Madhya Pradesh High Court
Rahul Dehariya vs The State Of Madhya Pradesh on 15 September, 2020
Author: Atul Sreedharan
Bench: Atul Sreedharan
1 MCRC-10244-2020
The High Court Of Madhya Pradesh
MCRC-10244-2020
(RAHUL DEHARIYA Vs THE STATE OF MADHYA PRADESH)
9
Jabalpur, Dated : 15-09-2020
(Heard through Video Conferencing)
Mr.Vishal Vincent Rajendra Daniel, learned counsel for the applicant.
Mr. Piyush Bhatnagar, learned Panel Lawyer for the respondent/State.
This is the first bail application filed by the applicant under Section 439 of the Cr.P.C. for grant of bail in connection with Crime No. 338/2019 for the offences punishable under Sections 363, 366-A, 342, 376, 376(2)(i) of IPC and under Sections 3, 4, 5(m) of POCSO Act, 2012 registered at Police Station- Kotwali, Seoni District-Seoni.
Pursuant to the order dated 07-09-2020, the Director, FSL, Sagar has forwarded the DNA report to the Advocate General's office and the Advocate General's office has forwarded it to the learned counsel for the applicant.
The DNA report reveals that non-interpretable, very low male DNA, has been detected in Article A, B and C which are vaginal slides, Vaginal swab and Pubic hair.
Thereafter, the finding is that male DNA detected on the source of victim Article D and E (C /6576 & 6577).
The male DNA profile observed on the source of accused Article I- ( C/6581) was found to be different from the male DNA profile observed on the source of victim Article D and E ( C/6576 and 6577).
Non-interpretable very low male DNA detected on the source of victim Article A (C/6573), B(C/6574) and C ( C/6575)".
As regards the opinion, it is given "Different male DNA detected on the source of victim" Article D and Article-E and accused (Article-I). Non- interpretable very low male DNA deducted on the source of victim ( Article Signature Not Verified SAN A, B & C).
Digitally signed by PARMESHWAR GOPE Date: 2020.09.15 18:04:22 IST2 MCRC-10244-2020 The applicant is in judicial custody since 09-05-2019. The allegations against him is of having raped the prosecutrix who is a 11 years old girl. The incident is stated to have taken place on 07-05-2019 between 4:00- 4:30 PM. Thereafter, she came back home and informed her parents at around 6:00 PM on the same day but however, the FIR was registered on 08-05-2019 at 4:50 PM. The learned counsel for the applicant has submitted that more than 24 hours delay in registration of the FIR makes the case against the applicant suspicious from the very beginning. He says that the child informed the parents on the same date on which the incident is alleged to have taken place at 6 PM. The parents of the prosecutrix did not even ring up the police immediately to inform him of the rape. The FIR reflects that the place of offence is only 3 kilometers from the police station, yet no plausible reason has been given for the delay of more than 24 hours from the time of the incident. The 164 statement of the prosecutrix squarely implicates the applicant herein. However, the prosecution in order to make the case even more stronger, has sent the blood samples ( Article -I) of the applicant along with vaginal slides ( Article-A), vaginal swab Article-(B) and pubic hairs (Article-C) and the underwear of the prosecutrix ( Article D and Article E).
The DNA report for the first time was called for by this Court vide order dated 13-03-2020. Thereafter, on 20-03-2020, three weeks time was granted to comply with the order and then again was listed on 10-06-2020, where time was given again for the production of the DNA report, the case was thereafter, listed on 13-07-2020 on which date, the Court observed that the DNA report is awaited and once again on 22-07-2020, this court had directed the State to submit the FSL report positively on the next date of hearing, specifically observing that the applicant is jail since 09-05-2019 and after investigation charge-sheet has been filed but, not the FSL report. Thereafter, on 07-08-2020, the State was directed to call for the above reports meaning thereby, the FSL and the DNA report by making special efforts to Signature Not Verified SAN the concerned police authority immediately. Thereafter, the case was listed Digitally signed by PARMESHWAR GOPE Date: 2020.09.15 18:04:22 IST 3 MCRC-10244-2020 once again on 25-08-2020, where the State again prayed for time to make available the DNA and the FSL report and in the interest of justice yet again, one more opportunity was granted to the counsel for the State to make the reports available. In the said order, it was also made clear that on the next date of hearing, if both the reports are not made available, then the Investigating Officer concerned with this case shall remain present in person before this Court to explain the default. Thereafter, the case was listed on 07- 09-2020, on that date also, documents were not made available and this Court directed the State to ensure that the Director, FSL Sagar was connected through video conferencing. The Director, FSL Sagar joined through video conferencing and this court desired that the DNA report which has been languishing for more than a year be provided at the earliest. The Director, FSL Sagar, gave an undertaking to the Court that the DNA report,in this case would be ready by 10-09-2020.
Today, the said report has been made available which has been referred hereinabove but, what is of extreme importance here is that this case languished for 8 hearings spread over 6 months, just for the production of the FSL report and the DNA report. The DNA report has now been received by this Court and as referred to hereinabove, it discloses the shocking and unsettling fact that the male DNA was found on the Article D and E, which are the two underwears of the prosecutrix. It has also stated that the male DNA found on the Article- D and E do not match the DNA profile of the applicant from his blood sample which is Article-I. The straight forward prima facie inference of this report is that wrong man is being tried for the crime he did not commit.
Under the circumstances, in view of the DNA report, the application is allowed and it is directed that the applicant shall be enlarged on bail forthwith upon his furnishing a personal bond in the sum of Rs.10,000/- ( Ten Thousand Only) with one solvent surety in the like amount to the satisfaction of the learned trial court.
Signature Not Verified SAN Digitally signed by PARMESHWAR GOPE Date: 2020.09.15 18:04:22 IST4 MCRC-10244-2020 The jail authorities shall have the applicant checked by the jail doctor to ensure that he is not suffering from the coronavirus and if he is, he shall be sent to the nearest hospital designated by the State for treatment. If not, he shall be transported to his place of residence by the jail authorities.
Though the bail has been granted to applicant herein and in the interest of the justice and in exercise of powers under Section 482 of Cr.P.C, this court considers it necessary to request the Superintendent of Police, Seoni to undertake further investigation under Section 178(3) Cr.P.C under his personal supervision in order to find out, who is the man whose male DNA profile has been found in the under-wear of the prosecutrix ( Article D and E).
Prima facie, it appears someone else may have tried to implicate the applicant herein, using sperms of another man to stain Article-D and E. It shall be the solemn duty of the police under the personal supervision of Superintendent of Police, Seoni to unearth this truth. In this regard, it may be relevant to submit that Article-D and E was an undergarment of the prosecutrix given by the mother of the prosecutrix which had the male DNA profile but, which does not match the profile of the applicant.
List this case on 12-10-2020 for further orders with regard to the report of Superintendent of Police and the steps taken with regard to compliance of this order.
A copy of this order shall be sent by email to the court concerned by the office to ensure that there is no delay in the process of accepting bail bonds and surety.
C.C. as per rules.
(ATUL SREEDHARAN) JUDGE PG Signature Not Verified SAN Digitally signed by PARMESHWAR GOPE Date: 2020.09.15 18:04:22 IST