The main legal point established in the judgment is that the failure to conduct DNA testing or prove the report of DNA profiling does not necessarily result in the failure of the prosecution case, and the court must consider the totality of evidence and materials on record.

ORDER :

The challenge in these appeals is against the judgment and order dated 23.07.2013 of the Madhya Pradesh High Court by which the accused appellant has been convicted under sections 363, 367, 376(2)(f) and 302 of the Indian Penal Code (for short, 'the IPC'). The appellant-accused has been sentenced to suffer different punishments under Sections 363, 367 and 376(2)(f) I.P.C. and has also been sentenced to death by hanging for the offence under Section 302 I.P.C.

2. We have perused the order of the learned trial Court and the judgment of the High Court under challenge. We have heard the learned counsels for the parties and have considered the evidence and materials on record including the FSL report.

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 53A of the Code of Criminal Procedure, 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, (2011) 7 SCC 130.

4. From the provisions of Section 53A of the Code and the decision of this Court in Krishan Kumar(supra) 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 (para 44) Section 53A 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.

5. Reading the order of the learned trial Court we find that the trial Court has laboriously and systematically itemized twelve different circumstances which the prosecution has able to establish against the accused on the basis of evidence tendered inter alia by PW-1(Kamal), PW-2 (Santosh), PW-3(Mukesh) PW-4(Shyamlabai), PW-8 (Dr. Saurabh Borasi) and PW-11 (DVS Nagar).

6. The sum total of the evidence against the accused, in brief, is that in the afternoon, at around 2.00 p.m. on 31.10.2012, the accused-appellant who was then about 25 years in age had taken the deceased, his four years old niece, away from her house. PW-1 and PW-4 who tried to prevent the accused-appellant from taking away the child was told that the child was being taken to her parents. The taking away of the child was also witnessed by PW-2 and PW-3. In the evening at about 5.00 p.m., the accused had returned to his house. When the child did not return to her home there was a search made to locate the child. The accused, on being confronted, replied that in the afternoon he had taken liquor and gone to sleep under the tree and, therefore, he was not aware of the whereabouts of the child. As the child has not returned till the late hours of the evening, a report was lodged with the police naming the accused-appellant. The police came to the village at about 12.00 mid night. According to the prosecution, the accused-appellant fled to the field of one Babulal from where he was brought. The accused made an extrajudicial confession of the incident (Ex-P. 7). On a disclosure made by the accused the body of the deceased covered with her wearing apparels was recovered from the field of one Mohan Patidar. The post-mortem of the dead body revealed evidence of rape and death by strangulation/asphyxia.

7. The evidence of the prosecution further discloses that the FSL report (Ex. P-30) had confirmed the presence of spermatozoa on the clothes of accused-appellant and also on the