Madhya Pradesh High Court
Santosh vs The State Of Madhya Pradesh on 29 April, 2026
Author: Anand Pathak
Bench: Anand Pathak
1 CRA-1462-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 1462 of 2020
(SANTOSH Vs THE STATE OF MADHYA PRADESH )
Dated : 29-04-2026
Shri Anand Purohit - Advocate for the appellant.
Shri D.S. Kushwaha - Additional Advocate General for the respondent/
State.
Shri Sanjay Gupta and Shri Ankit Saxena - Advocates as amicus curie.
As per order dated 15/04/2026, Shri Sanjay Gupta and Shri Ankit Saxena, Advocates were appointed as amicii curie to address on certain legal questions as raised by this Court during course of hearing on 15/04/2026.
In response to the same, learned Amicii Curie inform this Court that if DNA report is submitted with the charge-sheet but not exhibited then it cannot be read against the accused. At best, it can be used in favour of the accused. They relied upon the judgments of the Hon'ble Apex Court in the case of Bharat s/o Rajaram Vs. State of M.P. 1992 Cr.L.R. (M.P.) 72 a n d Shatrughan s/o Shri Dadulal Gond Vs. State of Madhya Pradesh, 1992 Cr.L.R. (M.P.) 83.
It is further submitted that if DNA report is exhibited but not part of statement of the accused under Section 313 of Cr.P.C. then in view of the judgments of the Apex Court in the case of Nar Singh Vs. State of Haryana, AIR 2015 SC 310 and Raj Kumar Alias Suman Vs. State (NCT of Delhi) (2023) 17 SCC 95, it cannot be read against the accused.
It is stressed that in such exigencies, following guidelines as referred in Rajkumar (Supra) would be relevant to refer. Same are reproduced as under:-
"22. The law consistently laid down by this Court can be Signature Not Verified Signed by: VARSHA CHATURVEDI Signing time: 4/30/2026 11:01:08 AM
2 CRA-1462-2020 summarized as under.
22.1. It is the duty of the trial court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction.
22.2. The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence.
22.3. The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused.
22.4. The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused.
22.5. If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident.
22.6. In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him.
22.7. In a given case, the case can be remanded to the trial court from the stage of recording the supplementary statement of the accused concerned under section 313 CrPC.
Signature Not Verified Signed by: VARSHA CHATURVEDI Signing time: 4/30/2026 11:01:08 AM3 CRA-1462-2020 22.8. While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered."
It is further submitted by learned amicii curie that if DNA report is received at later stage of trial and not properly documented, collected, packaged and preserved, it will not meet the legal and scientific requirements for admissibility in the Court of law. In support of his submission, they refers the judgment of the Apex Court in the case of Rahul Vs. State of Delhi Ministry of Home Affairs & Anr., 2022 Live Law (SC) 926 and submits that if DNA report is received at later stage of trial and exhibited to but in absence of proving its contents, it cannot be read against the accused. In other words, the document is required to be proved through its contents.
This Court records its appreciation for the valuable assistance rendered by the amicii curie Shri Sanjay Gupta and Shri Ankit Saxena.
Now matter is heard on I.A. No.6635/2026, fourth repeat application under Section 389(1) Cr.P.C. filed on behalf of appellant seeking suspension of sentence and grant of bail.
This appeal assails the judgment of conviction and order of sentence dated 28/01/2020 passed by First Additional Sessions Judge/ Special Judge (POCSO), Ganjbasoda, District Vidisha whereby present appellant stood convicted and sentenced as under:-
Section Imprisonment Fine with default
376(a)(b) IPC 20 Years' RI Rs.5,000/-
201 IPC 04 Years' RI Rs.500/-
It is the submission of leaned counsel for the appellant that trial Court erred in convicting and awarding jail sentence to present appellant. Appellant so far Signature Not Verified Signed by: VARSHA CHATURVEDI Signing time: 4/30/2026 11:01:08 AM 4 CRA-1462-2020 suffered 06 years and 08 months' incarceration as pre and post trial confinement. It is further submitted that medical examination belies the allegations. It is highly improbable that looking to the nature of allegations, age of prosecutrix (around 11-12 years) and offence committed, no injuries were sustained. In the testimony, doctor (PW-1) admits that no injuries over person of prosecutrix (external or internal) was found and also admitted the suggestion given by the defence in this regard as figured in para 3 & 4 of the deposition. Surprisingly, no DNA examination was undertaken. In absence of any DNA report as well as any contrary medical opinion, appellant seeks suspension of sentence and grant of bail. According to learned counsel, it was a case of monetary dispute, which is reflected in deposition of different witnesses, i.e. prosecutrix (PW-4) and her mother (PW-6). Besides that, appeal is of the year 2020 and final hearing shall take some time and appellant has a good case on merits. Under such circumstances, appellant prays for suspension of sentence and grant of bail.
Per contra, learned Public Prosecutor for the respondent/ State opposed the prayer and prayed for its dismissal.
Considering the rival submissions advanced and the fact that medical report belies the allegations and no injuries were found as well as the fact that no DNA examination was carried out, but without expressing any opinion on the merits of the case, this Court intends to allow the application for suspension of sentence with certain condition.
I f appellant - Santosh furnishes bail bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) along with two solvent sureties of the like amount to the satisfaction of the trial Court that he shall appear before the Principal Registrar of this Court on 24/07/2026 and thereafter, on all other subsequent dates as may be fixed by the Office for appearance, then he shall be released on bail and Signature Not Verified Signed by: VARSHA CHATURVEDI Signing time: 4/30/2026 11:01:08 AM 5 CRA-1462-2020 execution of jail sentence is suspended till disposal of this appeal, subject to deposit of fine amount, if not already deposited but with the condition that appellant shall not be source of embarrassment and harassment to the complainant in any manner and shall not move in their vicinity, otherwise, benefit of bail given today by way of suspension of sentence shall be withdrawn immediately;
I.A. No.6635/2026 stands allowed and disposed of accordingly. A copy of this order be sent to the trial Court concerned for compliance and information.
Certified copy as per rules/directions.
(ANAND PATHAK) (PUSHPENDRA YADAV)
JUDGE JUDGE
VC
Signature Not Verified
Signed by: VARSHA
CHATURVEDI
Signing time: 4/30/2026
11:01:08 AM