# Akhtar Ali @ Ali Akhtar @ Shamim @ Raja Ustad v. State of Uttarakhand

- **Citation:** 2025 INSC 1097
- **Court:** Supreme Court of India
- **Decided:** 2025-09-10
- **Case number:** Criminal Appeal No. 3957 of 2025
- **Bench:** Vikram Nath, Sanjay Karol, Sandeep Mehta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/akhtar-ali-ali-akhtar-shamim-raja-ustad-v-state-of-uttarakhand-38716
- **Pages:** 42

## Headnote

Whether the conviction of the appellants, as recorded by the trial
Court and affirmed by the High Court, deserves to be upheld or
whether they are entitled to acquittal.
Headnotes†
Circumstantial evidence - Protection of Children from Sexual
Offences Act, 2012 - ss.3 r/w 4, 5 r/w 6, 7 r/w 8 - Penal Code,
1860 - ss.376A, 363, 212, 120-B and 201 - Case of the prosecution
that the deceased-minor girl was raped and sodomised and the
accused-appellants were seen in close proximity to her shortly
before she went missing from a wedding function and was later
found dead - Prosecution relied upon motive of lust; the last
seen theory and the alleged scientific evidence - Appellant
No.1 was convicted u/ss.376A, IPC and ss.16, 17 3 r/w 4-7,
POCSO Act and ss.363, and 201, IPC and was awarded death
sentence - While, the appellant No.2 was convicted additionally
u/s.212, IPC also and was sentenced accordingly - Guilt of the
appellants, if was proved beyond reasonable doubt:
Held: 1.1 No - The prosecution failed to prove the guilt of the
appellants beyond a reasonable doubt - 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. [Paras 53, 56]
1.2 As regards 'motive', the prosecution has merely alleged that
the 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. [Para 52]
* Author
586
[2025] 9 S.C.R.
Supreme Court Reports
1.3 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 - The
entire prosecution case linking the accused-appellants to the crime
through the 'last seen theory' rests upon the belated introduction
of interested witnesses after the body was recovered, upon the
information given by 'NC' (deceased victim's cousin) - Despite being
a close relative who first disclosed the situs of the victim girl's dead
body, he was never examined or interrogated by the investigating
officers - This omission is of grave significance. [Paras 31, 32, 52]
1.4 The utter failure of the Investigating Officer to question him 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 - The Investigating Officer's failure to record
a statement of 'NC' 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 'NC' was innocent or otherwise - In the absence
of this crucial testimony, the last seen circumstance collapses
completely - Non-examination of 'NC' compels the Court to draw
an adverse inference against the prosecution. [Para 32]
1.5 Furthermore, the scientific evidence also is itself riddled with
deficiencies - The alleged theory of DNA found on the body of
the victim girl matching with the DNA of appellant No. 1, is ex
facie doubtful and unworthy of credence - Also, the prosecution's
claim that the appellant No.1's location was traced through mobile
surveillance is falsified by its own record, as the call detail records
were procured much later and no evidence exists to link the
appellant No.1 with the sim numbers in question - Likewise, the
omission to examine crucial witnesses, including the subscribers
of the relevant mobile numbers and most importantly 'NC' further
weakens the case of the prosecution. [Para 52]
2.1 Thus, the prosecution has fai

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[2025] 9 S.C.R. 585 : 2025 INSC 1097
Akhtar Ali @ Ali Akhtar @ Shamim @ Raja Ustad
v.
State of Uttarakhand
(Criminal Appeal No(s). 3955-3956 of 2025)
10 September 2025
[Vikram Nath, Sanjay Karol and Sandeep Mehta,* JJ.]
Issue for Consideration
Whether the conviction of the appellants, as recorded by the trial
Court and affirmed by the High Court, deserves to be upheld or
whether they are entitled to acquittal.
Headnotes†
Circumstantial evidence - Protection of Children from Sexual
Offences Act, 2012 - ss.3 r/w 4, 5 r/w 6, 7 r/w 8 - Penal Code,
1860 - ss.376A, 363, 212, 120-B and 201 - Case of the prosecution
that the deceased-minor girl was raped and sodomised and the
accused-appellants were seen in close proximity to her shortly
before she went missing from a wedding function and was later
found dead - Prosecution relied upon motive of lust; the last
seen theory and the alleged scientific evidence - Appellant
No.1 was convicted u/ss.376A, IPC and ss.16, 17 3 r/w 4-7,
POCSO Act and ss.363, and 201, IPC and was awarded death
sentence - While, the appellant No.2 was convicted additionally
u/s.212, IPC also and was sentenced accordingly - Guilt of the
appellants, if was proved beyond reasonable doubt:
Held: 1.1 No - The prosecution failed to prove the guilt of the
appellants beyond a reasonable doubt - 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. [Paras 53, 56]
1.2 As regards 'motive', the prosecution has merely alleged that
the 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. [Para 52]
* Author
586
[2025] 9 S.C.R.
Supreme Court Reports
1.3 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 - The
entire prosecution case linking the accused-appellants to the crime
through the 'last seen theory' rests upon the belated introduction
of interested witnesses after the body was recovered, upon the
information given by 'NC' (deceased victim's cousin) - Despite being
a close relative who first disclosed the situs of the victim girl's dead
body, he was never examined or interrogated by the investigating
officers - This omission is of grave significance. [Paras 31, 32, 52]
1.4 The utter failure of the Investigating Officer to question him 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 - The Investigating Officer's failure to record
a statement of 'NC' 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 'NC' was innocent or otherwise - In the absence
of this crucial testimony, the last seen circumstance collapses
completely - Non-examination of 'NC' compels the Court to draw
an adverse inference against the prosecution. [Para 32]
1.5 Furthermore, the scientific evidence also is itself riddled with
deficiencies - The alleged theory of DNA found on the body of
the victim girl matching with the DNA of appellant No. 1, is ex
facie doubtful and unworthy of credence - Also, the prosecution's
claim that the appellant No.1's location was traced through mobile
surveillance is falsified by its own record, as the call detail records
were procured much later and no evidence exists to link the
appellant No.1 with the sim numbers in question - Likewise, the
omission to examine crucial witnesses, including the subscribers
of the relevant mobile numbers and most importantly 'NC' further
weakens the case of the prosecution. [Para 52]
2.1 Thus, 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 - It is wholly unsafe
to uphold a conviction, much less the extreme penalty of death -
Since the prosecution failed to establish the chain of circumstances
against appellant No.1, the very foundation of the case against
[2025] 9 S.C.R.
587
Akhtar Ali @ Ali Akhtar @ Shamim @ Raja Ustad v.
State of Uttarakhand
appellant No. 2 is also destroyed as the same rests primarily on the
alleged extra-judicial confession of accused-appellant No.1 inter alia
stating that upon seeing the victim girl coming out of the wedding
Pandal, he and his companions (appellant No.2 and the other
accused) minds got vitiated by lust and thus decided to engage in
carnal acts - Thus, the prosecution has failed to prove the charges
against appellant No. 2 also, beyond a reasonable doubt and his
conviction also cannot be sustained. [Paras 38, 53, 55]
2.2 Impugned common judgment passed by the Division Bench of
the High Court and the judgment of the Trial Court are set aside -
Appellants acquitted. [Paras 57, 58]
Criminal Law - Award of death penalty - Duty of courts:
Held: 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 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 - It is 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. [Para 54]
Evidence - Scientific/forensic evidence - DNA evidence -
Reliance upon, when not justified - Circumstances surrounding
the arrest of appellant No. 1 also examined, as the credibility of
the DNA samples collected by the IOs was directly dependent
upon the legality and authenticity of the arrest and subsequent
seizure proceedings:
Held: On facts, in view of the various contradictions, omissions,
and investigative lapses, the entire procedure of arrest and search
of the person of the appellant No. 1 by PW-10 is gravely doubtful -
The story projected in the evidence of the witness is something
588
[2025] 9 S.C.R.
Supreme Court Reports
out of fiction and is ex facie unbelievable - Thus, there are many
suspicious circumstances surrounding the theory of apprehension
and arrest of the appellant No.1 - The very theory advanced by
the prosecution, that accused was traced based on his mobile
location, is false and without foundation - The manner in which
the arrest of the appellant No.2 was projected by the prosecution
is also seriously dubious - Thus, the very foundation on which the
DNA evidence is sought to be projected is gravely compromised,
for if the arrest itself was illegal and stage-managed, the process of
drawing samples from the accused-appellants cannot be regarded
as either voluntary or reliable. [Paras 35, 40, 41, 44, 45]
1.2 Various circumstances, starting from the so-called arrest of the
appellant No. 1 from Ludhiana (Punjab) taken cumulatively, give
rise to a strong inference of tampering with the forensic samples
and planting of semen of the appellant No.1 on the samples, i.e.,
cervical swab, undershirt, and underwear of the victim girl, so as
to establish his involvement in the crime - The entire process
of collection and examination of samples and the consequent
matching of the DNA is suspicious and wholly unreliable - The
DNA report cannot be treated as a reliable piece of evidence - In
absence thereof, there is no evidence on record to connect the
appellant No.1 with the crime - Also, credentials and qualifications
of the Doctor (PW-34), who conducted the DNA examination and
issued the DNA Report are also highly doubtful to place him in
the category of a DNA expert. [Paras 48, 49]
Circumstantial evidence - Conviction based purely on
circumstantial evidence - Golden principles laid down in
Sharad Birdhichand Sharda, stated. [Para 10]
Case Law Cited
Manoj & Ors. v. State of Madhya Pradesh [2022] 9 SCR 452 :
(2022) SCC OnLine SC 677; Sharad Birdhichand Sharda v. State
of Maharashtra [1985] 1 SCR 88 : (1984) 4 SCC 116; Mukesh
& Anr. v. State for NCT of Delhi & Ors. [2017] 6 SCR 1 : (2017)
6 SCC 1; Bachan Singh v. State of Punjab (1980) 2 SCC 684;
Machhi Singh v. State of Punjab [1983] 3 SCR 413 : (1983) 3
SCC 470 - relied on.
List of Acts
Protection of Children from Sexual Offences Act, 2012; Penal
Code, 1860; Information Technology Act, 2000.
[2025] 9 S.C.R.
589
Akhtar Ali @ Ali Akhtar @ Shamim @ Raja Ustad v.
State of Uttarakhand
List of Keywords
Rape; Circumstantial evidence; Motive, Last seen theory; Alleged
scientific evidence; Tampering with forensic samples; Semen of
accused planted; Semen planted on the samples; Cervical swab;
Undershirt; Underwear; Chain of circumstances not established;
Process of collection and examination of samples suspicious;
Matching of the DNA is suspicious; DNA report not reliable; Mobile
location; Alleged extra-judicial confession; Theory of apprehension
and arrest; Suspicious circumstances; Arrest illegal; Arrest stagemanaged, Procedure of arrest and search; Procedure of arrest
and search doubtful; Forensic evidence; Forensic samples;
Process of drawing samples not reliable; DNA examination; DNA
Report; Credentials of the Doctor doubtful; Not a DNA expert; No
bloodstains; Jacket; Death penalty; Capital punishment; "Rarest
of rare" cases; Highest degree of circumspection; Mitigating
circumstances; Pithoragarh; Haldwani; Victim girl; Missing; Wedding
function; Wedding Pandal; Lust; Sodomised; Victim girl's hairband;
Authenticity of the recovery proceedings doubtful; Alleged recovery
manipulated; Guilt not proved beyond reasonable doubt; Acquittal.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
3955-3956 of 2025
From the Judgment and Order dated 18.10.2019 of the High Court
of Uttarakhand at Nainital in CRLR Nos. 1 and 104 of 2016
With
Criminal Appeal No. 3957 of 2025
Appearances for Parties
Advs. for the Appellant:
Ms. Manisha Bhandari, Omkar Shrivastava, Divyadeep Chaturvedi,
Ayush Jain, Shashwat Sidhant, Ayush Kumar Dubey, Ms. Ishita
Dhaila, Pritish Arya, Saurabh Pandey, Dhruv Chandra, Ms. Manisha
Bhandari, Omkar Shrivastava, Divyadeep Chaturvedi, Shashwat
Sidhant, Ms. Ishita Dhaila, Rameshwar Prasad Goyal.
Advs. for the Respondent:
Ms. Vanshaja Shukla, Ms. Ankeeta Appanna, Siddhant Yadav,
Ajay Bahuguna.
590
[2025] 9 S.C.R.
Supreme Court Reports
Judgment / Order of the Supreme Court
Judgment
Mehta, J.
1.
Heard.
2.
Leave granted.
3.
The present appeals by special leave are preferred on behalf of
appellant No. 1-Akhtar Ali alias Ali Akhtar alias Shamim alias Raja
Ustad1 and appellant No. 2-Prem Pal Verma2, assailing the common
judgment dated 18th October 2019, passed by the Division Bench of
the High Court of Uttarakhand at Nainital3 in Criminal Appeals4, partially
upholding the conviction and sentence awarded to the appellants by
the Special Judge (POCSO)/ Fast Track Court/ Additional District &
Sessions Judge, Haldwani, District Nainital5 vide judgment and order
of sentence dated 11th March, 2016 in Session Trial Case6, whereby
accused-appellant No.1-Akhtar Ali was convicted for the offences
punishable under Sections 376A, 363, and 201 of the Indian Penal
Code, 18607; under Section 3 read with Section 4, Section 5 read
with Section 6 and Section 7 read with Section 8 of the Protection
of Children from Sexual Offences Act, 20128; and Section 66C of the
Information Technology Act, 20009. 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:
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.'
8
Hereinafter, being referred to as 'the POCSO Act.'
9
Hereinafter, being referred to as 'IT Act'.
[2025] 9 S.C.R.
591
Akhtar Ali @ Ali Akhtar @ Shamim @ Raja Ustad v.
State of Uttarakhand
Accused/
appellant
Provision under
which convicted
Sentence awarded by the
trial Court
The High
Court
AccusedAppellant
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
Section 120B of the
IPC
Acquitted.
Acquitted
AccusedAppellant
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
AccusedJunior 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.
592
[2025] 9 S.C.R.
Supreme Court Reports
4.
Briefly stated, the case of the prosecution, giving rise to the present
appeals, is as under:
4.1 On 21st November, 2014, at 11:30 am, the victim's father (PW-1)
lodged a report10 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 20th 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 Diary
Report No. 5111 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 25th 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 at the location,
as well as by her relatives. Sub-Inspector Suman Pant (PW-3)
prepared the panchayatnama12 of the body, which was then sent
10
Case Crime No. 73 of 2014. The same is Exhibited as Exhibit Ka-1.
11
Exhibit Ka-17.
12
Exhibit Ka-9.
[2025] 9 S.C.R.
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Akhtar Ali @ Ali Akhtar @ Shamim @ Raja Ustad v.
State of Uttarakhand
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.
4.3 On 25th November, 2014, the investigation of the case was
assigned13 to Vipin Chandra Pant (PW-40), the Investigating
Officer. During the investigation, it was found that on the evening
of 20th November, 2014, the nearby 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 (PW18), 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 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 27th 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
13
Vide Order No. 03 of 2014.
594
[2025] 9 S.C.R.
Supreme Court Reports
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-Akhtar
Ali, who was formally arrested and then was taken to the Police
Station, Kathgodam, Haldwani on 28th 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 Foxy14, 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 20th 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 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 memo15 was prepared as
proof of the same.
4.5 On 28th 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
14
Accused No. 3 in Session Trial No. 09 of 2015.
15
Exhibit Ka-16.
[2025] 9 S.C.R.
595
Akhtar Ali @ Ali Akhtar @ Shamim @ Raja Ustad v.
State of Uttarakhand
persons. The accused-appellant No. 1-Akhtar Ali was chargesheeted under Sections 363, 376, 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 27th 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 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.
4.8 After hearing the parties and evaluating the evidence, the trial
Court, vide its judgment dated 11th March, 2016, held that
the prosecution had successfully established its case beyond
a reasonable doubt and, therefore, convicted the accusedappellant 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 day, the accused-appellants were sentenced in the
terms indicated above.18
4.9 Aggrieved by their conviction and sentences, accused-appellant
No. 1-Akhtar Ali, and accused-appellant No. 2-Prem Pal Verma,
16
Hereinafter, referred to as the 'CrPC'.
17
Supra, Para No.3.
18
Ibid.
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[2025] 9 S.C.R.
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preferred an appeal19 under Section 374(2) CrPC to the High
Court. The informant/father (PW-1) of the victim girl also filed
a criminal appeal20 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
appeals22 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 Reference24 was forwarded by the trial Court to the
High Court under Section 366 of CrPC, for confirmation of the
death sentence awarded to accused-appellant No. 1-Akhtar
Ali. The High Court, vide the common impugned judgment
dated 18th October, 2019, upheld the conviction and sentences
awarded to accused-appellant No. 1-Akhtar Ali, and accusedappellant 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 18th
October 2019, is subjected to challenge by 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
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.
25
Supra, Para No. 3.
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597
Akhtar Ali @ Ali Akhtar @ Shamim @ Raja Ustad v.
State of Uttarakhand
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 accusedappellants 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-appellants on the evening of 20th
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 accusedappellant 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 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.
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The deliberate exclusion to examine such a pivotal witness,
whose testimony could have either confirmed or demolished the
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 20th
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 25th 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 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 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
[2025] 9 S.C.R.
599
Akhtar Ali @ Ali Akhtar @ Shamim @ Raja Ustad v.
State of Uttarakhand
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
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 27th 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 6th January, 2015, by the Investigating Officer 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 28th 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.
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5.7. That the DNA report, on which the conviction of the accusedappellant No.1-Akhtar Ali primarily rests, is neither consistent nor
reliable. The prosecution claims that the semen of the accusedappellant 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 27th 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 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 26th November 2014
and 27th 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 of Manoj & Ors. v. State of
Madhya Pradesh26, 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
26
2022 SCC OnLine SC 677.
[2025] 9 S.C.R.
601
Akhtar Ali @ Ali Akhtar @ Shamim @ Raja Ustad v.
State of Uttarakhand
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 accusedappellants 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 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 20th November, 2014, and 21st 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 Ludhiana, where he
was apprehended by Yogesh Kumar Chand (PW-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 accusedappellant 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.
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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 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 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.