Madhya Pradesh High Court
The State Of Madhya Pradesh vs Anand Verma on 3 October, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:50653
1 CRA-735-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 3 rd OF OCTOBER, 2024
CRIMINAL APPEAL No. 735 of 2023
THE STATE OF MADHYA PRADESH
Versus
ANAND VERMA
Appearance:
Shri G S Thakur - Govt. Advocate for appellant/State.
None for respondent/accused.
ORDER
Per: Justice Vivek Agarwal
This leave to appeal is filed being aggrieved by the judgment dated 28-
10-2022 passed by the learned Special Judge (POCSO) Act, 2012 Sehore in
Special Case No. 15/2020 whereby the respondent is acquitted of the charges
under Sections 363, 366, 376(2n), 344 of IPC and under Section 5(L)/6 of
POCSO Act, 2012.
2. Brief facts of the present case are that the father of the victim is
engaged in the profession of furniture making. On 20-06-2018, he had gone
for work. When he returned back at 8:00 PM, then his wife informed him
that she had gone to the market, at that time, the victim was all alone at
home. When she came back at 6:00 PM, then victim was not found in the
house. Search was made but, without any success. Thereafter, they expressed
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their suspicion on the respondent- Anand Khati inasmuch as he was roaming
around their house. Consequently, father of the victim lodged report at Police
Station Icchawar on 21-06-2018 as a missing person report No. 25/2018.
Crime No. 164/2018 for offence punishable under Section 363 of IPC was
registered and first information report was lodged.
3. During investigation on 11-12-2019, the prosecutrix was recovered
and she stated that she was knowing the respondent for last 2-1/2 years, they
were talking to each other on mobile and had a liking for each other. Anand
had proposed her to marry, she accepted this proposal and on 20-06-2018,
she eloped with Anand. She had gone to Gujrat.
4. Learned Trial Court has dealt with the evidence of victim, her
father (PW-1) to record a finding that prosecutrix was major on the date of
incident. The trial Court has discarded the date of birth mentioned in the
Scholar register as 12-08-2001, which was admittedly recorded at the
instance of father of the victim. This fact is admitted by School Teacher-
Shashikala Jhare ( PW-5). Thereafter, (PW-2) has admitted this fact that he
does not know the age of the victim and that was recorded as per estimation.
5. Trial Court has considered statements of the victim and her father
in right earnest and treated the victim to be a major. Thereafter, appreciating
the evidence of (PW-2), where the victim stated that the accused is her
husband and narrated her age to be 19 years, treated the victim to be a major
and in view of doubt in regard to date of birth, treating the victim to be a
major and noting her consent for relationship, acquitted the respondent
despite their being positive DNA report.
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6. The Hon'ble Apex Court in the case of Premjibhai Bachubhai
Khasiya vs. State of Gujrat & Anr.2009 Cri. L.J 2888 has held in paragraphs-
13, 14 and 15 as under:-
"13.3. In the decision of R. v. Watters, (2000 All England Reporter 1469), it
is found that no reliance is placed on the DNA report, because, it does not
conclusively fix the identity. It was observed therein thus:--
"We have taken care to confine our remarks to the circumstances
of this case for the reason that we have already made clear: every
case has to be viewed on the totality of the evidence in that case,
DNA evidence may have a greater significance where there is
supporting evidence, dependent, of course, on the strength of the
evidence. We are not for one moment saying that merely because
there was not other evidence of a cogent kind that this appeal has
to be allowed. We simply conclude that on the facts of this case
and the evidence that was available in this case this evidence was
not strong enough to go to the jury and should not have done so.
Even if we had been wrong about that, the directions given by the
judge were insufficient to make clear to the jury what their
consideration of the matter should be. For those reasons, we
conclude that this is a matter where the points made by the
appellant are valid."
The said part was also referred to by the Apex Court in the case of
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, reported in
(2005) 5 SCC 294 : (2005 Cri LJ 2533). In paragraph 78, Their Lordships
have quoted thus--
"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."
14. It is thus clear 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
if it is positive, it cannot conclusively fix the identity of the miscreant, but, if
the report is negative, it would conclusively exonerate the accused from the
involvement or charge.
15. The science of DNA is at a developing stage and when the Random
Occurrence Ratio is not available for Indian Society, it would be risky to act
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solely on a positive DNA report, because only if the DNA profile of the
accused matches with the foetus, it cannot be considered as a conclusive
proof of paternity. Contrarily, if it is solitary piece of evidence with negative
result, it would conclusively exclude the possibility of involvement of the
accused in the offence."
7. We are conscious of this fact that DNA report is a supportive
evidence, but at the same time, if there are glaring omissions and
contradictions in the evidence of the prosecution witnesses, then that cannot
be a ground to record the findings of conviction merely on the basis of
surmises and conjectures. Mere presence of mixed DNA autosomal profile is
not sufficient to accept the guilt of the accused, specially when there is no
corroboration.
8. The girl was a consenting party and was major as is evident from
the evidence of father of the prosecutrix (PW-1), Prosecutrix (PW-2) and
School Teacher (PW-5). In such circumstances, the finding of acquittal
recorded by the trial Court cannot be faulted with.
8. Leave to appeal fails and is hereby dismissed.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
PG
