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 Rigorous 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.P.C. 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 only on the basis of a DNA report which was in fact not supplied to him during the course of the trial. He further submitted that the DNA report itself is under a cloud of doubt because samples were seized on 21.03.2021 vide Ex-P5, while the same were deposited in Maalkhana on 25.03.2021 after 4 days for which no explanation was given by the prosecution. Apart from this, samples were deposited in the FSL on 06.04.2021 after a delay of 12 days which is also unexplained.
7. Learned State counsel supported the impugned judgment and contended that the prosecution was young girl of about 16 years of age and she along with her family members were won over by the appellant. 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.
8. In order to appreciate the contentions advanced by the counsel for the appellant as well as the State counsel, we perused the entire record and appreciated the evidence. From bare perusal of the record, it reveals that the prosecutrix was medically examined on 21.03.2021 Ex. P5, on the same day 4 articles A, B, C & D in box(I) were handed over to the police but box(I) was deposited in Maalkhana on 25.03.2021 with the delay of 4 days. Another box(II) was also shown to be deposited in Maalkhana on the same day but no such box(II) was mentioned in Ex. P5. From bare perusal of Ex. P-17(A) (V), it reveals that 5 entries were made on 25.03.2021 and according to the entry No. 1 in the box (I) 3 samples (1) Blood Swab & Gauze, (2) Saliva Swab, (3) Vaginal Swab & Slide have been shown and in entry No. 2 in box(II) wherein blood of FTA card has been shown. The existence of box(II) in Maalkhana register raises serious doubt because Ex. P-5 has only box(I) which was handed over by the medical expert and blood on FTA card was shown as item No. D in box(I). The appellant was also medically examined vide Ex. P-8 on 22.03.2021 and 2 boxes i.e. box(I) and box(II) were handed over to the police, but both these boxes were deposited in Maalkhana on 25.03.2021 after 3 days which is evident from Ex. P-17-A. In view of the above, it is crystal clear that above mentioned samples were deposited in Maalkhana with delay of 3 days and the prosecution failed to explain as to who was in possession of these samples for three days.
9. Another aspect which is notice by this Court is that as per Ex. C-1 in box(III) undergarment of the victim has been shown but no seizure of the victim's undergarment was exhibited during the course of trial, so the absence of the recovery memo of the victim's undergarment creates serious doubt about the prosecution story. It is also noticed by this Court that the FSL report and DNA report were produced in the court on 6.10.2022, after completion of the prosecution evidence. But the ordersheet dated 6.10.2022 suggests that copy of these reports were not supplied to the appellant or his counsel. On 10.12.2022, the accused-appellant was examined under Section 313 Cr.P.C. and that day these reports were exhibited by the Court itself as Ex. C-1 and Ex. C-2 and were put to the appellant directly while examining him under Section 313 Cr.P.C. In the opinion of this court, it is an irregularity on the part of the Court and such vital documents should have been provided to the accused before examination under Section 313 Cr.P.C. This irregularity caused prejudice to the accused.
10. We find sufficient force in the submission of the counsel for the appellant that the prosecution could not explain the delay in sending the samples to the 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 the samples till they were deposited in Maalkhana. Thereafter further delay of 12 days in sending samples to the FSL casts doubt about prosecution case. These major discrepancies in the sampling and depositing of the samples create doubt about the veracity of the samples and the DNA report. Hence, trial court has committed an error in convicting the accused on the sole basis of the DNA report.
11. Apart from this, a DNA report is merely an opinion of the expert and evidentiary value of the DNA is only corroborative. On the basis of such a corroborative piece of evidence, no conviction can be recorded in absence of substantial evidence particularly when the prosecutrix and her family members have not supported the prosecution case. The 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 the chance of human error in the results cannot be ruled out. Thus, conviction solely based upon DNA report is not safe. We fortify our view from the law laid down by the Hon'ble Apex Court in case of Manoj and Ors. Vs. State of Madhya Pradesh.
12. For the above reasons, we are of the considered view that prosecution failed to prove the charges against the appellant. The conviction and sentence of the accused-appellant cannot be sustained. The appellant is acquitted of the charges levelled against him. The impugned judgment is hereby set aside the appellant shall be released forthwith unless required in any other case. The appeal is allowed.
13. The appellant is directed to furnish a personal bond of rupees 50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Deputy registrar (Judicial) within three weeks from the date of release to the effect that in the event of filing Special Leave Petition against the judgment for grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bonds will remain in force for a period of six months.
