Madhya Pradesh High Court
Raja Gupta vs The State Of Madhya Pradesh on 16 November, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 16th OF NOVEMBER, 2022
MISC. CRIMINAL CASE No. 53192 of 2022
BETWEEN:-
RAJA GUPTA S/O SHRI INDRAJEET GUPTA,
AGED ABOUT 22 YEARS, OCCUPATION: LABOUR
R/O 11/22 HILLTOP COLONY RAWANWARA
TEHSIL PARASIYA AND DISTRICT
CHHINDWARA (MADHYA PRADESH)
.....APPLICANT
(BY SHRI PEEYUSH SHARMA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION RAWANWARA DISTRICT-
CHHINDWARA (MADHYA PRADESH)
2. VICTIM - X
.....RESPONDENTS
(BY SHRI AJAY TAMRAKAR, LEARNED PANELLAWYER)
This application coming on for admission this day, the court passed the
following:
ORDER
This is second bail application filed under Section 439 of the Code of Criminal Procedure, 1973 on behalf of the applicant-Raja Gupta, who is in custody since 29/10/2021 in connection with Crime No.222/2021 registered at Police Station Rawanwara, District Chhindwara (M.P.), for the offence punishable under Sections 305, 376(3), 376(2)(j), 376(2)(n) of the Indian Penal Signature Not Verified SAN Code, Sections 5, 6 of the POCSO Act and Sections 3(1)(w)(ii), 3(2)(v) of the Digitally signed by ANURAG SONI Date: 2022.11.16 18:50:38 IST Scheduled Castes / Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2First application was dismissed as withdrawn vide order dated 18/04/2022 passed in M.Cr.C. No.15289/2022.
Shri Peeyush Sharma, submits that the whole story of the prosecution is full of improbabilities. He submits that postmortem was conducted at 11:30 P.M., which is not permissible without taking consent of the concerned Magistrate. It is submitted that there is a mention of preparation of vaginal slide in the postmortem report, but vaginal slide was prepared at 03:30 P.M. as is evident from the memorandum prepared in support of preparation of such vaginal slide. Shri Sharma further submits that the vaginal slide was kept in open for a long period of five months inasmuch as DNA report is dated 20/09/2021.
He alleges that this sample was lying with the concerned Police Station and was not forwarded to the concerned laboratory. He further submits that when the deceased died of burn injuries, which have been certified to be cent percent by the concerned team of Doctors, which conducted postmortem, then there was no possibility of survival of DNA material in the sperm which has been allegedly matched with the blood sample of the present applicant.
Shri Sharma also raises a doubt over the efficacy of sampling methodology and relying on the judgment of Supreme Court in Criminal Appeal No.611/2022 (Rahul Vs. State of Delhi Ministry of Home Affairs & Another) and other connected Criminal Appeal Nos.612-613 of 2022 (Ravi Kumar Vs. State of NCT of Delhi) with Criminal Appeal Nos.614- 615 of 2022 (Vinod @ Chhotu Vs. The State Government of NCT of Delhi Home Affairs). It is submitted that complete sampling methodology has Signature Not Verified SAN been discussed in Para-31 of the said order. Hon'ble Supreme Court has Digitally signed by ANURAG SONI exhaustively quoted relevant paragraphs from another judgment of Supreme Date: 2022.11.16 18:50:38 IST Court in Manoj & Others Vs. State of Madhya Pradesh, (2022) SCC 3 Online SC 677 and reading this it is submitted that neither there is adherence of the protocol for taking samples for DNA testing, nor there is any material to point out guilt of the present applicant. It is submitted that present applicant is a self employed person. He is a youth aged about 21-22 years. He be enlarged on bail.
Shri Ajay Tamrakar, learned Panel Lawyer for the State submits that statements of two of the friends of the deceased Shivani are available on record namely Prachi & Harshita, who have expressed in their statements that deceased was having a filial relationship with the present applicant, who was driving auto at the relevant point of time, which they used to engage to travel up to their school. It is submitted that deceased had confide it in them that he had established physical relationship with her and thereafter refused to marry her. It is submitted that all these facts require detailed elaboration and evidence of these witnesses namely Prachi & Harshita is vital to the case of the prosecution and if present applicant is enlarged on bail, then he will try to tamper with the evidence.
It is further submitted that all the arguments raised by learned counsel for the applicant Shri Piyush Sharma are matter of evidence and they cannot be decided at the time of deciding this bail application.
After hearing learned counsel for the parties and going through the record it is evident that first bail application was dismissed due to finding of the concerned SFSL that DNA material found on the vaginal slide matches with the DNA material collected from the present applicant. There is no change of Signature Not Verified SAN circumstance. Though, Shri Piyush Sharma has vehemently argued and has tried Digitally signed by ANURAG SONI Date: 2022.11.16 18:50:38 IST to raise doubt about the efficacy of the sampling procedure. However, this 4 efficacy of sampling procedure can be tested before the trial Court and not in an bail application. Therefore, for the present taking this fact into consideration that deceased was a minor aged bout 15 years, there is evidence of establishment of physical relationship which has been confirmed in the form of DNA report, it cannot be said that prima facie applicant is not guilty of offenses charged with.
Application fails and is dismissed.
(VIVEK AGARWAL) JUDGE as Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2022.11.16 18:50:38 IST