Raigarh, Chhattisgarh v. • State Of Chhattisgarh Through Police Station Kharsiya, District- Raigarh, Chhattisgarh., District : Raigarh
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR HIGH COURT OF CHHATTISGARH AT BILASPUR AFR CRA No. 1266 of 2019 Judgment Reserved on 15.07.2025 Judgment Delivered on 23.07.2025 • Dilesh Nishad S/o Nrayan Nishad Aged About 22 Years Occupation- Labor, R/o Village Botalda, P.S. Kharsiya, District- Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh --- Appellant versus • State Of Chhattisgarh Through Police Station Kharsiya, District- Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh --- Respondent CRA No. 1400 of 2019 • Rooplal Yadav S/o Sadhuram Yadav Aged About 23 Years R/o Village Batalda, Police Station Kharsiya, District- Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh ---Appellant Versus • State Of Chhattisgarh Through Station House Officer, Police Station Kharsiya, District- Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh ... Respondent For Appellants : Mr. Rishi Rahul Soni & Mr. Vijay Kumar Kashyap, Advocates For Respondent/State : Ms. Nand Kumari Kashyap, P.L. 2 Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. C A V Judgment Per, Amitendra Kishore Prasad, J. 1. Since both the aforementioned appeals arise out of the same judgment, therefore, they are being heard together and disposed of by this common judgment. 2. In these appeals filed under Section 374(2) of the Cr.P.C., the appellants have challenged the legality, validity, and propriety of the judgment of conviction and order of sentence dated 22.06.2019, passed by the Special Judge (Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989) (for short, ‘the Act, 1989’), Raigarh, District Raigarh, C.G., in Special Case (Atrocities Act) No. 20/2018, whereby the appellants were acquitted of the charge under Section 3(2)(v) of the Act, 1989, but were convicted and sentenced as under:- Conviction Sentence Under Section 376(D) of Indian Penal Code Rigorous Imprisonment for 20 years and fine of Rs.5,000/- and in default of payment of fine amount to undergo additional rigorous imprisonment for one year. Under Section 4 of Protection from Sexual of Offences Act, 2012 (in short, Children Rigorous Imprisonment for 05 years and fine of Rs.2,000/- and in default of 3 ‘POCSO, Act’) payment of fine amount to undergo additional rigorous imprisonment for six months. (Both sentences were directed to run concurrently) 3. Case of the prosecution, in brief, is that the victim, a minor girl below 18 years of age belonging to a Scheduled Caste, was subjected to rape by the accused persons. Further case of the prosecution is that on 21.01.2018 at about 6:30 PM, the victim was returning home from her friend Anju Sahu's house. On the way, near the house of one Ashok Sarathi, both accused persons intercepted her and forcibly took her to a deserted area. Appellant-Rooplal gagged the victim’s mouth to prevent her from screaming and then they took her to a toilet located behind the said house, removed her clothes and committed rape on her one by one and after committing the offence, both accused persons fled from the spot. After that, somehow victim returned home and went to sleep without disclosing the incident to anyone. When her mother asked her to eat, she refused, stating she is not feeling hungry. Out of shame and fear, the victim did not narrate the incident immediately. However, upon persistent questioning by her mother, the victim eventually disclosed the entire incident. Her mother then informed the victim’s father, and the matter was subsequently reported to the police. On the report of victim, on 24.01.2019, written report (Ex.P-1) has been registered against
Facts
the accused persons and on the basis of said report, FIR (Ex.P-6) 4 has been registered against the accused persons at Police Station Kharsia. During investigation, consent of the victim's parents were obtained vide Ex.P-3 and after that, victim was sent for medical examination where PW-3 Dr. Hemlata Rathiya examined the victim and did not find any sign of forcible sexual intercourse with the victim nor did find any injury over the person of the victim either internally or externally and gave her MLC report vide Ex.P-11. Vide Ex.P-4, transfer certificate of victim, mark sheet of class 1st, evaluation sheet and class 8th progress card were seized from the victim and vide Ex.P-5, underwear of victim was seized. Accused persons were taking into custody vide Exs.P-26 & 27 and they were sent for medical examination where PW-2 Dr. Saurabh Agrawal examined them and found that they were capable of performing sexual intercourse. Vide Exs.P-13 & 14, undergarments of accused persons were seized. From the father of the victim, caste certificate of victim was seized vide Ex.P-15. Vide Ex.P-17, Dakhil Kharij Register of the victim was seized where her date of birth is mentioned as 25.09.2000 and a copy of the same is vide Ex.P-18C. Vide Ex.P-25, vaginal swab & fluid slides of victim were seized. Seized articles were sent to FSL for chemical examination vide Ex.P-29 and as per FSL report Ex.P-34A, seminal spots and human spermatozoa have been found on the seized articles i.e. ‘A to E’. 4. After due investigation, statements of the witnesses were recorded under Section 161 of Cr.P.C. The accused persons were 5 charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court, in which, accused persons abjured their guilt and entered into defence by stating that they have not committed the offences. 5. The prosecution, in order to prove its case, examined as many as 14 witnesses and exhibited 36 documents. In their defence, the accused persons have examined three witnesses i.e. DW-1 to DW-3 and exhibited 4 documents i.e. Exs.D-1 to D-4. The statements of the accused persons were recorded under Section 313 of Cr.P.C., in which, they denied circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. 6. The learned trial Court, after appreciating the oral and documentary evidence available on record, convicted and sentenced the accused persons for the offence as mentioned in the opening paragraph of the judgment, against which, this appeal has been preferred by the appellants herein, questioning the impugned judgment of conviction and order of sentence. 7. Learned counsel for the appellants would submit that the trial Court erred in convicting appellants for the offences in question. He would argue that the prosecution's case is weak and fraught with inconsistencies and contradictions. He would further submit that there is no cogent and clinching evidence on record to show that at the time of incident, victim was minor. He would also 6 submit that though the FSL report indicated the presence of human spermatozoa and seminal spots on the seized articles, but no DNA report was brought on record to conclusively link these spermatozoa and seminal spots to the appellants, thereby failing to establish their identity as the perpetrators. He would also submit that incident occurred on 21.01.2018, but FIR has been lodged on 24.01.2018 and for this, no explanation has been offered by the prosecution. He would also submit that the prosecution has also failed to prove that the child given birth by the victim was born out of the alleged incident of rape. Thus, it is
Legal Reasoning
decision of this Court in the matter of Sanjay Singh & others vs State of Chhattisgarh passed in CRA No.1020/2019 on 10.02.2025. 8. On the other hand, the learned State counsel supported the impugned judgment, submitting that the prosecution has been able to prove the offence beyond a reasonable doubt. Therefore, the trial Court rightly convicted the appellants for the aforesaid offences, and the instant appeal deserves to be dismissed. The State counsel relied on the victim's statement naming the accused persons as strong evidence. He further submitted that the absence of a DNA test is a lacuna but does not entirely disprove the allegations. It was also submitted that the victim's statement and medical evidence suffice to uphold the conviction of the appellants. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection. 10. The first question which arises for consideration by this Court is whether the finding recorded by the trial Court holding the victim to be below 18 years on the date of incident is correct or not. 11. To ascertain the age of the victim, though PW-1 victim in her deposition has stated she studied upto class 8th and her date of birth is 25.09.2000 and at the time of incident, she was 17 years 8 old, but in cross-examination, she admitted that on the basis of school record, she told her date of birth and she does not remember her date of birth as per hospital record. This apart, in the Birth Registration Certificate (Ex.D-2C), date of birth of victim is mentioned as 04.05.1999, contradicting her statement. Furthermore, in para 7 of her cross-examination, victim admitted that she and her brother are twins, but in Dakhil Kharij Register of her brother (Ex.D-C), her brother’s date of birth was mentioned as 20.07.1999 and on the contrary, in Birth Registration Certificate, date of birth of her brother is mentioned as 04.05.1999. Moreover, PW-5 mother of the victim and PW-6 father of the victim have not stated the exact date of birth of the victim. This apart, though PW-8 Sadan Lal Rathiya, In-charge Head Master of the Primary School Botalda, based on Serial No.1355 written in original Dakhil Kharij Register, has stated that date of birth of the victim is 25.09.2000, but he admitted that the said date of birth of victim was not written by him and at that time, he was not the in-charge of Head Master. He further admitted that he cannot state the reason as to on what basis and documents, date of birth of victim was written in the said Dakhil Kharij Register (Ex.P-18) and he does not know what is the actual date of birth of victim. 12. From perusal of the above statements, it is clear that although age of the victim was shown as 25.09.2000 in Dakhil Kharij Register (Ex.P-18C), but on what basis, the entry of date of birth was made in the said Dakhil Kharij Register is not mentioned and 9 that no documentary evidence has been brought by the prosecution to prove the date of birth. This apart, PW-8 Sadan Lal Rathiya, In-charge Head Master of School, also admitted that he had not written the date of birth of victim in the said Dakhil Kharij Register and he has no knowledge as to on what basis her date of birth was written in that document. Further, there are material inconsistencies in the statement of victim with regard to her exact date of birth. If the statements of the above witnesses coupled with the available documents on record are taken into consideration, then it is clear that the prosecution has not been able to prove the exact age and date of birth of the victim. Therefore, in absence of any reliable or primary documentary evidence with regard to exact date of birth of victim, it is difficult to hold that at the time of incident, the victim was minor. 13. In case of Alamelu and Another (supra), the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the victim in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined. 10 In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under : “40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined….Merely because the documents Exs. 8, 9, 10, 11, and 12 were 11 proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has 12 to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the victim although might 13 have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 14. Thus, looking to the facts of the present case and after considering the evidence collected by the prosecution, we find that the prosecution has failed to bring on record clinching, cogent and reliable evidence to prove the fact that the victim was minor and below 18 years of age on the date of incident. Accordingly, we set aside the findings given by the trial Court to the effect that on the date of incident, victim was minor and below the age of 18 years. 15. Now, the next question would be, whether the appellants are the author of the crime in question or not? 16. PW-1 victim has stated in her deposition that on the date of incident, while she was returning from her friend's house, on way, accused-Rooplal met her near Ashok's house in the same village and forced her to go along with him. When she refused, accused persons pressed her mouth and caught hold of her hands and forcibly took her to the toilet behind Ashok's house. After that, both the accused persons removed and clothes committed sexual intercourse with her one by one and thereafter left her and fled away from there. At the time of commission of offence, she was trying to escape, but accused persons did not release her. After that, she returned to her house and slept without eating food and 14 the next day morning, when her mother again asked, then she informed about the incident to her and thereafter, her mother informed the victim’s father and the matter was subsequently reported to the police, on the basis of which, written report (Ex.P-1) and FIR (Ex.P-6) have been registered against the accused persons. This witness was subjected to cross-examination and in cross-examination, she admitted that village Botalda is a large village and her friend Anju's house and Ashok Sarathi's house are in the middle of the settlement and also there are houses of villagers on both sides of the main road. She further admitted that in between these two houses there are about 30-40 houses. She also admitted that one Rohit Chauhan's house is adjacent to Ashok Sarathi's house, and on the other side of the road, there are the houses of Rakesh Oraon and Moharsay Oraon. She also admitted that the toilet where incident occurred is behind Ashok Sarathi's house and was built under the Swachh Bharat Abhiyan. She also admitted that the road in front of Ashok Sarathi's house is a main road and there is a thoroughfare of public. She also admitted that the place of the incident is an area with rough soil and stones. She also admitted that at the time of incident, none of her clothes were torn and also she did not sustain any injury or scratch and even the accused persons did not sustain any injury or scratch at the time of the incident. She also admitted that the houses of Ashok Sarathi, Rakesh Oraon and Sitaram Sarathi were near the toilet where the incident took place. She also admitted that at the time of the 15 incident, the accused persons stayed with her for 25-30 minutes. She also admitted that she did not tell Ashok Sarathi, Sitaram, or the people around her about this incident. She also admitted that the police station is 3-4 km away from village Botalda and on the third day after the incident, she filed complaint against the accused persons. She denied that the accused persons had a quarrel with the Kotwar before this incident and she has filed a false report against the accused persons at the police station at the behest of her Kotwar brother. She also admitted that due to the said incident, she got pregnant and gave a birth to a male child on 25.11.2018. 17. Thus, from perusal of statement of victim, it is quite vivid that there are material inconsistencies in statement of victim (PW-1) with regard to the commission of offence. This apart, in statement of victim, it has come that her friend Anju's house and Ashok Sarathi's house are in the middle of the settlement and also there are 30-40 houses of villagers on both sides of the main road and house of one Rohit Chauhan's house is adjacent to Ashok Sarathi's house and on the other side of the road, there are the houses of Rakesh Oraon and Moharsay Oraon and the toilet where incident took occurred is behind Ashok Sarathi's house which was built under the Swachh Bharat Abhiyan and the road in front of Ashok Sarathi's house is a main road and there is a thoroughfare of public, then in that view of the matter how could the appellants forcibly took her and committed sexual intercourse with her one by one and in that event the victim ought to have 16 raised alarm about her being taken forcibly by the appellants, but the victim did not do so. Moreover, after commission of sexual assault as alleged by the victim she was left by the appellants and thereafter, she came to her house and slept and the repeated questioning mad her mother, she informed about the incident. The victim could have informed to her family members about the incident immediately in the night itself when she was left by the appellants, which would have been natural on her part. Furthermore, spot map Ex.P-1 shows that there are number of houses near the place of incident and people might have been there and in that event, she could have made hue and cry so that other persons could know about the incident and she could have been saved, however, she did not do so, making her version doubtful. Moreover, if the version of the victim with respect to commission of sexual assault on her is taken as it is, then she must have resisted and during course of resistance, she must have received injuries, however, there were no injuries found over her body neither internally nor externally, as is evident from the statement of PW-3 Dr. Hemlata Rathiya. Further, she (PW-3 Dr. Hemlata Rathiya) has opined that the victim was habitual to sexual intercourse, but no definite opinion with respect to recent sexual intercourse was given by her and victim also admitted that neither she nor accused persons sustained any injuries over their bodies. Pertinently, it is to be mentioned here that the incident had happened on 21.01.2018 at about 6:30 pm and no prompt FIR was 17 lodged in time, however, the FIR (Ex.P-6) was lodged on 24.01.2018 at 14:10 hours, thus, there was delay in lodging the FIR. The prosecution was under obligation to offer explanation, but no plausible explanation was offered as to why FIR was lodged on 24.01.2018. The delay in lodging the F.I.R. without showing sufficient reasons also makes the prosecution story suspicious. 18. Moreover, PW-3, Dr. Hemlata Rathiya, examined the victim and did not found any sign of recent forcible sexual intercourse with the victim nor did find any injury over the person of the victim either internally or externally. In cross-examination, she admitted that based on Ex.D-3 (sonography report), she confirmed that the victim was pregnant by 32 weeks and 3 days and stated that her delivery date was 15.12.2018, but before that, on 25.11.2018, the victim has delivered. Although the pregnancy was confirmed, but the prosecution failed to determine the timing of conception conclusively. Additionally, the absence of external injuries or signs of a violent sexual assault raises further doubts about the allegation of forcible rape. That apart, the most critical piece of evidence, a DNA test was not conducted to establish a link between the accused persons and the pregnancy. This omission is significant, especially in a gang rape case where pregnancy is involved. The prosecution did not provide any plausible explanation for failing to conduct DNA testing, either on the victim or on the fetus (or subsequently born child), to determine paternity and confirm the involvement of the accused persons. Despite 18 pregnancy being a key aspect of the case, the prosecution failed to undertake this essential scientific investigation. 19. In the matter of Chotkau v. State of Uttar Pradesh, (2023) 6 SCC 742, Hon'ble Apex Court, in para-80 has observed as under: “80. After saying that Section 53A is not mandatory, this Court found in paragraph 54 of the said decision that the failure of the prosecution to produce DNA evidence, warranted an adverse inference to be drawn. Paragraph 54 reads as follows: (Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 SCC p.485) "54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53A and Section 164A CrPC. We are not going to the extent of suggesting that if there is no DNA profiling, the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the trial court, an adverse consequence would follow for the prosecution." 20. In the case of Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130, Hon'ble Apex Court in para-44 has held as under: “44. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned 19 counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a fool proof case, but they did not do so, thus they must face the consequences.” 21. Also, the Hon’ble Supreme Court in the matter of Kattavellai @ Divakar vs. State of Tamil Nadu in CRA No. 1672/2019 also reported in 2025 LiveLaw (SC) 703, has held as under:- “30. Having noticed various gaps as above, the logical question that arises is where were the swabs?; why were they sent for forensic analysis belatedly?; were they properly stored?; whether the Malkhana of the Police Station where they were kept according to some of the witnesses, was sufficiently equipped or not; if the same were kept in the hospital, was it ensured that no other member of the staff could have had access to them?; in whose custody were they?; if the swabs were damaged, who shall be held responsible for the destruction of vital evidence, etc. Similar questions arise in connection with the semen sample taken from the accused as a consequence of an order passed by the Judicial Magistrate, Uthamapalayam, on 13th June, 2011. PW-56 20 states that the said samples were sent to FSL, Chennai, on 16th June, 2011 but subsequently returned. It is unclear, yet again, that between 13th and 16th June 2011 where such samples were stored; who was in charge thereof and whether he had kept them in safe custody?; how and in what condition they were sent; when and why they were returned - unfortunately, all these questions have no answer forthcoming from the record. 31. In Anil v. State of Maharashtra (2014) 4 SCC 69 this Court observed that DNA profiles have had a tremendous impact on criminal investigations. A DNA profile is valid and reliable, but the same depends on quality control and procedures in the laboratory. We may add to this position and say, that quality control and procedures outside the laboratory matter equally as much in ensuring that the best results can be derived from the samples collected. We record with some sadness that there are quite a few cases in which DNA evidence, despite being there, has to be rejected for the reason that the manner, in which the samples were handled during and after collection by the concerned doctor, in transit to the lab, inside the lab and the results drawn therefrom, are not in accordance with the best possible practices which would focus on ensuring that throughout this process the samples remain in pristine, hygienic and biologically suitable conditions. 34. Prakash Nishad v. State of Maharashtra (2023) 16 SCC 357 was a case concerning the 21 rape and murder of a 6-year-old child. Similar to the present case, it was a case of circumstantial evidence. Based on the disclosure statement made by the Appellant therein, the police found certain garments as also traces of semen of the Appellant on the vaginal smear of the minor victim, based on which he was sought to be convicted. DNA evidence had to be rejected by this Court on the grounds that there was a delay in sending the samples to the FSL, which was unexplained. It was observed that because of the delay, the concomitant prospect of contamination could not be ruled out. The need for expediency in sending samples to the concerned laboratories was underscored. 35. This case, incidentally, if not unfortunately, is another one of the like of the above. Despite the presence of DNA evidence, it has to be discarded for the reason that proper methods and procedures were not followed in the collection, sealing, storage, and employment of the evidence in the course of the Appellant-convict's conviction. DNA, as we have observed, has been held to be largely dependable, even though this evidence is only of probative value, subject to the condition that it is properly dealt with. Over the past decades, many cases have come to their logical conclusion with the aid of DNA evidence in many regions across the world. It is also equally true that many persons wrongly convicted have finally had justice served, with them being declared innocent because of advancements in this technology. It is unfortunate that, alongside such 22 advancements, we still have cases where, despite the evidence being present, it has to be rejected for the reason that the concerned persons, either doctors or investigators, have been careless in the handling of such sensitive evidence.” 22. In the light of the above cited judgments, the most critical piece of evidence, a DNA test was not conducted by the prosecution to establish a link between the accused persons and the pregnancy of the victim. This omission is significant, especially in a gang rape case where pregnancy is involved. The prosecution did not provide any plausible explanation for failing to conduct DNA testing, either on the victim or on the fetus (or subsequently born child), to determine paternity and confirm the involvement of the accused persons, therefore, it could not be established that it was of the appellants, as such it goes against the prosecution. Even if the prosecution story is taken as it is, then it appears that in order to implicate the appellants in the commission of offence, the victim has exaggerated her version as an afterthought. The conduct of the prosecutrix also appears to be unnatural, therefore, her version cannot be relied upon to hold the appellants as perpetrators of the crime in question and that prosecution has also failed to bring on record any cogent and clinching evidence to show that appellants are the author of the crime in question. As such, the appellants are acquitted of the charges leveled against. 23 23. In that view of the matter, we are of the considered opinion that the appellants namely Dilesh Nishad and Rooplal Yadav are entitled for acquittal and the learned trial Court is totally unjustified in convicting and sentencing the appellants for aforesaid offences. As such, the appellants are entitled to be acquitted of the aforesaid charges. Accordingly, the impugned judgment of conviction and order of sentence dated 22.06.2019, passed by the learned trial Court is liable to be set-aside and both the appeals are hereby allowed. 24. Consequently, the conviction of the appellants for offence punishable under Section 376(D) of IPC and Section 4 of POCSO Act, 2012 as well as the sentence imposed upon them by the learned trial Court is hereby set-aside. They are acquitted of the said charge leveled against them. The appellants are reported to be in jail, we direct that they be released from jail forthwith, if not required in any other matter/case. 25. In compliance with Section 437-A Cr.P.C., both the appellants are directed to furnish a personal bond of ₹25,000/- with two sureties each of the like amount before the concerned court. The bond shall be effective for six months and include an undertaking that in case of filing a Special Leave Petition or grant of leave against this judgment, the appellants will appear before the Supreme Court upon receipt of notice. 24 26. Registry is directed to transmit the lower Court record along with a copy of this judgment to the trial court forthwith for information and necessary compliance. Sd/- (Rajani Dubey) Judge Sd/- (Amitendra Kishore Prasad) Judge Vishakha
Arguments
prayed by counsel for the appellants that the impugned judgment of conviction and order of sentence passed by the trial Court be set aside and the appellants be acquitted of the charges leveled against them. Reliance has been placed upon the decisions of Supreme Court in the matters of Alamelu and another vs State represented by Inspector of Police reported in (2011) 2 SCC 385, Ramdas and others vs State of Maharashtra reported in (2007) 2 SCC 170, Nirmal Premkumar and Another vs. State rep. By Inspector of Police reported in 2024 SCC Online SC 260, Lalliram and Another vs State of Madhya Pradesh reported in (2008) 10 SCC 69, Dola Alias Dolagonbinda Pradhan & Another vs. State of Odisha reported in AIR 2018 SC 4020, Radhu vs State of Madhya Pradesh reported in (2007) 12 SCC 57, Krishna Kumar Malik vs State of Haryana reported in (2011) 7 SCC 130 and Prakash Chand vs State of 7 Himachal Pradesh reported in (2019) 5 SCC 628 and the