Madhya Pradesh High Court
Ashish Kumar @ Assu vs The State Of Madhya Pradesh on 4 March, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
The High Court Of Madhya Pradesh
CRA No. 7548 of 2021
(ASHISH KUMAR @ ASSU Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated : 04-03-2022
Shri Surendra Patel, learned counsel for the appellant.
Shri Arvind Singh, learned Government Advocate for the respondents/State along
with Shri Vijay Gouthariya, D.S.P., Women Safety Branch, Dindori.
Learned Government Advocate in presence of Shri Vijay Gouthariya, D.S.P., Women Safety Branch, Dindori has read report of Dr. Smt. Swati Rai and the statements of the police personnel, submits that there is a bonafide mistake and Vaginal Swab was never taken by her and was never sealed for sampling.
The Backdrop of this case is that on 24.02.2022 when FSL report was produced by learned Panel Lawyer for the respondents/State then in the FSL report issued by the Regional Forensic Science Laboratory, JDA Bhawan, Civik Center, Marhatal, Jabalpur issued by the Joint Director makes a mention that in the memo of the Superintendent of Police there is a mention of presence of Swab in Packet-B but on opening of Packet-B in place of Swab HCG Plastic Strip was found. It is further mentioned that it is not possible to examine presence of Siemen on this HCG Plastic Strip.
In view of this report dated 17.02.2022, this Court had directed Superintendent of Police, Dindori to conduct an inhouse enquiry and furnish his report.
In his enquiry report addressed to the Advocate General Superintendent of Police, Dindori namely Sanjay Singh has mentioned that enquiry was conducted by Shri Vijay Gauthariya, Deputy Superintendent of Police, Women Safety Branch, Dindori. On 03.11.2021 victim had reported matter which was registered at Mahila Thana, Dindori as case No.543/2021 under Sections 366, 376, 376(2)(n), 342, 506 IPC and Sections 3(1)(w)
(i), 3(2)(V-a) of SC/ST (Prevention of Atrocity) Act. After registration of case, victim was taken for medical examination. Opinion was sought on four points namely, whether prosecutrix was subjected to rape, whether prosecutrix sustained any injury on any part of body or private parts and, it was directed to prepare a Vaginal slide and preserve it and, fourthly, if there is any other material or opinion which may be helpful in prosecution be Signature SAN given.
Not Verified Digitally signed by It is mentioned that Dr. Swati Rai, at Rani Durgawati Hospital, Jabalpur had sent her MOHD TABISH KHAN Date: 2022.03.07 17:42:34 IST 2 opinion and sample after preserving it. Since all the samples were sealed in one envelop, therefore, they were again sent to Dr. Swati Rai for sealing them separately. They were sealed by her along with labeling and sent back which were later on sent to FSL, Jabalpur through SHO Shahpur.
Superintendent of Police, Dindori has mentioned that since Vaginal Swab was not demanded but since Dr. Swati Rai in the envelop sent by her had mentioned presence of Vaginal Swab whole material was sent to FSL.
It is further mentioned that since only Vaginal slide was directed to be preserved, therefore, probably Dr. Swati Rai by mistake mentioned Vaginal Slide and Vaginal Swab and sent the sample which were forwarded to FSL, Jabalpur. In this case statements of Dr. Swati Rai were also taken by the concerned Deputy Superintendent of Police. In her statement dated 03.03.2022, Dr. Swati Rai has mentioned that on 04.11.2021 she was on emergency duty at 4.06 pm. Prosecutrix was brought to her by Constable Vandana Beragi and a Head Constable. She had handed over two Vaginal slides, UPT report and one Seal UPT kit, seal sample and MLC report. After 15-20 days woman constable had approached her from Dindori Police Station and had asked her to place collected samples in different envelops. On her oral request Dr. Swati Rai had separated the samples which were collected earlier on 04.11.2021 and had hand over them to the woman constable. It is further mentioned that since in the requisition for MLC, Vaginal Swab was not asked for, therefore, she had not prepared separate Vaginal Swab.
The whole chronology of events raises certain fundamental questions namely, whether as per Medical Protocol Dr. Swati Rai was required to seal Vaginal Swab or not, irrespective of the contents of the requisition. Secondly, if she was not required to collect Vaginal Swab then why she had mentioned presence of Vaginal Swab in one of the envelop which were forwarded by the Superintendent of Police, Dindori. Thirdly, under which Medical Protocol she was authorized to open a sealed envelop containing samples for their separation on oral request of woman constable.
I am not satisfied with the explanation given by Dr. Swati Rai so also by the Superintendent of Police, Dindori. I have also perused enquiry report submitted by Shri Vijay Gauthariya, Deputy Superintendent of Police, Women Safety Branch, Dindori and I am not satisfied with the report. There Prima-facie appears to be possibility of tempering of samples. It is not clear as to whether the slide which was prepared was sent or it was 3 replaced. The Swab on which Vaginal material was collected has been misplaced. It would have helped to co-relate as to whether the slide contained same material as was collected on the Swab. But this important link is missing for the reasons to deciphered driving trial.
Prima facie it appears to be a case of tempering with the samples collected by Dr. Swati Rai. This requires a judicial notice.
If, during trial, concerned Court finds that there is sufficient material to show any element of breach of trust or any other act of criminality on the part of the concerned Doctor or any of the Police personnel, then the trial Court will be free to institute appropriate proceedings in terms of the provisions contained in the Code of Criminal Procedure.
For the present, I do not find any ground to accept this appeal and enlarge the appellant on bail.
Accordingly, appeal fails and is dismissed.
(VIVEK AGARWAL) JUDGE Tabish