Rajasthan High Court - Jaipur
Ganesh S/O Raju Harijan vs State Of Rajasthan ... on 18 July, 2023
Author: Bhuwan Goyal
Bench: Pankaj Bhandari, Bhuwan Goyal
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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 255/2022
Ganesh S/o Raju Harijan, Aged About 22 Years, R/o Guda
Churani, Police Station Thanagazi Dist. Alwar (Raj) Present At
Girdharipura Police Station Karni Vihar, Jaipur (Raj)
(At Presently Serving Sentence At Central Jail Jaipur (Raj)
----Appellant
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent For Appellant(s) : Mr. Arvind Bhadu & Mr. Mohit Pareek For Respondent(s) : Mr. Imran Khan, Dy.G.A. HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL Judgment 18/07/2023 (PER HON'BLE BHUWAN GOYAL J.)
1. The appellant has preferred instant appeal under Section 374 of the Code of Criminal Procedure, 1973 against the impugned Judgment and Order dated 07.03.2022 passed by the learned Judge, Special Court, Protection of Children from Sexual Offences Act, 2012, Jaipur District in Sessions Case No. 41/2019 (State of Rajasthan vs. Ganesh), whereby the accused appellant has been convicted and sentenced as under :-
offence sentence fine sentence in
default
u/s 363 IPC 3 years' Rs. 50,000/- 1 year R.I.
u/s 366 IPC 5 years' R.I. Rs. 50,000/- 1 year R.I.
u/s 3/4 of POCSO Life Rs. 3 years' R.I.
Act imprisonment 1,00,000/-
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u/s 376(2)(i) IPC Life Rs. 3 years' R.I.
imprisonment 1,00,000/-
(All the sentences are ordered to run concurrently)
2. Brief facts relevant and germane for disposal of the present appeal are that on 28.05.2019, complainant Giriraj Harijan (P.W.
2), who is father of the victim, submitted the written report (Ex.P/7) at Police Station Manoharpur, District Jaipur alleging that on 26.05.2019 in the evening at 4.00 - 5.00 p.m., his daughter (victim) went to the market and did not return to house uptil 7.00
- 8.00 p.m., upon which, they tried to search her whereabouts but did not find her. On 27.05.2019 in the evening, they came to know that she had reached Girdharipura. Ganesh Harijan took her. They reached Girdharipura then, lock was put on the house. On enquiry, neighbours informed that all family members along with one girl had left one hour ago. They were residents of Gudha Churani. They went to Gudha Chirani but did not find her there. On the basis of the report lodged by Giriraj Harijan (P.W. 2), an F.I.R. No.132/2019 came to be registered at the Police Station Manoharpur, District Jaipur for the offence under Section 363 of I.P.C. and investigation was commenced. After conclusion of investigation, the police submitted charge-sheet against the accused-appellant for the offences under Sections 363, 366A & 376 of I.P.C. and Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "Act of 2012") before the court of learned Special Judge, Protection of Children from Sexual Offences Act, 2012, Jaipur District (hereinafter referred to as "learned trial court").
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3. Learned trial court framed charges against the accused- appellant for the offences under Sections 363, 366 I.P.C. and Section 5(L)/6 of POCSO Act, 2012 in alternative Section 376(2)
(n) of I.P.C. and Section 376(i) of I.P.C. The accused-appellant pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses and exhibited Ex.P/1 to Ex.P/21 documents to prove its case. After conclusion of the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. and was confronted with the circumstances appearing against him in the prosecution case, which he denied and claimed that he was innocent and had been falsely implicated in the case. However, no evidence was led in defence.
4. Learned trial court, thereafter, proceeded to hear the arguments of the Public Prosecutor and the defence counsel, appreciated the evidence available on record and delivered the impugned judgment dated 07.03.2022, whereby the accused- appellant has been convicted and sentenced as above. Aggrieved with the same, present appeal has been filed by the accused- appellant before this Court.
5. Heard learned counsel for the parties.
6. Learned counsel appearing for the appellant has submitted that in the present case, victim (P.W. 1), her father i.e. complainant - Girraj (P.W. 2) and mother - Mamta (P.W. 3) did not support the prosecution story and were declared hostile. The victim in her statement recorded before the Court as P.W. 1 has categorically stated that no wrong act or rape was committed upon her by Ganesh Harijan. Similar deposition has been made (Downloaded on 11/11/2023 at 06:23:27 PM) [2023:RJ-JP:14520-DB] (4 of 10) [CRLAD-255/2022] P.W. 2 and P.W. 3 as well. He has further submitted that P.W. 5 - Kailash Chand is not an eye-witness and has deposed hearsay version of the prosecution story. Learned counsel has further submitted that the learned trial court has erred in not believing the testimony deposed by P.W. 1, P.W. 2 & P.W. 3 and passed the judgment and order of sentence impugned only on the basis of FSL & DNA Reports. He has further submitted that the FSL & DNA reports are only a corroborative piece of evidence and if the victim has turned hostile, conviction of the accused cannot be based on the FSL & DNA reports.
7. Learned counsel for the appellant has further submitted that medical examination of the victim was conducted on 05.06.2019 and samples of sputum on swab, vaginal swab, vaginal slides, FTA Card for DNA finger print, Blood on swab and Blood on EDTA vial were collected and deposited in the Malkhana on 05.06.2019, however, no separate seizure memo of aforesaid samples was prepared by the police. Similarly, the medical examination of the accused - Ganesh Harijan was conducted on 09.06.2019 and samples of blood, saliva and blood on FTA card were collected but the same were deposited in the Malkhana on 12.06.2019. No seizure memo of aforesaid samples too was prepared by the police. Learned counsel has submitted that there is no explanation put forward by the prosecution as to where samples of the accused were kept after they were recovered on 09.06.2019 till 12.06.2019, when they were deposited in the Malkhana. He has submitted that the prosecution has failed to prove that aforesaid samples collected by the police remained intact uptil (Downloaded on 11/11/2023 at 06:23:27 PM) [2023:RJ-JP:14520-DB] (5 of 10) [CRLAD-255/2022] they reached to the Malkhana. He therefore contended that no reliance can be placed on the FSL & DNA reports. Learned counsel has, thus, prayed that the present appeal may be allowed and the accused-appellant may be acquitted of charges levelled against him.
8. In support of his arguments, learned counsel for the appellant has relied upon the judgments rendered by the Hon'ble Apex Court in the cases of Narra Peddi Raju vs. State of A.P. (Criminal Appeal No. 1553 of 2019) decided on 14.10.2019 and Umesh Singh vs. State of Bihar reported in AIR 2013 SC 1743 as also the judgment of the karnataka High Court at Bengaluru in the case of Sri Paramesha vs. State of Karnataka (Criminal Appeal No. 1959 of 2019) decided on 11.12.2020.
9. On the other hand, learned Deputy Government Advocate appearing for the State while supporting the judgment and order of sentence has submitted that the learned trial court after appreciating entire material as well as evidence on record has rightly recorded conviction against the accused-appellant for the offences alleged in the present case, which does not warrant any interference by this Court.
10. We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through impugned judgment and have minutely sifted through the evidence available on record.
11. In the instant case, admittedly the material prosecution witnesses viz. victim (P.W. 1), her father i.e. complainant - Girraj (P.W. 2) and mother - Mamta (P.W. 3) have not supported the prosecution story and declared hostile. From the statement of (Downloaded on 11/11/2023 at 06:23:27 PM) [2023:RJ-JP:14520-DB] (6 of 10) [CRLAD-255/2022] victim (P.W. 1), it reveals that she in her statement has categorically deposed that she asked Ganesh that she wanted to visit Gangapur City. Thereafter, they visited the Gangapur City and came to her house on the same day. They did not go anywhere else from Gangapur City. Ganesh Harijat has neither done any wrong act nor committed rape upon her. P.W. 2 - Girraj, who is father of the victim, he too in his examination-in-chief has categorically deposed that his daughter went to visit Gangapur City with her maternal uncle Ganesh but on the advice of villagers, he lodged the report under some misunderstanding. He in his cross-examination has stated that it is wrong to say that Ganesh Harijan abducted his daughter and committed rape or done any wrong act with her. P.W. 3 - Mamta, who is mother of the victim, she too has deposed on the same lines as P.W. 2 and has categorically stated in her cross-examination that it is wrong to say that Ganesh Harijan abducted her daughter and committed rape or done any wrong act with her. So far as P.W. 5 - Kailash Chand is concerned, he is a hearsay witness. He in his cross- examination has categorically stated that he did not see the girl being taken away and his nephew told him that Ganesh had taken away his daughter. His statement before the police was not recorded. Thus, from the statements of above witnesses, it cannot be proved that accused-appellant abducted the victim and raped her.
12. So far as the medical evidence in the form of FSL & DNA reports is concerned, the victim was recovered on 05.06.2019 vide Ex.P/2 and on the same day, her medical examination was (Downloaded on 11/11/2023 at 06:23:27 PM) [2023:RJ-JP:14520-DB] (7 of 10) [CRLAD-255/2022] conducted and samples of swab, vaginal slides etc. were collected, which were deposited in the Malkhana on 05.06.2019. But no separate seizure memo of aforesaid samples was prepared by the Investigating Officer. Furthermore, there is no evidence available on record to show that as to whom said samples were handed over by the doctor and as to who deposited the same in the Malkhana. A perusal of the Malkhana Register (Ex.P/18A) reveals that entry at Serial No.1 regarding depositing samples of the victim does not bear signature of person, who deposited the same in the Malkhana. P.W. 11 - Prakash Chand, who was Malkhana Incharge, has deposed in his examination-in-chief that samples of victim were deposited by Satveer Singh, S.I. in the Malkhana. However, on perusal of statement of P.W. 8 - Satyaveer Singh, it reveals that he has not made any statement regarding receiving and depositing the articles in the Malkhana.
13. Similarly, the medical examination of the accused-appellant was conducted on 09.06.2019 and samples of blood and saliva were collected, which were deposited in the Malkhana on 12.06.2019. But no separate seizure memo of aforesaid samples too was prepared. There is no evidence available on record to show that as to whom said samples were handed over by the doctor and as to who deposited the same in the Malkhana. A perusal of the Malkhana Register (Ex.P/18A) also reveals that entry at Serial No. 4 regarding depositing samples of the accused does not bear signature of person, who deposited the same in the Malkhana. From perusal of the statement of P.W. 11 - Prakash Chand, the Malkhana Incharge, it is not clear as to who deposited (Downloaded on 11/11/2023 at 06:23:27 PM) [2023:RJ-JP:14520-DB] (8 of 10) [CRLAD-255/2022] the underwear and samples of the accused in the malkhana. Thus, there is no evidence whatsoever as to whether the aforesaid samples of victim and accused were same which were collected during medical examination and as to whether same remained intact upto reaching to the Malkhana. There is also no evidence as to where samples of accused remained after they were collected on 09.06.2019 till 12.06.2019, when same were deposited in the Malkhana. From the statement of P.W. 9 - Dr. Narendra Kumar, it reveals that he in his examination-in-chief has stated that he medically examined the accused Ganesh on 10.06.2019, whereas, medical report of the accused (Ex.P/15) which bears the signature of P.W. 9, was prepared on 09.06.2019. It shows that the medical report of the accused to appears to be doubtful. Thus, entire proceedings regarding drawing and recovery of samples of the victim and accused are under the clouds of suspicion.
14. So far as recovery of underwear of the accused is concerned, the accused was arrested on 09.06.2019 at 10.03 a.m. vide Ex.P/16. The recovery of underwear of the accused was made on the same day i.e. 09.06.2019 at 12.35 p.m. However, there is no information under Section 27 of the Indian Evidence Act regarding underwear of the accused is available on record, which creates suspicion on the recovery proceedings of underwear of the accused. The incident of victim went missing took place on 26.05.2019, she was recovered on 05.06.2019 and thereafter, the accused was arrested on 09.06.2019, on which date, recovery of underwear was made from him. It cannot be believed that the (Downloaded on 11/11/2023 at 06:23:27 PM) [2023:RJ-JP:14520-DB] (9 of 10) [CRLAD-255/2022] accused continued to wear the same underwear from 26.05.2019 to 09.06.2019. The recovery of underwear, therefore, cannot be looked into for the purpose of convicting the accused-appellant.
15. It is settled position that the FSL & DNA reports are only a corroborative piece of evidence, on which the trial court has placed reliance to convict the appellant but the same in itself are doubtful as it has not been proved as to who received the samples and who deposited the same in the Malkhana. The samples of the accused were not deposited in the malkhana immediately after they were collected by the police. The recovery of underwear at the instance of the accused too has not been proved. In such circumstances, merely the human semen was detected on the recovered articles, the FSL and DNA reports cannot be said to be reliable piece of evidence, on which conviction of the accused can be solely based and more particularly when the material prosecution witnesses including the victim have turned hostile.
16. In the case of Sri Paramesha (supra), the victim and her mother had turned hostile and the prosecution had relied only upon DNA test. The High Court held that initial burden is always there on the prosecution to establish its case and thereafter, the burden shifts upon the accused and the accused has to rebut the same on preponderance of probabilities. But when initially the prosecution itself has failed to discharge its burden as contemplated under Section 294 of Cr.P.C., then the case of the prosecution has to fail and the accused has to be given the benefit.
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17. In view of the above, we are of the considered opinion that the learned trial court has erred in convicting the appellant for the offences under Sections 363, 366 & 376(2)(i) of I.P.C. and Section 3/4 of POCSO Act, 2012, we therefore deem it proper to allow this appeal and set aside the judgment and order of sentence dated 07.03.2022 passed by the learned trial court.
18. Accordingly, the present appeal is allowed and the impugned judgment and order of sentence dated 07.03.2022 passed by the learned trial court is set aside. The accused is acquitted of the charges levelled against him. The accused-appellant is in jail, he shall be set at liberty forthwith, if not required in any other case or for any other purpose.
19. The appellant is directed to furnish bond in the sum of Rs. 50,000/- and a surety bond in the like amount in accordance with provisions of Section 437-A of Cr.P.C. before the Registrar (Judicial) of this Court within four weeks from the date of his 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 Supreme Court. The bail bond will be effective for a period of six months.
20. The application for suspension of sentence also stands disposed of accordingly.
21. The record of the learned trial court be sent back forthwith.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
Keshav/68
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