Chattisgarh High Court
Mithlesh Kumar vs State Of Chhattisgarh on 20 August, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:41968-DB
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 16-06-2025
Judgment delivered on : 20-08-2025
CRA No. 369 of 2019
Rajesh Chakradhari, S/o Shankar Lal Chakradhari, aged about 29
years, R/o Village Bhatgaon, Post Office & Police Station - Abhanpur,
Distt. Raipur (CG)
... Appellant
versus
State Of Chhattisgarh Through the District Magistrate, Raipur, Distt.
Raipur (CG)
... Respondent
CRA No. 739 of 2019
Mithlesh Kumar S/o Shri Siyaram Tarak, aged about 50 years, R/o
Village-Ulba, PS Abhanpur, Distt. Raipur, Civil and Revenue Distt.
Raipur (CG)
... Appellant
versus
State Of Chhattisgarh Through Police Station - Abhanpur, Distt. Raipur
(CG)
... Respondent
2
For Appellants : Mr. Maneesh Sharma, Mr. Anshu Ratre and Mr.
Manoj Ku. Sinha, Advocates.
For Respondent : Mr. Ashish Shukla, Additional Advocate General.
Hon'ble Smt. Justice Rajani Dubey
Hon'ble Shri Justice Amitendra Kishore Prasad, JJ
CAV Judgment
Per Rajani Dubey, J
Since both these appeals arise out of the judgment of conviction and order of sentence dated 7.2.2019 passed by the 7 th Additional Sessions Judge, Distt. Raipur in Special Criminal Case No.215/2017, they are being disposed of by this common judgment. By the impugned judgment, the appellants stand convicted under Sections 363/34, 366/34, 342/34, 376D of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 (in short "the Act of 2012") and keeping in view the provisions of Section 42 of the Act of 2012, sentenced as under:
Conviction Sentence Under Section 363/34 of Indian RI for two years, pay a fine of Penal Code. Rs.500/- and in default thereof to suffer additional RI for one month.
Under Section 366/34 of Indian RI for three years, pay a fine of Penal Code. Rs.1000/- and in default thereof to suffer additional RI for two months.
3Under Section 342/34 of Indian RI for six months, pay a fine of Penal Code. Rs.100/- and in default thereof to suffer additional RI for fifteen days.
Under Section 376D of Indian RI for twenty years, pay a fine of Penal Code. Rs.25000/- and in default thereof to suffer additional RI for six months.
All the sentences were directed to run concurrently.
02. Case of the prosecution, in brief, is that on 26.5.2017 the prosecutrix was going to the house of her Bua (father's sister) at Ulba by bus. When she reached at the turning of Ulba at around 3 o'clock, the accused/appellants came from Ulba on a red coloured motorcycle and enquired from her about her arrival. They told her that they knew the house of her Bua and would drop her there. Thereupon she sat on their motorcycle. However, the accused/appellants instead of taking her to her destination, rode her around towards Ulba and Rakhi. At about 7 o'clock they took her into a room of a Khaprail house (a clay- tiled house) situated at Ulba Brick-kiln, closed the room from inside, tied her hands and legs with scarf and on the threat of being killed if she screamed or tried to escape, committed rape upon her turn by turn and fled from there after about three hours. She somehow untied her and informed about the incident to her Bua, Jeeja (husband of sister) and her sister. She also informed them about the physical 4 characteristics of the accused and the vehicle number 8137. On 27.5.2017 in the village meeting she identified both the accused/appellants. On her report, offence under Sections 363, 366, 342, 506, 376D of IPC and Sections 5 & 6 of the Act of 2012 was registered and after completing usual investigation, charge sheet was filed against them.
03. Learned trial Court framed charges under Sections 363, 366, 376D, 506 Part-II, 342 of IPC and Section 6 of the Act of 2012 against the accused persons, which were abjured by them and they prayed for trial. In order to substantiate its case the prosecution examined 13 witnesses in all. Statements of the accused were recorded under Section 313 of CrPC wherein they denied all the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. However, no witness was examined by them in defence.
04. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellants as mentioned above. Hence these appeals.
05. Learned counsel for the appellant Rajesh Chakradhari in CRA No.369/19 would submit that the impugned judgment is per se illegal and contrary to the material available on record. Evidence of the 5 prosecutrix and her relatives are not corroborated by the other prosecution witnesses. There is no evidence against this appellant that he took away the prosecutrix and committed rape on her. The prosecutrix in her deposition has admitted this fact that the present appellant did not commit rape on her. In fact, she accompanied the appellant of her own free will. Learned trial Court has failed to appreciate the fact that she did not raise alarm at any point of time and this conduct is unlike a victim of rape or abduction. There are many contradictions and omissions in the statements of the prosecution witnesses which have been overlooked by learned trial Court. As per medical evidence of PW-6 Dr. Sumitra Uraon, there was no external or internal injury on the body of the prosecutrix and no sign of recent sexual intercourse. Thus, the medical evidence also does not support the prosecution case. There is no test identification parade conducted by the prosecution. Further, the material witnesses Ajay Yadav (brother-in-law), Rakmani Yadav (sister) and Kunti Yadav (aunt) whom the prosecutrix first narrated the incident were not examined by the prosecution for the reasons best known to it. The basic ingredients for attracting the alleged offences against the appellant are extremely missing in this case.
As regards age of the prosecutrix, the informant and author of the entry made in the school register regarding date of birth of the prosecutrix has not been examined by the prosecution. As such, it has not been proved in accordance with law that she was minor on the date 6 of incident. The prosecution has failed to prove its case as against the present appellant beyond all reasonable doubt, therefore, looking to the nature and quality of evidence, the impugned judgment is not legally sustainable against the present appellant and he deserves to be acquitted of all the charges.
Reliance has been placed on the decisions of the Hon'ble Supreme Court in the matters of Raja Vs. State of Karnataka, AIR 2016 SC 4930 and Manak Chand @ Mani Vs. State of Haryana, AIR 2023 SC 5600.
06. Learned counsel for the appellant Mithlesh Kumar in CRA No.739/2019 would contend that the findings recorded by learned trial Court regarding conviction of the appellant Mithlesh Kumar are based on erroneous appreciation of the oral and documentary evidence available on record. The evidence of the prosecutrix and the other prosecution witnesses suffer from the vice of contradiction and omission, thus making their statements untrustworthy. The appellant has been falsely implicated in this case because there was dispute with the family members of the prosecutrix. There is absolutely no reliable evidence regarding kidnapping of the prosecutrix by the appellant. Further, as per medical and FSL evidence also it stands proved that there was no forcible sexual intercourse with the prosecutrix as alleged. Apart from this, there is DNA report which confirms that no male DNA profile was found on the vaginal slide of the prosecutrix but 7 the prosecution deliberately suppressed this report and not exhibited the same before learned trial Court. There is no eyewitness to the incident, all the witnesses are hearsay witnesses and looking to the contradiction and omission in the statement of the prosecutrix she does not appear to be a reliable witness. She admits in her deposition that while roaming around with the accused persons she had opportunity of raising alarm or attracting the attention of the passersby but she did not do so. Further, the prosecution has also failed to prove by leading cogent and reliable evidence that she was minor on the date of incident. Therefore, in view of the above, it is clear that the prosecution has failed to prove its case also against the appellant beyond all reasonable doubt and as such, he is entitled to be acquitted of all the charges by extending him benefit of doubt.
Reliance has been placed on the decision of the Hon'ble Supreme Court in the matter of Manak Chand @ Mani Vs. State of Haryana, AIR 2023 SC 5600; and judgment of this Court in CRA No.967/2021 in the matter of Ramsharan Singh Vs. State of CG, 2023(2) CGLJ 425 and the judgment dated 18.3.2025 in CRA No.1035/2019 in the matter of Vinod Nat Vs. State of CG.
07. On the other hand, learned counsel for the State opposing the contention of the appellants would submit that in view of oral and documentary evidence on record, the learned trial Court has rightly convicted and sentenced the appellants by the impugned judgment 8 which calls for no interference by this Court. The present appeals being without any substance are liable to be dismissed.
08. Heard learned counsel for the parties and perused the material available on record.
09. It is clear from the record of learned trial Court that the appellants were charged under Sections 363, 366, 376D, 506 Part-II, 342 of IPC and Section 6 of the Act of 2012 and after appreciation of oral and documentary evidence, learned trial Court while acquitting them of the charge under Section 506 Part-II of IPC, convicted and sentenced them as described in para 1 of this judgment.
10. First of all we shall proceed to consider whether on the date of incident the prosecutrix was below 18 years of age.
11. PW-1 prosecutrix states that her date of birth is 11.11.2002 and she was 15 years of age at the time of incident i.e. 6.3.2017. In para 8 of cross-examination she states that she has studied upto Class X and she failed in Class X. She does not remember as to in which year she appeared in Class X examination. In para 9 she admits that she also failed in Class IX. She states in para 11 that the date of birth disclosed by her in the Court is on the basis of her school marksheet.
12. PW-8 Smt. Nand Ramteke, Head Mistress of Govt. Primary School, Fekari states that the police seized Dakhil-Kharij register (Ex.P/12) as per seizure memo Ex.P/13. In this register, date of birth of 9 the prosecutrix is recorded as 11.11.2002 and date of admission as 1.7.2008. In cross-examination she admits that the said date of birth was not entered by her in Ex.P/12. She also admits that it is nowhere mentioned in the register as to at whose instance date of birth of the prosecutrix was recorded. She then volunteers that it was recorded at the behest of her father. She again admits that there is no photocopy of Jachchaa-Bachcha card (Mother and Child Protection Card) annexed with record. She admits that many a time the parents got age of their children recorded on lower or upper side.
13. This Court in the matter of Vinod Nat (supra) in paras 14 & 15 of its judgment observed as under:
"14. Vide judgment dated 18.07.2023 in the matter of P. Yuvaprakash Vs. State Rep. By Inspector of Police, Hon'ble Apex Court held in paras 18 and 19 which read thus:-
"18. Reverting to the facts of this case, the headmaster of M's School, CW-1, was summoned by the court and produced a Transfer Certificate (Ex.C-1). This witness produced a Transfer Certificate Register containing M's name. He deposed that she had studied in the school for one year, i.e., 2009-10 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. DW-2 TMT Poongothoi, Headmaster of Chinnasoalipalayam Panchayat School, answered the summons served by the court and deposed that 'M' had joined her school with effect from 10 03.04.2002 and that her date of birth was recorded as 11.07 1997 She admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue, i.c., the date of birth. Thiru Prakasam, DW-3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office.
19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9. Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating "that the age of the said girl would be more than 18 years and less than 20 years" In the cross-examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age 11 estimated by the medical expert cannot be the determining factor" This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, ie, a transfer certificate and extracts of the admission register, are not what Section 94 (2) (1) mandates: nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross- examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9."
15. Hon'ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment as under:
"40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on 12 the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded.
48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-
"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any 13 transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."
14. In light of above, in the present case it is clear that the prosecutrix stated about her date of birth on the basis of her school marksheet. PW-8 Smt. Nand Ramteke, Head Mistress, is not author of the entry made in the school Dakhil-Kharij register. There is no cogent and reliable oral or documentary evidence to substantiate the fact her date of birth is 11.11.2002. Thus, it is clear that the prosecution has failed to prove this fact beyond reasonable doubt that the prosecutrix was below 18 years of age on the date of incident.
15. PW-1 prosecutrix stated that after staying for a week at the house of her Badi Ma, she told her son Devraj that she would go to the 14 house of her Bua at Ulba, so he made her sit in a bus at Maroda Bus Stand. She again boarded a bus at Patan Bus Stand and alighted from the bus at Ulba turning where both the accused/appellants came in a red coloured motorcycle and enquired from her as to where she is going. When she told them that she is going to the house of her Bua, they asked the name of her Bua and told that they know her Bua and would drop her at her house. However, they rode her around on motorcycle by 3 o'clock and then took her into a brick-kiln at around 7 o'clock where after tying her hands and legs committed rape on her turn by turn. She states that she remained there for three hours and after departure of the accused persons, somehow untied her and went into a nearby house where she informed her sister and brother-in-law about the whole incident. The accused persons were searched in the night and next day FIR (Ex.P/1) was lodged by her which bears her signature from A to A part. She also admits here signatures from A to A part on spot map prepared by the police Ex.P/2; her consent for medical examination Ex.P/3, seizure memo of her panty Ex.P/4; her statement before Judicial Magistrate, Raipur Ex.P/5; her statement recorded before Child Welfare Committee Ex.P/6; and the spot map prepared by the Patwari Ex.P/7.
In para 15 of cross-examination she admits that while going from brick-kiln to Ulba she did not tell anyone about the act of the accused/appellants as there was no one. She denies the suggestion in para 16 that she made no attempt to raise alarm or jump off the 15 motorcycle of the accused persons while being taken by them. She volunteers that she was made to sit in the middle by the accused. She further admits that while going from Village-Ulba to Rakhi and returning with the accused persons she did not raise alarm. She volunteers that it was a secluded place. In para 19 she admits that she signed on the counseling report. She admits that she knows one Vinod Markandey of Village-Achanakpur for the last one year, they love each other but denies the suggestion that they wanted to marry. In para 20 she admits that when this love affair came to the knowledge of her mother, there was dispute with her mother, so on 26.5.2017 at 10 am she left her house for the house of Bua Kunti at Ulba. In para 24 she herself states that only one boy committed wrong with her and the other one didn't. When the Court asked about that boy who committed wrong with her, she indicated at accused Mithlesh.
16. PW-2 Hemlal Yadav states that the prosecutrix informed him about the incident and then panchayat was convened where the accused persons confessed their guilt and report was lodged against them. PW-3 Gangaram Sonwani states that on being informed by the Village Kotwar about village meeting, he went there where prosecutrix was present. While he was enquiring from the prosecutrix about her arrival at the village etc., at that time the accused persons came there on motorcycle and parked it near a peepal tree. He states that the prosecutrix told that she identifies the accused persons and their motorcycle and that both of them committed rape on her. 16
17. PW-4 Bodlu Rathi also states that in the village meeting the prosecutrix disclosed that while she was going to the house of her Fufa, the accused persons on their motorcycle took her into a brick-kiln and committed rape on her on the threat of life. She identified the accused persons in the village meeting as perpetrator of the crime. He admits his signature from A to A part on seizure memos Ex.P/8 & P/9 whereby underwear of the accused persons were seized by the police before him.
18. PW-5 Kanhaiya Sharma states that in the village meeting the prosecutrix disclosed that it is the accused persons who came on red coloured motorcycle and committed rape on her in the brick-kiln. PW-7 Smt. Bena Bai has not supported the prosecution case and she has been declared hostile. In cross-examination by the prosecution she denied all the suggestions including her police statement.
19. PW-6 Dr. Sumitra Uraon examined the prosecutrix on 27.5.2017 and found some abrasions on her cheek. On examination of her private part, she noticed no injury on inner part of thigh, pubic area, labia; pubic hair matted and white secretions present over vulva. She noticed that the hymen was torn and vaginal mucosa was red. She prepared the vaginal slides of the prosecutrix, sealed it and handed over it to the constable for chemical analysis. In her opinion, there is evidence of recent sexual intercourse within 12-18 hours. Her report is Ex.P/10 which bears her signature from A to A part.
17
20. As per FSL report (Ex.P/29), semen was found on Article A & B - underwear and vaginal slide of the prosecutrix, and Article E - slide of the accused Mithlesh.
21. The present is a case of gang rape. However, as per DNA test report dated 21.2.2018, available at page No.54 of paper book, no male DNA profile was found in Ex.C/309 i.e. vaginal slide of the prosecutrix.
22. In the matter of Chotkau v. State of Uttar Pradesh, (2023) 6 SCC 742, Hon'ble Apex Court in para-80 of has observed as under:
"80. After saying that Section 53A is not mandatory, this Court found in paragraph 54 of the said decision that the failure of the prosecution to produce DNA evidence, warranted an adverse inference to be drawn. Paragraph 54 reads as follows: (Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 SCC p.485) "54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53A and Section 164A CrPC. We are not going to the extent of suggesting that if there is no DNA profiling, the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the trial court, an adverse consequence would follow for the prosecution."18
23. In the case of Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130, Hon'ble Apex Court in para-44 has held as under:
"44. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a fool proof case, but they did not do so, thus they must face the consequences."
24. Recently the Hon'ble Supreme Court in the matter of Kattavellai @ Divakar vs. State of Tamil Nadu in CRA No. 1672/2019 reported in 2025 LiveLaw (SC) 703 has also held as under:-
"30. Having noticed various gaps as above, the logical question that arises is where were the swabs?; why were they sent for forensic analysis belatedly?; were they properly stored?; whether the Malkhana of the Police Station where they were kept according to some of the witnesses, was sufficiently equipped or not; if the same were kept in the hospital, was it ensured that no other member of the staff could have had access to them?; in whose custody were they?; if the swabs were damaged, who shall be held responsible for the destruction of vital evidence, etc. Similar questions arise in connection with the semen sample taken from the accused as a consequence of an order passed by the Judicial Magistrate, Uthamapalayam, on 13th June, 2011. PW-56 states that the said samples were sent to FSL, Chennai, 19 on 16th June, 2011 but subsequently returned. It is unclear, yet again, that between 13th and 16th June 2011 where such samples were stored; who was in charge thereof and whether he had kept them in safe custody?; how and in what condition they were sent; when and why they were returned - unfortunately, all these questions have no answer forthcoming from the record.
31. In Anil v. State of Maharashtra (2014) 4 SCC 69 this Court observed that DNA profiles have had a tremendous impact on criminal investigations. A DNA profile is valid and reliable, but the same depends on quality control and procedures in the laboratory. We may add to this position and say, that quality control and procedures outside the laboratory matter equally as much in ensuring that the best results can be derived from the samples collected. We record with some sadness that there are quite a few cases in which DNA evidence, despite being there, has to be rejected for the reason that the manner, in which the samples were handled during and after collection by the concerned doctor, in transit to the lab, inside the lab and the results drawn therefrom, are not in accordance with the best possible practices which would focus on ensuring that throughout this process the samples remain in pristine, hygienic and biologically suitable conditions.
34. Prakash Nishad v. State of Maharashtra (2023) 16 SCC 357 was a case concerning the rape and murder of a 6-year-old child. Similar to the present case, it was a case of circumstantial evidence. Based on the disclosure statement made by the Appellant therein, the police found certain garments as also traces of semen of the Appellant on the vaginal smear of the minor victim, based on which he was sought to be convicted. DNA evidence had to be rejected by this Court on the grounds that there was a delay in sending the samples to the FSL, which 20 was unexplained. It was observed that because of the delay, the concomitant prospect of contamination could not be ruled out. The need for expediency in sending samples to the concerned laboratories was underscored.
35. This case, incidentally, if not unfortunately, is another one of the like of the above. Despite the presence of DNA evidence, it has to be discarded for the reason that proper methods and procedures were not followed in the collection, sealing, storage, and employment of the evidence in the course of the Appellant- convict's conviction. DNA, as we have observed, has been held to be largely dependable, even though this evidence is only of probative value, subject to the condition that it is properly dealt with. Over the past decades, many cases have come to their logical conclusion with the aid of DNA evidence in many regions across the world. It is also equally true that many persons wrongly convicted have finally had justice served, with them being declared innocent because of advancements in this technology. It is unfortunate that, alongside such advancements, we still have cases where, despite the evidence being present, it has to be rejected for the reason that the concerned persons, either doctors or investigators, have been careless in the handling of such sensitive evidence."
25. In the case in hand, the undergarments of the prosecutrix and the accused/appellants as also the semen slide of the accused Mithlesh were seized on 27.5.2017 vide Ex.P/4, P/8, P/9 and P/17 respectively. The blood sample of accused/appellants were seized on 9.8.2017 vide Ex.P/25 & P/26 and vaginal slide of the prosecutrix was prepared and seized on 27.5.2017. As per DNA test report, the blood 21 samples of the accused/appellants and vaginal slide of the prosecutrix were received on 10.8.2017 at the FSL. As per this DNA test report, no male DNA profile was found in Ex.C (309) i.e. vaginal slide of the prosecutrix. It is not disputed that DNA test was conducted during investigation and the report was also obtained but the prosecution did not make any endavour to exhibit this report. The defence also did not bother to exhibit the DNA report. Thus, keeping in view the aforesaid decisions of the Hon'ble Supreme Court, looking to the fact that in this case DNA profiling was done by the prosecution during investigation and report was also obtained which probabilizes the defence of the accused, but it was held back from the trial court, an adverse consequence would follow for the prosecution.
26. It is also clear that the prosecutrix in her examination-in-chief states that both the accused persons committed rape on her whereas in cross-examination she states that only one boy committed rape and another didn't and when the Court asked about that boy who committed rape on her, she indicated at accused Mithlesh. She also admits that on account of there being some dispute with her mother over her (prosecutrix) relation with one Vinod Markandey, she left her house. She also admits that she did not raise any alarm while being taken by the accused on motorcycle and even while they were roaming her around. Thus, looking to the evidence of the prosecutrix, it is not of sterling quality as to be made basis of conviction of the 22 accused/appellants. Further, her conduct during the incident and subsequent thereto also makes her evidence doubtful. Moreover, though as per FSL report semen was found on the vaginal slide of the prosecutrix but DNA test report does not support the prosecution case. Thus, it is clear that the prosecution has failed to prove its case as against the accused/appellants beyond all reasonable doubt and being so, they deserve to be acquitted of all the charges by extending them benefit of doubt.
27. In the result, both the appeals are allowed and the impugned judgment convicting and sentencing the accused/appellants under Sections 363/34, 366/34, 342/34, 376D of IPC and Section 6 of the Act of 2012 is hereby set aside and they are acquitted of the said charges.
Accused/appellant Rajesh Chakradhari is reported to be on bail whereas accused/appellant Mithlesh Kumar is behind the bars. Keeping in view the provisions of Section 481 of BNSS, 2023 each of them is directed to furnish a personal bond for a sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereon shall appear before the Hon'ble Supreme Court.
The record of the trial Court along with copy of this judgment 23 be sent back immediately to the trial Court concerned for compliance and necessary action. A copy of this judgment be also forwarded to the concerned Jail Superintendent for information and necessary action.
Sd/ Sd/
(Rajani Dubey) (Amitendra Kishore Prasad)
Judge Judge
Digitally signed
by MOHD
MOHD AKHTAR
KHAN
AKHTAR Date:
KHAN 2025.08.20
16:25:39
+0530
Khan