Madhya Pradesh High Court
The State Of Madhya Pradesh vs Sureshchandra And Anr. on 7 November, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar, Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 7th NOVEMBER, 2022
CRIMINAL APPEAL No. 727 of 2010
BETWEEN:-
AJAY SINGH S/O BALWANT SINGH, AGED ABOUT 21
YEARS, OCCUPATION: LABOUR NEAR GANDHI
SQUARE JAWAD DISTT.NEEMUCH (MADHYA PRA-
DESH)
.....APPELLANT
(BY SHRI YOGESH KUMAR GUPTA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU.P.S.-
JAWAD DISTT.NEEMUCH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI BHUWAN DESHMUKH, G.A.)
CRIMINAL APPEAL No. 745 of 2010
BETWEEN:-
SURESH CHANDRA S/O MADANLAL MALI, AGED
ABOUT 27 YEARS, OCCUPATION: LABOUR, NAYI
BAKHAL AT PRESENT KHATIK MOHALLA JAWAD
DISTT.NIMUCH (MADHYA PRADESH)
.....APPELLANT
(BY SHRI YOGESH KUMAR GUPTA, ADVOCATE)
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 07-11-2022
18:00:11
2
AND
THE STATE OF MADHYA PRADESH GOVT. THRU.P.S.-
JAWAD DISTT.NEEMUCH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI BHUWAN DESHMUKH, G.A.)
CRIMINAL APPEAL No. 777 of 2014
BETWEEN:-
THE STATE OF MADHYA PRADESH GOVT. THRU.
ARCHI KENDRA JAWAD DISTT.NEEMUCH (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI BHUWAN DESHMUKH, G.A.)
AND
SURESH CHANDRA S/O MADANLAL MALI, AGED
ABOUT 27 YEARS, NAI BABAL HALL MUKAM
1.
KHATIK MOHALLA JAWAD DISTT.NEEMUCH (MAD-
HYA PRADESH)
AJAY SINGH S/O BALWANTSINGH , AGED ABOUT 21
2. YEARS, GANDHI CHOWRAHA KE PAS, JAWAD, (MAD-
HYA PRADESH)
.....RESPONDENTS
(BY SHRI YOGESH KUMAR GUPTA, ADVOCATE)
This appeal coming on for JUDGEMENT this day,
JUSTICE SUBODH ABHYANKAR passed the following:
Reserved on : 08/09/2022
Delivered on : 07/11/2022
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 07-11-2022
18:00:11
3
JUDGEMENT
1] This judgement shall govern the disposal of Cr.A. No.727/2010 filed by the appellant Ajay Singh, Cr.A. No.745/2010 filed by the appellant Suresh Chandra and Cr.A. No.777/2014 filed by the State as all these appeals have arisen out of the common judgement dated 23/06/2010 passed in S.T. No.94/2009. 2] Cr.A. Nos.727/2010 and 745/2010 have been preferred under Section 374 of Cr.P.C. and Cr.A. No.777/2014 has been preferred under Section 378 of Cr.P.C. against the judgement dated 23/06/2010 passed in S.T. No.94/2009 by the First Additional Sessions Judge, Neemuch (M.P.) whereby the appellants have been acquitted for offence punishable under Section 376(d) of IPC and finding them guilty under Section 302 of IPC, the learned Judge of the Trial Court has convicted the appellants as under:-
Conviction Sentence
Accused Section Act Imprisonment Fine Imprison-
ment in lieu
of fine
Ajay Singh 302 IPC Life imprison- 500/- each 1 Month RI
ment
Suresh Chandra 302 IPC Life imprison- 500/- each 1 Month RI
ment
3] In brief, the facts giving rise to the present appeal are that on
13/07/2009, Chowkidar Lalu of Gram Bawal came to know in the morning at around 7 a.m. that near Jawad Road Puliya, a women's body was lying. He went to the spot and found that the dead body Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 07-11-2022 18:00:11 4 of a woman was lying near the field of Shankarlal Dhakad. He found that the deceased had a head injury. He informed this fact to police station Jawad and on the basis of marg intimation No.24/2009 under Section 174 of Cr.P.C., the investigation ensued and the appellants were arrested and they were charge-sheeted under Section 376 (ii) (g) and 302/34 of IPC. The learned Judge of the Trial Court after recording the evidence has convicted them as aforesaid. Hence, this appeal.
4] Counsel for the appellant has submitted that it is purely a case of circumstantial evidence and all the witnesses led by the prosecution having turned hostile, the conviction is bad in law which only relies upon the DNA report produced by the prosecution Ex.P/52. Shri Yogesh Gupta, learned counsel appearing for the appellants has submitted that a DNA report cannot be taken to be a gospel truth and in support of his submissions, he has relied upon two decisions, one rendered by the Himachal Pradesh High Court in the case of Sanjeev Kumar Vs State of H.P. passed in Criminal Appeal No.97/2019 dated 03.03.2021 and other decision passed by the Gujarat High Court in the case of Premjibhai Bechubhai Khasiya Vs State of Gujarat in Criminal Appeal No. 36/2008 dated 16.01.2009. Thus, it is submitted that the impugned judgement be set aside and the appellants be acquitted.
5] On the other hand, counsel for the respondent/State has opposed the prayer and it has submitted that no case for interference Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 07-11-2022 18:00:11 5 is made out as the appellants' presence on the spot is duly proved by the DNA report itself which has gone unrebutted during the course of trial. Thus, it is submitted that the appeal be dismissed.
6] Heard counsel for the parties and perused the record.
7] So far as the death of the deceased is concerned, it was no doubt homicidal in nature as has been proved by Dr Om Prakash Ojha, PW-12 who has conducted the post-mortem report Ex.P/30. Dr. Ojha found that the deceased had suffered fractures on her front and back side of her head and there was no other visible injury suffered by the deceased. The cause of the death is said to be excessive bleeding on account of head injury leading to neurogenic shock.
8] Dr. Sonali Goyal PW-15 is the other doctor who was also present during the course of post-mortem and has stated that she had prepared the vaginal slides of the deceased and had sent for the examination. None of the doctors have opined even any opinion regarding the rape being committed on the prosecutrix. It is found that the prosecution has examined as many as sixteen witnesses, out of which, except the doctors and the other official witnesses, none of the independent witnesses have supported the case of the prosecution and have categorically denied any previous statement having given to the police or any recovery made at the instance of the accused persons. Thus, the only evidence available in the record is the forensic report of the samples collected by the police during Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 07-11-2022 18:00:11 6 the course of investigation. It is alleged that the appellants had consumed liquor prior to killing the deceased in the field and at the instance of appellant Ajay Singh, a glass liquor bottle has also been recovered vide Ex.P/10 and P/21. This bottle was sent for verification of finger prints and in finger prints expert report Ex.P/44, it has been found that the bottle had the finger prints of the appellant Suresh. During the course of investigation, clothes of the deceased including her petticoat and her vaginal smear slide was also obtained and were sent for DNA testing. The DNA report has been filed on record as Ex.P/52 prepared by Dr. Pankaj Shrivastava, Scientific Officer of DNA Fingerprint Unit, State Forensic Laboratory, Sagar. The conclusion of the DNA report is as under:-
"vfHker% Mh,u, izksQkbfyax gsrq izkIr izn'kksaZ ij fd;s x;s ijh{k.k ,oa izkIr ifj.kkeksa ds vk/kkj ij fuEufyf[kr fu'p;kRed ifj.kke izkIr gq;s gSa izn'kZ D Petticoat (R 1818) ij ik;h x;h iq:"k Mh,u, izksQkby ,oa vkjksih lqjs'k ds jDr lsEiy ls izkIr iq:"k Mh,u, izksQkby ,d leku ik;h x;hA"
9] Thus, apparently the DNA report has been found to be conclusive and positive so far as the DNA profile obtained from the petticoat of the deceased and the blood samples taken from the appellant Suresh are concerned. The DNA report Ex.P/52 and the fingerprint report Ex.P/37 clearly connect the appellant Suresh with the offence or his presence on the spot when the incident took place whereas both these reports also give a clean chit to the appellant Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 07-11-2022 18:00:11 7 Ajay whose reports are negative. However, it is found that in para 37 of the impugned judgement, learned Judge of the Trial Court has held that the DNA report Ex.P/52 proves beyond doubt that both the appellants were present on the spot. On a specific query made by this court Shri Bhuwan Deshmukh, learned G.A. appearing for the State, he has also not been able to point out as to how it has been arrived at by the trail judge that DNA report proves presence of appellant Ajay on the spot. Thus, the appellant Ajay deserves to be acquitted.
10] In the considered opinion of this Court the aforesaid finding is perverse and cannot be sustained. So far as the decision relied upon by the counsel for the appellant in the case of Sanjeev Kumar Vs State of H.P. and Premji Bhai Bechubhai Khasiya Vs State of Gujarat are concerned, the same are distinguishable and are also not binding on this Court. In such facts and circumstances of the case, when the conviction is solely based on the DNA report of the accused persons, this Court finds that the DNA report is negative so far as the appellant Ajay is concerned, however, the same clearly connect the appellant Suresh beyond reasonable doubt. Appellant Suresh has also not been able to rebut the aforesaid presumption and to explain the presence of his DNA on the petticoat of the deceased.
11] So far as Cr.A.No777/2014 which has been filed by the State is concerned, it is filed against the acquittal of the appellants under Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 07-11-2022 18:00:11 8 Section 376(2)(g) of IPC, although the memo of appeal is cryptic in nature and no specific grounds have been raised, however, on perusal of the impugned judgement, it is found that the learned Judge, in para 38 of the judgement has held that as there were no injuries inflicted on the body of the deceased hence it appears that she was a consenting party and as the appellants have also stated that after having sexual intercourse with the deceased, as she threatened them that she would inform their act after going to the bus station and that is why they have committed the murder of the deceased, in the considered opinion of this Court, the aforesaid finding is totally perverse, as first of all it was never the defence of the accused persons that the prosecutrix was a consenting party, in- fact this statement was given by the appellants in their memo prepared under Section 27 of the Evidence Act, which is not admissible in evidence and cannot be used against them. Thus, this Court is required to independently decide if there is evidence available on record connecting the appellants with the offence under Section 376(2)(g) of the IPC. On perusal of record, as has already been observed, no FSL report has been placed on record, however, the DNA report is filed but in the vaginal slides of the deceased, no DNA profile of any of the accused persons is traced. It is also found that for the DNA profiling, the petticoat of the deceased was sent to the laboratory which is Article-D and the stain which has been tested positive, matches with the DNA profile of the appellant Suresh, however, there is nothing on record to suggest that the Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 07-11-2022 18:00:11 9 aforesaid stain was of semen or of sweat or skin of the appellant. In such circumstances, the appellant Suresh can also not be connected with the offence under Section 376 of IPC. In such circumstances, it cannot be said that the appellants were also involved in the offence under Section 376 of IPC and thus, there acquittal under Section 376 (2)(g) of IPC is affirmed, however, not for the reasons assigned by the Trial Court but for the reasons as aforesaid assigned by this Court. Thus, the appeal filed by the State deserves dismissal.
12] Resultantly, this Court sets aside the conviction of the appellant Ajay Singh however, the conviction of the appellant Suresh Chandra is hereby maintained. Accordingly, the Criminal Appeal No.727/2010 is hereby allowed and the Criminal Appeal No.745/2010 and Criminal Appeal No.777/2014 are dismissed. Appellant Ajay is lodged in jail since last around thirteen years. He be released forthwith, if not required in any other case. Appeals stand disposed of.
Sd/- Sd/-
(SUBODH ABHYANKAR) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
krjoshi
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 07-11-2022
18:00:11