Dileep Patel vs The State Of Madhya Pradesh on 12 April, 2022

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Madhya Pradesh High Court

Dileep Patel vs The State Of Madhya Pradesh on 12 April, 2022

Bench: Vivek Agarwal

                                                            1
                                     IN THE HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                           BEFORE
                                             HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                   ON THE 12th OF APRIL, 2022

                                          MISC. CRIMINAL CASE No. 10781 of 2022

                                 Between:-
                                 DILEEP PATEL S/O DHUPKESH PATEL, AGED
                                 ABOUT 22 YEARS, OCCUPATION: LABOUR R/O
                                 HANUMATPURA P.S. AMANGANJ DISTRICT
                                 PANNA (MADHYA PRADESH)

                                                                                            .....PETITIONER
                                 (BY SHRI RANJAN BANERJEE, ADVOCATE)

                                 AND

                      1.         THE STATE OF MADHYA PRADESH THROUGH PS
                                 AMANGANJ     DISTRICT  PANNA   (MADHYA
                                 PRADESH)

                      2.         VICTIM D/O NOT KNOWN OCCUPATION: NIL NOT
                                 MENTION (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                                 (BY SHRI ATUL DWIVEDI, PANEL LAWYER)

                            This second bail application has come up for hearing on admission on
                      this day, the court passed the following:
                                                             ORDER

This is second bail application filed under Section 439 of the Code of Criminal Procedure on behalf of applicant Dileep Patel, S/o Dhupkesh Patel who is in custody since 29/06/2021 in connection with Crime No.380/2021 registered at Police Station Amanganj, District- Panna (M.P.) for the offences punishable under Sections 376(1), 376AB of I.P.C. and 5M/6 of POCSO Act, 2012.

2. Shri Ranjan Banerjee, learned counsel for the applicant submits that prosecutrix was examined before the Court of Law after dismissal of first bail application vide order dated 29/09/2021 and she has not supported prosecution case. It is submitted that even mother of prosecutrix was examined before the trial Court on 16/02/2022 and she too has not supported prosecution case, therefore after two vital witnesses turning hostile, it is a fit case to extend the benefit of bail Signature SAN Verified Not to the applicant.

Digitally signed by TULSA SINGH

3. On the other hand, learned Panel Lawyer for the respondent/State, Date: 2022.05.02 19:05:05 IST 2 submits that DNA report dated 27/01/2022 as is received from Scientific Officer and Assistant Chemical Analyst, Regional Forensic Science Laboratory, Bhopal, is available on record, which reveals that male Y-Chromosome STR DNA Profile recovered from the underwear of victim (Ex.C) matches with the Y-Chromosome STR DNA profile of accused-Dileep Patel's blood sample (Ex.D), though uninterpretable Y-Chromosome STR DNA profile was deducted from Ex.A vaginal slide and Ex.B vaginal swab. Placing reliance on this DNA report, it is submitted that it is not a fit case to extend the benefit of bail to the applicant.

4. Shri Ranjan Banerjee, learned counsel for the applicant has placed reliance on the judgment of Gujarat High Court in the case of Premjibhai Bachubhai Khasiya Vs. State of Gujarat and another, 2009 CRI.L.J. 2888 , wherein it is held that positive DNA report cannot be, therefore, accepted by the trial Court in isolation that is a sole piece of evidence to record the conviction of accused under Sections 376, 366 of IPC.

5. Similarly, reliance is placed on the decision of Karnataka High Court in the case of Sri Paramesha Vs. State of Karnataka (Criminal Appeal No.1959 of 2019), wherein it is observed that where there is possibility with tampering of sample and even Scientific Officer has also not been examined before the Court, then under such circumstances merely production of report as per Ex.P/14 will not help to the case of prosecution to prove its case beyond all reasonable doubts.

6. In the case of Ranjitsingh Brahmajeetsingh Sharma Vs. State of Maharashtra and another, (2005) 5 SCC 294 , Hon'ble Apex Court has observed that 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. In para-14 of the case of Sri Paramesha (supra), it is held 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 of sole piece of evidence, even if it is positive, it cannot be conclusively fix the identity of the miscreant, but, if the report is negative, it would conclusively 3 exonerate the accused from the involvement of charge.

7. In view of such decision of Hon'ble Supreme Court, Gujarat High Court, so also Karnataka High Court referred to above, this Court is of the opinion that only two witnesses have been examined till now. Scientific Officer has not yet been examined. It is still open to the prosecution to examine Scientific Officer and other relevant witnesses to prove efficacy of DNA report, therefore, at this stage, merely because prosexutrix has turned hostile, it cannot be said that applicant is entitled to bail.

8. Accordingly, this M.Cr.C. fails and is hereby dismissed.

(VIVEK AGARWAL) JUDGE ts

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