In the matter of Akash Kumar Vs. State of Uttarakhand; the Uttarakhand High Court on 28.09.2020 observed that ““In criminal cases, conviction cannot be based upon morality and there must be admissible and credible evidence to base conviction and moreover it is well-settled canon of criminal jurisprudence that ‘fouler the crime higher the proof’ and mandate of law is that the prosecution has to prove the charges beyond all reasonable doubt. A few bits here and a few bits thereon which prosecution relies cannot be held to be adequate or connecting the accused with the crime in question.”
The complainant had filed an FIR against the appellant alleging that he had attempted to commit rape on the two and half year’s old daughter of the complainant and had committed sexual assault on her. He further alleged that when he went looking for his daughter along with a companion, he found the appellant while he was indulged in committing the alleged offence and took him to the police station. On conclusion of the trial, appellant was convicted for the offences under Section 376/511 of the Indian Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”)and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs 25,000.
Counsel for the appellant contended that the victim had not identified the appellant nor the victim in her testimony had named the appellant and that the facts elicited during the cross-examination of the complainant and the companion along with him were totally contrary to the prosecution story. It was further contended that the mother of the victim did not support the prosecution story and was declared hostile.
Per contra, the State, submitted that prosecution had produced sufficient and credible evidence and the trial court had rightly convicted and sentenced the appellant.
The Hon’ble High Court assessed the medical examination report of the victim which disclosed that the urethral meatus & vestibule, labia major and labia minor of the victim were found normal and no tear or swelling in the private parts was found and Hymen perineum of the victim was also found intact but the doctor had further stated that a little redness was present in the outer surface of the hymen of the victim and the presence of dried blood stains was also detected on her private parts and these conditions led to opine her that the attempt of sexual intercourse with the victim was made. The Court opined that the opinion of the doctor alone was not enough to connect the appellant with the alleged crime. In view of the material on record and the absence of any credible evidence the Court sat aside the judgment and order of the Trial Court.
– Vaishali Jain, Advocate & Associate – POSH at Work