Rajasthan High Court - Jodhpur

Dalla Ram vs State Of Rajasthan on 22 November, 2021

Bench: Rameshwar Vyas

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 880/2021

Dalla Ram S/o Sh. Rewanta Ram, Aged About 30 Years, R/o Nimbe Ki Dhani Sohda, Police Station Gida, District Barmer. (Presently Lodged At Sub Jail, Balotra, District Barmer)

----Appellant Versus State Of Rajasthan, Through PP

----Respondent

For Appellant(s) : Mr. Bhawani Singh For Respondent(s) : Mr. N.S. Bhati, Public Prosecutor

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Judgment

22 November, 2021

The instant appeal under Section 374 (2) CrPC has

been preferred by appellant Dalla Ram being aggrieved by the

judgment dated 3.9.2021 passed by the learned Special Judge,

Protection of Children From Sexual Offences Act-2012 and

Commission For Protection of Child Rights Act 2005, Balotra, in

Sessions Case No.63/2019 (CIS No. 63/2019), whereby he has

been convicted and sentenced as below :


Offence for which convicted              Sentence awarded
Under Section 376(1) IPC                 Rigorous imprisonment for ten
 &                                       years and a fine of Rs.10,000/-
Section 3 and 4 of POCSO Act             and in default of payment of
                                         fine, further to undergo 6
                                         months RI

As per prosecution story, on 10.9.2019 at 2:39 PM,

Binjaram complainant / father of the prosecutrix (PW-2) submitted

(2 of 7) [CRLAS-880/2021]

a written report (Exhibit-P/8) before Station House Officer, Police

Station Gida, Barmer to the effect that on 10.9.2019 at 7:00 AM,

while his daughter, aged about 16 years, was returning from Bada

(the place where cattles are kept) after milking of goats, she was

raped by Dalla Ram. On hearing screams, the complainant went

towards Bada, Dalla Ram fled away on seeing complainant. On

asking, his daughter told him that she has been raped. She

narrated the whole story to her father. The complainant called the

responsible persons from the village and shown them the place of

incident. Thereafter, they went to the house of Dalla Ram. On

asking, Dalla Ram replied that he will behave in the same way.

On filing the above written report, First Information

Report was registered for the offence under Section 376(1) of

Indian Penal Code and Sections 3 and 4 of the Protection of

Children from Sexual Offences Act, 2012 (herein afterwards

referred to as 'POCSO Act'). After registering the FIR, the

investigation was carried.

During investigation, apart from routine investigation,

necessary samples were collected and sent for examination to

State Forensic Science Laboratory, Rajasthan. DNA report was also

obtained from the FSL. As per result of examination, the DNA

profile obtained from blood sample of victim and blood sample of

accused were accounted in the same DNA profile obtained from

underwear of victim and Salwar of victim. The conclusion of the

FSL reads as under:-

"On the basis of the DNA test, it is concluded that the source of DNA profile obtained from exhibit no.1 (Underwear of victim) and 2 (Salwar of victim) is matching with the source of DNA profile obtained exhibit no.10 (Blood sample of accused.)"

(3 of 7) [CRLAS-880/2021]

After completion of investigation, charge-sheet against

the accused appellant was filed for the offences under Section

376(1) of the IPC and Sections 3 and 4 of the POCSO Act before

the Special Judge, POCSO Act Cases, Balotra. During trial, accused

pleaded not guilty and claimed trial.

In support of its case, the prosecution examined total

sixteen witnesses and exhibited thirty-three documents. When

confronted with the prosecution evidence, accused appellant

stated that he is innocent and has been falsely implicated in this

case. He further stated that no sample was taken during his

examination. After completion of trial, the learned trial court

convicted and sentenced the accused appellant as mentioned

above.

Aggrieved with the impugned judgment of conviction

and sentence, appellant has filed the instant appeal before this

Court.

Heard learned counsel for the parties and perused the

record as well as the impugned judgment.

Learned counsel for the appellant has submitted that

learned trial court has convicted the accused appellant without

any evidence against him. All material witnesses including the

prosecutrix had been declared hostile by the prosecution. The

prosecutrix did not support the case of the prosecution, however,

learned trial court considering the minor age of the prosecutrix,

report of DNA Examination and statement recorded under Section

164 Cr.P.C., passed the judgment of conviction which is not

sustainable in the eye of law. Learned counsel for the appellant

has prayed to allow this appeal and set aside the impugned

judgment and to acquit the appellant of all the offences.

(4 of 7) [CRLAS-880/2021]

On the other hand, learned Public Prosecutor has

opposed the prayer of learned counsel for the appellant. However,

he is not in a position to dispute the fact that material witnesses

have been turned hostile and there is no evidence on record

except DNA Report (Exhibit-32) against the appellant.

After considering the submissions made at bar and

after perusal of the record, it is evident that the prosecutrix, who

was aged about 17 year at the time of examination in court, had

not supported the prosecution story. She categorically stated that

accused appellant did not commit rape with her. In cross-

examination by the Public Prosecutor, she denied material portion

of the police statement when contradicted with the same. She also

denied to hand over her underwear and Salwar to the Police. She

has denied the fact of taking sample of blood etc. She also denied

correctness of the statement recorded under Section 164 Cr.P.C.

(Exhibit-P/1). She denied the suggestion of the Public Prosecutor

that on account of compromise, she is stating wrong facts before

the court to save the accused appellant.

Dr. Sneha Mudgal (PW-6) who was posted as Senior

Medical Officer at Government Hospital, Barmer examined the

prosecutrix.

Binjaram (PW-2) and Banu (PW-4), who are father and

mother of the prosecutrix, have also turned hostile and did not

utter any word against the accused. Ghamaram (PW-10) and

Kaushalaram (PW-3), who are uncles of the prosecutrix, have also

turned hostile. Bhanwara Ram (PW-16) is the investigating officer.

As per his statement, he seized the clothes of the victim and

accused, recorded statements and verified the place of information

given by the accused. Other witnesses are of formal nature.

(5 of 7) [CRLAS-880/2021]

There is no iota of evidence against the accused

appellant to substantiate the charge framed against him. In the

considered opinion of this Court, only on the basis of Report of

DNA Examination, narrated above, accused cannot be convicted

for the offence of rape with girl of 17 years of age.

Learned trial court misconstrued the judgment passed

by this Court at Jaipur Bench, in Mahaveer @ Bittu vs. State of

Rajasthan : D.B. Criminal Appeal No. 218/2018, decided on

26.07.2019. In the casse of Mahaveer @ Bittu (supra), many

witnesses corroborated the statement of the complainant; victim

was of tender age being 3 - 4 years and on account of tender age,

she could not identify the offender. However, in the present case,

alleged victim is aged about 17 years, who categorically denied

the prosecution story. The case of the present presecutrix cannot

be equated with the victim of 3 - 4 years of age. In the present

case, the prosecutrix is mature girl. The family members of the

prosecutrix did not support the prosecutrix. However, in the case

relied by learned trial court, many other witnesses corroborated

the statement of the complainant.

This Court fails to understand how a person can be

convicted solely on the basis of Report of DNA Examination, which

is not corroborative piece of evidence. It is strange to note that

learned trial court in the impugned judgment also relied upon the

police statement of the witnesses. Learned trial court in the last

portion of Para 27 of the judgment observed as under:-

"अतः उसने पीड़ित व उसके परिजनों कको अपने पक्ष मष में कि र दकर दिदिय दिया ा थ दिया, अतः वे

सभी नदिय दियादिय दियालदिय के स मक्ष पक्षक्षदकोषद्रोही रोही घकोड़ोही घोषित हुए षद्रोहित हुए है। इस प्रक दियाि प्रप्रकार प्रसतप्रकार प्रस्तुत प्रकिण मष में

पीड़ित, उसके परिजनों आर दकर दि के पप्रकार प्रस्तुड़लस बदिय दियान अड़धिक ड़वश्वसनीदिय षद्रोहित हुए है। इसके

(6 of 7) [CRLAS-880/2021]

आल दियाव दिया इस प्रकिण मष में एफ.एस.एल. रिपकोर्ट व डी.एन.ए. रिपकोर्ट भी

सक दियाि दियात मक आई षद्रोहित हुए है। "

As per the provisions of Section 162 Cr.P.C., no

statement made by any person to a police officer in the course of

an investigation under this Chapter, shall, if reduced to writing, be

signed by the person making it; nor shall any such statement or

any record thereof, whether in a police diary or otherwise, or any

part of such statement or record, be used for any purpose,

save as hereinafter provided, at any inquiry or trial in

respect of any offence under investigation at the time when

such statement was made;

Provided that when any witness is called for the

prosecution in such inquiry or trial whose statement has been

reduced into writing as aforesaid, any part of his statement, if duly

proved, may be used by the accused, and with the permission of

the Court, by the prosecution, to contradict such witness in the

manner provided by section 145 of the Indian Evidence Act, 1872;

and when any part of such statement is so used, any part thereof

may also be used in the re-examination of such witness, but for

the purpose only of explaining any matter referred to in his cross-

examination.

Above provision of Section 162 Cr.P.C. and provision of

Section 145 of Indian Evidence Act, makes it clear that police

statement can only be used with intent to contradict the

witnesses. Even the statement cannot be used to corroborate the

statement made during the course of trial before the Court.

Learned trial court failed to notice the basic principle of criminal

law as mentioned above.

                                                                           (7 of 7)                     [CRLAS-880/2021]



                                             Learned     trial     court     has      also     erred     in   applying

presumption under Sections 29 and 30 of the POCSO Act. This

presumption can only be drawn only when prosecution succeeds to

prove that any sexual assault has been committed with the victim

by the accused.

Accordingly, the appeal is hereby allowed. The

impugned judgment of conviction and sentence dated 03.09.2021

passed by learned trial court convicting the appellant for the

offence under Section 376(1) IPC and Sections 3 and 4 of the

POCSO Act is quashed and set aside. The appellant is acquitted

from the offence under Section 376(1) IPC and Sections 3 and 4

of the POCSO Act.

The appellant be released forthwith, if not required in