Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Raj) 53

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
PANKAJ BHANDARI, ANIL KUMAR UPMAN, JJ.
Bhagwan Bairwa S/o Shri Pokhar – Appellant
Versus
State Of Rajasthan – Respondent
D.B. Criminal Appeal No. 357 of 2022
Decided on : 02-02-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. Saurabh Poonia
For the Respondent: Mr. Javed Choudhary, Addl.G.A. Mr. Dharmendra Choudhary

Point of Law : It is an irregularity on the part of the Court and such vital documents should have been provided to accused before examination under Section 313 Cr.PC. This irregularity caused prejudice to the accused.

Headnote:
Criminal Procedure Code1973 - Section 313 - Indian Penal Code,1860 - Section 376 and 450 - POCSO Act, 2012 - Section ¾ - Offence of Rape – House trespass – Charged- Complainant that at about 5.30 PM, his daughter (prosecutrix) was in her room at home when neighbour (appellant) jumped their wall and entered in room - He closed room and forcefully raped his daughter. On account of the protest, her suit was torn apart - Anyhow, his daughter got rid of him by pushing him away from her and she told him the entire incident when he returned from field - Date of birth of his daughter - It was further contended by him that the DNA report conclusively proves the guilt of the accused. However, counsel for the complainant did not oppose the appeal. Para 7
Finding of Court :
Court find sufficient force in the submission of counsel for appellant that prosecution could not explain the delay in sending samples to FSL. In view of the fact which is observed hereinabove, that prosecution failed to explain that 3-4 days from 21 to 25, who was in possession of samples till they were deposited - Thereafter further delay of 12 days in sending samples to FSL casts doubt about prosecution case - These major discrepancies in sampling and depositing of samples create doubt about veracity of samples and DNA report - Trial court has committed an error in convicting accused on the sole basis of the DNA report- On basis of such a corroborative piece of evidence, no conviction can be recorded in absence of substantial evidence particularly when prosecutrix and her family members have not supported prosecution case- Medical expert also did not find any sign of sexual assault on the person of the prosecutrix - It may also be noted that DNA is a developing science and chance of human error in the results cannot be ruled out - Conviction solely based upon DNA report is not safe.
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Result : Appeal is allowed.

JUDGMENT :

ANIL KUMAR UPMAN, J.

1. Challenge in this appeal is the judgment and order dated 03.11.2022 passed by Special Judge, POCSO Act, 2012 Jaipur, District (hereinafter referred as trial court) in Sessions case No.44/2021 arising out of FIR No.131/2021 registered at Police Station Dudu, District Jaipur for the offences under Section 376 IPC and under Section 3/4 of POCSO Act. By this judgment, the appellant was convicted for the offence under Section 3/4 of POCSO Act and was sentenced to imprisonment for life along with a fine of Rs.1,00,000/-, and in default of payment of the fine, 1 year Rigourous Imprisonment was ordered. However, the appellant was acquitted of the charge of Section 450 IPC. It was also observed that since the accused-appellant has been convicted and sentenced for the offence under Section 3/4 POCSO Act, 2012, and hence there is no need to award a sentence for the offence under Section 376 IPC.

2. Criminal proceedings were set on the motion based on written report Ex.-P2, submitted by PW-1 (XXX) to PW-11 (Pooranmal) who was the then SHO of Police Station, Dudu, District Jaipur. In this report, it was mentioned by the complainant that on 20.03.2021 at about 5.30 PM, his daughter (prosecutrix) was in her room at home when the neighbour (appellant) jumped their wall and entered in the room. He closed the room and forcefully raped his daughter. On account of the protest, her suit was torn apart. Anyhow, his daughter got rid of him by pushing him away from her and she told him the entire incident when he returned from the field. The date of birth of his daughter is 7.8.2004.

3. Based on the aforesaid written report Ex.-P2, formal FIR No.131/2021 (Ex.-P3) was registered at Police Station Dudu, District Jaipur for the offences under Section 376 IPC and under Section 3/4 of the POCSO Act, 2012.

4. On this FIR investigation was commenced and finally police submitted a chargesheet against the appellant on dated 10.6.2021 for the offences under Section 376, 450 IPC and under Section 3/4 of the POCSO Act, 2012. Vide order dated 16.07.2021, learned trial court framed the charges against the appellant for the offences under Section 450 IPC and under Section 3/4 of the POCSO Act. An alternative charge of Section 376 IPC was also framed. The appellant denied the charges and claimed trial. During the course of the trial, the prosecution examined as many as 11 witnesses as PW-1 to PW-11. 19 documents were also exhibited by the prosecution. It may be noted here that the FSL report and DNA report were produced by the prosecution on 06.10.2022 so the same were exhibited by the court itself on dated 10.10.2022 as exhibits C-1 and C-2. On the same day i.e., 10.10.2022 appellant was examined under Section 313 Cr.PC wherein he stated that prosecution evidence is wrong. He is innocent and he did not commit any wrong.

5. Vide impugned judgment 03.11.2022, learned trial court recorded conviction of the appellant and sentenced him as mentioned herein above. Aggrieved from the impugned judgment dated 03.11.2022, this present appeal has been filed before this court.

6. In order to assail the conviction, learned counsel for the appellant submits that material witnesses have not supported the prosecution case. PW-1 (prosecutrix), PW-2 (complainant/ father of the prosecutrix), PW-5 (aunt of prosecutrix), PW-6 mother of prosecutrix) were examined by the prosecution but they did not support the prosecution version, so they were declared hostile. Prosecutrix was examined by medical expert Dr. Anita (PW-4) and she under her testimony stated that she did not find any injury on the person of the prosecutrix. She also further stated that hymen was deeply seated so the injury of the hymen was not visible and also there was no injury near the hymen. In view of the above submission, learned counsel for the appellant submitted that in absence of any substantial evidence, the learned trial court has committed a serious error in convicting the appellant o

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