Indian Kanoon - Search engine for Indian Law

Reliance has been placed on the decisions of the Hon'ble Supreme Court in the matters of Raja Vs. State of Karnataka, AIR 2016 SC 4930 and Manak Chand @ Mani Vs. State of Haryana, AIR 2023 SC 5600.

06. Learned counsel for the appellant Mithlesh Kumar in CRA No.739/2019 would contend that the findings recorded by learned trial Court regarding conviction of the appellant Mithlesh Kumar are based on erroneous appreciation of the oral and documentary evidence available on record. The evidence of the prosecutrix and the other prosecution witnesses suffer from the vice of contradiction and omission, thus making their statements untrustworthy. The appellant has been falsely implicated in this case because there was dispute with the family members of the prosecutrix. There is absolutely no reliable evidence regarding kidnapping of the prosecutrix by the appellant. Further, as per medical and FSL evidence also it stands proved that there was no forcible sexual intercourse with the prosecutrix as alleged. Apart from this, there is DNA report which confirms that no male DNA profile was found on the vaginal slide of the prosecutrix but the prosecution deliberately suppressed this report and not exhibited the same before learned trial Court. There is no eyewitness to the incident, all the witnesses are hearsay witnesses and looking to the contradiction and omission in the statement of the prosecutrix she does not appear to be a reliable witness. She admits in her deposition that while roaming around with the accused persons she had opportunity of raising alarm or attracting the attention of the passersby but she did not do so. Further, the prosecution has also failed to prove by leading cogent and reliable evidence that she was minor on the date of incident. Therefore, in view of the above, it is clear that the prosecution has failed to prove its case also against the appellant beyond all reasonable doubt and as such, he is entitled to be acquitted of all the charges by extending him benefit of doubt.

18. PW-5 Kanhaiya Sharma states that in the village meeting the prosecutrix disclosed that it is the accused persons who came on red coloured motorcycle and committed rape on her in the brick-kiln. PW-7 Smt. Bena Bai has not supported the prosecution case and she has been declared hostile. In cross-examination by the prosecution she denied all the suggestions including her police statement.

19. PW-6 Dr. Sumitra Uraon examined the prosecutrix on 27.5.2017 and found some abrasions on her cheek. On examination of her private part, she noticed no injury on inner part of thigh, pubic area, labia; pubic hair matted and white secretions present over vulva. She noticed that the hymen was torn and vaginal mucosa was red. She prepared the vaginal slides of the prosecutrix, sealed it and handed over it to the constable for chemical analysis. In her opinion, there is evidence of recent sexual intercourse within 12-18 hours. Her report is Ex.P/10 which bears her signature from A to A part.

20. As per FSL report (Ex.P/29), semen was found on Article A & B - underwear and vaginal slide of the prosecutrix, and Article E - slide of the accused Mithlesh.

21. The present is a case of gang rape. However, as per DNA test report dated 21.2.2018, available at page No.54 of paper book, no male DNA profile was found in Ex.C/309 i.e. vaginal slide of the prosecutrix.

22. In the matter of Chotkau v. State of Uttar Pradesh, (2023) 6 SCC 742, Hon'ble Apex Court in para-80 of has observed as under:

25. In the case in hand, the undergarments of the prosecutrix and the accused/appellants as also the semen slide of the accused Mithlesh were seized on 27.5.2017 vide Ex.P/4, P/8, P/9 and P/17 respectively. The blood sample of accused/appellants were seized on 9.8.2017 vide Ex.P/25 & P/26 and vaginal slide of the prosecutrix was prepared and seized on 27.5.2017. As per DNA test report, the blood samples of the accused/appellants and vaginal slide of the prosecutrix were received on 10.8.2017 at the FSL. As per this DNA test report, no male DNA profile was found in Ex.C (309) i.e. vaginal slide of the prosecutrix. It is not disputed that DNA test was conducted during investigation and the report was also obtained but the prosecution did not make any endavour to exhibit this report. The defence also did not bother to exhibit the DNA report. Thus, keeping in view the aforesaid decisions of the Hon'ble Supreme Court, looking to the fact that in this case DNA profiling was done by the prosecution during investigation and report was also obtained which probabilizes the defence of the accused, but it was held back from the trial court, an adverse consequence would follow for the prosecution.