Uttarakhand High Court
Nafees vs State Of Uttarakhand on 11 June, 2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE THE CHIEF JUSTICE MR. G. NARENDAR
AND
HON'BLE SRI JUSTICE ALOK MAHRA
11th JUNE, 2025
CRIMINAL APPEAL NO. 50 OF 2021
Nafees .......Appellant.
Versus
State of Uttarakhand .......Respondent.
Counsel for the Appellant : Mr. Vikas Kumar Guglani, learned
counsel.
Counsel for the State : Mr. J.S. Virk, learned Deputy Advocate
General with Mr. R.K. Joshi, learned
Brief Holder.
ORDER:
(per Mr. G. Narendar, C.J.)
Heard learned counsel for the appellant/ applicant and
learned Deputy Advocate General.
2. The case of prosecution is that the informant/
complainant- mother lodged a complaint in P.S.
Banbhoolpura stating that her daughter, the victim, aged 13
years, was enticed and taken away by the appellant/
applicant- Nafees to the jungle near the Mahi River, where
he committed indecent acts with her and when she cried
out, he let her go. He threatened her that if she would
reveal the same, he would kill her. The victim being scared
did not inform anyone. The victim remained terror struck
and withdrawn at home. The neighbor upon seeing her
activities became suspicious, and thereafter, the
complainant approached the police station to register the
complaint, which came to be registered as Case Crime
1
No.206 of 2017, for offence punishable under Section 376
of the Indian Penal Code (for short “IPC“) and Sections 3
and 4 of the Protection of Children from Sexual Offences
Act (for short “POCSO”). The investigation was
commenced. The accused was apprehended and charges
were framed, and after trial, the verdict of guilty was
handed down and sentence of 15 years was awarded.
3. Several witnesses were examined, including the victim
as P.W.1, mother of the victim/ complainant as P.W.2, Dr.
Archana Mishra as P.W.3, Nazreen as P.W.4, Arjun Verma as
P.W.5, S.I. Raghunath Thapik as P.W.6, Dr. Manoj Agarwal
as P.W.7, Constable Satnam Singh and Constable Sanjay
Sahni as P.W.8 and 9.
4. Following exhibits were marked in the course of trial.
The statement of the victim recorded under Section 164 of
Cr.P.C. is Exhibit Ka-1, Complaint as Exhibit Ka-2, Medical
Examination of the victim is Exhibit Ka-3, Supplementary
medical report is Exhibit Ka-4, Arrest memo is Exhibit Ka-5,
Check list is Exhibit Ka-6, Information memo is Exhibit Ka-
7, site map of the place of incident is Exhibit Ka-8, charge-
sheet is Exhibit Ka-9, FSL report is Exhibit Ka-10, and letter
for FSL is Exhibit Ka-11 and Chik FIR is Exhibit Ka-12.
5. Thereafter, the accused was examined under the
2
provisions of Section 313 and the accused specifically
denied all allegations and in fact, went on to assert that all
false statements have been made by the prosecution.
6. P.W.1- victim, in her examination-in-chief, has
deposed that she can differentiate between right and
wrong; that the said Nafeez took her with him and
thereafter, she came home and narrated everything to her
mother, upon which they were taken to the police station
and from where they were referred to hospital for medical
examination. In the later part of her statement, she has
turned around and stated that one Nazreen told her that
one Nafees, i.e the accused, had done bad things to her.
Thereafter, her statement under Section 164 of Cr.P.C.
came to be recorded before the Magistrate. In the
statement recorded under Section 164, the victim made a
complete u-turn and has stated that she does not know the
said Nafees at all. In fact, she has made a statement that
one Nazreen had told her that she must entice Nafees and
beyond that there was no interaction between her and
Nazfees and that she does not know who Nazfees is at all.
7. As per the complaint, the incident is said to have
occurred on 20.11.2017. The complaint is lodged on the
very same day, i.e. 20.11.2017. She was examined by the
3
doctor on 21.11.2017 itself. Thereafter, the blood sample
of the victim is said to have been drawn on 25.11.2017,
and the blood sample of the accused was said to have been
drawn on 27.11.2017. Eighteen items were sent to the FSL
for report. The report states that result for detection of
semen and blood would reveal recovery of human semen
on Exhibits 2 and 7. Exhibit-2 is the violet coloured woolen
paizami of the victim. Exhibit-7 is the brown coloured
underwear of accused, but no semen was detected on Item
Nos.1, 3, 4,8, 9, 10, 11, 12, 13, 14 and 15, and blood
could not be detected on Item Nos.1, 2, 3, 4, 7, 8, 9, 10,
11, 12, 13, 14 and 15. The result of the DNA examination
and the conclusion are as under:-
“Result of DNA Examination
(1) The DNA test was performed for Exhibits- 2, 7, 8, 9, 10,
17 and 18.
(2) The alleles were amplified at each loci to obtain the DNA
profiles of the sources of the Exhibits- 2, 7, 8, 9, 10, 17 and
18.
3) The DNA profile obtained from the Exhibit-2 (paizami of
victim) is matching with the DNA profiles obtained from the
Exhibits- 17 and 18 (blood sample of victim and blood
sample of accused).
(4) The DNA profile obtained from the Exhibits- 7
(underwear of accused) is from a single male human source
and matching with the DNA profile obtained from the
Exhibit-18 (blood sample of accused).
(5) The DNA profiles obtained from the Exhibits- 8, 9 and 10
(scalp and head hair combing of victim, nails scrapping and
cutting of victim and oral swab of victim) are from a single
female human source and matching with the DNA profile
obtained from the Exhibit-17 (blood sample of victim).
4
CONCLUSION
The DNA test performed on the exhibits provided is
sufficient to conclude that,
(1) The DNA obtained from the Exhibit-2 (paizami of
victim) is matching with the DNA obtained from the
Exhibits-17 and 18 (blood sample of victim and blood
sample of accused).
(2) The DNA obtained from the Exhibits- 7 (underwear
of accused) is from a single male human source and
matching with the DNA obtained from the Exhibit- 18
(blood sample of accused).
(3) The DNA obtained from the Exhibits- 8, 9 and 10
(scalp and head hair combing of victim, nails
scrapping and cutting of victim and oral swab of
victim) are from a single female human source and
matching with the DNA obtained from the Exhibit-17
(blood sample of victim).”
8. A reading of Sl. No.3 of the DNA examination would
reveal that the DNA profile obtained from the Exhibit-2
(paizami of victim) is matching with the DNA profiles
obtained from the Exhibits- 17 and 18 (blood sample of
victim and blood sample of accused). The DNA profile
obtained from the Exhibits- 7 (underwear of accused) is
from a single male human source and matching with the
DNA profile obtained from the Exhibit-18 (blood sample of
accused). None of the other items, i.e. 16 out of 18 items,
have revealed any DNA, which would match with that of the
accused. Thus, the conclusion of the DNA report is based
on the DNA examination of the blood sample said to have
been drawn from the accused and the examination of
doctor, i.e. P.W.3, who examined the victim, wherein, in her
5
examination-in-chief in the concluding portion she has
stated that “due to the white discharge found in the private
part of Km. Nisha, I can say that there is a possibility of
physical relations with same person on the date
20.11.2017. In the cross-examination, she has retracted
the statement and she has stated that the victim said that
she does not know Nafees, and her mother was with her
when she recorded narration and further said that she
cannot asserted anything about the rape because she I did
not find anything like that.”
9. Apart from the retraction, the DNA results also cast a
cloud on the statement of P.W.3, the examining doctor.
Though, Exhibit-7 (underwear of the accused) with semen
has been forwarded to the FSL, the DNA test report submits
that DNA match has been drawn on the basis of blood
sample and not on the basis of semen that was found in the
underwear of the accused, i.e. Exhibit Ka-7. Exhibit-2,
admittedly, is the Pyjami of the victim. That apart, and
more pertinently, the vaginal swab, i.e. Exhibit-12 and 13,
i.e. two vulval swabs of victim and two vaginal swabs of
victim, have not returned any conclusive DNA match with
the accused and the victim. If, it was a case of penetrative
sexual assault and as narrated by the doctor, there was
presence of semen, then, prima facie, swabs ought to have
6
returned positive DNA match. In the absence of such a
finding, we are of the, prima facie, opinion that reliance on
the DNA report is not entirely safe. We, prima facie,
conclude so in view of the fact that no evidence has been
let in by the prosecution to demonstrate either the consent
of the victim to draw the blood, nor has the officer or the
doctor, who drew the blood been examined to demonstrate
the authenticity of the process of drawing of blood and
forwarding the same to the FSL. In the absence of proof of
above and in the light of the law laid down by the Hon’ble
Apex Court in the case of Selvi & others vs. State of
Karnataka, reported in (2010) 7 SCC 263, the conviction
on the basis of the report of the FSL, in our, prima facie,
opinion appears to be unsustainable.
10. This Bench, while hearing and considering a similar
issue in Criminal Appeal No.99 of 2023 has been pleased to
observe in Paragraph Nos.2 and 3 are under:-
“2. This is not the first case that where we have come across
with such unilateral order of the Special Court. The Courts are
required to appreciate the provisions of Sections 53, 53A and 54 of
the Code of Criminal Procedure. The language of the provisions is
clear and there is no ambiguity. It only enables examination of
blood, blood stains, semen, sputum and sweat, hair, i.e.
examination of the body of the accused, including the clothes that
he is wearing for the purpose of detecting blood, blood stains,
semen, sputum and sweat, hair and finger nail clippings etc. The
provisions do not authorize any invasive procedure for extraction of
the blood against the will of the accused. The orders are in the7
teeth of the ruling of the Hon’ble Apex Court in the case of “Selvi
& others vs. State of Karnataka“, reported in (2010) 7 SCC
263. The useful reference to be made to the ruling of the Hon’ble
Apex Court rendered in the case of Selvi & others (supra).
“246. The respondents’ position is that the compulsory
administration of the impugned techniques should be permitted at
least for investigative purposes, and if the test results lead to the
discovery of fresh evidence, then these fruits should be admissible.
We have already explained in light of the conjunctive reading of
Article 20(3) of the Constitution and Section 27 of the Evidence
Act, that if the fact of compulsion is proved, the test results will not
be admissible as evidence. However, for the sake of argument, if
we were to agree with the respondents and allow investigators to
compel individuals to undergo these tests, it would also affect
some of the key components of the “right to fair trial”.
253. Another important consideration is that of ensuring
parity between the procedural safeguards that are available to the
prosecution and the defence. If we were to permit the compulsory
administration of any of the impugned techniques at the behest of
investigators, there would be no principled basis to deny the same
opportunity to the defendants as well as witnesses. If the
investigators could justify reliance on these techniques, there
would be an equally compelling reason to allow the indiscrete
administration of these tests at the request of convicts who want
reopening of their cases or even for the purpose of attacking and
rehabilitating the credibility of the witnesses during a trial. The
decision in United States v. Scheffer [140 L Ed 2d 413 : 523 US
303 (1998)] , has highlighted the concerns with encouraging
litigation, that is, collateral to the main facts in issue. We are of the
view that an untrammelled right of resorting to the techniques in
question will lead to an unnecessary rise in the volume of frivolous
litigation before our courts.
260. One of the main functions of constitutionally prescribed
rights is to safeguard the interests of citizens in their interactions
with the Government. As the guardians of these rights, we will be
failing in our duty if we permit any citizen to be forcibly subjected
to the tests in question. One could argue that some of the parties
who will benefit from this decision are hardened criminals who
have no regard for societal values. However, it must be borne in
mind that in constitutional adjudication our concerns are not
confined to the facts at hand but extend to the implications of our
8
decision for the whole population as well as the future generations.
261. Sometimes there are apprehensions about Judges
imposing their personal sensibilities through broadly worded terms
such as “substantive due process”, but in this case our inquiry has
been based on a faithful understanding of principles entrenched in
our Constitution. In this context it would be useful to refer to some
observations made by the Supreme Court of Israel in Public
Committee Against Torture in Israel v. State of Israel [(1999) 7
BHRC 31 : HC 5100/94 (1999) (SC of Israel)] , where it was held
that the use of physical means (such as shaking the suspect, sleep
deprivation and enforcing uncomfortable positions for prolonged
periods) during interrogation of terrorism suspects was illegal.
Among other questions raised in that case, it was also held that the
“necessity” defence could be used only as a post-factum
justification for past conduct and that it could not be the basis of a
blanket pre-emptive permission for coercive interrogation practices
in the future. Ruling against such methods, Aharon Barak, J. held
at p. 26:
“… This is the destiny of democracy, as not all means are
acceptable to it, and not all practices employed by its
enemies are open before it. Although a democracy must
often fight with one hand tied behind its back, it nonetheless
has the upper hand. Preserving the ‘rule of law’ and
recognition of an individual’s liberty constitutes an important
component in its understanding of security.”
262. In our considered opinion, the compulsory
administration of the impugned techniques violates the
“right against self-incrimination”. This is because the
underlying rationale of the said right is to ensure the
reliability as well as voluntariness of statements that are
admitted as evidence. This Court has recognised that the
protective scope of Article 20(3) extends to the investigative
stage in criminal cases and when read with Section 161(2) of
the Code of Criminal Procedure, 1973 it protects accused
persons, suspects as well as witnesses who are examined
during an investigation. The test results cannot be admitted
in evidence if they have been obtained through the use of
compulsion. Article 20(3) protects an individual’s choice
between speaking and remaining silent, irrespective of
whether the subsequent testimony proves to be inculpatory
or exculpatory. Article 20(3) aims to prevent the forcible
9
“conveyance of personal knowledge that is relevant to the
facts in issue”. The results obtained from each of the
impugned tests bear a “testimonial” character and they
cannot be categorised as material evidence.
263. We are also of the view that forcing an individual to
undergo any of the impugned techniques violates the
standard of “substantive due process” which is required for
restraining personal liberty. Such a violation will occur
irrespective of whether these techniques are forcibly
administered during the course of an investigation or for any
other purpose since the test results could also expose a
person to adverse consequences of a non-penal nature. The
impugned techniques cannot be read into the statutory
provisions which enable medical examination during
investigation in criminal cases i.e. the Explanation to
Sections 53, 53-A and 54 of the Code of Criminal Procedure,
1973. Such an expansive interpretation is not feasible in
light of the rule of “ejusdem generis” and the considerations
which govern the interpretation of statutes in relation to
scientific advancements. We have also elaborated how the
compulsory administration of any of these techniques is an
unjustified intrusion into the mental privacy of an individual.
It would also amount to “cruel, inhuman or degrading
treatment” with regard to the language of evolving
international human rights norms. Furthermore, placing
reliance on the results gathered from these techniques
comes into conflict with the “right to fair trial”. Invocations
of a compelling public interest cannot justify the dilution of
constitutional rights such as the “right against self-
incrimination”.264. In light of these conclusions, we hold
that no individual should be forcibly subjected to any of the
techniques in question, whether in the context of
investigation in criminal cases or otherwise. Doing so would
amount to an unwarranted intrusion into personal liberty.
However, we do leave room for the voluntary administration
of the impugned techniques in the context of criminal justice
provided that certain safeguards are in place. Even when the
subject has given consent to undergo any of these tests, the
test results by themselves cannot be admitted as evidence
because the subject does not exercise conscious control over
the responses during the administration of the test.
10
However, any information or material that is subsequently
discovered with the help of voluntary administered test
results can be admitted in accordance with Section 27 of the
Evidence Act, 1872.”
3. This practice of passing orders without giving an
opportunity to the accused is in complete violation of not only the
ruling of the Hon’ble Apex Court in Selvi & others (supra), but also
the provisions of Articles 20(3) and 21 of the Constitution of India.
The right against self-incrimination is a constitutionally guaranteed
right. The Courts cannot bulldoze the accused,who is undergoing
incarceration, into submitting himself and furnishing blood
samples. This is an invasion of one’s right to privacy.”
11. Proceeding further, the Bench has observed in
Paragraph Nos.8 to 12 as under:-
“8. On the medical side, the doctor who examined the victim
has submitted a report that there is no evidence of rape. The
supplementary report reads that UPT and the vaginal swabs have
tested negative for spermatozoa. The Forensic report pertaining to
the pubic hair and the victim’s lower garment maroon colored
pyjama for seminal stains are also in the negative. The medico-
legal report of Senior Pathologist, Pt. Deen Dayal Upadhyay Govt.
Hospital, Dehradun also confirms that no spermatozoa was seen in
the smears slides examined. Exhibit- P5, the medical examination
report also does not render any opinion of sexual assault.
9. That apart, the narration also does not detail penetrative
sexual intercourse by the accused. On the forensic side, we have
examined the FSL report. Though, the blood samples have been
taken and apparently without the consent of the accused, the
reports in respect of Exhibits-2 and 7 have shown the presence of
human semen, and Exhibits-2 and 7 are the underwear of accused
and swab stick, which was used to take the DNA from the
underwear of the accused. At the same time, Exhibit-1, the
maroon colored Paizami of the victim, Exhibits-5 and 8 being pubic
hair of accused in plastic tube and pubic hair of victim in a plastic
box respectively have tested negative for any detection of blood or
presence of DNA that can be traced to the accused.
10. On the testimony side, the father and mother of the
victim have also turned hostile and have stated that no untoward
incident happened, and in fact stated that, the complaint was
11
lodged erroneously. In fact, the victim has refused to identify the
accused in the courtroom.
11. All these factors cast a shadow on the correctness and
legality of the findings and judgment of the Trial Court holding the
accused guilty and holding that the charges have been proved
beyond reasonable doubt.
12. It was crucial for the testimony of the victim to detail
penetrative sexual assault or in the alternative for the medico-legal
material to demonstrate the same. In its absence it would only
prove that the accused has removed the dress of the victim, which
would probably constitute a sexual assault. Neither the statement,
nor the medical evidence, nor the forensic evidence, nor the
testimony of the victim, demonstrates any penetrative sexual
assault.”
12. In the instant case also, there is no demonstration of
commission of offence as defined under Section 5 or
punishable under Section 6. Even assuming for argument
sake that the words “physical relationship” have to be taken
as an unwarranted activity, it would at the most, constitute
an offence under Section 7 and punishable under Section 8,
i.e. sexual assault. The punishment for sexual assault being
not less than three years and not more than five years and
the appellant having already spent five years of
imprisonment, we are of the considered opinion that the
appellant has made out a case for grant of relief.
13. Accordingly, the second bail application (IA No.03 of
2024) is allowed.
14. The appellant- applicant is directed to be set at liberty,
12
if not required in any other case, subject to the appellant-
applicant executing a self-bond for a sum of Rs.20,000/-
and furnishing one surety for the like sum to the
satisfaction of the jurisdictional Magistrate.
________________
G. NARENDAR, C.J.
_____________
ALOK MAHRA, J.
Dt: 11th June, 2025
NISHANT
13