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2023 DIGILAW 108 (RAJ)

Babulal v. State of Rajasthan Through PP

2023-01-10

BIRENDRA KUMAR, PANKAJ BHANDARI

body2023
JUDGMENT Pankaj Bhandari, J. - Appellant has preferred this appeal aggrieved by Judgment and Order dated 14.07.2022 passed by Court of Special Judge, POCSO Act, 2012, Jaipur District, whereby appellant has been convicted for offence under Section 3/4 of the POCSO Act, in the alternative, Section 376 IPC and has been sentenced to life imprisonment with fine of Rs.80,000/-. In default of payment of fine, one year additional rigorous imprisonment. No sentence has been awarded under Section 376 IPC in view of the sentence awarded under Section 3/4 of the POCSO Act. 2. Succintly stated the facts of the case are that Nawab (PW-2) lodged a typed report at Police Station Dudu, District Jaipur on 09.08.2019 at 16.54 hrs. about the incident alleged to have taken place on 07.08.2019. It was alleged in the report that complainant’s sister-Hurram was kidnapped by Babulal Jat and his companions from under the Dudu bridge after administrating some intoxicating material. She was forcibly taken in a vehicle and Babulal Jat committed rape with her at a lonely place by giving threat of her life. His companions also committed raped with her one by one after closing her in a room. It is mentioned in the report that the victim somehow ran away from the room and contacted the complainant after taking phone from the person passing from there and saved her life. All the persons ran away from the spot. 3. On receipt of the said report, FIR No.368/2019 for offences under Sections 363, 366, 376(D) IPC was registered and investigation commenced. Prosecutrix refused for her medical examination and stated that she did not receive any injury. After completing the investigation, police filed challan for offence under Sections 363, 366, 342, 376 IPC and Section 3/4 of POCSO Act against the appellant only. Trial Court framed charges against the appellant for the aforementioned offences. The prosecution produced as many as 12 witnesses and 24 documents were exhibited in support of its case. The accused-appellant was examined under Section 313 of Cr.P.C. In defence, evidence of DW-1 (Roshan Khan) was produced. After hearing the parties, learned trial Court vide impugned judgment and order dated 14.07.2022 convicted and sentenced the accused-appellant for hereinabove mentioned offences. Aggrieved by which, the present appeal has been preferred. 4. The accused-appellant was examined under Section 313 of Cr.P.C. In defence, evidence of DW-1 (Roshan Khan) was produced. After hearing the parties, learned trial Court vide impugned judgment and order dated 14.07.2022 convicted and sentenced the accused-appellant for hereinabove mentioned offences. Aggrieved by which, the present appeal has been preferred. 4. It is contended by counsel for the appellant that the learned trial Court has erred in convicting the appellant for the very reason that the prosecutrix who was a married lady turned hostile. It is also contended that the Court has based its conviction solely on the DNA report which only has corroborative value. 5. Learned counsel for the appellant has placed reliance on Manoj and Ors. Vs. State of Madhya Pradesh (Criminal Appeal Nos.248-250/2015) ’MANU/SC/0711/2022’, wherein Apex Court has held that DNA may be more useful for the purpose of investigation but not for raising in presumption of identity in Court of Law. 6. It is also contended by counsel for the appellant that the DNA report could not have been relied upon for the very reason that no entry except for Salwar and Motorcycle was made with regard to the deposit of articles in Malkhana. As per the evidence of PW-11 (Mahendra Kumar) who was the Malkhana incharge has stated that Salwar of the victim which was marked as ’Marka-A’ was deposited in the Malkhana and was entered at Serial No.640/19 on 09.08.2019. Thereafter on 16.09.2019, a motorcycle also was deposited in the Malkhana which was also entered in the Malkhana Register at serial No.675/19. Malkhana register (Ex.P-21 and P-22) were also produced before the Court. It is also contended that there is no mention about any other material or sample being deposited in the Malkhana. Thus, the FSL report loses its credibility. 7. Learned AGA has opposed the appeal. It is contended that the learned trial Court solely on the basis of DNA report has rightly come to the conclusion that the victim was raped by Babulal- present appellant. 8. We have considered the contentions. 9. As far as evidence goes, PW-1 is the victim who is a married lady has stated that she left the house without informing anyone and on the basis of doubt, they registered a case against Babulal Jat. She was declared hostile by the prosecution. Statement of her husband-Zakir Husain (PW-6) was also recorded. He was also declared hostile. 9. As far as evidence goes, PW-1 is the victim who is a married lady has stated that she left the house without informing anyone and on the basis of doubt, they registered a case against Babulal Jat. She was declared hostile by the prosecution. Statement of her husband-Zakir Husain (PW-6) was also recorded. He was also declared hostile. Victim has stated that she was above the age of 18 years at the time of her marriage. Similar is the statement of husband of the victim who has also stated that the victim was a major at the time of their marriage. PW-2 (Nawab Aslam) who is brother of the victim has stated that he did not get the report typed. He only signed the typed report. He has not stated to the police that his sister was raped by Babulal Jat. PW-3 (mother of the victim) has also stated that the victim was married when she was 19-20 years of age. As far as direct evidence is concerned, the victim has turned hostile. In the initial typed FIR, the allegation was against Babulal and other persons but, the police after investigation, filed charge-sheet only against Babulal Jat. Now the victim who is a married lady has turned hostile. The only evidence which has been taken note of by the Court below is the DNA report. 10. It is pertinent to note that only two articles were deposited in the Malkhana as per the Malkhana incharge i.e. Salwar and a motorcycle. Ex. P-20, Blood sample for DNA testing was taken on 10.08.2019 and Ex.P-5, samples of the victim were also taken on 10.08.2019 and sent for FSL examination. Samples of the accused were taken on 02.09.2019. His underwear was seized on 02.09.2019 but all the material i.e. five packets were deposited in the Malkhana on 03.10.2019 vide Ex.P-12. As to where the samples were kept from 02.09.2019 till they were sent to the FSL is not revealed from the record. Non deposition of the samples in the Malkhana and no explanation as to where they were kept for a period of almost a month creates doubt on the samples which were sent to the FSL. 11. As to where the samples were kept from 02.09.2019 till they were sent to the FSL is not revealed from the record. Non deposition of the samples in the Malkhana and no explanation as to where they were kept for a period of almost a month creates doubt on the samples which were sent to the FSL. 11. We are of the considered view that if the prosecutrix has turned hostile, then DNA report can only be used as a corroborative piece of evidence but, when the samples were not properly deposited in the Malkhana and no explanation has been given as to where the samples were kept for a period of one month, the samples also loses their credibility and the DNA report cannot thus be relied upon even for the purpose of corroboration. The learned trial Court has clearly erred in placing reliance only on the DNA report for convicting the appellant. 12. We are also of the considered view that in the facts and circumstances of the case, when the samples were not properly kept in the Malkhana and there is no explanation as to where they were kept for a period of one month, reliance could not have been placed on the FSL report for the basis of conviction, when the prosecutrix herself who is a married lady has turned hostile. Consequently, we deem it proper to allow the criminal appeal. 13. Criminal appeal is accordingly, allowed. Judgment and Order dated 14.07.2022 passed by Court of Special Judge, POCSO Act, 2012, Jaipur District is set aside. The appellant is acquitted of the charges levelled against them. He is in jail, he be set at liberty forthwith, if not required in any other case or for any other purpose. 14. Appellant is directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon’ble Apex Court. The bail bond will be effective for a period of six months.