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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SANDEEP SHARMA, J.
Sanjeev Kumar - Appellant
Versus
State of H.P. - Respondent
Cr. Appeal No.97 of 2019
Decided On : 03-03-2021
Protection of Children from Sexual Offences Act, 2012 – Sections 4, 17 – Code of Criminal Procedure, 1973 – Section 374, 164, 161 – Indian Penal Code, 1860 – Sections 342, 376, 120-B – Sexual Offence – Judgment of Conviction – Instant Criminal Appeal filed under Section 374(II) of Code of Criminal Procedure, lays challenge to judgment of conviction and order of sentence passed by Special Judge, in Sessions Case titled as State of Himachal Pradesh versus Sanjeev Kumar and another, whereby learned Court below while holding appellant guilty of having committed the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 convicted and sentenced him to undergo rigorous imprisonment for seven years and to pay fine of Rs.50,000/- and in default of payment of fine, to further undergo simple imprisonment for six months. – Held, Patent absurdities and inherent infirmities or improbabilities in the prosecution version leads to irresistible inference of false hood in prosecution case. – In the case at hand none of the prosecution witnesses including the prosecutrix has supported the case of the prosecution that accused Sanjeev Kumar raped victim/prosecutrix on the date of alleged incident, but still accused came to be convicted on the basis of FSL report, correctness whereof is under serious doubt for the reasons detailed in the earlier part of the judgment. – DNA report cannot be considered as a conclusive proof of guilt of accused, but definitely it can be considered as conclusive proof of innocence of accused. Such report can only lend support to other evidence, but definitely cannot be made sole basis to conclude the guilt of the accused. – DNA report cannot be sole and conclusive evidence to record conviction and same cannot be accepted in isolation, in the absence of foundational evidence on record. – Court has no hesitation to conclude that learned court below has failed to appreciate the evidence available on record in its right perspective, as a consequence of which, accused wrongly came to be convicted under Section 4 of the POCSO Act. – Appeal Allowed
Key Points: - (!) The Court questions the correctness and foundation of the SFSL DNA report and its use as sole basis for conviction. - (!) It highlights that DNA evidence cannot be sole and conclusive proof without corroborating foundational evidence. - (!) It emphasizes that the prosecution must establish foundational facts and reliable corroboration beyond mere DNA results. - (!) It notes that where material witnesses turned hostile and did not support the prosecution, reliance on DNA alone is insufficient for conviction. - (!) It discusses issues with seizure, handling, and Chain of Custody of DNA samples and whether samples reached the testing laboratory. - (!) It references expert evidence standards under Sections 45 and 105 of the Evidence Act and the advisory nature of expert testimony. - (!) It cites that DNA evidence should be corroborated by independent evidence and cannot override lack of supportive testimony. - (!) The court ultimately acquits the accused due to failure to establish reliable foundational facts and proper evidentiary corroboration. - (!) It discusses the need for reasonable doubt when foundational facts are not proven, even in stringent POSCO provisions. - (!) It relies on broader jurisprudence: DNA evidence is not infallible and must be tested against other reliable evidence.
JUDGMENT :
SANDEEP SHARMA, J.
1. Instant Criminal Appeal filed under Section 374(II) of the Code of Criminal Procedure, lays challenge to judgment of conviction and order of sentence dated 5th/6th March, 2019 passed by learned Special Judge, Kangra, District Kangra, Himachal Pradesh, in Sessions Case No.67-P/VII/2014, titled as State of Himachal Pradesh versus Sanjeev Kumar and another, whereby learned Court below while holding appellant ( hereinafter referred to as the accused) guilty of having committed the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012( for short ‘POCSO Act’), convicted and sentenced him to undergo rigorous imprisonment for seven years and to pay fine of Rs.50,000/- and in default of payment of fine, to further undergo simple imprisonment for six months.
2. For having bird’s eye view, facts relevant for proper adjudication of the case at hand are as under:-
(i). Victim/prosecutrix, who happened to be minor daughter of complainant Raj Sunani (PW-9) had gone to her school on 14.8.2014 to appear in her 10+1 examination, but since she did not return back in the evening, her mother (wife of the complainant) informed her husband and son in the evening at 7:00 PM. Though, complainant and other family members tried to search the victim/ prosecutrix, but since she was not found, complainant (PW-9) lodged missing report at police Station, Panchrukhi. Subsequently, complainant, as named hereinabove, allegedly received telephonic information that the victim/ prosecutrix is in the house of one of the co-accused, Rajni Bala at Banuri as such, complainant, his father-in-law, his brother-in-law and nephews went to the house of above named accused Rajni Bala to know the whereabouts of victim/prosecutrix, but since co-accused Rajni Bala feigned ignorance, complainant telephonically informed Panchrukhi police.
(ii). Police officials conducted search of the house of accused Rajni Bala in the presence of some independent witnesses and allegedly recovered victim/prosecutrix from the bed box kept in the drawing room. After having prepared recovery memo, police recorded the statement of the complainant under Section 161 Cr.P.C and thereafter on the basis of the same, FIR Ex.PW 19/A came to be registered against the present accused Sanjeev Kumar and co-accused Rajni Bala under Sections 342, 376, 120-B of IPC and Sections 4 and 17 of the POSCO Act and since then the accused is behind the bars, whereas coaccused Rajni Bala stands acquitted vide judgment impugned in the instant appeal.
3. After completion of the investigation, police presented the challan in the competent court of law, who being satisfied that a prima-facie case exists against the accused, framed charges under the aforesaid provisions of law against both the accused. However, subsequently, vide judgment dated 5th/6th 3.2019, learned Special Judge, Kangra at Dharamshala though held present accused guilty of having committed the offence punishable under Section 4 of the POCSO Act and accordingly, convicted and sentenced him to undergo rigorous imprisonment for seven years, but acquitted co-accused Rajni Bala of the commission of offence punishable under Sections 342, 120-B of IPC and Sections 4 and 17 of the POCSO Act. In the aforesaid background, accused has approached this Court in the instant appeal, seeking therein his acquittal after setting aside the judgment of conviction and order of sentence recorded by learned Court below. It is not in dispute that no appeal, if any, ever came to be filed at the behest of the respondent-State qua acquittal of co-accused Rajni Bala.
4. Mr. Dushyant Dadwal, learned counsel representing the appellant/accused while making this Court to peruse the evidence adduced on record by the prosecution vis-à-vis reasoning assigned by learned Court below while holding accused guilty of having committed the offence punishable under Section 4 of the POCSO Act, vehemently argued that learned Court below
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