The main legal point established in the judgment is that the evidentiary value of DNA is corroborative, and doubts surrounding the recovery of evidence can undermine the corroborative value of the DNA report, leading to the acquittal of the accused.

JUDGMENT

Pankaj Bhandari, J. - Appellant has preferred this appeal aggrieved by the judgment of conviction and sentence dated 17.10.2022 passed by Special Judge, POCSO Act, 2012 and Commission for Child Rights Protection Act, 2005, No.1, Alwar, whereby appellant has been convicted for offence under Sections 363, 366, 376-3, 342 IPC and Sentence under Section 5(f)/6 of POCSO Act, 2012 and sentenced as under:-

U/s 363 IPC:- Three years rigorous imprisonment and fine of Rs.5,000/-, in default of payment of fine further, one month additional rigorous imprisonment; U/s 366 IPC:- Five years rigorous imprisonment and fine of Rs.10,000/-, in default of payment of fine, further two months additional rigorous imprisonment; U/s 342 IPC:- One year rigorous imprisonment and fine of Rs.1,000/-, in default of payment of fine, further seven days additional rigorous imprisonment; U/s 5(f)/6 of POCSO Act, 2012:- Imprisonment for life till the remaining natural life and fine of Rs.50,000/-. It has been observed that since the accused-appellant has been sentenced for the offence under Section 5(f)/6 of POCSO Act,2012, hence as per the provision of Section 42 of POCSO Act, there is no need to award separate sentence for offence under Section 376(3) IPC. It has been further ordered that all the above sentences of accused-appellant shall run concurrently.

2. Succinctly stated the facts of the case are that on 08.04.2021, complainant-Aslam lodged a written report against the appellant at Police Station Mahila Thana, Bhiwadi, Police Station Bhiwadi, District Alwar with regard to an incident alleged to have taken place on 01.04.2021. It was alleged in the report that the prosecutrix was forcibly taken away by the appellant in a Masjid and she was subjected to rape and was also beaten and threatened.

3. On the basis of above, police registered FIR No.42/2021 and after due investigation, police submitted challan against the accused-appellant for the offence punishable under Sections 323, 341, 342, 363, 366(A), 376(2)(n), 376(3), 506 and 307 of IPC and Section 5(f)/6 of POCSO Act, 2012. The Trial Court has framed charges against the accused-appellant. Appellant denied the charges and claim to be tried. During trial, prosecution examined 11 witnesses as PW-1 to PW-11. In documentary evidence, 25 documents were exhibited. Certain articles were also produced before the Court.

4. After recording the explanation of the accused under Section 313 of Cr.P.C. and after hearing the parties, the trial Court vide impugned judgment dated 17.10.2022 convicted the accused-appellant for the offence punishable under Sections 363, 366, 376(3), 342 of IPC and Section 5(f)/6 of POCSO Act, 2012 and sentenced him as mentioned herein above. Aggrieved by which, the present appeal has been preferred.

5. It is contended by counsel for the appellant that the prosecutrix (PW-1), her father-complainant (PW-2-Aslam) and her mother (PW-4) have not supported the prosecution version. It is also contended that Dr. Sushila Meena (PW-5) has stated in her examination-in-chief that the prosecutrix was not having any internal injuries. The hymen was old torn and there were no injuries on the private parts of the prosecutrix. It is contended that the Court below has erred in convicting the appellant only on the basis of DNA report when the DNA report itself is under a cloud of doubt. It is contended that as per the version in the FIR, the incident took place on 01.04.2021. FIR was lodged after an inordinate delay on 08.04.2021. It is also contended that when the principal witnesses have turned hostile, conviction could not have been made only on the basis of DNA report, as the DNA report only has corroborative value.

6. Learned AGA has opposed the appeal and supported the judgment passed by the learned trial Court. It is contended that the prosecutrix was a young girl aged 13 years and she alongwith her family members were won over by the accused.

7. We have considered the contentions and have perused