Madhya Pradesh High Court
Somesh vs The State Of Madhya Pradesh on 6 November, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2024:MPHC-IND:31413
1 CR.A.Nos.79/2016 & 86/2016
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
CRIMINAL APPEAL No. 79 of 2016
LOKESH
Versus
THE STATE OF MADHYA PRADESH AND ANOTHER
.............................................................................................................................
Appearance:
Mr. Bheemsen Soni - Advocate for appellant.
Mr. Bhuwan Gautam - Govt. Advocate for the respondent /
State.
.............................................................................................................................
CRIMINAL APPEAL No. 86 of 2016
SOMESH
Versus
THE STATE OF MADHYA PRADESH
.............................................................................................................................
Appearance:
Ms. Sharmila Sharma - Advocate for appellant.
Mr. Bhuwan Gautam - Govt. Advocate for the respondent /
State.
.............................................................................................................................
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 07-11-2024
13:15:18
NEUTRAL CITATION NO. 2024:MPHC-IND:31413
2 CR.A.Nos.79/2016 & 86/2016
Reserved on : 04/11/2024
Pronounced on : 06/11/2024
JUDGMENT
Per: Justice Binod Kumar Dwivedi Since both the appeal are arising out of a common judgment dated 08/12/2005, they are taken up for analogous hearing and are being disposed off by this common judgment.
02. These appeals under Section 374 of Code of Criminal Procedure, 1973 (hereinafter for short referred as, 'Code') have been preferred against the impugned judgment dated 08/12/2005 passed in Special Case No.04/2013 by Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, Ratlam (M.P.), whereby the appellants have been convicted for the offences under Section 366 and 376(2)(f)(g) of Indian Penal Code, 1860 (hereinafter for short referred as, 'IPC') and sentenced to under rigorous imprisonment of 10 years with fine of Rs.5,000/- and Life Imprisonment with fine of Rs.10,000/- respectively with usual default stipulation.
03. It is undisputed that the appellants have also been acquitted of the charges under Section 3(2)(5) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter for short referred as, 'Act Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 3 CR.A.Nos.79/2016 & 86/2016 of 1989'). It is also undisputed that co-accused Naresh Choudhary has been acquitted of the charges under Section 363/34, 366/34 and 376(2)(f) and 376(2)(g) of the IPC.
04. Prosecution story in nutshell is that complainant, father of the victim (PW-2) along with his wife, mother of the victim (PW-3) have come to his in-laws place in Village Baagakheda under Police Station Industrial Area, Jaora, District Ratlam (M.P.). On 30/09/2012 at about 07:00 pm complainant's two years' daughter (victim) was playing outside the house of complainant's mother-in-law Rani Bhati on Otla. At the same time, co- accused Naresh Choudhary along with appellants on motorcycle bearing registration number MP-09-LK-1570 came there and parked his motorcycle in front of house of his mother-in-law Rani. After purchasing chips from the shop of Ajay, he sat on the Otla and started eating chips. Appellant Lokesh was feeding chips to the victim taking her in his laps. Mother of the victim was engaged in cooking inside house. Appellants along with co-accused Naresh took the victim to the rear side of the house. After sometime when the victim cried loudly, complainant (PW-2) and his wife (PW-3) rushed to the rear side of the house and saw that appellant Lokesh brought the victim and threw her on the cot. After that all the three fled away. Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 4 CR.A.Nos.79/2016 & 86/2016
05. Complainant (PW-2) and his wife (PW-3) witnessed blood oozing out of the vagina of the victim. With the help of others, they rushed the victim to the Community Health Center, Jaora, where Dr. Vinod Lahiri (PW-15) after examination looking the victim's critical condition, referred her for treatment to the District Hospital, Ratlam, where she was treated in supervision of Dr. Smt. Manju Singh (PW-18) and Dr. Mamta Sharma (PW-
20). Even after that, looking to very serious condition of the victim, she was referred for further treatment to M.Y. Hospital, Indore, where Dr. Brajesh Kumar Lahoti (PW-16) operated the victim and treated her.
06. The incident was reported to the Police Station Industrial Area, Jaora, where ASI Shankarsingh Chouhan (PW-10) ascribed the First Information Report (Ex.-P/2) at Crime No.333/2012. Vijay (PW-5) also apprised Head Constable Rajendra Sharma (PW-17) about the incident on phone call, who with police force reached on the spot and arrested Somesh and took him to Police Station Jaora, where he was formally arrested by Deputy Superintendent of Police Devendrasingh Rathore (PW-22).
07. During investigation Devendrasingh Rathore (PW-22) came to the spot and prepared Spot Map (Ex.-P/3) and seized motorcycle bearing registration number MP-09-LK-1570 vide Seizure Memo (Ex.-P/31). Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 5 CR.A.Nos.79/2016 & 86/2016 Appellant Lokesh and co-accused Naresh were also arrested and taken for medical examination and collecting their blood samples for DNA examination. Blood samples were collected by Dr. P. R. Singh (PW-12) and Dr. Gopal Yadav (PW-13). Diaper, Trousers, Towel, slide of the victim, underwear swab, etc. were seized. From the spot cover of mattress was seized. All the seized articles vide forwarding letter (Ex.-P/36) of Superintendent of Police were sent for Forensic Examination to Forensic Science Laboratory, Sagar. DNA Examination Report (Ex.-P/37 to 41) received from the Laboratory revealed that DNA profile of appellant Lokesh matched with the vaginal swab DNA of the victim.
08. During investigation, statement of witnesses were recorded and on completion of the investigation, charge sheet was submitted before the Judicial Magistrate First Class having local jurisdiction, who in turn after completing the formality under Section 207 of Code committed the case to the Court of Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, Ratlam.
09. Charges, as mentioned in para 2 of the judgment were framed and read over the accused, who abjured their guild and claimed to be tried. The prosecution, in order to prove its case, examined as many as 23 witnesses Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 6 CR.A.Nos.79/2016 & 86/2016 before the trial Court. Apart this, documents (Ex.-P/1 to Ex.-P/46) were also marked in evidence.
10. The incriminating circumstances appearing against the appellants were brought to their notice in their examination under Section 313 of the Code. The appellants either denied or claimed innocence regarding most of the incriminating circumstances and submitted that they have been falsely implicated in this case. However, they chose not to produce any oral or documentary evidence except Ex.-D/1 to D/5 respectively, statement of Sunil, State of Rani, statement of Vijay, statement of Rajendra Bhati and statement of Sanjay Mali. The learned trial Court on the basis of evidence adduced before it, vide impugned judgment acquitted the co-accused Naresh Choudhary, but convicted and sentenced the appellants as mentioned in para 2 of this judgment.
11. The conviction and sentence has been challenged on the ground that case of the prosecution has not been proved beyond reasonable doubt on the basis of the evidence available on record. Learned trial Court has overlooked the serious anomalies, omissions and contradictions present in the testimony of prosecution witnesses specially father and mother of the victim (PW-2 and 3). Feeble defence has been taken that they have been Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 7 CR.A.Nos.79/2016 & 86/2016 falsely implicated in the case on the ground of previous animosity. It has been specifically pleaded on behalf of the appellant Somesh that he come to the Village Baagakheda for collecting the money due to the complainant for selling clothes. It has been further submitted that learned trial Court without properly appreciating the evidence has recorded the conviction against the appellant, which is liable to be set aside.
12. Per contra, it is submitted by the learned Public Prosecutor that the learned trial Court on due appreciation of evidence has convicted and sentenced the appellants. Presence of both the appellants has been unerringly established by way of evidence. Defence taken by them has not been proved. It is further submitted that DNA report, which is conclusive proof, has been found against the appellant Lokesh. Complainant (PW-2) and his wife (PW-3) have no axe to grind against the appellant. Prosecution has been able to prove its case against the appellants beyond reasonable doubt and relying upon the evidence, learned trial Court has passed the impugned judgment of conviction and order of sentence, which is impregnable. Accordingly, it has been submitted that appeal has no merit, hence, deserves to be dismissed.
13. We have given our anxious consideration to the submissions made by Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 8 CR.A.Nos.79/2016 & 86/2016 rival counsel for the parties and have also carefully perused the record. The question for consideration is, whether the conviction and sentence recorded by the learned trial Court as mentioned hereinabove is not based on proper appreciation of relevant legal position and the evidence on record for abduction and committing gang rape on the victim?
14. To appreciate the contentions raised at bar, it is necessary to have a glance over the relevant provisions of offence as enshrined under Section 366 of IPC, which are extracted as follows:
"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid."
15. From perusal of the para phrasing of Section 366 of IPC following ingredients come to the fore, to be proved for attracting the offence are as under:
"3. Ingredients.- This section requires-Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18
NEUTRAL CITATION NO. 2024:MPHC-IND:31413 9 CR.A.Nos.79/2016 & 86/2016
1. Kidnapping or abducting any woman.
2. Such kidnapping or abducting must be-
(a) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or
(b) in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse.
The second part of the section requires two things:- (1) By criminal intimidation or abuse of authority or by compulsion inducing any woman to go from any place.
(2) Such going must be with intent that she may be, or with knowledge that, it is likely that she will be, forced or seduced to illicit intercourse, with some person."
16. The Hon'ble Apex Court in the case of Pardeep Kumar v. Union Administration, Chandigarh reported in (2006) 10 SCC 608 : (2007) 1 SCC (Cri) 41 after noticing the judgment of this Court in the case of Ashok Kumar Vs. State of Haryana reported in (2003) 2 SCC 143 : 2003 SCC (Cri) 446, Bhupinder Sharma Vs. State of Himachal Pradesh reported in (2003) 8 SCC 551 : 2004 SCC (Cri) 31 and Priya Patel v. State of M.P. reported in (2006) 6 SCC 263 : (2006) 3 SCC (Cri) 96, while elaborating the ingredients of the offence under Section 376(2)(g) of the I.P.C. stated the law as follows:
"10. To bring the offence of rape within the purview of Section 376(2)(g) IPC, read with Explanation 1 to this section, it is necessary for the prosecution to prove:
(i) that more than one person had acted in concert Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 10 CR.A.Nos.79/2016 & 86/2016 with the common intention to commit rape on the victim;
(ii) that more that one accused had acted in concert in commission of crime of rape with pre-arranged plan, prior meeting of mind and with element of participation in action. Common intention would be action in concert in pre-arranged plan or a plan formed suddenly at the time of commission of offence which is reflected by the element of participation in action or by the proof of the fact of inaction when the action would be necessary. The prosecution would be required to prove pre-meeting of minds of the accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence; and
(iii) that in furtherance of such common intention one or more persons of the group actually committed offence of rape on victim or victims. Prosecution is not required to prove actual commission of rape by each and every accused forming group.
11. On proof of common intention of the group of persons which would be of more than one, to commit the offence of rape, actual act of rape by even one individual forming group, would fasten the guilt on other members of the group, although he or they have not committed rape on the victim or victims.
12. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances."
17. In para 21 and 22 Hon'ble the Apex Court in the case of Om Prakash Vs. State of Haryana reported in (2011) 14 SCC 309 has elucidated the provisions under Section 376(2)(g), which are extracted as under: Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18
NEUTRAL CITATION NO. 2024:MPHC-IND:31413 11 CR.A.Nos.79/2016 & 86/2016 "21. A plain reading of Section 376(2)(g) with Explanation I thereto shows that where a woman is raped by one or more of a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of Section 376 (2)(g) of the IPC. In other words, the act of gang rape has to be in furtherance of their common intention before the deeming fiction of law can be enforced against the accused.
22. This Court in the case of Ashok Kumar (Supra) had occasion to dwell on Explanation 1 to Section 376(2)(g), IPC while examining whether the appellant Ashok Kumar could be convicted under the same because at the crucial time, he happened to be in the house of the co-accused Anil Kumar in whose case the judgment of conviction under Section 376(2)(g) had attained finality. The Court observed that the prosecution must adduce evidence to show that more than one accused has acted in concert and in such an event, if rape had been committed by even one of the accused all will be guilty irrespective of the fact that she has not been raped by all of them. Therefore, it may not be necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. The provision embodies a principle of joint liability and the essence of that liability is existence of common intention. That common intention presupposes prior concert as there must be meeting of minds, which may be determined from the conduct of the offenders which is revealed during the course of action."
18. A similar view has been taken by the Apex Court in the case of Bhupinder Sharma (Supra), in which the Court held as under:
"14. In cases of gang rape the proof of completed act of rape by each accused on the victim is not required. The statutory intention in introducing Explanation 1 in relation to Section 376(2)(g) appears to have been done with a view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 12 CR.A.Nos.79/2016 & 86/2016 of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them under Section 376 IPC."
19. In the instant case, the father of the victim (PW-2) supporting the prosecution case has stated before the Court that on the date of incident at about 08:00 pm he was sitting in the shop of Ajay and his daughter, the victim aged about 02 years was playing on the Otla. The appellants Lokesh and Somesh along with one other accused came there on motorcycle and parked it in front of house of his mother-in-law Rani Bai. Appellant Somesh came to the shop of Ajay to purchase chips. Appellant Somesh feeding chips to her daughter, the victim along with co-appellant Lokesh and took her back side of lane, where both the appellants committed rape upon her and after that they threw the victim on cot and fled away. He saw the victim crying loudly. Appellants were caught by the villagers.
20. After that he lodged FIR (Ex.-P/2) at Police Station Jaora. Testimony of this witness is corroborated by the statement of his wife (PW-3) and also corroborated by the version narrated in the FIR (Ex.-P/2) lodged by him. Nothing adverse has surfaced in the cross-examination of the above witnesses. The testimony of aforesaid witnesses is also corroborated by the medical evidence. Appellants have drawn attention of this Court towards contradictions appearing in the testimony of PW-2 and PW-3 with regard to Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 13 CR.A.Nos.79/2016 & 86/2016 commission of offence by the appellants, but after scrutinizing testimony of theses witnesses, we are of view that contradictions are minor in nature and cannot be treated as fatal to the prosecution case in view of the supporting evidence available on record proving complicity of the appellants in commission of crime. Minor contradictions and omissions cannot be given weightage as they erupt because of lapse of time, educational and other background of the witnesses. It is expected of the Courts to examine statement of the witnesses in their entirety, correct prospective and in the light of attendant circumstances brought on record by the prosecution. Appellants could not point out any material contradictions in the testimony of prosecution witnesses, therefore, minor contradictions are immaterial and have no adverse bearing on the prosecution case.
21. Dr. Vinod Lahiri (PW-15) has stated before the Court that on 30/09/2012 he was posted as Medical Officer and Surgical Specialist at Civil Hospital, Jaora, where he examined the prosecutrix. Blood was oozing out from her vagina. Labia part of vagina of the prosecutrix was broad open and was having tenderness. There was lacerated wound of 4 x 1 x 1 cm on left side of vagina and muscles were visible from the wound and blood clots were present. In the lower side of vagina, one inside wound of 2 x ½ x ½ Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 14 CR.A.Nos.79/2016 & 86/2016 cm was present, which was going to the anus of the victim. Injury was caused within three hours of the examination. After examination, he referred the victim for treatment to District Hospital, Ratlam. He has also stated that injuries found on the vaginal wall and perineum were due to the sexual assault. Vaginal wall and perineum was also ruptured. He has prepared medical examination report (Ex.-P/20). He has also given query report (Ex.-P/21) .
22. Dr. Mamta Sharma (PW-20) has also supported the prosecution case by her statement. This witness has deposed before the Court that on 30/09/2012, she was posed as Gynecologist at District Hospital, Ratlam, where victim aged about 02 years was brought as referred case from the Jaora Hospital for treatment. Her lower side of vagina part was fully ruptured up to the anus. She was kept under observation in the women ward. She has repaired the affected part and when she noticed that stitches are open, she referred the victim for further treatment to Medical College, Indore. Bed Head Ticket (Ex.-P/28) of the victim bears her signatures. Dr. Smt. Manju Singh (PW-18) has also corroborated the statements of Dr. Mamta Sharma (PW-20).
23. Dr. Brajesh Kumar Lahoti (PW-16) has also supported the Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 15 CR.A.Nos.79/2016 & 86/2016 prosecution case by stating that on 09/10/2012 he was posted at M.Y. Hospital in Casualty Ward, where victim aged 02 years was brought as referred case for treatment by Slip (Ex.-P/24). In examination, he found that there was a injury on vaginal part extending to the anus. On instructions, on 10/10/2012 the victim was operated by Dr. Shashi Sharma and anus and vaginal opening was repaired and after that she was discharged on 14/10/2012. Documents relating to the report is Ex.-P/22 and document related to operation is Ex.-P/23. On 22/10/2012, due to non recovery from injuries, she was again admitted in the hospital and after surgery by constructing a channel from her abdomen, she was discharged on 29/10/2012. After that she was again admitted in the hospital on 26/11/2012. On 03/12/2012, she was operated to close the channel constructed from her stomach. Concerned documents (Ex.-P/25) and discharge card (Ex.-P/26) bearing his signatures. Testimony of aforesaid medical witnesses have withstood cross-examination and remained intact. Thus, from the aforesaid medical evidence, it is established that the victim was subjected to brutal sexual assault, which corroborates the testimony of father of the victim (PW-2) and mother of the victim (PW-3).
24. Dy. Superintendent of Police Devendrasingh Rathore (PW-22) has Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 16 CR.A.Nos.79/2016 & 86/2016 also supported the prosecution case by stating that he arrested accused Somesh in the presence of the witness and prepared Arrest Memo (Ex.- P/30). Going on spot, he has also prepared Spot Map (Ex.-P/3) and Seizure Memo (Ex-P/31). He has further stated that on 01/10/2012, from the mother of the victim he has collected and seized trousers and towel and prepared Seizure Memo (Ex.-P/32) bearing his signatures. He has further submitted that on very same date, Constable Narsingh has produced seal packed underwear of the accused Somesh, which he seized and prepared Seizure Memo (Ex.-P/6). He has also stated that on 02/10/2012, he also seized cover of mattress from the cot and prepared Siezure Memo (Ex.-P/9). This witness has further stated that on 02/10/2012 he has also arrested appellant Lokesh and prepared Arrest Memo (Ex.-P/33). He seized one key of motorcycle, one mobile phone and one orange colour shirt (Ex.-P/34) from the appellant Lokesh.
25. Dr. Shailendra Mathur (PW-7) has examined appellant Somesh and found him capable of performing sexual intercourse. This witness has also seized underwear of the appellant. Dr. Preeti Raikwar (PW-8) has proved collection of semen sample from appellant Somesh on 02/10/2012 at the instance of ASI M. S. Kushwaha and handing it over to him in seal packed Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 17 CR.A.Nos.79/2016 & 86/2016 condition. This witness has also examined appellant Lokesh and found fully developed secondary sexual characters and capable of performing sexual intercourse. Semen sample of appellant Lokesh was also collected and preserved for examination by this witness. In this regard, medical examination report (Ex.-P/13) was prepared.
26. Dr. P. R. Singh (PW-11) has also supported the prosecution case with regard to taking blood samples of appellants Lokesh and Somesh for DNA examination after completing formalities of filling up identification form (Ex.-P/15 and P/16) with regard to the appellants Lokesh and Somesh. Identification forms were also signed by Deputy Superintendent of Police Devendrasingh Rathore (PW-22) as witness.
27. Head Constable Mahendra Yadav (PW-12) has proved seizure of diaper and slide of the victim in seal packed condition vide Seizure Memo (Ex.-P/7). Head Constable Narsingh (PW-4) has also supported the seizure of seal packed clothes of the victim. Devendrasingh Rathore (PW-22) has stated that all the seized articles were forwarded to FSL, Sagar through forwarding letter (Ex.-P/36) for examination, wherefrom report (Ex.-P/37 to P/41) were received. DNA report received from FSL, Sagar further confirms complicity of appellant Lokesh in committing rape on the victim, Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 18 CR.A.Nos.79/2016 & 86/2016 wherein it has been stated that DNA profile found on diaper, slide, trousers and towel of the victim was bearing same DNA profile as found from the samples collected from the appellant Lokesh.
28. The Hon'ble Apex Court in the case of Mukesh & Anr. Vs. State For Nct Of Delhi & Ors. reported in (2017) 6 SCC 1, has held that the DNA report is conclusive proof to prove complicity of appellant. The contention raised to impeach the credibility of DNA report is of no avail as nothing has been adduced by the appellants against this report neither by way of defence evidence nor otherwise any fact could be culled out by way of cross-examination of prosecution witness. In the light of the aforesaid factual matrix, the contention raised on behalf of the appellants is unsustainable and therefore, rejected.
29. DNA finger print is identical for every part of body, whether it is the blood, saliva, brain, kidney or foot on any part of the body. It cannot be changed; it will be identical no matter what is done to a body. Even relatively minute quantities of blood, saliva or semen at a crime scene or on clothes can yield sufficient material for analysis. The Experts opine that the identification is almost hundred percent precise.
30. In the case of Mukesh & Anr. (Supra), the Apex Court in paragraphs Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 19 CR.A.Nos.79/2016 & 86/2016 455, 457 and 458 has elaborately dealt with value of DNA finger printing, which are extracted as under:-
"455. Before considering the above findings of DNA analysis contained in tabular form, let me first refer to what is DNA, the infallibility of identification by DNA profiling and its accuracy with certainty. DNA - De-oxy-ribonucleic acid, which is found in the chromosomes of the cells of living beings, is the blueprint of an individual. DNA is the genetic blue print for life and is virtually contained in every cell. No two persons, except identical twins have ever had identical DNA. DNA profiling is an extremely accurate way to compare a suspect's DNA with crime scene specimens, victim's DNA on the blood- stained clothes of the accused or other articles recovered, DNA testing can make a virtually positive identification when the two samples match. A DNA finger print is identical for every part of the body, whether it is the blood, saliva, brain, kidney or foot on any part of the body. It cannot be changed; it will be identical no matter what is done to a body. Even relatively minute quantities of blood, saliva or semen at a crime scene or on clothes can yield sufficient material for analysis. The Experts opine that the identification is almost hundred per cent precise. Using this i.e. chemical structure of genetic information by generating DNA profile of the individual, identification of an individual is done like in the traditional method of identifying finger prints of offenders. Finger prints are only on the fingers and at times may be altered. Burning or cutting a finger can change the make of the finger print. But DNA cannot be changed for an individual no matter whatever happens to a body.
457. DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at the scene of crime or for identifying the source of blood found on any articles or clothes etc. recovered from the accused or from witnesses. DNA testing on samples such as saliva, skin, blood, hair or semen not only helps to convict the accused but also serves to exonerate. The sophisticated technology of DNA Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 20 CR.A.Nos.79/2016 & 86/2016 finger printing makes it possible to obtain conclusive results. Section 53A Cr.P.C. is added by the Code of Criminal Procedure (Amendment) Act, 2005. It provides for a detailed medical examination of accused for an offence of rape or attempt to commit rape by the registered medical practitioners employed in a hospital run by the Government or by a local authority or in the absence of such a practitioner within the radius of 16 kms. from the place where the offence has been committed by any other registered medical practitioner.
458. Observing that DNA is scientifically accurate and exact science and that the trial court was not justified in rejecting DNA report, in Santosh Kumar Singh v. State through CBI (2010) 9 SCC 747, the Court held as under:-
"65. We now come to the circumstance with regard to the comparison of the semen stains with the blood taken from the appellant. The trial court had found against the prosecution on this aspect. In this connection, we must emphasise that the court cannot substitute its own opinion for that of an expert, more particularly in a science such as DNA profiling which is a recent development.
66. Dr. Lalji Singh in his examination-in-chief deposed that he had been involved with the DNA technology ever since the year 1974 and he had returned to India from the UK in 1987 and joined CCMB, Hyderabad and had developed indigenous methods and techniques for DNA finger printing which were now being used in this country. We also see that the expertise and experience of Dr. Lalji Singh in his field has been recognised by this Court in Kamalanantha v. State of T.N. (2005) 5 SCC 194 We further notice that CW 1 Dr. G.V. Rao was a scientist of equal repute and he had in fact conducted the tests under the supervision of Dr. Lalji Singh. It was not even disputed before us during the course of arguments that Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 21 CR.A.Nos.79/2016 & 86/2016 these two scientists were persons of eminence and that the laboratory in question was also held in the highest esteem in India.
67. The statements of Dr. Lalji Singh and Dr. G.V. Rao reveal that the samples had been tested as per the procedure developed by the laboratory, that the samples were sufficient for the purposes of comparison and that there was no possibility of the samples having been contaminated or tampered with. The two scientists gave very comprehensive statements supported by documents that DNA of the semen stains on the swabs and slides and the underwear of the deceased and the blood samples of the appellant was from a single source and that source was the appellant.
68. It is significant that not a single question was put to PW Dr. Lalji Singh as to the accuracy of the methodology or the procedure followed for the DNA profiling. The trial court has referred to a large number of textbooks and has given adverse findings on the accuracy of the tests carried out in the present case. We are unable to accept these conclusions as the court has substituted its own opinion ignoring the complexity of the issue on a highly technical subject, more particularly as the questions raised by the court had not been put to the expert witnesses. In Bhagwan Das v. State of Rajasthan AIR 1957 SC 589 it has been held that it would be a dangerous doctrine to lay down that the report of an expert witness could be brushed aside by making reference to some text on that subject without such text being put to the expert.
71. We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out against the two experts Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 22 CR.A.Nos.79/2016 & 86/2016 who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Devi v. Poshi Ram (2001) 5 SCC 311. In arriving at its conclusions the trial court was also influenced by the fact that the semen swabs and slides and the blood samples of the appellant had not been kept in proper custody and had been tampered with, as already indicated above. We are of the opinion that the trial court was in error on this score. We, accordingly, endorse the conclusions of the High Court on Circumstance 9." [emphasis added].
Learned trial Court has not committed any error in relying upon the DNA report as an additional link to connect the appellant Lokesh with the crime.
31. On the date of incident i.e. on 30/09/2012 provision relating to rape on women under 12 years of age and gang rape was as under, which is not applicable in the instant case:
"376. Punishment for rape.-- (1) x x x (2) Whoever,--
(a) to (e) x x x
(f) commits rape on a woman when she is
under twelve years of age; or
(g) commits gang rape,"
32. It is not necessary that overt sexual act to be committed by all the accused persons as held by Apex Court in Om Prakash (Supra), therefore, contention raised on behalf of the appellant Somesh that his DNA has not Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 23 CR.A.Nos.79/2016 & 86/2016 matched and therefore, he cannot be said to have committed offence of gang rape, is not tenable. There is ample evidence on record to prove that appellants were present on the spot and they had taken away the minor victim and just after that she was found with aforementioned injuries on her vaginal part. The defence taken by the appellants that they have been falsely implicated in the matter is not supported by any evidence.
33. Even otherwise, specific defence taken by the Somesh that he has been falsely implicated because he was having some dues on father of the victim (PW-2) and his family members as they have purchased some Sarees from him on credit and they were not paying back the money. This defence has not been properly proved, therefore, it is rejected as an after thought defence and is of no value.
34. In the light of the aforesaid discussion, we are of the considered view that learned trial Court has not committed any error in holding guilty the appellants for the offences under Section 366 and 376(2)(f)(g) of the IPC.
Sentence imposed on the appellants is also commensurate with the offence committed by them. The findings recorded by the trial Court are impregnable in view of the evidence available on record. Both the appeals have no merits and are hereby dismissed.
Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 07-11-2024 13:15:18 NEUTRAL CITATION NO. 2024:MPHC-IND:31413 24 CR.A.Nos.79/2016 & 86/2016
35. Appellant Lokesh is in jail and shall remain in jail for serving the remaining jail sentence awarded to him. Appellant Somesh is on bail. His bail bonds are cancelled. He is directed to surrender before the trial Court for serving out the remaining jail sentence within a period of 30 days from the date of judgment by this Court. In case he fails to surrender within the stipulated time, learned trial Court will be at liberty to take coercive measures for securing his presence to serve out remaining part of the jail sentence.
36. Let a copy of this judgment along with the record be remitted back to the concerned trial Court by way of fastest mode for information and necessary compliance. Copy of this judgment be also forwarded to the concerned Jail Authority by way of fastest mode for information and necessary compliance.
37. Accordingly, both the appeals are dismissed.
38. Let a copy of this judgment be placed in the record of connected appeal also.
Certified copy as per rules.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
Tej
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 07-11-2024
13:15:18