ORDER : Mr. Ashok Kumar Jain, J. - Present leave to appeal is preferred aggrieved from order of acquittal dated 31.08.2022 in Sessions Case No.57/2021 passed by learned Special Judge (POCSO Act, Cases) No.1, Jhalawar whereby respondent-accused was acquitted from charges under Sections 363, 366A, 376(2)(n), 376(3) IPC, Section 5(l)/6 POCSO Act and Section 3, SC/ST (POA) Act. 2. Office has pointed out a delay of 64 days in filing leave to appeal, an application under Section 5 of the Limitation Act is filed along with affidavit to substantiate the reason of delay. 3. Considered the same, for the reasons stated in the application, the same is allowed and delay is condoned. 4. Learned Public Prosecutor had submitted that the victim was minor and in the deposition recorded under Section 164 Cr.P.C., she had corroborated the story of prosecution and explained the entire incident to the Magistrate concerned. However, later on, when examined in court she had already been won over by the respondent ultimately turned hostile. He further submitted that the incident happened with victim was well corroborated from evidence of other witnesses and FSL report. He further submitted that when victim was recovered from some other place while she was in custody of accused, the fact of her kidnapping is well proved and further presence of semen clearly establishes sexual involvement with the minor, which is an offence, therefore, he submits that there are sufficient grounds for consideration before this court. 5. Heard learned Public Prosecutor and perused the case file as available with learned Public Prosecutor. 6. The fact of the matter is that on 20.09.2020, a report was registered by father of victim alleging abduction of his minor daughter by accused. On the basis of aforesaid complaint, FIR No.306/2020 was registered at Police Station Khanpur, District Jhalawar and during investigation victim was recovered on 19.12.2020 after which she was examined under Section 164 Cr.P.C. Further, her medical examination was conducted and upon concluding investigation with the arrest of accused, the charge-sheet was filed against him under Sections 363, 366A and (376) (2)(n) IPC, Section 5(l)/6 POCSO Act and Section 3 of SC/ST (POA) Act. A total number of 14 witnesses were examined by prosecution. Thereafter, accused was examined under Section 313 Cr.P.C. and after hearing the parties, order of acquittal was passed. 7. A total number of 14 witnesses were examined by prosecution. Thereafter, accused was examined under Section 313 Cr.P.C. and after hearing the parties, order of acquittal was passed. 7. A perusal of memo of recovery, which was exhibited as exhibit P1 clearly indicated that this memo was prepared at Police Station Khanpur whereas PW7 Jagdish, the then ASI in his statement clearly stated that victim was recovered from Kasar, District Kota and in cross examination, it was admitted that exhibit P1 was prepared in police station and no memo was prepared when victim was recovered in Kasar, District Kota. It was further admitted by him that nowhere, it was mentioned that victim was recovered from Kasar. Aforesaid evidence clearly indicated that victim was in fact produced before police station though oral evidence of PW7 speaks otherwise. The question before us is that on what grounds, a presumption could be drawn that the victim was recovered from company of respondent-accused. 8. After recovery, she was examined by a team of medical officers and report was exhibited as exhibit P3. Two witnesses PW8 Gulshan Banno and PW13 Dr. Shiksha Mehra were examined by prosecution wherein they have clearly indicated that they did not find any visible or invisible injuries either on internal or external body of victim, the report of which was exhibited and proved by these two witnesses. It was admitted that victim had indulged in physical relations with her boyfriend but name of boyfriend was not mentioned by her. Aforesaid examination is not enough to arrive at a conclusion that victim was subjected to rape. 9. PW8 Gulshan Banno and PW13 Doctor Shiksha Mehra had further deposed that samples of victim's vaginal swab, vaginal smear, buccal swab, blood sample and blood on FTA card for DNA were taken. Further, it was opined by these two doctors on the basis of report exhibit P13 and P14 that human semen was found on peticot, underwear of accused, vaginal swab and smear of victim, and as per DNA profiling human semen on peticot of victim, vaginal smear and swab is matching with the sample of accused. It is admitted by these two witnesses that nowhere, it has been stated that these samples were sealed and handed over to police. It is admitted by these two witnesses that nowhere, it has been stated that these samples were sealed and handed over to police. Before having detailed discussion over it first we examine the case from the perspective of direct allegations or from that of victim or other witnesses. 10. As is clear from the record, victim was examined as PW1 and declared hostile. The statement clearly indicated that after having a fight with her parents she went to her maternal aunt's place. In her deposition she had clearly denied the allegation that accused had committed rape with her. In her cross-examination, she even denied that accused was known to her or she travelled with him. It is further admitted by her that the statement before Magistrate was recorded under the pressure of her parents. It is quite clear from the aforesaid deposition that victim had turned hostile and not supported the story of prosecution. Her deposition recorded before the magistrate was also challenged by her. 11. PW2 father of victim clearly stated that Khushi Ram had taken her daughter to Kasar and kept her there for three months. Further, in cross it was admitted by him that this report was filed on the basis of suspicion and he had not seen Khushi Ram taking away her daughter. PW3 is mother of victim, she also deposed in the same manner and admitted in cross that the report was filed only on the basis of suspicion. Apart from above, PW6 Jagdish was examined who was witness of memo exhibit P1 but during cross it was admitted that she was unaware about the fact that this memo was prepared. No other witness other than aforesaid is on file to support story of prosecution about abduction and rape of the victim by the accused. 12. A careful examination of the aforesaid, establishes that neither PW2 nor PW3 support the allegations as under Sections 363, 366A and forcible rape on multiple occasions. Nowhere, it is evident that victim was abducted and continuously raped from date of abduction to date of recovery by accused. 13. The question is whether DNA report is sufficient to infer that accused had committed any crime. 14. Nowhere, it is evident that victim was abducted and continuously raped from date of abduction to date of recovery by accused. 13. The question is whether DNA report is sufficient to infer that accused had committed any crime. 14. For this purpose, when we look at finding of learned trial court arrived at on the basis of statement of PW4 Head Master of School to conclude that date of birth of victim was 16.05.2006 and on date of incident she was minor. This finding was not challenged, hence, it is an admitted situation that victim was minor on date of incident. 15. A perusal of statement of PW9 Investigating Officer clearly indicated that peticot of victim was recovered on 21.12.2020 through Ex.P5, which was further confirmed by PW10 malkhana incharge. It was admitted by the witness that after recovery of victim on 19.12.2020, a peticot of victim was not seized on time. PW7 Jagdish Ram who recorded the statement of victim and forwarded victim for medical, PW10 is Malakhana incharge who after receipt of sealed packets placed them in malkhana and then handed over to PW11 Gajja Ram who deposited 7 sealed packets to FSL Jaipur. 16. The fact of the matter is when peticot was seized by PW9, by then already two days had passed after the victim was recovered and according to allegation, victim was living for last three months with accused. Similarly, according to both doctors PW8 and PW13, the samples were taken by them and handed over to constable Archana Meena. It is established from the deposition of Investigating Officer that neither he recovered the sample nor he had taken those samples on record in case file. The constable who collected the sample from medical jurist was not examined. Further, no memo explaining the seal of sample and condition of sample was prepared when samples were taken in possession by police. This gamut of facts poses a question on the sanctity of the evidence recorded. 17. Hon'ble Supreme Court in case of Hemudan Nanbha Gadhvi v. State of Gujarat reported in (2019) 17 SCC 523 have clearly laid down that in case, where victim have turned hostile then medical evidence can be considered by the court and on the basis of that conviction may be based. 17. Hon'ble Supreme Court in case of Hemudan Nanbha Gadhvi v. State of Gujarat reported in (2019) 17 SCC 523 have clearly laid down that in case, where victim have turned hostile then medical evidence can be considered by the court and on the basis of that conviction may be based. In order to apply the same, it is necessary that there has to be some evidence to establish sanctity of collection of sample and also to prove that the samples were transmitted from the place wherein samples were taken to the place wherein samples were examined. Herein, the link is not established, moreover no care has been taken to ensure that these samples were seized from the place where the samples were collected. It appears that for the Investigating Officer, the investigation is just a formality and he did not care that it is a pious job to ensure that in an alleged crime, if evidence is found during investigation and proof is available then same has to be collected diligently so that the perpetrator gets punishment according to his act. 18. Herein, no such devotion towards his duties is found on record and there was no reason for learned trial court to conclude otherwise. When victim had turned hostile that too in toto and the parents had also not supported the case, in such a situation real culprits will walk away without being punished. 19. In view of aforesaid discussion, I am of the view that there are no sufficient or plausible grounds to reverse the acquittal on merits and the matter is not fit for grant of leave to appeal. Hence, the same is dismissed. 20. Accordingly, leave to appeal is dismissed. Misc. applications, if any, stand disposed of.