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2008 DIGILAW 1111 (MP)

Dashrath Singh v. State of M. P.

2008-09-05

P.K.JAISWAL

body2008
ORDER 1. Heard. 2. By this petition under section 482 of CrPC the petitioner is challenging the order dated 26.6.2007 passed by the Second Additional Sessions Judge Vidisha in Criminal Revision No. 107/2007, arising out of order dated 28.5.2007 passed by the C.J.M. Vidisha in Criminal Case No. 967/07, whereby cognizance has been taken against the petitioner for an offence punishable under section 376 of IPC. 3. Brief facts of the case are that the respondent No.2 prosecutrix lodged a complaint against the petitioner that on 7.11.2005 at about 11 :00 a.m. when she was cutting grass in her agriculture field the petitioner came there, caught hold of her and threw her on the field and committed rape on her. After the act when he got up and started running from the place of occurrence one Mihilal Rawat came on the spot. The respondent No.2 on 8.11.2005 at 1 :00 p.m. lodged a complaint vide Crime No. 138/ 05 against the petitioner. During investigation statement of prosecutrix under section 161 of CrPC was recorded on 9.11.2005 in which she very specifically made allegations against the present petitioner and the statements of other witnesses were also recorded. 4. The prosecutrix was medically examined on 9.11.2005. The doctor who had examined the prosecutrix opined that prosecutrix is a married woman and having four children, vagina is dilated and habitual for intercourse. No injury was found on the body of the prosecutrix. During investigation the investigating officer came at the place of occurrence of offence at village Poonakhedi Spot map prepared. Ramchandra Lodhi relative of the prosecutrix is residing in his hut, which is 150 ft. from the place of occurrence. His statement was recorded. He is his statement stated that the prosecutrix and her husband shifted from the village and presently residing at Basoda and they gave their agriculture land on lease to one Anant Singh and he had no knowledge about the incident of rape. Statement of Man Singh Lodhi was also recorded. He pleaded his ignorance about the incident. Statement of one Harikrishan was also recorded, whose agriculture field is about 100 ft. from the place of the incident. He also pleaded his ignorance about the said incident. Investigating Officer also enquired about the incident from the villagers of Poonakhedi. 5. Statement of Man Singh Lodhi was also recorded. He pleaded his ignorance about the incident. Statement of one Harikrishan was also recorded, whose agriculture field is about 100 ft. from the place of the incident. He also pleaded his ignorance about the said incident. Investigating Officer also enquired about the incident from the villagers of Poonakhedi. 5. It is not in dispute that Jagdish, husband of the prosecutrix, lodged a complaint against Dashrath Singh, brother of the accused and case under section 447,341,294, 506B, 34 of IPC has been registered vide Crime No. 80/2000. 6. On the basis of seized articles, green colour petticoat, few pubic hair and two vaginal slides and blood sample of the accused Dashrath Singh was taken and on the basis of said material DNA report was submitted by the accused vide Report No. DCDFD/LDFS/1723/1129/ 2006. 7. It is submitted by the learned counsel for the petitioner that as per the DNA report no case is made out against the petitioner and due to enmity he has been falsely implicated by the respondent No.2. It is also submitted that on 7.11.2005 petitioner was admitted in the hospital and he was not at village Poonakhedi and he has been falsely implicated. 8. The investigating officer, after completing all the enquiry, submitted khatma report undr section 173 of CrPC on 10.10.2006 before the Chief Judicial Magistrate, Vidisha, in which it is averred that as per DNA report no case against the accused is made out and he has been falsely implicated in the alleged offence. The learned Judicial Magistrate recorded the statement of prosecutrix on 28.5.2007. The prosecutrix in her statement very categorically stated about the occurring of offence. Learned Judicial Magistrate considering the statement of the prosecutrix recorded on 28.5.2007 took cognizance under section 190 of CrPC and issued arrest warrant vide order dated 28.5.2007. The petitioner challenged the said action by filing a revision before the Second Additional District Judge, Vidisha and submitted that as per the DNA report which is in favour of the petitioner no offence is made out and he has been falsely implicated by the prosecutrix. 9. The petitioner challenged the said action by filing a revision before the Second Additional District Judge, Vidisha and submitted that as per the DNA report which is in favour of the petitioner no offence is made out and he has been falsely implicated by the prosecutrix. 9. Learned Additional Sessions Judge, considering the fact that the named FIR has been recorded against the petitioner and prosecutrix in her police statement as well as in the Court statement very categorically made allegations against the petitioner and therefore, at this stage no case is made out for quashing the order dated 28.5.2007 by which cognizance has been taken against the petitioner. 10. Learned counsel for the petitioner drew attention to the DNA report of the prosecutrix and F.R. Dated 10.10.2006 and submitted that there are material contradictions in the statements of prosecutrix and Mihilal. Ocular statement of the prosecutrix is not corroborated by the medical evidence and due to enmity he has been falsely implicated in the alleged offence. 11. Shri S.S. Rajput, learned counsel for the respondent No.2 has submitted that there are specific allegations against the present petitioner and at this stage it cannot be said that he has been falsely implicated in the alleged offence. 12. Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) test were not even in contemplation of the Legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of section 112 of the Evidence Act. Identity of a criminal is determined by comparing the accused man's DNA fingerprint with that of the blood or seminal stain found at the scene of crime. If the DNA fingerprints are . identical, there is an absolute identification. Here in the present case DNA test is conducted from the seized articles i.e. petticoat, vaginal slides of the prosecutrix and blood samples said to be of the petitioner Dashrath Singh. The blood samples were not taken in presence of the prosecutrix and therefore, at this stage it cannot be said that DNA report is based on the basis of the seized articles and blood samples of the petitioner. Therefore, the Courts below have not committed any error in not relying the DNA report. 13. The blood samples were not taken in presence of the prosecutrix and therefore, at this stage it cannot be said that DNA report is based on the basis of the seized articles and blood samples of the petitioner. Therefore, the Courts below have not committed any error in not relying the DNA report. 13. At this stage the DNA report filed by the petitioner cannot be relied upon. It is now well settled that conviction for an offence of rape can be based on the sole testimony of prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. 14. In the present case on the basis of the DNA report question of drawing adverse inference against the prosecution does not arise. The case is at initial stage. The learned CJM had taken cognizance and issued arrest warrant, the question whether the statement of prosecutrix is reliable or not cannot be decided, at this stage. On the basis of material available on record, order of the Magistrate by which cognizance has taken cannot be quashed. It cannot be said that the CJM while taking cognizance of the offence and issuance of arrest warrant under section 190 of CrPC, abused its process which warranting interference by this Court under section 482 of CrPC. 15. For the above mentioned reasons no case for quashing the order dated 26.6.2007 is made out by the petitioner. The petition filed by the petitioner has no merit and is accordingly dismissed in limine.