Madhya Pradesh High Court
Sourabh Singh Parmar vs The State Of Madhya Pradesh on 17 July, 2023
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 17 th OF JULY, 2023
CRIMINAL APPEAL No. 4166 of 2023
BETWEEN:-
SOURABH SINGH PARMAR S/O SHRI MAHAVEER
SINGH, AGED ABOUT 27 YEARS, OCCUPATION:
SHOPKEEPER RESIDENT OF WARD NO 11 THAKUR
PADA BADI DISTRICT DHOLPUR (RAJASTHAN)
.....APPELLANT
(SHRI RAJMANI BANSAL, LEARNED COUNSEL FOR THE APPELLANT)
AND
THE STATE OF MADHYA PRADESH INCHARGE POLICE
STATION THROUGH POLICE STATION CITY KOTWALI,
DISTRICT MORENA (MADHYA PRADESH)
.....RESPONDENT
(SHRI R. K. UPADHYAY- LEARNED COUNSEL FOR THE RESPONDENT-
STATE)
Th is appeal coming on for hearing this day, th e court passed the
following:
ORDER
The present Criminal Appeal under Section 374 (2) of CrPC has been
preferred by appellant against the judgment of conviction and order dated 06-
03-2023 passed by Special Judge (POSCO Act) & 8th Additional Sessions
Judge, Morena in Special Sessions Case No. 99 of 2019, by which the appellant
has been convicted under Section 376(1) of IPC and sentenced to undergo 10
years RI with fine of Rs.10,000/- with default stipulation.
Case of prosecution in brief, is that prosecutrix, who is aged about 17
years made a written complaint at Police Station Kotwali, Morena on 11-08-
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2019 at around 08:00 pm alleging therein that her father and mother works as
labourers. She has two brothers, elder brother's name is Nitesh Namdev and
uncle's name is Radheshyam Namdev, both of them used to stay with her house
and used to take care of the vehicle. She is studying in Class-XII in Kanya
Higher Secondary School and used to run Facebook on the mobile of her uncle
i.e. mobile no. 8871595575. Fifteen days before diwali in 2018, she befriended
appellant Saurabh Parmar on Facebook who used to like her and wants to get
her married due to which she agreed. On 28-11-2018 at around 01:00 pm, she
met him near Mill Area School, Morena and took her to Raj Palace Hotel and in
hotel room, he did bad things with her. When she objected to it, appellant told
her that he will marry her as and when time should come. On the false pretext of
marriage, he committed sexual intercourse by taking off her clothes. Thereafter,
he went away away with angry mode. After a few days, appellant told her that
his parents has fixed his marriage by which she got angry with him and stopped
talking to him but on 10-08-2019 at around 03:56 pm, to the mobile of her uncle
i.e. 8871595575, her absence video and photo from mobile no. 9109671883
was sent by appellant on which she called appellant on 11-08-2019 by calling
from mobile 9079829704 at around 01:30 pm at Mill Area Road to meet him
and thereafter, she told him as to why he has made my video and sent it on her
home phone, on that he told her not to talk with him and thereafter he got her
video viralled through messages. Then, he told her if she does not fulfill his
wishes, he will kill her. It is further alleged by prosecutrix that on 28-11-2018,
the appellant while doing bad things with her made her video without her clothes
on which he used to get the video viralled and used to give a threat her with dire
consequences. It is further alleged by prosecutrix that she has narrated incident
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to her mother and uncle and mobile number of appellant is 9079829704 with
Facebook ID and in duplicate mobile no.9109671883 the appellant used to send
her obscene video and the appellant has already known Facebook password
that's why he changed it. On the basis of such complaint Ex.P11, FIR vide
Crime No. 884 of 2019 was registered against appellant for offence under
Sections 376, 366, 506 of IPC, Section 3/4 of POCSO Act and Section 66(E),
67 of IT Act vide Ex.P12. The prosecutrix was medically examined. The
statement of prosecutrix was recorded under Section 164 of CrPC.Spot map
was prepared vide Ex.P16. Statement of uncle and mother of prosecutrix was
recorded. Documents of Class XI and XII of the prosecurrix regarding
determination of age were seized vide Ex.P1. Her mobile as well as the mobile
of her uncle were seized. Accused was arrested and his memorandum was
recorded vide Ex.P26 and from his possession, VV company mobile and other
documents were seized vide seizure memo Ex.P27. Medical examination of the
accused was done. DNA after getting permission from the Court for the test,
after the process of blood sampling vide draft Ex.P50 was prepared through SP
and all the materials of accused including blood sample were sent to FSl for
examination. DNA report was received vide Ex.P51 in which DNA of accused
was found in forensic materials of prosecutrix. Thereafter, documents related to
Hotel were seized from management of Raj Palace Hotel and vide draft Ex.P52,
the seized mobile, CD, photographs were sent to Bhopal for examination vide
Ex.P6 and Ex.P47. During investigation, mobile of prosecutrix no. 8871595575
and appellant's mobile nos. 9109671883 and 9079829704 were sent to Cyber
Cell Branch for CDR report and report was received vide Ex.p53. After
completion of other formalities and investigation, final report was submitted
against the accused. The accused denied the commission of offence alleged and
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demanded for adjudication. In the trial, the statement of accused was recorded
under Section 313 of CrPC and in his defence the accused pleaded that he was
friendly with the prosecutrix and she had gone with him to the Restaurants of
Morena and Gwalior many times as per her own wishes and when this fact
came to the knowledge of her father, by creating a pressure on him, a false case
was made against him with the help of police. It is further deposed by the
appellant that at the time of incident prosecutrix was more than 18 years, her
date of birth being 15-06-2000. The evidence of two witnesses was produced
by defence in support of his case. The prosecution in order to support its case
examined as many as 21 witnesses including the prosecutrix (PW2). After
marshalling the evidence of prosecution, the learned trial Court after conclusion
of trial, convicted the present appellant and sentenced him for the offences as
mentioned in para 1 of this judgment.
Challenging the impugned judgment, it is contended by learned counsel
for the appellant that learned trial Court while convicting the present appellant
has ignored the fact that as per medical evidence, the prosecution story is not
proved and it was required for the trial Court to go through both oral and
documentary evidence thoroughly whereas merely on the basis of DNA report,
passed the impugned judgment of conviction and sentence which is totally
illegal and contrary to law. It is further submitted that there is no independent
witness in the present case. It is further contended that Court is not bound by
the evidence of experts which is to a large extent advisory in nature and the
Court must derive its own conclusion upon considering the opinion of the
experts which may be adduced by both sides, cautiously, and upon taking into
consideration the authorities on the point on which he deposes. In support of
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his contention, he has relied on the judgment of Apex Court in the matter of
Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee reported in (2010) 2
SCC (Cri) 229. On relying upon the judgment of Gujarat High Court in the
case of Premjibhai Bachubhai Khasiya vs. State of Gujarat and Another
reported in 2009 Cri.L.J. 2888, the further contention of the counsel for the
appellant is 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 the sole piece of evidence, even it 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 or
charge. Further, upon relying on the judgment of Karnataka High Court at
Bengaluru in the matter of Shri Prarmesha vs. State of Karnataka decided
on 11th Day of December, 2020 in CRA 1959 of 2019, the counsel for the
appellant contended that in a criminal case when the prosecution relied on the
experts evidence to prove the charges mere production of the report in the
Court is not sufficient, if prosecution relies on the report of the expert not only
the report is to be produced, but the author of the report is also to be examined
before the Court on oath and an opportunity should be given to the accused to
cross-examine the said expert on the correctness or otherwise of the said
report. In the present case, admitted the expert has not been examined. To
buttress his contention, by relying on the judgment of High Court of Judicature
at Bombay at Aurangabad passed in the matter of Suresh vs. The State of
Maharashtra decided on 15th of March, 2023 in CRA 306 of 2016, he
submitted that when the ocular evidence was not supporting, conviction ought
not to have been based only on the DNA test report, i.e. medical report,
therefore, the finding and conclusion in the judgment of trial Court is perverse
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and not based on the legal principles. Further, the counsel for the appellant by
relying upon the judgment of Hon'ble Supreme Court in the case of
Ranjitsingh Brahmajeetsingh Sharma vs. State of Maharashtra and
Another reported in 2005 SCC (Cri) 1057, contended 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. At last, the counsel for the appellant
has also relied on the judgment of Hon'ble Supreme Court in the case of Rahul
vs. State of Delhi, Ministry of Home Affairs and Another reported in
(2023) 1 SCC 83 and submitted that the DNA evidence is in the nature of
opinion evidence as envisaged under Section 45 of the Evidence Act and like
any other opinion evidence, its probative value varies from case to case.
Therefore, it is prayed that this appeal deserves to be allowed and the appellant
deserves to be acquitted.
On the other hand, learned counsel for the State supported the impugned
judgment and submitted that on the basis of evidence of DNA report as well as
considering the age of minor girl prosecutrix with whom appellant has
committed alleged offence on the false pretext of marriage, learned trial Court
after appreciating prosecution evidence, has rightly convicted the appellant. No
interference is warranted. Hence, prayed for dismissal of this appeal.
Heard the learned counsel for the parties and perused the record as well
as impugned judgment.
From the evidence of prosecutrix (PW1) in her case diary statement as
well as Court statement, it appears that her evidence does not fully support
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prosecution version. She in para 7 of her cross-examination has admitted to
being friends with the appellant- accused and having physical relationship with
her consent. Apart from this fact, it has been confirmed by DNA report in
which it has been opined by Scientific Officer that DNA profile of prosecutrix
and DNA profile of accused is identical. As such, merely on the basis of sole
evidence of DNA report, the appellant cannot be convicted but other
surrounding circumstances or evidence have to be seen. In the present case,
prosecutrix who is a grown up girl below 18 years of age at the time of incident
used to go with appellant to various restaurants of Morena and Gwalior on the
false pretext of marriage and she was in love with the appellant accused and
had sufficient time to understand the significance and the moral quality of act
which she was doing with appellant. Although the incident was happened with
her first of all on 28-11-2018 but the FIR was lodged on 11-08-2019 and during
this period she did not narrate the incident either to her father or mother which
is evident from the evidence of mother of prosecutrix who in her evidence
deposed that no information was given to her regarding the incident and in her
cross-examination, the mother of prosecutrix has denied the fact that the
prosecutrix told that she had met accused on Facebook, the accused took her
to Raj Palace Hotel and made physical relationship with her thereon. This
witness has objected to the suggestion that the accused had sent obscene
photographs, video and screenshot of photograph to the uncle of prosecutrix.
Further, the uncle of prosecutrix (PW4) refused to recognize the accused and
denied having any information regarding the incident. On being asked a leading
question by prosecution to the said witness that he has not proved the case of
prosecution. This witness further denied that materials mentioned in Ex.P2 was
seized from him. There is no evidence on record that the accused took the
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prosecutrix with him by coaxing. Also, there is no evidence regarding the threat
of death by the accused to the prosecutrix. Further, Forensic Expert
Rammanohar Dubey (PW21) who had tested articles by giving reports Ex. P46
and Ex. P47 in his evidence deposed that although during testing of both seized
mobiles, although CD in absence videos and photographs were present in Ext.-
H but it could not be ascertained whether said obscene videos were in Ext.F
generated from the mobile of accused. Thus, there is no evidence on record in
this regard that the obscene videos and photographs in question were generated
from mobile of accused. Apart from this, prosecutrix (PW1) has also not stated
in her evidence that her obscene videos and photographs were prepared by the
accused- appellant. In such a situation, in the absence of evidence, making of
obscene videos of the prosecutrix by the accused- appellant is not proved.
In view of aforesaid factual situation and perusal of materials available on
record, no offence is made out against the appellant for commission of alleged
offence. Considering the law laid down by the Hon'ble Apex Court as well as
law laid down by different High Courts as cited above, it is clear that the
conviction of the appellant is totally based on DNA report ignoring the evidence
of prosecutrix, her mother and her uncle by the trial Court while passing the
impugned judgment which is contrary to law. Accordingly, the impugned
judgment of conviction and order of sentence deserves to be and is hereby set
aside. The appellant is acquitted of charge under Section 376(1) of IPC. The
appellant is on bail, his bail bonds and surety bonds stand discharged. The fine
amount, if any, deposited by the appellant, be refunded to him.
This criminal appeal succeeds and is hereby allowed.
Let a copy of this judgment along with record be sent to the trial Court
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concerned for information.
(DEEPAK KUMAR AGARWAL)
JUDGE
MKB
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