The relevance of DNA profiling and victim's identification during TIP as crucial evidence in deciding bail applications for serious offences.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

1. This is a bail application seeking grant of regular bail in FIR No. 383/2020 dated 11.09.2020 under Sections 363/323/342/365/354/ 354A/376/376D/34 of IPC, 1860 and Sections 6/8 of POCSO Act, registered at Police Station Malviya Nagar.

2. As per the case of the prosecution and submitted by learned counsel for the applicant, on 10.09.2020, the victim was reported missing from her house and on 11.09.2020 an FIR was registered under Section 363 of IPC.

3. Learned counsel submits that the applicant was not named in the FIR.

4. It is the further submission of learned counsel that the main accused Pooja and her husband Pradip were found with the victim and on the disclosure statement of Pooja, one Rabi Ghosh-accused no.3, was arrested. Learned counsel further submits that it is upon the alleged disclosure statement of Rabi Ghosh-accused no.3, that the present applicant was arrested on 17.09.2020.

5. Learned counsel further submits that from 17.09.2020, the applicant has been continuously in judicial custody.

6. Learned counsel submits that the said Rabi Ghosh-accused no.3 has already been released on bail vide order dated 03.12.2020 passed by the learned Trial Court.

7. Learned counsel submits that the investigation is complete in all respects and charges have already been framed and therefore no further investigation would be required by the Investigating Authorities to keep the applicant in custody.

8. Learned counsel submits on merits that even in the statement under Section 164 Cr.P.C. of the victim, she has not named the applicant nor any allegation of any nature at all has been imputed to the applicant before this Court.

9. Learned counsel has drawn attention of this Court to page 181 of the present bail application, which is the statement of the victim recorded under Section 164 of Cr.P.C. By referring to page 181, learned counsel submits that the victim has not been able to impute any role nor his name has been disclosed in such statement and therefore there is no way to ascertain as to whether it was the applicant alone who was the correct person against whom any allegation, if at all, has been imputed.

10. Learned counsel also refers to page 320 of the present bail application, which is the part of the regular bail order of accused Rabi Ghosh to submit that those circumstances, which were sufficient for the release of accused no.3 Rabi Ghosh by the learned ASJ, cannot be held to be not enough for the applicant before this Court from having the same entitlement.

11. Leaned counsel also refers to the FSL reports, particularly to page 302 whereby the blood sample of the victim was stated to have been drawn for the purpose of ascertaining as to whether the said blood sample contained any traces of alcohol in blood, keeping in view the version of the prosecution that the victim was forced to take alcohol before the assault had taken place.

12. Learned counsel in contradistinction to Exhibit 12, which was marked to such sample having been drawn, compares the same to the result at page 306 in respect of Exhibit 12, which was now stated to be by the FSL as 'Scalp Hairs'. On that basis, learned counsel submits that even the FSL report seems to be either false or fudged and cannot be relied upon. Learned counsel on the basis of this discrepancy, submits that the DNA fingerprinting could be false or fabricated report, not remotely connecting the applicant to the present offences.

13. Learned counsel also submits that the applicant has been in incarceration since 17.09.2020 and may be released on bail since he is not required by the investigating agencies. Learned counsel also seeks release of the applicant on parity with Rabi Ghosh-accused no.3 and submits that the applicant is better place since he was never named or identified by the victim.

14. Per Contra, Mr. Shoaib Haider, learned APP for the State submits that the dire