Madhya Pradesh High Court
Rohit @ Manvendra vs The State Of Madhya Pradesh on 20 September, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1 CRA-6184-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 6184 of 2024
(ROHIT @ MANVENDRA Vs THE STATE OF MADHYA PRADESH )
Dated : 20-09-2024
Shri Vipin Yadav - advocate for the appellant.
Shri Arvind Singh - Govt. Advocate for respondent/State.
Heard on IA No. 12364/24, an application for suspension of sentence filed on behalf of appellant- Rohit @ Manvendra being aggrieved by the judgment dated 29-04-2024 passed by the learned First Additional Sessions Judge, Niwadi District-Tikamgarh in Sessions Trial No. 32/22 whereby out of the two accused persons namely Anil Chaturvedi and Rohit @ Manvendra, the learned trial Court has recorded a finding of acquittal in relation to Anil Chaturvedi and has recorded a finding of conviction under Section 302 of IPC in favour of present appellant-Rohit @ Manvendra and had sentenced him to undergo life imprisonment with fine.
It is submitted by Shri Vipin Yadav that the whole investigation is botched up. It is further submitted that Ex.P/12 does not inspire confidence, by which samples recovered from the body of the deceased were handed over to the police. It is submitted that Dr. Ravi Rawat (PW-10) said that he had handed over the material, which was recovered and sealed on the same day i.e. 07-02-2022.
It is submitted that the Seizure Memo (Ex.P/12) was made on 17-02- 2022 i.e. after ten days at the instance of Ramkishore Balmiki (PW-14). Ramkishore Balmiki (PW-14) had denied his signatures on Ex.P/12, Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/21/2024 3:54:06 PM 2 CRA-6184-2024 therefore, seizure memo is of no consequence.
Thus, it is submitted that twin factors, delay and denial of signature of Ramkishore Balmiki (PW-14) makes the seizure memo defective.
It is further submitted that hair sample of present appellant-Rohit @ Manvendra was drawn vide Ex.P/11 and Dr. Gajendra Niranjan ( PW-22) has admitted that there was no requisition to draw hair sample of the present appellant. It is submitted that there are two lacunas. Firstly, that there was no requisition to draw hair sample. Yet hair sample of Rohit @ Manvendra was drawn and hair sample of co-accused- Anil Chaturvedi was not drawn, which causes dent to the prosecution story.
It is submitted that merely on the basis of DNA report, conviction cannot be recorded, and in support, reliance is placed on the judgment of the High Court of Judicature at Bombay Bench at Aurangabad in Criminal Appeal No. 306 of 2016 ( Suresh S/o- Devidas Malche) decided on March 15, 2023. Exhaustively reading paragraphs-7 and 10, it is submitted that Bombay High Court at Aurangabad had referred to the judgment of Hon'ble Supreme Court in the case of Manoj and others vs. State of Madhya Pradesh [2023 (2) SCC 353] so also judgment of High Court of Chattisgarh in Kishan Lal @ Champa Yadav vs. State of Chattishgarh in Criminal Appeal No. 565 of 2022 decided on 22-02-2023 to suggest that the DNA report, if positive, is not the sole and conclusive evidence to fix the identity of the miscreants but, if the report is negative, it would conclusively exonerate the accused from the involvement of charge. It is further held that the Science of DNA is at developing stage and when the Random Occurrence Ratio is not available for Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/21/2024 3:54:06 PM 3 CRA-6184-2024 Indian Society, it would be risky to act solely on a positive DNA report, because only if the DNA profile of the accused matches with the foetus, it cannot be considered as a conclusive proof of paternity. This portion is quoted from judgment of Gujarat High Court in Premjibhai Bachubhai Khasiya vs. State of Gujarat and Ano. [2009 Cri.L.J 2888]. Reading paragraph-10 of the said judgment, it is pointed out that where the ocular evidence is at variance with the scientific evidence and the witnesses changed their statements in the cross-examination, thus, when ocular evidence was not supporting then, conviction ought not to have been based only on DNA test report i.e. medical report.
Shri Arvind Singh, learned Public Prosecutor in its turn submits that Ex. P/12 is an authentic document. Its witness Vikas Bhardwaj (PW-7) has been examined. There is no suggestion to Vikas Bhardwaj (PW-7) that either the sample was corrupted or it was not properly preserved. There is no suggestion that sample was sent by the doctor on 07-02-2022 itself and therefore, seizure on 17-02-2022 was not proper. It is further submitted that even Hakim Singh, Head Constable has been examined as (PW-8), and Harsh Yadav another witness of Ex.P/12 as PW-9 and there is no suggestion to suggest that the sample was polluted or corrupted.
We have seen the report of DNA (Ex.P/42) wherein it is mentioned that four sealed packets containing J,K,L&M were received from Constable No. 359 Arun Police Station Prithavipur District-Niwari. Packet-J contains hair of deceased-Ava Tiwari. Packet-K contains hair, which were in the right hand of deceased-Ava Tiwari. Packet-L was blood sample of accused- Rohit Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/21/2024 3:54:06 PM 4 CRA-6184-2024 @ Manvendra. Packet-M is blood sample of accused-Anil Chaturvedi. When they were matched, then it was found that the 'Article-K' matched with the blood sample of present appellant- Rohit @ Manvendra. Thus, two things are crystal clear. Firstly, hair sample seized from Rohit @ Manvendra was not subject matter of DNA examination. Secondly, blood sample of Anil Chaturvedi was also taken and that has been put to test. Therefore, DNA (Ex.P/42) on the ground that hair sample of Anil Chaturvedi was not taken, cannot be a circumstance, to discard that report in toto.
Statement of Ramkishore Balmik (PW-14) is not reliable. He is the person, who was working in the same hospital, in which the deceased was working. Merely, saying he had not put his signatures on Ex.P/12 is not sufficient. He was duty bound to prove that he was never given any sample by the doctor to be handed over to the police authority on 17-02-2022. He has failed to discharge that burden. Evidence of Dr. Ravi Rawat (PW-10) in passing reference states that he had given sample on 07-02-2022 but, that is only in passing reference and that cannot be taken as a gospel truth in relation to a documentary evidence, which is available on record as Ex.P/12. The judgment is distinguishable on facts. The judgment emphasizes on the preservation of samples and proper testing. In the present case, neither the preservation could be questioned nor testing.
Seizure Memo Ex. P/12 is doubted but, on evidence of Vikas Bhardwaj (PW-7) and Harsh Yadav (PW-9), we find that there is no occasion to doubt the same especially when read in terms of Ex.P/42 where the samples were found to be sealed and seal was intact. Thus, the suggestion Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/21/2024 3:54:06 PM 5 CRA-6184-2024 given by Shri Vipin Yadav that the samples were tempered with and that resulted in a polluted DNA report is not made out.
In view of such facts, when examined, we do not find it to be fit case to extend the benefit of suspension of sentence.
Therefore, application fails and is hereby dismissed.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
PG
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 9/21/2024
3:54:06 PM