disclose any contemporaneous

seizure memo or recovery document evidencing the collection of the

said underwear from the possession of accused Bhup Singh. In the

absence of a complete and demonstrable chain of custody, the forensic

reference to the said article cannot be treated as conclusive proof of

sexual assault

60. The Forensic Science Laboratory examined seventeen exhibits,

including, inter alia, the salwar of the victim (Exhibit-2), the nail

scrapings of the victim (Exhibit-4), and the green coloured underwear

of accused Bhup Singh (Exhibit-11), besides the blood samples of the

victim and the accused persons. The laboratory report does not record

any discrepancy in seals, packaging, or identification marks.

61. The Hon’ble Supreme court in,Criminal Appeal No. 1672 OF

2019; Kattavelai @ Devakar versus State of Tamil Nadu has recently

observed that,

“Para 44…..(4) Right from the point of collection to the logical

end, i.e., conviction or acquittal of the accused, a Chain of

Custody Register shall be maintained wherein each and every

movement of the evidence shall be recorded with counter sign

at each end thereof stating also the reason therefor. This Chain

of Custody Register shall necessarily be appended as part of

the Trial Court record. Failure to maintain the same shall

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render the I.O. responsible for explaining such lapse. The

Directors General of Police of all the States shall prepare

sample forms of the Chain of Custody Register and all other

documentation directed above and ensure its dispatch to all

districts with necessary instruction as may be required."

62. Now the main question that has to be looked into is whether there

is anything on record to indicate that the exhibits passed through any

unauthorised hands or were exposed to any condition capable of

compromising their integrity. At the same time, whether it holds the

chain of custody of the materials so sent to the FSL for examination;

that includes, at the outset, the medical examination of the

Appellants/Convicts. Then, whether there are any certified recovery

memo of the underwear of the accused Bhup Singh as indicated in the

FSL report as “Exhibit–11: A green coloured underwear of accused

Bhoop Singh”, and whether there is a certification or memo of samples

as mentioned in the FSL report as “Exhibit–16: Blood sample of

accused Mool Chand on an FTA card” and “Exhibit –17: Blood sample

of accused Bhoop Singh on an FTA card”.If these are found to be

present and verified, there ought to be corresponding entries in the

General Diary.

63. Significantly, during the course of the trial, no substantive

challenge was raised to the chain of custody. Neither the Medical

Officers who collected the samples nor PW-6 Smt. Kumkum Dhanik,

the Investigating Officer who handled and forwarded the exhibits,

were confronted with any suggestion of tampering, contamination,

substitution, or improper handling. No material contradiction has been

elicited to cast doubt upon the continuity of possession or the condition

of the seals at any stage.

64. Apart from the medical and forensic evidence, the State relies

upon electronic evidence in the form of CCTV footage.During the

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search for the victim, CCTV footage obtained from a camera installed

near the Power House on Himalayan School Road depicts the victim

being led by a person holding her hand in the direction of Awla Chauki

Gate. The electronic record was produced along with a certificate

under Section 65- B of the Indian Evidence Act by Prosecution Witness

No. 6, the Investigating Officer, Kumkum Dhanik, and was marked as

Exhibit 19-KA. The certificate and the accompanying electronic record

were taken on record during the chief examination of Prosecution

Witness No. 6.

65. It is borne out from the footage that accused Bhup Singh does not

appear therein. The footage captures only a limited segment of

movement and does not depict the place or time of the alleged sexual

assault.

66. No objection was raised by the defence at the time the Section

65-B certificate and the CCTV footage were taken on record, nor was

any suggestion put during the cross-examination of Prosecution

Witness No. 6 questioning the authenticity or correctness of the

electronic record. The CCTV footage, having been admitted in

evidence without objection, forms part of the evidentiary material on

record for appreciating the movement of the victim during the relevant

period.

67. While the vulnerability of the victim warrants heightened

judicial sensitivity, it does not dilute the fundamental requirement that

criminal liability must rest on proof of each essential ingredient of the

offence against each accused.

68. From the common evidentiary foundation already noticed, the

culpability of Appellant Bh up Singh now falls for consideration.

Insofar as this Appellant is concerned, the prosecution case rests

primarily on scientific and medical evidence, which assumes decisive

importance.

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69. The culpability of Appellant Bhup Singh must now be tested in

the light of the statutory framework. Section 376(2)(l) of the Indian

Penal Code treats rape as an aggravated offence where it is committed

upon a woman who is unable to communicate consent. The expression

“unable to communicate consent” is not confined to physical

incapacity alone, but extends to situations where, owing to intellectual

disability or severe impairment of comprehension and speech, a

woman is incapable of understanding the nature and consequences of

the act or of conveying consent in any meaningful manner.

70. So far as accused Bhup Singh is concerned, the prosecution case

rests substantially upon alleged forensic linkage. However, the

foundational requirement of an unbroken and duly proved chain of

custody of the incriminating exhibits has not been established. The

record does not disclose any contemporaneous seizure memo, sealing

certificate, or documentary proof demonstrating the safe custody,

transmission, and handling of the material exhibits from the point of

collection till their examination at the Forensic Science Laboratory. In

the absence of such proof, the possibility of tampering, substitution, or

contamination cannot be ruled out. Consequently, the forensic material

relied upon by the prosecution loses its evidentiary sanctity, and no

adverse inference can be drawn against Bhup Singh on the basis of

such unverified material.

71. At this juncture, it becomes necessary to examine the

applicability of Section 376- D of the Indian Penal Code. The said

provision postulates rape committed by more than one person acting in

furtherance of a common intention, and by a legal fiction, deems each

such person to have committed the offence of gang rape. The statutory

requirement is, therefore, twofold: first, participation of more than one

person in the commission of rape, and second, such participation being

in furtherance of a common intention.Once the evidence does not

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establish participation of more than one person in the act of sexual

assault, the statutory foundation for the offence under Section 376-D

IPC collapses

72. It is in this legal backdrop that the role and culpability of

Appellant Mool Chandra must now be examined on the basis of the

evidence as it stands.

73. So far as Appellant Mool Chandra is concerned, the forensic

evidence unequivocally excludes him from the act of sexual assault.

No semen, blood, or DNA connecting him with the alleged offence

was detected on any exhibit relating to the victim, including her

clothing, biological samples, or nail scrapings, nor was any

incriminating material found on his jeans. The blood samples taken for

comparison were purely exclusionary. In the absence of any scientific

linkage, his involvement in the offence of rape or aggravated rape is

not proved.

74. The case against Appellant Mool Chandra rests on circumstantial

and corroborative evidence. Prosecution Witness No. 1 established that

the victim, who was intellectually disabled and incapable of

independent movement, went missing from her residence on

07.03.2018, thereby proving that she was taken away without the

consent of her lawful guardian. This circumstance is supported by

electronic evidence. As per the CDR report dated 18.03.2018, proved

through Prosecution Witness No. 6, the mobile location of Appellant

Mool Chandra between 3:23 p.m. and 9:38 p.m. on the relevant date

was traced in proximity to the place where the victim was last seen and

later recovered.

75. Even independently of the electronic evidence relied upon by the

State, the fact that the victim was taken away from the custody of her

lawful guardian without consent stands established through the

testimony of Prosecution Witness No. 1 and the surrounding factual

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circumstances. The electronic evidence, including the CDR and CCTV

footage, merely lends corroborative assurance to this conclusion and

does not constitute the sole foundation of the culpability of Appellant

Mool Chandra.

76. Further, the CCTV footage, duly proved with a certificate under

Section 65-B of the Indian Evidence Act and marked as Exhibit 19-

KA, shows the victim being taken away by a person holding her hand,

identified during the trial as Appellant Mool Chandra. This evidence

establishes his presence with the victim at the time she went missing

and that he had taken her away from her residence.

77. Notwithstanding the victim being biologically a major, the

evidence on record consistently establishes that she suffered from

intellectual disability and was incapable of independent decision-

making. In this context, Section 361 of the Indian Penal Code assumes

relevance. The said provision defines kidnapping from lawful

guardianship to include the taking of a person of unsound mind out of

the keeping of the lawful guardian without consent. The protection

under Section 361 IPC is not confined to minors alone but extends to

persons who, by reason of mental unsoundness or intellectual

disability, are incapable of safeguarding their own interests and remain

under the care and protection of a guardian.

78. The medical and factual material on record clearly establishes

that, notwithstanding her biological age, the victim was unable to

comprehend the nature or consequences of her actions and remained

dependent upon her family for care and supervision. The act of taking

her out of the house without the consent of her lawful guardian,

therefore, squarely falls within the ambit of Section 361 IPC and

constitutes the offence punishable under Section 363 IPC. The

essential ingredients of kidnapping from lawful guardianship, namely

taking, absence of the guardian’s consent, and lack of capacity on the

part of the victim to make an informed choice, stand fully satisfied.

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79. At the same time, the statutory limits of criminal liability must be

respected. The forensic evidence conclusively excludes Appellant

Mool Chandra from the act of sexual assault. There is no material to

show that he committed, participated in, or facilitated the act of rape.

The circumstance of last seen, even when coupled with proximity and

association, cannot substitute for proof of sexual assault.

Consequently, the offences punishable under Sections 376(2)(l) and

376-D IPC are not made out against Appellant Mool Chandra .

80. The culpability of Appellant Mool Chandra having thus been

conclusively determined and confined to the offence punishable under

Sections 363 IPC, the Court now proceeds to consider the case of the

co-accused separately.

81. On cumulative appreciation of the evidence on record, the Court

finds that while the circumstances raise grave suspicion, the

evidentiary threshold required for sustaining a conviction under

Section 376 IPC against accused Bhup Singh is not met.

82. Criminal law mandates that a conviction must rest on legally

proved evidence and not on suspicion, however strong. In the present

case, the absence of documentary proof establishing the seizure and

custody of the alleged forensic article creates a reasonable doubt as to

the authorship of the sexual act. Accused Bhup Singh is therefore

entitled to the benefit of such doubt insofar as the offence under

Section 376 IPC is concerned .

ORDER

In view of the foregoing discussion and findings, the connected appeals

are disposed of in the following terms.

The appeal filed by Appellant Bhup Singh is allowed.T he conviction of

Appellant Bhup Singh under Section 376-D IPC and Section 376(2)(l) IPC is

set aside.

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The appellant Bhup Singh is in jail. Let he be set free forthwith, if not

wanted in any other case. He shall furnish personal bond and two sureties

each of the like amount, to the satisfaction of the court concerned under

Section 437A of the Code within a period of four weeks from today.

The appeal filed by Appellant Mool Chandra is partly allowed. His

conviction and sentence for offences punishable under Sections 376(2)(l) and

376-D IPC are hereby set aside. His conviction for the offence punishable

under Section 366- A IPC is also set aside. The conviction and sentence

awarded to Appellant Mool Chandra for offence punishable under Sections

363 IPC is hereby affirmed.

The appellant Mool Chandra has been sentenced to 4 years of rigorous

imprisonment with a fine of Rs. 2,500/- under Section 363 IPC. It is brought

to the notice of the Court that he has already undergone more than 4 years in

custody. Therefore, let the appellant Mool Chandra be set free forthwith, if

not wanted in any other case. He shall furnish personal bond and two sureties

each of the like amount, to the satisfaction of the court concerned under

Section 437A of the Code within a period of four weeks from today.

The record of the learned trial court be transmitted forthwith, along

with a certified copy of this judgment, for necessary compliance.

A copy of this judgment shall also be forwarded to the Superintendent

of the Jail concerned for immediate information and compliance.

(Ravindra Maithani, J.)

(Ashish Naithani, J.)

12-02-2026

NR/

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