Ashok Dhanak vs The State Of Madhya Pradesh
2022 Latest Caselaw 6579 MP

                                                             1
                                     IN THE HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                         BEFORE
                                           HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                     ON THE 2nd OF MAY, 2022

                                        MISC. CRIMINAL CASE No. 21419 of 2022

                               Between:-
                               ASHOK DHANAK S/O SHRI SANJAY DHANAK ,
                               AGED ABOUT 21 YEARS, OCCUPATION: LABOUR
                               R/O VILLAGE GADARWAS P.S. BHARKACHHKALA
                               TEHSIL BADI DISTRICT RAISEN (M.P.) (MADHYA
                               PRADESH)

                                                                                               .....APPLICANT
                               (BY SHRI NAVEEN GIRI GOSWAMI, ADVOCATE)

                               AND

                               THE STATE OF MADHYA PRADESH THROUGH
                               POLICE STATION BHARKACHHKALA DISTRICT
                               RAISEN M.P. (MADHYA PRADESH)

                                                                                           .....RESPONDENTS
                               (BY SHRI AMIT MISHRA, PANEL LAWYER)

                             This second bail application has come up for hearing on admission on
                      this day, the court passed the following:
                                                              ORDER

This is second bail application filed under Section 439 of the Code of

Criminal Procedure on behalf of applicant Ashok Dhanak S/o Sanjay Dhanak, who is in custody since 24/12/2021 in connection with Crime No.103/2021 registered at Police Station Bharkachhkala, District- Raisen (M.P.) for the offences punishable under Sections 363, 366, 376 of the Indian Penal Code and Sections 3/4 of POCSO Act, 2012.

2 . First application was dismissed on its own merits considering the fact that DNA report was positive. Dr. Sujata Gautam, Scientific Officer and Assistant Chemical Examiner, FSL, Bhopal had mentioned that Y-Chromosome STR DNA Profile obtained from the vaginal slide of the prosecutrix matches with the Y-Chromosome STR DNA Profile obtained from the blood sample of the present accused. It is submitted that thereafter prosecutrix and her father have been Signature SAN Not examined before the trial Court and they have not supported the prosecution case, Verified

Digitally signed by therefore, this is a fit case to extend the benefit of bail to the applicant. APARNA TIWARI Date: 2022.05.02 19:00:08 IST

3 . On the other hand, learned Panel Lawyer for the respondent/State, opposes the bail application.

4. Shri Naveen Giri Goswami, learned counsel for the applicant has placed reliance on the judgment of Gujarat High Court in the case of Premjibhai

Bachubhai Khasiya Vs. State of Gujarat and another, 2009 CRI.L.J. 2888 , wherein it is held that positive DNA report cannot be, therefore, accepted by the trial Court in isolation that is a sole piece of evidence to record the conviction of accused under Sections 376, 366 of IPC.

5. Similarly, reliance is placed on the decision of Karnataka High Court in the case of Sri Paramesha Vs. State of Karnataka (Criminal Appeal No.1959 of 2019), wherein it is observed that where there is possibility with tampering of sample and even Scientific Officer has also not been examined before the Court, then under such circumstances merely production of report as per Ex.P/14 will not help to the case of prosecution to prove its case beyond all reasonable doubts.

6. In the case of Ranjitsingh Brahmajeetsingh Sharma Vs. State of Maharashtra and another, (2005) 5 SCC 294 , Hon'ble Apex Court has observed that DNA evidence may have a great significance where there is supporting evidence, dependent, of course, on the strength of that evidence. ... In every case one has to put the DNA evidence in the context of the rest of the evidence and decide whether taken as a whole it does amount to a prima facie case. In para-14 of the case of Sri Paramesha (supra), it is held that positive DNA report can be of great significance, where there is supporting evidence, depending of course on the strength and quality of that evidence. If the DNA report is of sole piece of evidence, even if it is positive, it cannot be conclusively fix the identity of the miscreant, but, if the report is negative, it would conclusively exonerate the accused from the involvement of charge.

7 . In view of such decision of Hon'ble Supreme Court, Gujarat High Court, so also Karnataka High Court referred to above, this Court is of the opinion that only two witnesses have been examined till now. Scientific Officer has not yet been examined. It is still open to the prosecution to examine Scientific Officer

and other relevant witnesses to prove efficacy of DNA report, therefore, at this stage, merely because prosexutrix has turned hostile, it cannot be said that applicant is entitled to bail.

8. Accordingly, this M.Cr.C. fails and is hereby dismissed.

(VIVEK AGARWAL) JUDGE AT