Rajasthan High Court
Babulal Son Of Shri Gopal vs State Of Rajasthan on 10 January, 2023
Bench: Pankaj Bhandari, Birendra Kumar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 188/2022
Babulal Son Of Shri Gopal, Aged About 29 Years, Resident Of
Manpura Police Station Dudu District Jaipur At Present In Central
Jail, Jaipur
----Appellant
Versus
State Of Rajasthan, through PP
----Respondent
For Appellant(s) : Mr. Harendra Singh with
Mr. J.S. Rathore
For Respondent(s) : Mr. Javed Choudhary, Addl. GA
Mr. Saurabh Poonia
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Judgment
Reserved on :: 06/01/2023
Pronounced on :: 10/01/2023
(PER HON. PANKAJ BHANDARI,J.)
1. Appellant has preferred this appeal aggrieved by
Judgment and Order dated 14.07.2022 passed by Court of Special
Judge, POCSO Act, 2012, Jaipur District, whereby appellant has
been convicted for offence under Section 3/4 of the POCSO Act, in
the alternative, Section 376 IPC and has been sentenced to life
imprisonment with fine of Rs.80,000/-. In default of payment of
fine, one year additional rigorous imprisonment. No sentence has
been awarded under Section 376 IPC in view of the sentence
awarded under Section 3/4 of the POCSO Act.
2. Succintly stated the facts of the case are that Nawab
(PW-2) lodged a typed report at Police Station Dudu, District
(2 of 6) [CRLAD-188/2022]
Jaipur on 09.08.2019 at 16.54 hrs. about the incident alleged to
have taken place on 07.08.2019. It was alleged in the report that
complainant's sister-Hurram was kidnapped by Babulal Jat and his
companions from under the Dudu bridge after administrating
some intoxicating material. She was forcibly taken in a vehicle and
Babulal Jat committed rape with her at a lonely place by giving
threat of her life. His companions also committed raped with her
one by one after closing her in a room. It is mentioned in the
report that the victim somehow ran away from the room and
contacted the complainant after taking phone from the person
passing from there and saved her life. All the persons ran away
from the spot.
3. On receipt of the said report, FIR No.368/2019 for
offences under Sections 363, 366, 376(D) IPC was registered and
investigation commenced. Prosecutrix refused for her medical
examination and stated that she did not receive any injury. After
completing the investigation, police filed challan for offence under
Sections 363, 366, 342, 376 IPC and Section 3/4 of POCSO Act
against the appellant only. Trial Court framed charges against the
appellant for the aforementioned offences. The prosecution
produced as many as 12 witnesses and 24 documents were
exhibited in support of its case. The accused-appellant was
examined under Section 313 of Cr.P.C. In defence, evidence of
DW-1 (Roshan Khan) was produced. After hearing the parties,
learned trial Court vide impugned judgment and order dated
14.07.2022 convicted and sentenced the accused-appellant for
hereinabove mentioned offences. Aggrieved by which, the present
appeal has been preferred.
(3 of 6) [CRLAD-188/2022]
4. It is contended by counsel for the appellant that the
learned trial Court has erred in convicting the appellant for the
very reason that the prosecutrix who was a married lady turned
hostile. It is also contended that the Court has based its conviction
solely on the DNA report which only has corroborative value.
5. Learned counsel for the appellant has placed reliance
on Manoj and Ors. Vs. State of Madhya Pradesh (Criminal Appeal
Nos.248-250/2015) "MANU/SC/0711/2022", wherein Apex
Court has held that DNA may be more useful for the purpose of
investigation but not for raising in presumption of identity in Court
of Law.
6. It is also contended by counsel for the appellant that
the DNA report could not have been relied upon for the very
reason that no entry except for Salwar and Motorcycle was made
with regard to the deposit of articles in Malkhana. As per the
evidence of PW-11 (Mahendra Kumar) who was the Malkhana
incharge has stated that Salwar of the victim which was marked
as "Marka-A" was deposited in the Malkhana and was entered at
Serial No.640/19 on 09.08.2019. Thereafter on 16.09.2019, a
motorcycle also was deposited in the Malkhana which was also
entered in the Malkhana Register at serial No.675/19. Malkhana
register (Ex.P-21 and P-22) were also produced before the Court.
It is also contended that there is no mention about any other
material or sample being deposited in the Malkhana. Thus, the FSL
report loses its credibility.
7. Learned AGA has opposed the appeal. It is contended
that the learned trial Court solely on the basis of DNA report has
rightly come to the conclusion that the victim was raped by
Babulal- present appellant.
(4 of 6) [CRLAD-188/2022]
8. We have considered the contentions.
9. As far as evidence goes, PW-1 is the victim who is a
married lady has stated that she left the house without informing
anyone and on the basis of doubt, they registered a case against
Babulal Jat. She was declared hostile by the prosecution.
Statement of her husband-Zakir Husain (PW-6) was also recorded.
He was also declared hostile. Victim has stated that she was above
the age of 18 years at the time of her marriage. Similar is the
statement of husband of the victim who has also stated that the
victim was a major at the time of their marriage. PW-2 (Nawab
Aslam) who is brother of the victim has stated that he did not get
the report typed. He only signed the typed report. He has not
stated to the police that his sister was raped by Babulal Jat. PW-3
(mother of the victim) has also stated that the victim was married
when she was 19-20 years of age. As far as direct evidence is
concerned, the victim has turned hostile. In the initial typed FIR,
the allegation was against Babulal and other persons but, the
police after investigation, filed charge-sheet only against Babulal
Jat. Now the victim who is a married lady has turned hostile. The
only evidence which has been taken note of by the Court below is
the DNA report.
10. It is pertinent to note that only two articles were
deposited in the Malkhana as per the Malkhana incharge i.e.
Salwar and a motorcycle. Ex. P-20, Blood sample for DNA testing
was taken on 10.08.2019 and Ex.P-5, samples of the victim were
also taken on 10.08.2019 and sent for FSL examination. Samples
of the accused were taken on 02.09.2019. His underwear was
seized on 02.09.2019 but all the material i.e. five packets were
deposited in the Malkhana on 03.10.2019 vide Ex.P-12. As to
(5 of 6) [CRLAD-188/2022]
where the samples were kept from 02.09.2019 till they were sent
to the FSL is not revealed from the record. Non deposition of the
samples in the Malkhana and no explanation as to where they
were kept for a period of almost a month creates doubt on the
samples which were sent to the FSL.
11. We are of the considered view that if the prosecutrix
has turned hostile, then DNA report can only be used as a
corroborative piece of evidence but, when the samples were not
properly deposited in the Malkhana and no explanation has been
given as to where the samples were kept for a period of one
month, the samples also loses their credibility and the DNA report
cannot thus be relied upon even for the purpose of corroboration.
The learned trial Court has clearly erred in placing reliance only on
the DNA report for convicting the appellant.
12. We are also of the considered view that in the facts and
circumstances of the case, when the samples were not properly
kept in the Malkhana and there is no explanation as to where they
were kept for a period of one month, reliance could not have been
placed on the FSL report for the basis of conviction, when the
prosecutrix herself who is a married lady has turned hostile.
Consequently, we deem it proper to allow the criminal appeal.
13. Criminal appeal is accordingly, allowed. Judgment and
Order dated 14.07.2022 passed by Court of Special Judge, POCSO
Act, 2012, Jaipur District is set aside. The appellant is acquitted of
the charges levelled against them. He is in jail, he be set at liberty
forthwith, if not required in any other case or for any other
purpose.
14. Appellant is directed to furnish personal bond in the
sum of Rs.50,000/- and a surety bond in the like amount in
(6 of 6) [CRLAD-188/2022]
accordance with Section 437-A of Cr.P.C. before the Deputy
Registrar (Judicial) within two weeks from the date of release to
the effect that in the event of filing of Special Leave Petition
against this judgment or on grant of leave, the appellant on
receipt of notice thereof, shall appear before the Hon'ble Apex
Court. The bail bond will be effective for a period of six months.
(BIRENDRA KUMAR),J (PANKAJ BHANDARI),J
CHANDAN
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