Brajveer @ Bijju vs The State Of Madhya Pradesh
2023 Latest Caselaw 1461 MP

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 8914 of 2022 (BRAJVEER @ BIJJU Vs THE STATE OF MADHYA PRADESH)

Dated : 25-01-2023 Shri Manish Datt - Senior Counsel with Shri Siddhardh Datt -

Advocate for the appellant.

Shri Akhilendra Singh- Government Advocate for the State of M.P. Shri R.K. Shrivastava - Advocate for the objector.

Heard on I.A.No. 18757/2022 an application under Section 389 (1) of

the Cr.P.C for suspension of sentence and grant of bail to appellant - Brajveer @ Bijju arising out of judgment dated 29.08.2022 delivered in SCA TR/49/2020 by the learned Special Judge (Protection of Children from Sexual Offences Act) Seoni.

The appellant has been convicted and sentenced under Section 376-D of IPC to undergo RI for 20 years and fine of Rs.8000/- with default stipulation and under Section 5 (chha)/6 and 3 (ka)/4 of Protection of Children from Sexual Offences Act he has been found guilty.

Learned Senior Counsel for the appellant submits that the sole basis for

conviction of the appellant is the DNA report. The victim (PW-1) in the FIR, in the first statement recorded under Section 161 of Cr.P.C. did not take his name. No medical examination of victim was conducted.

Shri Manish Datt learned Senior Counsel for the appellant submits that as per Ex.P-24 (identification document), Dr. Narendranath Namdeo (PW-16) had allegedly collected his sample on 29.11.2017. Rekha Choudhary (PW-2) (mother of the victim) and Pradeep Balmiki (PW-17) are the witnesses to identification document (Ex.P-24). The mother of victim (PW-2) turned hostile. Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 1/27/2023 10:28:09 AM

She neither supported the incident nor proved the identification document. The next witness Pradeep Balmiki (PW-17) is a Police Officer, who in his deposition did not depose anything about taking of blood sample. Thus, this statement is also of no use. PW-17 is the witness, who deposed about collection of the sample and not about taking of the sample. Thus, this witness is also of no assistance to the prosecution. Blood sample was allegedly taken on 29.11.2017 was sent to FSL on 30.11.2017. Between 29.11.2017 to 30.11.2017, the safe custody of sample is not established.

Learned Senior Counsel has replied upon a recent judgment of the Supreme Court reported in Rahul v. State (NCT of Delhi), (2023) 1 SCC

83. In this judgment, it is submitted that Supreme Court has considered the standard operating procedure/protocol relating to taking, keeping, sending and examining the DNA sample. The Apex Court opined that the aforesaid events needs to be examined with accuracy and precision. The relevant portion reliance is placed by Shri Datt reads as under :-

30. The learned Senior Advocates appearing for the appellants have also rightly drawn the attention of the Court to the timings and the manner in which the samples were collected during the course of post-mortem of the deceased, to submit that PW 48 P-1 Sandeep Kumar was present at the hospital when the post-mortem was conducted on 14-2-2012, and therefore there was no reason to collect the samples from the body of the deceased on 16-2-2012. The collection and sealing of the samples during the MLC of the accused which had taken place on 14-2-2012 at RTMR Hospital, Jaffarpur also does not inspire confidence. The story of bloodstains and semen found on the seat covers of the Indica car seized on 13-2-2012 and sent to the CFSL for examination also appears to be highly improbable and unreliable. There is Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 1/27/2023 10:28:09 AM

no clear evidence as to who was in custody of the said car after its seizure till it was sent to CFSL for examination and as to whether the car was sealed during the said period.

32. It is true that PW 23 Dr B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ext. PW 23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the investigating officer on 14-2-2012 and 16-2-2012; and they were sent to CFSL for examination on 27-2-2012. During this period, they remained in the malkhana of the police station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the trial court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In the absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion.

In the light of aforesaid, it is further argued that since whole conviction is based on DNA report and the process as mentioned above is polluted and the court below has not taken pains to examine these events meticulously, the

judgment has become vulnerable. The appellant was on bail during trial but did not misuse the liberty. Thus, the remaining jail sentence of the appellant may be suspended when final hearing of his appeal is not possible in near future.

Learned Government Counsel has placed reliance on Para-76 of the judgment and submits that victim is aged about fourteen years, three months and seventeen days.

Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 1/27/2023 10:28:09 AM

Learned counsel for the objector submits that objector has filed an affidavit and submits that she has no objection if remaining jail sentence of the appellant is suspended.

We have heard learned counsel for the parties at length and perused the record.

Considering the aforesaid factual backdrop and without expressing any conclusive opinion on the merits of the case, we deem it proper to suspend the remaining jail sentence of appellant. Accordingly, I.A.No. 18757/2022 is allowed.

Subject to depositing the fine amount (if not already deposited), the remaining jail sentence of the appellant is hereby suspended and it is directed that on furnishing a personal bond for a sum of Rs.30,000/- (Rupees thirty thousand only) along with one solvent surety in the like amount to the satisfaction of the trial Court, the appellant - Brajveer @ Bijju be released on bail with a further direction to remain present before the Trial Court, Seoni on 24/04/2023 and on such other dates as may be fixed by the trial Court in this regard during the pendency of this appeal.

Certified copy as per rules.

                                (SUJOY PAUL)                             (AMAR NATH (KESHARWANI))
                                   JUDGE                                          JUDGE

                          bks




Signature Not Verified
Signed by: BASANT KUMAR
SHRIVAS
Signing time: 1/27/2023
10:28:09 AM