Madhya Pradesh High Court
Durgesh vs The State Of Madhya Pradesh on 9 December, 2022
Author: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 9 th OF DECEMBER, 2022
MISC. CRIMINAL CASE No. 52891 of 2022
BETWEEN:-
DURGESH, S/O SUKKAN DHURVE, AGED ABOUT 20
Y E A R S , OCCUPATION: LABOUR, R/O VILLAGE
KHAMARIYA KACCHI, POLICE STATION ADEGAON
DISTRICT SEONI (MADHYA PRADESH)
.....APPLICANT
(BY SHRI MANISH TIWARI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH, THROUGH POLICE
STATION ADEGAON, DISTRICT SEONI (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI PRAMOD KUMAR THAKRE - GOVERNMENT ADVOCATE)
This application coming on for admission this day, the Court passed
the following:
ORDER
Shri Praveen Dhurve, Inspector, Police Station Adegaon, District Seoni
is present in person.
In compliance of order dated 25.11.2022 an explanation was filed on
03.12.2022, the same is taken on record.
This is the second bail application filed by the applicant under Section
439 of the Cr.P.C. for grant of bail. The first application was dismissed on
merit vide order dated 11.02.2022 passed in M.Cr.C. No.7020 of 2022.
T h e applicant has been arrested on 23.11.2021 by Police Station-
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/16/2022
3:42:10 PM
Adegaon, District Seoni (M.P.) in connection with Crime No.363/2021 for the
offence punishable under Sections 376, 376 (2) (N), 363 and 506 of IPC and
Sections 7 and 8 of the POCSO Act.
It is pointed out that this application has been filed on the ground that the
statements of prosecutrix as well as her mother have been recorded before the
trial Court and they have turned hostile. The FSL report is negative. It is further
submitted that the applicant is the first offender and is in custody since
23.11.2021. There is no further requirement of custodial interrogation of the
present applicant. He is ready to abide by all terms and conditions that may be
imposed by this Court while considering this bail application. On these
grounds, he prays for grant of bail.
P e r contra, learned counsel appearing for the State has vehemently
opposed the contentions and submitted that the victim was minor at the time of
commission of offence. It is submitted that the DNA profile was not sent by the
Police Authorities for examination owing to the fact that the FSL was found to
be negative. He has placed reliance upon the judgments of the Hon'ble Supreme
Court in the case of Veerendra Vs. State of Madhya Pradesh, (2022) 8
SCC 668 and in the case of Chotkau Vs. State of Uttar Pradesh, 2022
SCC OnLine 1313 and the order passed by the Coordinate Bench of this
Court on 04.05.2016 in M.Cr.C. No.6476 of 2016 (Raja Burman @ Rahu Vs.
The State of Madhya Pradesh) wherein the Police was directed that if the
doctor preparing the MLC of the prosecutrix prepares vaginal slides and
clothing, which upon test by the FSL confirms the presence of human sperm
then such slides must be sent for DNA verification with the blood sample of the
suspect. He further submits that the authorities are not sending the samples for
DNA once the FSL is found to be negative considering the judgment passed by
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/16/2022
3:42:10 PM
the Coordinate Bench of this Court in M.Cr.C. No.6476 of 2016 (Raja
Burman @ Rahu Vs. The State of Madhya Pradesh). However, he could
not dispute the fact that the applicant is the first offender as per the case diary
record.
Considering the over all facts and circumstances of the case and keeping
view the custody period of the applicant, coupled with the fact that the
prosecutrix and her mother have turned hostile, the FSL report was found to be
negative and no sample was sent to DNA, without expressing any opinion on
the merits of the case, this Court deems it appropriate to allow this application.
Accordingly, subject to the verification of the fact that the applicant is the first
offender, this application is allowed. The applicant is directed to be released on
bail and on furnishing surety bond of Rs.50,000/- (Rupees Fifty Thousand
Only) with one solvent surety in the like amount to the satisfaction of trial Court.
It is also directed that the applicant shall comply with the conditions as
enumerated under Section 437(3) Cr.P.C.
In view of the outbreak of 'Corona Virus disease (COVID-19)' the
concerned jail authorities are directed to follow the directions/guidelines issued
by the Government with regard to 'COVID-19' before releasing the applicant.
This order shall remain effective till the end of the trial but in case of bail
jump and breach of any of the pre-condition of bail, it shall become ineffective
and cancelled without reference to this Bench.
Application stands allowed.
As far as not sending the sample for DNA verification particularly in rape
cases the Hon'ble Supreme Court has considered the aforesaid aspect in the
case of Chotkau (supra) and has held as under:-
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/16/2022
3:42:10 PM
III. Failure to conduct medical examination.
70. Despite the fact that it was a shocking case of rape and
murder of a six year old girl, the prosecution did not care to
subject the accused (appellant herein) to examination by a
medical practitioner. There were two documents which
formed part of the records submitted along with the final
report, but which were not exhibited. One of them appears to
be a Memo signed by PW-5, the Doctor who conducted the
post-mortem. This Memo is dated 09.03.2012 addressed to
the Senior Pathologist, District Hospital, Bahraich. The
Memo reads as follows:
"Vaginal smear prepared in two slides from the body of
Km. Uma D/o Chhedam Lal, R/o Semgadha, PS Ikauna,
Dist: Shravasti."
71. The second is a Report dated 10.03.2012. It reads as
follows:-
"Report-In microscopic examination of supplied
specimen, no spermatozoa seem alive or dead. No
(unclear) seen.
72. Despite the fact that the author of the Memo dated
09.03.2012 was examined as PW-5, he never spoke about
this. The Report of the Forensic Sciences Laboratory, to
whom the salwar was forwarded, was also not obtained by
the Investigating Officer.
73. Section 53(1) of the Code enables a police officer not
below the rank of Sub-Inspector to request a registered
medical practitioner, to make such an examination of the
person arrested, as is reasonably necessary to ascertain the
facts which may afford such evidence, whenever a person is
arrested on a charge of committing an offence of such a
nature that there are reasonable grounds for believing that
an examination of his person will afford evidence as to the
commission of an offence. Section 53(1) reads as follows:
"53. Examination of accused by medical practitioner at
the request of police officer. (1) When a person is
arrested on a charge of committing an offence of such a
Signature Not Verified
nature and alleged to have been committed under such
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/16/2022
3:42:10 PM
circumstances that there are reasonable grounds for
believing that an examination of his person will afford
evidence as to the commission of an offence, it shall be
lawful for a registered medical practitioner, acting at
the request of a police officer not below the rank of sub-
inspector, and for any person acting in good faith in his
aid and under his direction, to make such an
examination of the person arrested as is reasonably
necessary in order to ascertain the facts which may
afford such evidence, and to use such force as is
reasonably necessary for that purpose."
74. By Act 25 of 2005, a new Explanation was substituted
under Section 53, in the place of the original Explanation.
The Explanation so substituted under Section 53, by Act 25 of
2005 reads as follows:
Explanation. In this section and in sections 53A and 54,
(a) "examination" shall include the examination of
blood, blood stains, semen, swabs in case of sexual
offences, sputum and sweat, hair samples and finger
nail clippings by the use of modern and scientific
techniques including DNA profiling and such other tests
which the registered medical practitioner thinks
necessary in a particular case;
(b) "registered medical practitioner" means a medical
practitioner who possess any medical qualification as
defined in clause (h) of section 2 of the Indian Medical
Council Act, 1956 (102 of 1956) and whose name has
been entered in a State Medical Register.
75. Simultaneously with the substitution of a new
Explanation under Section 53, Act 25 of 2005 also inserted a
new provision in Section 53A. Section 53A reads as follows:
"53A. Examination of person accused of rape by medical
practitioner,-
(1) When a person is arrested on a charge of committing
an offence of rape or an attempt to commit rape and
there are reasonable grounds for believing that an
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/16/2022
3:42:10 PM
examination of his person will afford evidence as to the
commission of such offence, it shall be lawful for a
registered medical practitioner employed in a hospital
run by the Government or by a local authority and in the
absence of such a practitioner within the radius of
sixteen kilometers from the place where the offence has
been committed by any other registered medical
practitioner, acting at the request of a police officer not
below the rank of a Sub-Inspector, and for any person
acting in good faith in his aid and under his direction,
to make such an examination of the arrested person and
to use such force as is reasonably necessary for that
purpose.
(2) The registered medical practitioner conducting such
examination shall, without delay, examine such person
and prepare a report of his examination giving the
following particulars, namely;
"(i) the name and address of the accused and of the
person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the
accused,
(iv) the description of material taken from the person of
the accused for DNA profiling, and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each
conclusion arrived at.
(4) The exact time of commencement and completion of
the examination shall also be noted in the report.
(5) The registered medical practitioner shall, without
delay, forward the report of the investigating officer,
who shall forward it to the Magistrate referred to in
Section 173 as part of the documents referred to in
Clause (a) of sub-section (5) of that section."
76. Even in a case where the victim of rape was alive and
Signature Not Verified
testified before the Court and the accused was also examined
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/16/2022
3:42:10 PM
by a doctor, this Court found in Krishan Kumar Malik vs.
State of Haryana (2011) 7 SCC 130 that the failure to obtain
the report of the Forensic Sciences Laboratory was fatal.
Paragraph 40 of the said decision reads as follows:
œ"40. The appellant was also
examined by the doctor, who had found him capable of
performing sexual intercourse. In the undergarments of
the prosecutrix, male semen were found but these were
not sent for analysis in the forensic laboratories which
could have conclusively proved, beyond any shadow of
doubt with regard to the commission of offence by the
appellant. This lacuna on the part of the prosecution
proves to be fatal and goes in favour of the appellant."
77. On the scope of the newly inserted Section 53A, this
Court said in Krishan Kumar Malik (supra) as follows:
"44. Now, after the incorporation of Section 53A in the
Criminal Procedure Code, w.e.f. 23.6.2006, brought to
our notice by the learned counsel for the respondent
State, it has become necessary for the prosecution to go
in for DNA test in such type of cases, 8 (2011) 7 SCC
130 facilitating the prosecution to prove its case
against the accused. Prior to 2006, even without the
aforesaid specific provision in CrPC the prosecution
could have still resorted to this procedure of getting the
DNA test or analysis and matching of semen of the
Appellant with that found on the undergarments of the
prosecutrix to make it a fool proof case, but they did not
do so, thus they must face the consequences."
78. It is true that a three member Bench of this Court
indicated in Rajendra Pralhadrao Wasnik vs. State of
Maharashtra (2019) 12 SCC 460 that Section 53A is not
mandatory. It was held in paragraphs 49 and 50 of the said
decision as follows:
"49. While Section 53-A CrPC is not mandatory, it
certainly requires a positive decision to be taken. There
must be reasonable grounds for believing that the
examination of a person will afford evidence as to the
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/16/2022
3:42:10 PM
commission of an offence of rape or an attempt to
commit rape. If reasonable grounds exist, then a
medical examination as postulated by Section 53-A(2)
CrPC must be conducted and that includes examination
of the accused and description of material taken from
the person of the accused for DNA profiling. Looked at
from another point of view, if there are reasonable
grounds for believing that an examination of the
accused will not afford evidence as to the commission of
an offence as mentioned above, it is quite unlikely that a
charge-sheet would even be filed against the accused
for committing an offence of rape or attempt to rape.
50. Similarly, Section 164-A CrPC requires, wherever
possible, for the medical examination of a victim of
rape. Of course, the consent of the victim is necessary
and the person conducting the examination must be
competent to medically examine the victim. Again, one
of the requirements of the medical 9 (2019) 12 SCC 460
examination is an examination of the victim and
description of material taken from the person of the
woman for DNA profiling."
79. After saying that Section 53A is not mandatory, this
Court found in paragraph 54 of the said decision that the
failure of the prosecution to produce DNA evidence,
warranted an adverse inference to be drawn. Paragraph 54
reads as follows:-
"54. For the prosecution to decline to produce DNA
evidence would be a little unfortunate particularly when
the facility of DNA profiling is available in the country.
The prosecution would be well advised to take
advantage of this, particularly in view of the provisions
of Section 53 and Section 164CrPC. We are not going to
the extent of suggesting that if there is no DNA
profiling, the prosecution case cannot be proved but we
are certainly of the view that where DNA profiling has
not been done or it is held back from the trial court, an
adverse consequence would follow for the prosecution."
Signature Not Verified
80. It is necessary at this stage to note that by the very same
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/16/2022
3:42:10 PM
Amendment Act 25 of 2005, by which Section 53A was
inserted, Section 164A was also inserted in the Code. While
Section 53A enables the medical examination of the person
accused of rape, Section 164A enables medical examination
of the victim of rape. Both these provisions are somewhat
similar and can be said approximately to be a mirror image
of each other. But there are three distinguishing features.
They are:-
(i) Section 164A requires the prior consent of the women
who is the victim of rape. Alternatively, the consent of a
person competent to give such consent on her behalf
should have been obtained before subjecting the victim
to medical examination. Section 53A does not speak
about any such consent;
(ii) Section 164A requires the report of the medical
practitioner to contain among other things, the general
mental condition of the women. This is absent in Section
53A;
(iii) Under Section 164A(1), the medical examination by
a registered medical practitioner is mandatory when, it
is proposed to get the person of the women examined by
a medical expert during the course of investigation. This
is borne out by the use of the words, "such examination
shall be conducted". In contrast, Section 53A(1) merely
makes it lawful for a registered medical practitioner to
make an examination of the arrested person if "there
are reasonable grounds for believing that an
examination of his person will afford evidence as to the
commission of such offence."
81. In cases where the victim of rape is alive and is in a
position to testify in court, it may be possible for the
prosecution to take a chance by not medically examining the
accused. But in cases where the victim is dead and the
offence is sought to be established only by circumstantial
evidence, medical evidence assumes great importance. The
failure of the prosecution to produce such evidence, despite
there being no obstacle from the accused or anyone, will
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/16/2022
3:42:10 PM
certainly create a gaping hole in the case of the prosecution
and give rise to a serious doubt on the case of the
prosecution. We do not wish to go into the question whether
Section 53A is mandatory or not. Section 53A enables the
prosecution to obtain a significant piece of evidence to prove
the charge. The failure of the prosecution in this case to
subject the appellant to medical examination is certainly
fatal to the prosecution case especially when the ocular
evidence is found to be not trustworthy.
82. Their failure to obtain the report of the Forensic
Sciences Laboratory on the blood/semen stain on the salwar
worn by the victim, compounds the failure of the prosecution.
From the perusal of the aforesaid verdict of the Hon'ble Supreme Court it
is apparently clear that the provisions of Section 53A has been incorporated in
Criminal Procedure Code w.e.f. 23.06.2006 and the aforesaid provision
contemplates for examination of the victim as well as the accused and the
description of the material collected from the person of the accused as well as
victim should be sent for DNA profiling. The authorities have failed to consider
the aforesaid provisions of the Criminal Procedure Code.
Especially in the rape cases with respect to minors wherein the provisions
of POCSO Act are attracted the samples collected during investigation are
required to be sent for DNA examination. POCSO Act being a special
enactment to see that the children were below 18 years should not indulged into
illegal activities and making of physical relation even with the consent of the
victim, who happens to be a minor is punishable under the POCSO Act,
therefore, there are instances where a boy and a girl aged nearing above 16
years and below 18 years are indulged in physical relationship with so called
consent and victim resiles from her earlier statement but as the provisions of
POCSO Act are attracted in such matters, therefore, the DNA profiling is
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/16/2022
3:42:10 PM
required in the matter in terms of provisions of Section 53A of Cr.P.C. In view
of the judgments passed by the Courts in cases of Raja Burman @ Rahu
(supra) Director General of Police has issued a circular on 20.07.2021 for not
sending the sample for DNA examination in case the FSL is found to be
negative. Now, in view of the judgment passed by the Hon'ble Supreme Court
in the case of Chutkau (supra) and considering the provisions of Section 53 A
Cr.P.C. the samples are required to be sent for DNA examination especially in
rape cases and more particularly in cases of minors wherein the provisions of
POCSO Act are attracted.
Let the Director General of Police, Madhya Pradesh, Bhopal to consider
the aforesaid judgment of the Hon'ble Supreme Court and issue directions/
instructions for sending the samples for DNA reports.
A copy of the order be sent to the Director General of Police, Madhya
Pradesh, Bhopal for necessary compliance.
Certified copy as per rules.
(VISHAL MISHRA)
JUDGE
taj
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/16/2022
3:42:10 PM
