ORDER

Date : 26-10-2022

(N. Kotiswar Singh, J.)

Heard Mr. B.D. Konwar, learned Senior counsel, assisted by Ms. M. Zomuanpuii, learned counsel for the applicant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam as well as Mr. A. Ali, learned counsel, for the informant.

2. The present application has been filed for enlarging the applicant on bail during the pendency of Criminal Appeal No.169/2022.

3. While acknowledging that the POCSO Act is a special statute enacted to protect the interest of minor children against sexual assault having stringent provisions, and persons accused under the POCSO Act have to discharge the onerous burden of disproving the presumption drawn under Section 29 of the POCSO Act, the main thrust of the submission of the learned Senior counsel for the applicant is that if the foundational facts are not established, such a conviction can be challenged.

4. In the present case, it has been submitted by the learned Senior counsel for the applicant that the foundational fact of the case is that the victim girl was subjected to sexual assault by the applicant cannot be said to have been established in view of the fact that the DNA test, which was conducted with the permission of the Court had proved negative inasmuch as the DNA profile of the accused did not match the DNA profile of the victim and the child.

5. On the other hand, Ms. Jahan, learned Additional Public Prosecutor, Assam and Mr. Ali, learned counsel for the informant have submitted that the negative result of a DNA test is not the conclusive proof of innocence of the applicant inasmuch as there are other evidences on record to sustain the conviction specially in view of the consistent and reliable evidence of the victim girl and other prosecution witnesses.

6. In order to appreciate the rival contentions of the parties, we may briefly refer to the facts involved in the case leading to conviction of the applicant.

7. From the records, it appears that an FIR was lodged on 10.07.2018 by the father of the victim girl against the applicant and another person alleging that about 7 months ago at about 9 pm the applicant had sexually assaulted his minor daughter with the promise to marry her. His minor daughter after becoming pregnant and missed her monthly menstrual cycle, disclosed this fact to the informant and his wife. Though the informant approached Nazrul Islam, i.e., the other accused, to call a village bichar, it was declined and, accordingly, the informant filed the complaint before the police against both the applicant and said Nazrul.

8. According to learned Senior counsel for the applicant, though the victim girl testified before the Court and the prosecution examined as many as 7 witnesses including the Medical Officer and the I/O, except for the statement of the prosecutrix, there were no corroborative evidences. Thus, it has been submitted that absence of any corroborative evidence and in the light of the negative DNA test which was conducted at the instance of the applicant, would cause a serious dent on the prosecution case and, as such, the applicant would be entitled to bail at this stage.

9. On the other hand, it has been submitted by Ms. Jahan, learned Additional Public Prosecutor, Assam that law is now well-settled that the result of a DNA test is merely an expert opinion and cannot be said to be a clinching evidence unless it is the case of positive DNA result as held by the Hon’ble Supreme Court in Veerendra Vs. State of MP, AIR 2022 SC 2396. In Veerendra (supra), the Hon’ble Supreme Court observed in paragraph- 30 that a negative result of DNA or DNA profiling having not been done would not and could not, for that sole reason, result in failure of the prosecution case and the Court has a duty to weigh the other materials and evidence on record to come to the conclusion on guilt or otherwise.

10. It has been submitted that in the present case, the prosecutrix, who was examined as PW6, was very consistent in her statement t