Mujammil v. State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And

1. Heard Shri Ajey Singh, learned counsel for the applicant, Shri Badrul Hasan, learned AGA for the State and perused the record.

2. The present application under Section 482 Cr.P.C. has been filed seeking the following main relief(s):- "WHEREFORE, it is most humbly and respectfully prayed that the Hon'ble Court may kindly be pleased to quash/set-aside the impugned charge-sheet dated 05.04.2023 and consequential cognizance/summoning order dated 17.05.2023 passed in Special Crl. Case No. 607/2023 (State of U.P. Versus Mujammil) arising out of Case Crime No. 0075/2023, Under Section-376 (3), 504, 506 I.P.C. and Section-5 (j) (2)/6 POCSO Act, Police Station- Dargah Sharif, District-Bahraich and consequential proceedings of the case including the impugned order dated 05.08.2023 framing of charges framed against applicant/petitioner by the court of learned Additional Sessions Judge/Special Judge (POCSO Act), Bahraich vide it's the learned trial court has directed for framing of charges and framed the impugned charges against the applicant/petitioner, as contained in Annexure No. 1, 2 & 3 respectively to this petition."

3. By means of the present application, the applicant has impeached the order dated 11.06.2024, passed by the Additional Session Judge/Special Judge, POCSO Act, Bahraich (in short "Trial Court"), whereby the Trial Court has rejected the application No.24B preferred by the accused- applicant seeking discharge under Section 227 Cr.P.C.

4. The accused applicant preferred the application No. 24B based upon the D.N.A. reprot, according to which the D.N.A. was not matched with the accused-applicant.

5. The Trial Court has rejected the application seeking discharge, taking note of the observation(s) made by Hon'ble Apex Court in the case of Veerendra Vs. State of Madhya Pradesh, (2022) 8 SCC 668. The 2 A482 No. 10102 of 2025 relevant paragraphs of the judgment are extracted herein under :- "48. In the context of the contentions it is more appropriate to refer to the decision of this Court in Sunil v. State of M.P. [Sunil v. State of M.P., (2017) 4 SCC 393 : (2017) 2 SCC (Cri) 372] It was a case of rape and murder of a four (4) year old child. A three-Judge Bench held herein thus : (SCC pp. 394-95, paras 3-4) “3. At the very outset, we deal with the arguments advanced on behalf of the appellant that in the present case the report of DNA testing of the samples of blood and spermatozoa under Section 53-A of the Criminal Procedure Code, 1973 has not been proved by the prosecution. The prosecution has, therefore, failed to prove its case beyond reasonable doubt. Reliance in this regard has been placed on the decision of this Court in Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] .

4. From the provisions of Section 53-A of the Code and the decision of this Court in Krishan Kumar [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] it does not follow that failure to conduct the DNA test of the samples taken from the accused or prove the report of DNA profiling as in the present case would necessarily result in the failure of the prosecution case. As held in Krishan Kumar [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] (para 44), Section 53-A really “facilitates the prosecution to prove its case”. A positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favouring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered. It is to the other materials brought on record by the prosecution that we may now turn to.”

49.Krishan Kumar Malik case [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] was rendered by a two-Judge Bench of this Court, wherein at SCC para 43 with respect to the matching of the semen, the following passage from Taylor's Principles and Practice of Medical Jurisprudence, 2nd Edn. (1965) was extracted thus: “Spermatozoa may retain vitality (or free motion) in the body of a woman for a long period, and movement should always be looked for in wet specimens. The actual time that spermatozoa may remain alive after ejaculation cannot be precisely defined, but is usually a matter of hours. Seymour claimed to have seen movement in a fluid as much as 5 days old. The detection of dead spermatozoa in stains may be made at long periods after emission, when the fluid has been allowed to dry. Sharpe found identifiable spermatazoa often after 12 months and once after a period of 5 years. Non-motile spermatozoa were found in the vagina after a lapse of time which must have been 3 and could have been 4 months.”

50. In para 43 of Krishan Kumar Malik case [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , after extracting the above, it was further held : (SCC p. 140) “43. … Had such a procedure been adopted by the prosecution, then it would have been a foolproof case for it and against the appellant.”

51. This Court went on to hold thus in para 44 therein : (Krishan Kumar Malik case 3 A482 No. 10102 of 2025 [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , SCC p. 140, para 44) “44. Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23-6-2006, brought to our notice by the learned 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.”

52. Evidently, the three-Judge Bench in Sunil case [Sunil v. State of M.P., (2017) 4 SCC 393 : (2017) 2 SCC (Cri) 372] considered Krishan Kumar Malik case [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] carrying such observations and finding before coming to the conclusion that : (Sunil case [Sunil v. State of M.P., (2017) 4 SCC 393 : (2017) 2 SCC (Cri) 372] , SCC p. 395, para 4) “4. … A positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favouring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered.”

53. In view of the nature of the provision under Section 53-ACrPC and the decisions referred to, we are also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the court has still a duty to consider whether the materials and evidence available on record before it, are enough and cogent to prove the case of the prosecution. In a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances form a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour.

54. As a matter of fact, the decision in Rajendra Pralhadrao Wasnik case [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420] , would also fortify our view. The Bench was considering review petitions in Rajendra Pralhadrao Wasnik v. State of Maharashtra [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37 : (2012) 2 SCC (Cri) 30] . That was a case involving rape and murder of a three (3) year old girl where the case was held as proved on the basis of circumstantial evidence. So also, in that case DNA evidence was not produced before the court, in spite of samples being taken. Obviously, taking note of the unerring nature of the circumstantial evidence pointing only to the guilt of the accused and the other circumstances the trial court convicted and awarded him capital punishment. The High Court confirmed [State of Maharashtra v. Rajendra Pralhadrao Wasnik, 2009 SCC OnLine Bom 484] not only the conviction but also the award of capital sentence. Originally, this Court dismissed [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37 : (2012) 2 SCC (Cri) 30] the appeals and thereafter, the dismissed [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 495 : (2019) 4 SCC (Cri) 450] review petitions were restored [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 493 : (2019) 4 SCC (Cri) 449] for consideration solely in view of a Constitution Bench decision of this Court in Mohd. Arif v. Supreme Court of 4 A482 No. 10102 of 2025 India [Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737 : (2014) 5 SCC (Cri) 408] .

55. In para 79, this Court in Rajendra Pralhadrao Wasnik case [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420] held therein thus : (SCC p. 492) “79. Insofar as the present petition is concerned, we are of opinion that for the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did not take into consideration the probability of reformation, rehabilitation and social reintegration of the appellant into society. Indeed, no material or evidence was placed before the courts to arrive at any conclusion in this regard one way or the other and for whatever it is worth on the facts of this case. The prosecution was remiss in not producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the appellant for the purposes of sentencing. The trial court was also in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the appellant which it could not, in law, consider. However, we also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant.”

56. In the light of the abovereferred decisions, the contentions of the appellant founded on the factum of non-holding of DNA profiling and the provision under Section 53-A, is only to be repelled. As held in Sunil case [Sunil v. State of M.P., (2017) 4 SCC 393 : (2017) 2 SCC (Cri) 372] , a positive result of DNA test would constitute clinching evidence against the accused. But, a negative result of DNA test or DNA profiling having not been done would not and could not, for that sole reason, result in failure of prosecution case. So much so, even in such circumstances, the Court has a duty to weigh the other materials and evidence on record to come to the conclusion on guilt or otherwise of the appellant herein and that exactly what was done by the trial court and then by the High Court, in the instant case."

6. Learned counsel for the applicant failed to impeach the observation(s) made by the Trial Court, based upon the judgment passed by the Hon'ble Apex Court in the case of Veerendra Vs. State of Madhya Pradesh (Supra).

7. Accordingly, this Court finds no force in the application. It is therefore dismissed. No order as to costs. December 10, 2025 ML/- (Saurabh Lavania,J.) MUNNA LAL High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Shri Ajey Singh, learned counsel for the applicant, Shri Badrul Hasan, learned AGA for the State and perused the record.

2. The present application under Section 482 Cr.P.C. has been filed seeking the following main relief(s):- "WHEREFORE, it is most humbly and respectfully prayed that the Hon'ble Court may kindly be pleased to quash/set-aside the impugned charge-sheet dated 05.04.2023 and consequential cognizance/summoning order dated 17.05.2023 passed in Special Crl. Case No. 607/2023 (State of U.P. Versus Mujammil) arising out of Case Crime No. 0075/2023, Under Section-376 (3), 504, 506 I.P.C. and Section-5 (j) (2)/6 POCSO Act, Police Station- Dargah Sharif, District-Bahraich and consequential proceedings of the case including the impugned order dated 05.08.2023 framing of charges framed against applicant/petitioner by the court of learned Additional Sessions Judge/Special Judge (POCSO Act), Bahraich vide it's the learned trial court has directed for framing of charges and framed the impugned charges against the applicant/petitioner, as contained in Annexure No. 1, 2 & 3 respectively to this petition."

3. By means of the present application, the applicant has impeached the order dated 11.06.2024, passed by the Additional Session Judge/Special Judge, POCSO Act, Bahraich (in short "Trial Court"), whereby the Trial Court has rejected the application No.24B preferred by the accused- applicant seeking discharge under Section 227 Cr.P.C.

4. The accused applicant preferred the application No. 24B based upon the D.N.A. reprot, according to which the D.N.A. was not matched with the accused-applicant.

5. The Trial Court has rejected the application seeking discharge, taking note of the observation(s) made by Hon'ble Apex Court in the case of Veerendra Vs. State of Madhya Pradesh, (2022) 8 SCC 668. The 2 A482 No. 10102 of 2025 relevant paragraphs of the judgment are extracted herein under :- "48. In the context of the contentions it is more appropriate to refer to the decision of this Court in Sunil v. State of M.P. [Sunil v. State of M.P., (2017) 4 SCC 393 : (2017) 2 SCC (Cri) 372] It was a case of rape and murder of a four (4) year old child. A three-Judge Bench held herein thus : (SCC pp. 394-95, paras 3-4) “3. At the very outset, we deal with the arguments advanced on behalf of the appellant that in the present case the report of DNA testing of the samples of blood and spermatozoa under Section 53-A of the Criminal Procedure Code, 1973 has not been proved by the prosecution. The prosecution has, therefore, failed to prove its case beyond reasonable doubt. Reliance in this regard has been placed on the decision of this Court in Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] .

4. From the provisions of Section 53-A of the Code and the decision of this Court in Krishan Kumar [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] it does not follow that failure to conduct the DNA test of the samples taken from the accused or prove the report of DNA profiling as in the present case would necessarily result in the failure of the prosecution case. As held in Krishan Kumar [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] (para 44), Section 53-A really “facilitates the prosecution to prove its case”. A positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favouring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered. It is to the other materials brought on record by the prosecution that we may now turn to.”

49.Krishan Kumar Malik case [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] was rendered by a two-Judge Bench of this Court, wherein at SCC para 43 with respect to the matching of the semen, the following passage from Taylor's Principles and Practice of Medical Jurisprudence, 2nd Edn. (1965) was extracted thus: “Spermatozoa may retain vitality (or free motion) in the body of a woman for a long period, and movement should always be looked for in wet specimens. The actual time that spermatozoa may remain alive after ejaculation cannot be precisely defined, but is usually a matter of hours. Seymour claimed to have seen movement in a fluid as much as 5 days old. The detection of dead spermatozoa in stains may be made at long periods after emission, when the fluid has been allowed to dry. Sharpe found identifiable spermatazoa often after 12 months and once after a period of 5 years. Non-motile spermatozoa were found in the vagina after a lapse of time which must have been 3 and could have been 4 months.”

50. In para 43 of Krishan Kumar Malik case [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , after extracting the above, it was further held : (SCC p. 140) “43. … Had such a procedure been adopted by the prosecution, then it would have been a foolproof case for it and against the appellant.”

51. This Court went on to hold thus in para 44 therein : (Krishan Kumar Malik case 3 A482 No. 10102 of 2025 [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , SCC p. 140, para 44) “44. Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23-6-2006, brought to our notice by the learned 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.”

52. Evidently, the three-Judge Bench in Sunil case [Sunil v. State of M.P., (2017) 4 SCC 393 : (2017) 2 SCC (Cri) 372] considered Krishan Kumar Malik case [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] carrying such observations and finding before coming to the conclusion that : (Sunil case [Sunil v. State of M.P., (2017) 4 SCC 393 : (2017) 2 SCC (Cri) 372] , SCC p. 395, para 4) “4. … A positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favouring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered.”

53. In view of the nature of the provision under Section 53-ACrPC and the decisions referred to, we are also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the court has still a duty to consider whether the materials and evidence available on record before it, are enough and cogent to prove the case of the prosecution. In a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances form a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour.

54. As a matter of fact, the decision in Rajendra Pralhadrao Wasnik case [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420] , would also fortify our view. The Bench was considering review petitions in Rajendra Pralhadrao Wasnik v. State of Maharashtra [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37 : (2012) 2 SCC (Cri) 30] . That was a case involving rape and murder of a three (3) year old girl where the case was held as proved on the basis of circumstantial evidence. So also, in that case DNA evidence was not produced before the court, in spite of samples being taken. Obviously, taking note of the unerring nature of the circumstantial evidence pointing only to the guilt of the accused and the other circumstances the trial court convicted and awarded him capital punishment. The High Court confirmed [State of Maharashtra v. Rajendra Pralhadrao Wasnik, 2009 SCC OnLine Bom 484] not only the conviction but also the award of capital sentence. Originally, this Court dismissed [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37 : (2012) 2 SCC (Cri) 30] the appeals and thereafter, the dismissed [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 495 : (2019) 4 SCC (Cri) 450] review petitions were restored [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 493 : (2019) 4 SCC (Cri) 449] for consideration solely in view of a Constitution Bench decision of this Court in Mohd. Arif v. Supreme Court of 4 A482 No. 10102 of 2025 India [Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737 : (2014) 5 SCC (Cri) 408] .

55. In para 79, this Court in Rajendra Pralhadrao Wasnik case [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420] held therein thus : (SCC p. 492) “79. Insofar as the present petition is concerned, we are of opinion that for the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did not take into consideration the probability of reformation, rehabilitation and social reintegration of the appellant into society. Indeed, no material or evidence was placed before the courts to arrive at any conclusion in this regard one way or the other and for whatever it is worth on the facts of this case. The prosecution was remiss in not producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the appellant for the purposes of sentencing. The trial court was also in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the appellant which it could not, in law, consider. However, we also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant.”

56. In the light of the abovereferred decisions, the contentions of the appellant founded on the factum of non-holding of DNA profiling and the provision under Section 53-A, is only to be repelled. As held in Sunil case [Sunil v. State of M.P., (2017) 4 SCC 393 : (2017) 2 SCC (Cri) 372] , a positive result of DNA test would constitute clinching evidence against the accused. But, a negative result of DNA test or DNA profiling having not been done would not and could not, for that sole reason, result in failure of prosecution case. So much so, even in such circumstances, the Court has a duty to weigh the other materials and evidence on record to come to the conclusion on guilt or otherwise of the appellant herein and that exactly what was done by the trial court and then by the High Court, in the instant case."

6. Learned counsel for the applicant failed to impeach the observation(s) made by the Trial Court, based upon the judgment passed by the Hon'ble Apex Court in the case of Veerendra Vs. State of Madhya Pradesh (Supra).

7. Accordingly, this Court finds no force in the application. It is therefore dismissed. No order as to costs. December 10, 2025 ML/- (Saurabh Lavania,J.) MUNNA LAL High Court of Judicature at Allahabad, Lucknow Bench