In Reference vs Virendra Adiwasi - 2025 Supreme(MP) 410

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(MP) 410

IN THE HIGH COURT OF MADHYA PRADESH
Vivek Agarwal and Devnarayan Mishra, JJ.
In Reference v. Virendra Adiwasi
Criminal Reference No. 3 of 2021 and Criminal Appeal No. 4401 of 2021 (Jabalpur): against the judgment dated 23.7.2021 passed by Special Judge (POCSO Act)/9th Additional Sessions Judge, Sagar, District Sagar in Special Case No. 37 of 2019; Decided on 25.6.2025

Advocates appeared:
Nitin Kumar Gupta, Public Prosecutor for State;
Aditya Adhikari assisted by Kaustubh Chaturvedi, and Pramod Singh Tomar for accused..

Headnote:
(1) Criminal P. C., 1973 -- S. 293 -- Evidence Act, 1872 -- Ss. 45 and 51 -- admissibility of DNA report -- requirement of examination of Scientific Officer/Chemical Examiner -- DNA evidence is in the nature of opinion evidence as envisaged u/s. 45 -- like any other opinion evidence, its probative value varies from case to case -- where there are doubts about efficacy of drawing of or preservation of sample, it is mandatory to have evidence of chemical examiner or person so authorized u/s. 293, CrPC before it can be taken as a piece of evidence. (2025) SCC Online SC 773, (2008) 4 SCC 493 and AIR 1975 SC 905 followed. 1982 CrLJ 2138 (P&H-DB), 2007 CrLJ (NOC) 507 (P&H-DB), 1982 CrLJ 1197, 1201 (P&H-DB), 1985 CrLJ 1933 (Bom.) and CrLJ 2512 (Ker-DB) relied on. [Paras 33, 34 & 46
(2) Criminal P. C., 1973 -- S. 293 -- Evidence Act, 1872 -- Ss. 45 and 51 -- admissibility of DNA report -- requirement of examination of Scientific Officer/Chemical Examiner -- no request for examination of expert -- no doubt raised as to efficacy of collection, preservation and receipt of samples -- no doubt raised as to process followed by concerned expert, who has been given immunity from appearing before Court in routine course -- examination of expert who carried out DNA test not required. Criminal Appeal No. 1973 of 2013 decided on 28.4.2025 distinguished. [Para 48
(3) Penal Code, 1860 -- Ss. 363, 366A, 376(3) and 376(2)(f) -- Protection of Children from Sexual Offences Act, 2012 -- Ss. 5(n) and 6 -- victim aged 12 years -- when victim was returning with her grandmother, appellant took victim on bicycle -- dead body of victim found in forest -- there is evidence of last seen, evidence of dog handler and DNA report -- chain of all circumstances complete -- points towards guilt of appellant and nobody else -- conviction upheld -- sentence -- judgment is still pending in another criminal appeal involving violation of privacy and murder of senior citizen -- no reports of proven misbehaviour or erratic behaviour in prison -- aged about 24 years -- prior to that, he had no criminal antecedents -- death sentence substituted with life imprisonment till end of life without remission till accused completes 25 years of imprisonment. 2025 SCC Online 575, (2021) 11 SCC 1, (2008) 13 SCC 767, (2010) 1 SCC 58, 2025 SCC Online SC 237 and (2010) 3 SCC 508 followed. [Paras 66 to 69 & 71
¼1½ naM çfØ;k lafgrk] 1973 && /kkjk 293 && lk{; vf/kfu;e] 1872 && èkkjk 45 rFkk 51 && Mh,u, çfrosnu dh xzkárk && oSKkfud vf/kdkjh@jlk;u ijh{kd dh ijh{kk dh vko';drk && Mh,u, lk{; dh ç—fr /kkjk 45 ds v/khu ;Fkk ifjdfYir jk; laca/kh lk{; dh gksrh gS && vU; fdlh Hkh jk; laca/kh lk{; dh Hkk¡fr] bldk çek.kd ewY; çR;sd çdj.k esa fHkUu gksrk gS && tgk¡ uewuk ysus ds ;k mlds ifjj{k.k ds uSiq.; ds ckjs esa lansg gks ogk¡ mls lk{; ds :i esa xzg.k djus ds iwoZ jlk;u ijh{kd vFkok naM çfØ;k lafgrk dh /kkjk 293 ds v/khu çkfèk—r O;fä dk lk{; djkuk vkKkid gSA ¼2025½ ,llhlh v‚uykbu ,llh 773] ¼2008½ 4 ,llhlh 493 rFkk ,vkbvkj 1975 ,llh 905 vuqlfjrA 1982 lhvkj,yts 2138 ¼ih&,pMhch½] 2007 lhvkj,yts ¼,uvkslh½ 507 ¼ih&,pMhch½] 1982 lhvkj,yts 1197- 1201 ¼ih&,pMhch½] 1985 lhvkj,yts 1933 ¼cacbZ½ rFkk lhvkj,yts 2512 ¼dsjy-Mhch½ voyafcrA ¼iSjk 33] 34 ,oa 46
¼2½ naM çfØ;k lafgrk] 1973 && /kkjk 293 && lk{; vf/kfu;e] 1872 && /kkjk 45 rFkk 51 && Mh,u, çfrosnu dh xzkárk && oSKkfud vf/kdkjh@jlk;u ijh{kd dh ijh{kk dh vko';drk && fo'ks"kK dh ijh{kk ds fy, dksbZ vuqjks/k ugha && uewuksa ds laxzg.k ds uSiq.;] ifjj{k.k rFkk çkfIr ds ckjs esa dksbZ lansg ugha trk;k x;k && lac) fo'ks"kK }kjk] ftls uSfefÙkd vuqØe esa U;k;ky; ds le{k milatkr gksus ls mUeqfä nh xbZ gS] vuqlfjr çfØ;k ds ckjs esa dksbZ lansg ugha trk;k x;k Mh,u, ijh{k.k djus okys fo'ks"kK dh ijh{kk vko';d ughaA nkafMd vihy Ø- 1973 lu~ 2013 fu.khZr fnukad 28-4-2025 çHksfnrA ¼iSjk 48
¼3½ naM lafgrk] 1860 && /kkjk 363] 366d 376¼3½ rFkk 376¼2½¼p½ && ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 && /kkjk 5¼ढ½ rFkk 6 && ihfM+rk dh o; 12 o"kZ && tc ihfM+rk viuh firkegh ds lkFk ykSV jgh Fkh rc vihykFkhZ ihfM+rk dks lkbfdy ij ys x;k && ihfM+rk dk 'ko ou esa ik;k x;k && vafre ckj ns[ks tkus dk lk{; gS] dqÙkk gSaMyj dk lk{; gS rFkk Mh,u, çfrosnu gS && lHkh ifjfLFkfr;ksa dh J`a[kyk iw.kZ && vihykFkhZ dh gh nksf"krk bafxr gksrh gS] vU; fdlh dh ugha && nks"kflf) ekU; BgjkbZ xbZ && naMkns'k && T;s"B ukxfjd dh futrk Hkax djus vkSj gR;k djus ls lacaf/kr ,d vU; nkafMd vihy esa fu.kZ; vkuk 'ks"k gS && canhx`g esa lkfcr nqO;Zogkj ;k vfLFkj O;ogkj dh dksbZ lwpuk ugha && yxHkx 24 o"kZ o; dk && mlls iwoZ mlds dksbZ vkijkf/kd iwoZo`Ùk ugha Fks && e`R;q naMkns'k dks thou ds var rd vkthou dkjkokl ls çfrLFkkfir fd;k x;k] ftlesa vfHk;qä }kjk 25 o"kZ dk dkjkokl iw.kZ fd, tkus rd dksbZ ifjgkj ugha gksxkA 2025 ,llhlh v‚uykbu ,llh 575] ¼2021½11 ,llhlh 1] ¼2008½13 ,llhlh 767- ¼2010½ 1 ,llhlh 58] 2025 ,llhlh v‚uykbu ,llh 237 rFkk ¼2010½3 ,llhlh 508 vuqlfjrA ¼iSjk 66 ls 71

JUDGMENT

Agarwal, J. -- 1. These cases originate from the impugned judgment dated 23.7.2021 passed by the learned Special Judge (POCSO Act)/Ninth Additional Sessions Judge, Sagar, District Sagar (M.P.) in Special case No.37/2019 (State of Madhya Pradesh through Police Station Sanodha, District Sagar v. Virendra Adiwasi S/o Nirpat), whereby the appellant-accused has been convicted by the learned trial Court under sections 363, 366A of IPC and sentenced to undergo rigorous imprisonment for 7 years (fine of Rs.100/-) and rigorous imprisonment for 10 years (fine of Rs.100/-), respectively, with default stipulation to undergo additional rigorous imprisonment for 2 months on each count. The appellant is also convicted under section 376(3) read with section 376(2)(f) of IPC and section 5(n) read with section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to life imprisonment and fine of Rs.100/- with default stipulation to undergo additional rigorous imprisonment for 2 months. The appellant is also convicted under section 302 of IPC and sentenced to death penalty i.e. hanging till death and fine of Rs.200/- with default stipulation to undergo additional rigorous imprisonment for 4 months.

2. Brief facts of the case are that, the victim/deceased is related to the appellant. Intimation was received by SHO, Police Station Sanodha, District Sagar on 7.4.2019 through control room, Sagar that a dead body was lying in jungle near village Bodha Pipariya. When concerned SHO had gone to the said jungle to verify the correctness of the information, then he had seen dead body of the victim aged about 12 years in the jungle. Dehati Nalsi was lodged by the father of the victim to the effect that he is a resident of village Bodha and is working as a labourer. He has 3 sons and one daughter. The victim/deceased is his daughter who has studied upto Class-5th. On 6.4.2019, there was a function in regard to their relative for which his mother (PW-2) had gone along with the victim. They were returning on foot when appellant Virendra had met his mother and said that she may move on foot and he will take the victim on his bicycle. His mother (PW-2) had returned back by 12 noon, but when the victim did not return, then informant, father of the victim (PW-3) and mother of the victim i.e. PW-4 had gone to village Aapchand to find whereabouts of the victim. When victim and appellant were not found, then they returned back to their village and caused inquiry. On inquiry, they were informed by villager Madan (PW-5) that a girl is lying dead in the jungle, near Paran Nala. Then, PW-3 father of the victim had gone to Paran Nala along with Magan, his brother-in-law and other persons, where they had seen the girl lying dead. Intimation was given to police. Merg was registered at 0/19 under section 174, Cr.P.C.

3. As dead body of deceased was recovered at night, Shav Panchnama could not be prepared. Relatives of the deceased, villagers and a constable were left at the spot and then after returning to the police station, PW-23 Inspector Chandan Singh Parihar registered actual merg No.31/2019.

4. On 8.4.2019, PW-23 Inspector Chandan Singh Parihar had reached the spot along with FSL team and dog squad, where after giving intimation for preparation of Shav Panchnama, Shav Panchnama was drawn. Body was found near a bush in half naked state. She was putting on a green red colour Kurta which was above her chest and near her left leg was lying an underwear and a torn piece of salwar. A plastic slipper was lying near the dead body. At a distance of 1 feet from the dead body, a piece of salwar was lying. There were signs of vomiting. There was swelling on lips, eyes and throat. There were injury marks on the chin. Women witnesses had examined private parts of the prosecutrix, who opined that there was swelling in the private parts and she had passed stool. Thereafter, dead body was sent for postmortem.

5. Spot map (Ex.P-7), etc. were prepared, n