HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 880/2021 Dalla Ram S/o Sh. Rewanta Ram, Aged About 30 Years, R/o Nimbe Ki Dhani Sohda, Police Station Gida, District Barmer. (Presently Lodged At Sub Jail, Balotra, District Barmer)
----Appellant Versus State Of Rajasthan, Through PP
----Respondent For Appellant(s) : Mr. Bhawani Singh For Respondent(s) : Mr. N.S. Bhati, Public Prosecutor HON'BLE MR. JUSTICE RAMESHWAR VYAS Judgment 22 November, 2021 The instant appeal under Section 374 (2) CrPC has been preferred by appellant Dalla Ram being aggrieved by the judgment dated 3.9.2021 passed by the learned Special Judge, Protection of Children From Sexual Offences Act-2012 and Commission For Protection of Child Rights Act 2005, Balotra, in Sessions Case No.63/2019 (CIS No. 63/2019), whereby he has been convicted and sentenced as below :
Offence for which convicted Sentence awarded
Under Section 376(1) IPC Rigorous imprisonment for ten
& years and a fine of Rs.10,000/-
Section 3 and 4 of POCSO Act and in default of payment of
fine, further to undergo 6
months RI
As per prosecution story, on 10.9.2019 at 2:39 PM, Binjaram complainant / father of the prosecutrix (PW-2) submitted (Downloaded on 22/11/2021 at 08:56:32 PM) (2 of 7) [CRLAS-880/2021] a written report (Exhibit-P/8) before Station House Officer, Police Station Gida, Barmer to the effect that on 10.9.2019 at 7:00 AM, while his daughter, aged about 16 years, was returning from Bada (the place where cattles are kept) after milking of goats, she was raped by Dalla Ram. On hearing screams, the complainant went towards Bada, Dalla Ram fled away on seeing complainant. On asking, his daughter told him that she has been raped. She narrated the whole story to her father. The complainant called the responsible persons from the village and shown them the place of incident. Thereafter, they went to the house of Dalla Ram. On asking, Dalla Ram replied that he will behave in the same way.
On filing the above written report, First Information Report was registered for the offence under Section 376(1) of Indian Penal Code and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (herein afterwards referred to as 'POCSO Act'). After registering the FIR, the investigation was carried.
During investigation, apart from routine investigation, necessary samples were collected and sent for examination to State Forensic Science Laboratory, Rajasthan. DNA report was also obtained from the FSL. As per result of examination, the DNA profile obtained from blood sample of victim and blood sample of accused were accounted in the same DNA profile obtained from underwear of victim and Salwar of victim. The conclusion of the FSL reads as under:-
"On the basis of the DNA test, it is concluded that the source of DNA profile obtained from exhibit no.1 (Underwear of victim) and 2 (Salwar of victim) is matching with the source of DNA profile obtained exhibit no.10 (Blood sample of accused.)"
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(3 of 7) [CRLAS-880/2021] After completion of investigation, charge-sheet against the accused appellant was filed for the offences under Section 376(1) of the IPC and Sections 3 and 4 of the POCSO Act before the Special Judge, POCSO Act Cases, Balotra. During trial, accused pleaded not guilty and claimed trial.
In support of its case, the prosecution examined total sixteen witnesses and exhibited thirty-three documents. When confronted with the prosecution evidence, accused appellant stated that he is innocent and has been falsely implicated in this case. He further stated that no sample was taken during his examination. After completion of trial, the learned trial court convicted and sentenced the accused appellant as mentioned above.
Aggrieved with the impugned judgment of conviction and sentence, appellant has filed the instant appeal before this Court.
Heard learned counsel for the parties and perused the record as well as the impugned judgment.
Learned counsel for the appellant has submitted that learned trial court has convicted the accused appellant without any evidence against him. All material witnesses including the prosecutrix had been declared hostile by the prosecution. The prosecutrix did not support the case of the prosecution, however, learned trial court considering the minor age of the prosecutrix, report of DNA Examination and statement recorded under Section 164 Cr.P.C., passed the judgment of conviction which is not sustainable in the eye of law. Learned counsel for the appellant has prayed to allow this appeal and set aside the impugned judgment and to acquit the appellant of all the offences. (Downloaded on 22/11/2021 at 08:56:32 PM)
(4 of 7) [CRLAS-880/2021] On the other hand, learned Public Prosecutor has opposed the prayer of learned counsel for the appellant. However, he is not in a position to dispute the fact that material witnesses have been turned hostile and there is no evidence on record except DNA Report (Exhibit-32) against the appellant.
After considering the submissions made at bar and after perusal of the record, it is evident that the prosecutrix, who was aged about 17 year at the time of examination in court, had not supported the prosecution story. She categorically stated that accused appellant did not commit rape with her. In cross- examination by the Public Prosecutor, she denied material portion of the police statement when contradicted with the same. She also denied to hand over her underwear and Salwar to the Police. She has denied the fact of taking sample of blood etc. She also denied correctness of the statement recorded under Section 164 Cr.P.C. (Exhibit-P/1). She denied the suggestion of the Public Prosecutor that on account of compromise, she is stating wrong facts before the court to save the accused appellant.
Dr. Sneha Mudgal (PW-6) who was posted as Senior Medical Officer at Government Hospital, Barmer examined the prosecutrix.
Binjaram (PW-2) and Banu (PW-4), who are father and mother of the prosecutrix, have also turned hostile and did not utter any word against the accused. Ghamaram (PW-10) and Kaushalaram (PW-3), who are uncles of the prosecutrix, have also turned hostile. Bhanwara Ram (PW-16) is the investigating officer. As per his statement, he seized the clothes of the victim and accused, recorded statements and verified the place of information given by the accused. Other witnesses are of formal nature. (Downloaded on 22/11/2021 at 08:56:32 PM)
(5 of 7) [CRLAS-880/2021] There is no iota of evidence against the accused appellant to substantiate the charge framed against him. In the considered opinion of this Court, only on the basis of Report of DNA Examination, narrated above, accused cannot be convicted for the offence of rape with girl of 17 years of age.
Learned trial court misconstrued the judgment passed by this Court at Jaipur Bench, in Mahaveer @ Bittu vs. State of Rajasthan : D.B. Criminal Appeal No. 218/2018, decided on 26.07.2019. In the casse of Mahaveer @ Bittu (supra), many witnesses corroborated the statement of the complainant; victim was of tender age being 3 - 4 years and on account of tender age, she could not identify the offender. However, in the present case, alleged victim is aged about 17 years, who categorically denied the prosecution story. The case of the present presecutrix cannot be equated with the victim of 3 - 4 years of age. In the present case, the prosecutrix is mature girl. The family members of the prosecutrix did not support the prosecutrix. However, in the case relied by learned trial court, many other witnesses corroborated the statement of the complainant.
This Court fails to understand how a person can be convicted solely on the basis of Report of DNA Examination, which is not corroborative piece of evidence. It is strange to note that learned trial court in the impugned judgment also relied upon the police statement of the witnesses. Learned trial court in the last portion of Para 27 of the judgment observed as under:-
"अतः उसने पीड़ित व उसके परिजनों कको अपने पक्ष मष में कि र दकर दिदिय दिया ा थ दिया, अतः वे सभी नदिय दियादिय दियालदिय के स मक्ष पक्षक्षदकोषद्रोही रोही घकोड़ोही घोषित हुए षद्रोहित हुए है। इस प्रक दियाि प्रप्रकार प्रसतप्रकार प्रस्तुत प्रकिण मष में पीड़ित, उसके परिजनों आर दकर दि के पप्रकार प्रस्तुड़लस बदिय दियान अड़धिक ड़वश्वसनीदिय षद्रोहित हुए है। इसके (Downloaded on 22/11/2021 at 08:56:32 PM) (6 of 7) [CRLAS-880/2021] आल दियाव दिया इस प्रकिण मष में एफ.एस.एल. रिपकोर्ट व डी.एन.ए. रिपकोर्ट भी सक दियाि दियात मक आई षद्रोहित हुए है। "
As per the provisions of Section 162 Cr.P.C., no statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made;
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872;
and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination.
Above provision of Section 162 Cr.P.C. and provision of Section 145 of Indian Evidence Act, makes it clear that police statement can only be used with intent to contradict the witnesses. Even the statement cannot be used to corroborate the statement made during the course of trial before the Court. Learned trial court failed to notice the basic principle of criminal law as mentioned above.
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(7 of 7) [CRLAS-880/2021]
Learned trial court has also erred in applying
presumption under Sections 29 and 30 of the POCSO Act. This presumption can only be drawn only when prosecution succeeds to prove that any sexual assault has been committed with the victim by the accused.
Accordingly, the appeal is hereby allowed. The impugned judgment of conviction and sentence dated 03.09.2021 passed by learned trial court convicting the appellant for the offence under Section 376(1) IPC and Sections 3 and 4 of the POCSO Act is quashed and set aside. The appellant is acquitted from the offence under Section 376(1) IPC and Sections 3 and 4 of the POCSO Act.
The appellant be released forthwith, if not required in any other case.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant is directed to forthwith furnish a personal bond in the sum of Rs. 15,000/- and a surety bond in the like amount before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Apex Court.
(RAMESHWAR VYAS),J Anil Makwana/7 (Downloaded on 22/11/2021 at 08:56:32 PM) Powered by TCPDF (www.tcpdf.org)