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Madhya Pradesh High Court · body

2014 DIGILAW 1581 (MP)

State of M. P. v. Hemant

2014-12-03

AJIT SINGH, N.K.GUPTA

body2014
ORDER Gupta, J. -- 1. Heard on admission. 2. By the present application, the State has sought for grant of leave to appeal against the judgment dated 31.8.2013 passed by the 6th Additional Sessions Judge, Sagar in ST No.106/2012 whereby the respondents were acquitted from the charge of offence punishable under sections 302/34, 201 of IPC. 3. The prosecution case, in short, is that on 28.10.2011 at about 6:30 PM Kadori (PW18) had lodged a missing report that on 27.10.2011 at about 3:00 PM her daughter Durga Bai aged about 12 years went to sell soyabean but she did not come back. On 31.10.2011 Kshamadhar (PW3) the village Kotwar has intimated that a dead body was lying near the field of Surendra Choudhary in village Ratona (Police Station Motinagar District Sagar). The dead body was identified to be of Durga Bai daughter of complainant Kadori. On investigation, it was found that the respondents kidnapped the prosecutrix and committed rape upon her. After killing her dead body was thrown in the field. On the memo under section 27 of the Evidence Act given by the respondents, undergarments of the deceased-prosecutrix were recovered. 4. After considering the submissions made by the learned counsel for the parties, it appears that some of the important witnesses have turned hostile. The trial Court found that the male DNA profile obtained from the vaginal swab of the deceased was different from the DNA profile of the respondents and it was not proved that the respondents were the persons, who committed rape upon the deceased-prosecutrix. Under these circumstances, the recovery of the undergarments from the respondents looses its evidentiary. There is no ocular evidence. The witnesses Shaligram (PW1) and Sandeep (PW5) have stated about the extra judicial confession done by the respondents. However, such confession was alleged to be done on 1.11.2011, whereas the dead body of the deceased-prosecutrix had already been recovered on 31.10.2011. The witnesses could not establish their relation with the respondents so that the respondents could confess before them, and therefore the evidence of extra judicial confession was doubtful. The chain of circumstantial evidence is broken. When it was established by the report of Forensic Science Laboratory that the respondents were not the persons, who committed rape upon the deceased-prosecutrix, then certainly they cannot be held guilty of offence of murder of the prosecutrix soon after her rape. 5. The chain of circumstantial evidence is broken. When it was established by the report of Forensic Science Laboratory that the respondents were not the persons, who committed rape upon the deceased-prosecutrix, then certainly they cannot be held guilty of offence of murder of the prosecutrix soon after her rape. 5. On the basis of the aforesaid discussion, there is no reason so that any interference can be done in the impugned judgment passed by the trial Court by granting leave to appeal. Consequently, the present application filed by the applicant-State is hereby dismissed at motion stage. 6. A copy of this order be sent to the trial Court along with its record for information. S. K. Kashyap, Government Advocate for applicant/State; P.S. Tomar for respondents.