Chattisgarh High Court
Mithlesh Kumar vs State Of Chhattisgarh on 20 August, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:41968-DB
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 16-06-2025
Judgment delivered on : 20-08-2025
CRA No. 369 of 2019
Rajesh Chakradhari, S/o Shankar Lal Chakradhari, aged about 29
years, R/o Village Bhatgaon, Post Office & Police Station - Abhanpur,
Distt. Raipur (CG)
... Appellant
versus
State Of Chhattisgarh Through the District Magistrate, Raipur, Distt.
Raipur (CG)
... Respondent
CRA No. 739 of 2019
Mithlesh Kumar S/o Shri Siyaram Tarak, aged about 50 years, R/o
Village-Ulba, PS Abhanpur, Distt. Raipur, Civil and Revenue Distt.
Raipur (CG)
... Appellant
versus
State Of Chhattisgarh Through Police Station - Abhanpur, Distt. Raipur
(CG)
... Respondent
2
For Appellants : Mr. Maneesh Sharma, Mr. Anshu Ratre and Mr.
Manoj Ku. Sinha, Advocates.
For Respondent : Mr. Ashish Shukla, Additional Advocate General.
Hon'ble Smt. Justice Rajani Dubey
Hon'ble Shri Justice Amitendra Kishore Prasad, JJ
CAV Judgment
Per Rajani Dubey, J
Since both these appeals arise out of the judgment of conviction
and order of sentence dated 7.2.2019 passed by the 7 th Additional
Sessions Judge, Distt. Raipur in Special Criminal Case No.215/2017,
they are being disposed of by this common judgment. By the impugned
judgment, the appellants stand convicted under Sections 363/34,
366/34, 342/34, 376D of IPC and Section 6 of Protection of Children
from Sexual Offences Act, 2012 (in short “the Act of 2012”) and
keeping in view the provisions of Section 42 of the Act of 2012,
sentenced as under:
Conviction Sentence
Under Section 363/34 of Indian RI for two years, pay a fine of
Penal Code. Rs.500/- and in default thereof to
suffer additional RI for one month.
Under Section 366/34 of Indian RI for three years, pay a fine of
Penal Code. Rs.1000/- and in default thereof to
suffer additional RI for two
months.
3
Under Section 342/34 of Indian RI for six months, pay a fine of
Penal Code. Rs.100/- and in default thereof to
suffer additional RI for fifteen
days.
Under Section 376D of Indian RI for twenty years, pay a fine of
Penal Code. Rs.25000/- and in default thereof
to suffer additional RI for six
months.
All the sentences were directed to run concurrently.
02. Case of the prosecution, in brief, is that on 26.5.2017 the
prosecutrix was going to the house of her Bua (father’s sister) at Ulba
by bus. When she reached at the turning of Ulba at around 3 o’clock,
the accused/appellants came from Ulba on a red coloured motorcycle
and enquired from her about her arrival. They told her that they knew
the house of her Bua and would drop her there. Thereupon she sat on
their motorcycle. However, the accused/appellants instead of taking
her to her destination, rode her around towards Ulba and Rakhi. At
about 7 o’clock they took her into a room of a Khaprail house (a clay-
tiled house) situated at Ulba Brick-kiln, closed the room from inside,
tied her hands and legs with scarf and on the threat of being killed if
she screamed or tried to escape, committed rape upon her turn by turn
and fled from there after about three hours. She somehow untied her
and informed about the incident to her Bua, Jeeja (husband of sister)
and her sister. She also informed them about the physical
4
characteristics of the accused and the vehicle number 8137. On
27.5.2017 in the village meeting she identified both the
accused/appellants. On her report, offence under Sections 363, 366,
342, 506, 376D of IPC and Sections 5 & 6 of the Act of 2012 was
registered and after completing usual investigation, charge sheet was
filed against them.
03. Learned trial Court framed charges under Sections 363, 366,
376D, 506 Part-II, 342 of IPC and Section 6 of the Act of 2012 against
the accused persons, which were abjured by them and they prayed for
trial. In order to substantiate its case the prosecution examined 13
witnesses in all. Statements of the accused were recorded under
Section 313 of CrPC wherein they denied all the incriminating
circumstances appearing against them in the prosecution case,
pleaded innocence and false implication. However, no witness was
examined by them in defence.
04. After hearing counsel for the respective parties and appreciation
of oral and documentary evidence on record, the learned trial Court
convicted and sentenced the appellants as mentioned above. Hence
these appeals.
05. Learned counsel for the appellant Rajesh Chakradhari in CRA
No.369/19 would submit that the impugned judgment is per se illegal
and contrary to the material available on record. Evidence of the
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prosecutrix and her relatives are not corroborated by the other
prosecution witnesses. There is no evidence against this appellant that
he took away the prosecutrix and committed rape on her. The
prosecutrix in her deposition has admitted this fact that the present
appellant did not commit rape on her. In fact, she accompanied the
appellant of her own free will. Learned trial Court has failed to
appreciate the fact that she did not raise alarm at any point of time and
this conduct is unlike a victim of rape or abduction. There are many
contradictions and omissions in the statements of the prosecution
witnesses which have been overlooked by learned trial Court. As per
medical evidence of PW-6 Dr. Sumitra Uraon, there was no external or
internal injury on the body of the prosecutrix and no sign of recent
sexual intercourse. Thus, the medical evidence also does not support
the prosecution case. There is no test identification parade conducted
by the prosecution. Further, the material witnesses Ajay Yadav
(brother-in-law), Rakmani Yadav (sister) and Kunti Yadav (aunt) whom
the prosecutrix first narrated the incident were not examined by the
prosecution for the reasons best known to it. The basic ingredients for
attracting the alleged offences against the appellant are extremely
missing in this case.
As regards age of the prosecutrix, the informant and author of
the entry made in the school register regarding date of birth of the
prosecutrix has not been examined by the prosecution. As such, it has
not been proved in accordance with law that she was minor on the date
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of incident. The prosecution has failed to prove its case as against the
present appellant beyond all reasonable doubt, therefore, looking to
the nature and quality of evidence, the impugned judgment is not
legally sustainable against the present appellant and he deserves to be
acquitted of all the charges.
Reliance has been placed on the decisions of the Hon’ble
Supreme Court in the matters of Raja Vs. State of Karnataka, AIR
2016 SC 4930 and Manak Chand @ Mani Vs. State of Haryana, AIR
2023 SC 5600.
06. Learned counsel for the appellant Mithlesh Kumar in CRA
No.739/2019 would contend that the findings recorded by learned trial
Court regarding conviction of the appellant Mithlesh Kumar are based
on erroneous appreciation of the oral and documentary evidence
available on record. The evidence of the prosecutrix and the other
prosecution witnesses suffer from the vice of contradiction and
omission, thus making their statements untrustworthy. The appellant
has been falsely implicated in this case because there was dispute with
the family members of the prosecutrix. There is absolutely no reliable
evidence regarding kidnapping of the prosecutrix by the appellant.
Further, as per medical and FSL evidence also it stands proved that
there was no forcible sexual intercourse with the prosecutrix as
alleged. Apart from this, there is DNA report which confirms that no
male DNA profile was found on the vaginal slide of the prosecutrix but
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the prosecution deliberately suppressed this report and not exhibited
the same before learned trial Court. There is no eyewitness to the
incident, all the witnesses are hearsay witnesses and looking to the
contradiction and omission in the statement of the prosecutrix she does
not appear to be a reliable witness. She admits in her deposition that
while roaming around with the accused persons she had opportunity of
raising alarm or attracting the attention of the passersby but she did not
do so. Further, the prosecution has also failed to prove by leading
cogent and reliable evidence that she was minor on the date of
incident. Therefore, in view of the above, it is clear that the prosecution
has failed to prove its case also against the appellant beyond all
reasonable doubt and as such, he is entitled to be acquitted of all the
charges by extending him benefit of doubt.
Reliance has been placed on the decision of the Hon’ble
Supreme Court in the matter of Manak Chand @ Mani Vs. State of
Haryana, AIR 2023 SC 5600; and judgment of this Court in CRA
No.967/2021 in the matter of Ramsharan Singh Vs. State of CG,
2023(2) CGLJ 425 and the judgment dated 18.3.2025 in CRA
No.1035/2019 in the matter of Vinod Nat Vs. State of CG.
07. On the other hand, learned counsel for the State opposing the
contention of the appellants would submit that in view of oral and
documentary evidence on record, the learned trial Court has rightly
convicted and sentenced the appellants by the impugned judgment
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which calls for no interference by this Court. The present appeals being
without any substance are liable to be dismissed.
08. Heard learned counsel for the parties and perused the material
available on record.
09. It is clear from the record of learned trial Court that the
appellants were charged under Sections 363, 366, 376D, 506 Part-II,
342 of IPC and Section 6 of the Act of 2012 and after appreciation of
oral and documentary evidence, learned trial Court while acquitting
them of the charge under Section 506 Part-II of IPC, convicted and
sentenced them as described in para 1 of this judgment.
10. First of all we shall proceed to consider whether on the date of
incident the prosecutrix was below 18 years of age.
11. PW-1 prosecutrix states that her date of birth is 11.11.2002 and
she was 15 years of age at the time of incident i.e. 6.3.2017. In para 8
of cross-examination she states that she has studied upto Class X and
she failed in Class X. She does not remember as to in which year she
appeared in Class X examination. In para 9 she admits that she also
failed in Class IX. She states in para 11 that the date of birth disclosed
by her in the Court is on the basis of her school marksheet.
12. PW-8 Smt. Nand Ramteke, Head Mistress of Govt. Primary
School, Fekari states that the police seized Dakhil-Kharij register
(Ex.P/12) as per seizure memo Ex.P/13. In this register, date of birth of
9
the prosecutrix is recorded as 11.11.2002 and date of admission as
1.7.2008. In cross-examination she admits that the said date of birth
was not entered by her in Ex.P/12. She also admits that it is nowhere
mentioned in the register as to at whose instance date of birth of the
prosecutrix was recorded. She then volunteers that it was recorded at
the behest of her father. She again admits that there is no photocopy of
Jachchaa-Bachcha card (Mother and Child Protection Card) annexed
with record. She admits that many a time the parents got age of their
children recorded on lower or upper side.
13. This Court in the matter of Vinod Nat (supra) in paras 14 & 15 of
its judgment observed as under:
“14. Vide judgment dated 18.07.2023 in the matter of P.
Yuvaprakash Vs. State Rep. By Inspector of Police, Hon’ble
Apex Court held in paras 18 and 19 which read thus:-
“18. Reverting to the facts of this case, the
headmaster of M’s School, CW-1, was summoned
by the court and produced a Transfer Certificate
(Ex.C-1). This witness produced a Transfer
Certificate Register containing M’s name. He
deposed that she had studied in the school for one
year, i.e., 2009-10 and that the date of birth was
based on the basis of the record sheet given by the
school where she studied in the 7th standard. DW-2
TMT Poongothoi, Headmaster of
Chinnasoalipalayam Panchayat School, answered
the summons served by the court and deposed that
‘M’ had joined her school with effect from
1003.04.2002 and that her date of birth was recorded
as 11.07 1997 She admitted that though the date of
birth was based on the birth certificate, it would
normally be recorded on the basis of horoscope.
She conceded to no knowledge about the basis on
which the document pertaining to the date of birth
was recorded. It is stated earlier on the same issue,
i.c., the date of birth. Thiru Prakasam, DW-3 stated
that the birth register pertaining to the year 1997
was not available in the record room of his office.
19. It is clear from the above narrative that none of
the documents produced during the trial answered
the description of “the date of birth certificate from
the school” or “the matriculation or equivalent
certificate” from the concerned examination board
or certificate by a corporation, municipal authority or
a Panchayat. In these circumstances, it was
incumbent for the prosecution to prove through
acceptable medical tests/examination that the
victim’s age was below 18 years as per Section
94(2)(iii) of the JJ Act. PW-9. Dr. Thenmozhi, Chief
Civil Doctor and Radiologist at the General Hospital
at Vellore, produced the X-ray reports and deposed
that in terms of the examination of M, a certificate
was issued stating “that the age of the said girl
would be more than 18 years and less than 20
years” In the cross-examination, she admitted that
M’s age could be taken as 19 years. However, the
High Court rejected this evidence, saying that
“when the precise date of birth is available from out
of the school records, the approximate age
11estimated by the medical expert cannot be the
determining factor” This finding is, in this court’s
considered view, incorrect and erroneous. As held
earlier, the documents produced, ie, a transfer
certificate and extracts of the admission register, are
not what Section 94 (2) (1) mandates: nor are they
in accord with Section 94 (2) (ii) because DW-1
clearly deposed that there were no records relating
to the birth of the victim, M. In these circumstances,
the only piece of evidence, accorded with Section
94 of the JJ Act was the medical ossification test,
based on several X-Rays of the victim, and on the
basis of which PW-9 made her statement. She
explained the details regarding examination of the
victim’s bones, stage of their development and
opined that she was between 18-20 years; in cross-
examination she said that the age might be 19
years. Given all these circumstances, this court is of
the opinion that the result of the ossification or bone
test was the most authentic evidence, corroborated
by the examining doctor, PW-9.”
15. Hon’ble Apex Court in the matter of Alamelu and
another Vs. State, represented by Inspector of Police,
(2011) 2 SCC 385 observed in paras 40 & 48 of its
judgment as under:
“40.Undoubtedly, the transfer certificate, Ex.P16
indicates that the girl’s date of birth was 15th
June, 1977. Therefore, even according to the
aforesaid certificate, she would be above 16
years of age (16 years 1 month and 16 days) on
12the date of the alleged incident, i.e., 31st July,
1993. The transfer certificate has been issued by
a Government School and has been duly signed
by the Headmaster. Therefore, it would be
admissible in evidence under Section 35 of the
Indian Evidence Act. However, the admissibility
of such a document would be of not much
evidentiary value to prove the age of the girl in
the absence of the material on the basis of which
the age was recorded.
48. We may further notice that even with
reference to Section 35 of the Indian Evidence
Act, a public document has to be tested by
applying the same standard in civil as well as
criminal proceedings. In this context, it would be
appropriate to notice the observations made by
this Court in the case of Ravinder Singh Gorkhi
Vs. State of U.P.4 held as follows:-
“The age of a person as recorded in the
school register or otherwise may be used for
various purposes, namely, for obtaining
admission; for obtaining an appointment; for
contesting election; registration of marriage;
obtaining a separate unit under the ceiling
laws; and even for the purpose of litigating
before a civil forum e.g. necessity of being
represented in a court of law by a guardian
or where a suit is filed on the ground that
the plaintiff being a minor he was not
appropriately represented therein or any
13transaction made on his behalf was void as
he was a minor. A court of law for the
purpose of determining the age of a party to
the lis, having regard to the provisions of
Section 35 of the Evidence Act will have to
apply the same standard. No different
standard can be applied in case of an
accused as in a case of abduction or rape,
or similar offence where the victim or the
prosecutrix although might have consented
with the accused, if on the basis of the
entries made in the register maintained by
the school, a judgment of conviction is
recorded, the accused would be deprived of
his constitutional right under Article 21 of the
Constitution, as in that case the accused
may unjustly be convicted.”
14. In light of above, in the present case it is clear that the
prosecutrix stated about her date of birth on the basis of her school
marksheet. PW-8 Smt. Nand Ramteke, Head Mistress, is not author of
the entry made in the school Dakhil-Kharij register. There is no cogent
and reliable oral or documentary evidence to substantiate the fact her
date of birth is 11.11.2002. Thus, it is clear that the prosecution has
failed to prove this fact beyond reasonable doubt that the prosecutrix
was below 18 years of age on the date of incident.
15. PW-1 prosecutrix stated that after staying for a week at the
house of her Badi Ma, she told her son Devraj that she would go to the
14
house of her Bua at Ulba, so he made her sit in a bus at Maroda Bus
Stand. She again boarded a bus at Patan Bus Stand and alighted from
the bus at Ulba turning where both the accused/appellants came in a
red coloured motorcycle and enquired from her as to where she is
going. When she told them that she is going to the house of her Bua,
they asked the name of her Bua and told that they know her Bua and
would drop her at her house. However, they rode her around on
motorcycle by 3 o’clock and then took her into a brick-kiln at around 7
o’clock where after tying her hands and legs committed rape on her
turn by turn. She states that she remained there for three hours and
after departure of the accused persons, somehow untied her and went
into a nearby house where she informed her sister and brother-in-law
about the whole incident. The accused persons were searched in the
night and next day FIR (Ex.P/1) was lodged by her which bears her
signature from A to A part. She also admits here signatures from A to A
part on spot map prepared by the police Ex.P/2; her consent for
medical examination Ex.P/3, seizure memo of her panty Ex.P/4; her
statement before Judicial Magistrate, Raipur Ex.P/5; her statement
recorded before Child Welfare Committee Ex.P/6; and the spot map
prepared by the Patwari Ex.P/7.
In para 15 of cross-examination she admits that while going from
brick-kiln to Ulba she did not tell anyone about the act of the
accused/appellants as there was no one. She denies the suggestion in
para 16 that she made no attempt to raise alarm or jump off the
15
motorcycle of the accused persons while being taken by them. She
volunteers that she was made to sit in the middle by the accused. She
further admits that while going from Village-Ulba to Rakhi and returning
with the accused persons she did not raise alarm. She volunteers that
it was a secluded place. In para 19 she admits that she signed on the
counseling report. She admits that she knows one Vinod Markandey of
Village-Achanakpur for the last one year, they love each other but
denies the suggestion that they wanted to marry. In para 20 she admits
that when this love affair came to the knowledge of her mother, there
was dispute with her mother, so on 26.5.2017 at 10 am she left her
house for the house of Bua Kunti at Ulba. In para 24 she herself states
that only one boy committed wrong with her and the other one didn’t.
When the Court asked about that boy who committed wrong with her,
she indicated at accused Mithlesh.
16. PW-2 Hemlal Yadav states that the prosecutrix informed him
about the incident and then panchayat was convened where the
accused persons confessed their guilt and report was lodged against
them. PW-3 Gangaram Sonwani states that on being informed by the
Village Kotwar about village meeting, he went there where prosecutrix
was present. While he was enquiring from the prosecutrix about her
arrival at the village etc., at that time the accused persons came there
on motorcycle and parked it near a peepal tree. He states that the
prosecutrix told that she identifies the accused persons and their
motorcycle and that both of them committed rape on her.
16
17. PW-4 Bodlu Rathi also states that in the village meeting the
prosecutrix disclosed that while she was going to the house of her
Fufa, the accused persons on their motorcycle took her into a brick-kiln
and committed rape on her on the threat of life. She identified the
accused persons in the village meeting as perpetrator of the crime. He
admits his signature from A to A part on seizure memos Ex.P/8 & P/9
whereby underwear of the accused persons were seized by the police
before him.
18. PW-5 Kanhaiya Sharma states that in the village meeting the
prosecutrix disclosed that it is the accused persons who came on red
coloured motorcycle and committed rape on her in the brick-kiln. PW-7
Smt. Bena Bai has not supported the prosecution case and she has
been declared hostile. In cross-examination by the prosecution she
denied all the suggestions including her police statement.
19. PW-6 Dr. Sumitra Uraon examined the prosecutrix on 27.5.2017
and found some abrasions on her cheek. On examination of her private
part, she noticed no injury on inner part of thigh, pubic area, labia;
pubic hair matted and white secretions present over vulva. She noticed
that the hymen was torn and vaginal mucosa was red. She prepared
the vaginal slides of the prosecutrix, sealed it and handed over it to the
constable for chemical analysis. In her opinion, there is evidence of
recent sexual intercourse within 12-18 hours. Her report is Ex.P/10
which bears her signature from A to A part.
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20. As per FSL report (Ex.P/29), semen was found on Article A & B –
underwear and vaginal slide of the prosecutrix, and Article E – slide of
the accused Mithlesh.
21. The present is a case of gang rape. However, as per DNA test
report dated 21.2.2018, available at page No.54 of paper book, no
male DNA profile was found in Ex.C/309 i.e. vaginal slide of the
prosecutrix.
22. In the matter of Chotkau v. State of Uttar Pradesh, (2023) 6
SCC 742, Hon’ble Apex Court in para-80 of has observed as under:
“80. After saying that Section 53A is not mandatory, this Court
found in paragraph 54 of the said decision that the failure of the
prosecution to produce DNA evidence, warranted an adverse
inference to be drawn. Paragraph 54 reads as follows: (Rajendra
Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460
SCC p.485)“54. For the prosecution to decline to produce DNA evidence
would be a little unfortunate particularly when the facility of DNA
profiling is available in the country. The prosecution would be well
advised to take advantage of this, particularly in view of the
provisions of Section 53A and Section 164A CrPC. We are not
going to the extent of suggesting that if there is no DNA profiling,
the prosecution case cannot be proved but we are certainly of the
view that where DNA profiling has not been done or it is held back
from the trial court, an adverse consequence would follow for the
prosecution.”
18
23. In the case of Krishan Kumar Malik v. State of Haryana, (2011) 7
SCC 130, Hon’ble Apex Court in para-44 has held as under:
“44. Now, after the incorporation of Section 53 (A) in the Criminal
Procedure Code, w.e.f. 23.06.2006, brought to our notice by
learned counsel for the Respondent-State, it has become
necessary for the prosecution to go in for DNA test in such type
of cases, facilitating the prosecution to prove its case against the
accused. Prior to 2006, even without the aforesaid specific
provision in the Cr.P.C. the prosecution could have still resorted
to this procedure of getting the DNA test or analysis and
matching of semen of the Appellant with that found on the
undergarments of the prosecutrix to make it a fool proof case,
but they did not do so, thus they must face the consequences.”
24. Recently the Hon’ble Supreme Court in the matter of Kattavellai @
Divakar vs. State of Tamil Nadu in CRA No. 1672/2019 reported in
2025 LiveLaw (SC) 703 has also held as under:-
“30. Having noticed various gaps as above, the logical question
that arises is where were the swabs?; why were they sent for
forensic analysis belatedly?; were they properly stored?; whether
the Malkhana of the Police Station where they were kept
according to some of the witnesses, was sufficiently equipped or
not; if the same were kept in the hospital, was it ensured that no
other member of the staff could have had access to them?; in
whose custody were they?; if the swabs were damaged, who
shall be held responsible for the destruction of vital evidence,
etc. Similar questions arise in connection with the semen sample
taken from the accused as a consequence of an order passed by
the Judicial Magistrate, Uthamapalayam, on 13th June, 2011.
PW-56 states that the said samples were sent to FSL, Chennai,
19on 16th June, 2011 but subsequently returned. It is unclear, yet
again, that between 13th and 16th June 2011 where such
samples were stored; who was in charge thereof and whether he
had kept them in safe custody?; how and in what condition they
were sent; when and why they were returned – unfortunately, all
these questions have no answer forthcoming from the record.
31. In Anil v. State of Maharashtra (2014) 4 SCC 69 this Court
observed that DNA profiles have had a tremendous impact on
criminal investigations. A DNA profile is valid and reliable, but the
same depends on quality control and procedures in the
laboratory. We may add to this position and say, that quality
control and procedures outside the laboratory matter equally as
much in ensuring that the best results can be derived from the
samples collected. We record with some sadness that there are
quite a few cases in which DNA evidence, despite being there,
has to be rejected for the reason that the manner, in which the
samples were handled during and after collection by the
concerned doctor, in transit to the lab, inside the lab and the
results drawn therefrom, are not in accordance with the best
possible practices which would focus on ensuring that
throughout this process the samples remain in pristine, hygienic
and biologically suitable conditions.
34. Prakash Nishad v. State of Maharashtra (2023) 16 SCC 357
was a case concerning the rape and murder of a 6-year-old
child. Similar to the present case, it was a case of circumstantial
evidence. Based on the disclosure statement made by the
Appellant therein, the police found certain garments as also
traces of semen of the Appellant on the vaginal smear of the
minor victim, based on which he was sought to be convicted.
DNA evidence had to be rejected by this Court on the grounds
that there was a delay in sending the samples to the FSL, which
20was unexplained. It was observed that because of the delay, the
concomitant prospect of contamination could not be ruled out.
The need for expediency in sending samples to the concerned
laboratories was underscored.
35. This case, incidentally, if not unfortunately, is another one of
the like of the above. Despite the presence of DNA evidence, it
has to be discarded for the reason that proper methods and
procedures were not followed in the collection, sealing, storage,
and employment of the evidence in the course of the Appellant-
convict’s conviction. DNA, as we have observed, has been held
to be largely dependable, even though this evidence is only of
probative value, subject to the condition that it is properly dealt
with. Over the past decades, many cases have come to their
logical conclusion with the aid of DNA evidence in many regions
across the world. It is also equally true that many persons
wrongly convicted have finally had justice served, with them
being declared innocent because of advancements in this
technology. It is unfortunate that, alongside such advancements,
we still have cases where, despite the evidence being present, it
has to be rejected for the reason that the concerned persons,
either doctors or investigators, have been careless in the
handling of such sensitive evidence.”
25. In the case in hand, the undergarments of the prosecutrix and
the accused/appellants as also the semen slide of the accused
Mithlesh were seized on 27.5.2017 vide Ex.P/4, P/8, P/9 and P/17
respectively. The blood sample of accused/appellants were seized on
9.8.2017 vide Ex.P/25 & P/26 and vaginal slide of the prosecutrix was
prepared and seized on 27.5.2017. As per DNA test report, the blood
21
samples of the accused/appellants and vaginal slide of the prosecutrix
were received on 10.8.2017 at the FSL. As per this DNA test report, no
male DNA profile was found in Ex.C (309) i.e. vaginal slide of the
prosecutrix. It is not disputed that DNA test was conducted during
investigation and the report was also obtained but the prosecution did
not make any endavour to exhibit this report. The defence also did not
bother to exhibit the DNA report. Thus, keeping in view the aforesaid
decisions of the Hon’ble Supreme Court, looking to the fact that in this
case DNA profiling was done by the prosecution during investigation
and report was also obtained which probabilizes the defence of the
accused, but it was held back from the trial court, an adverse
consequence would follow for the prosecution.
26. It is also clear that the prosecutrix in her examination-in-chief
states that both the accused persons committed rape on her whereas
in cross-examination she states that only one boy committed rape and
another didn’t and when the Court asked about that boy who
committed rape on her, she indicated at accused Mithlesh. She also
admits that on account of there being some dispute with her mother
over her (prosecutrix) relation with one Vinod Markandey, she left her
house. She also admits that she did not raise any alarm while being
taken by the accused on motorcycle and even while they were roaming
her around. Thus, looking to the evidence of the prosecutrix, it is not of
sterling quality as to be made basis of conviction of the
22
accused/appellants. Further, her conduct during the incident and
subsequent thereto also makes her evidence doubtful. Moreover,
though as per FSL report semen was found on the vaginal slide of the
prosecutrix but DNA test report does not support the prosecution case.
Thus, it is clear that the prosecution has failed to prove its case as
against the accused/appellants beyond all reasonable doubt and being
so, they deserve to be acquitted of all the charges by extending them
benefit of doubt.
27. In the result, both the appeals are allowed and the impugned
judgment convicting and sentencing the accused/appellants under
Sections 363/34, 366/34, 342/34, 376D of IPC and Section 6 of the Act
of 2012 is hereby set aside and they are acquitted of the said charges.
Accused/appellant Rajesh Chakradhari is reported to be on bail
whereas accused/appellant Mithlesh Kumar is behind the bars.
Keeping in view the provisions of Section 481 of BNSS, 2023 each of
them is directed to furnish a personal bond for a sum of Rs.25,000/-
with one surety in the like amount before the Court concerned which
shall be effective for a period of six months alongwith an undertaking
that in the event of filing of special leave petition against the instant
judgment or for grant of leave, the aforesaid appellants on receipt of
notice thereon shall appear before the Hon’ble Supreme Court.
The record of the trial Court along with copy of this judgment
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be sent back immediately to the trial Court concerned for compliance
and necessary action. A copy of this judgment be also forwarded to the
concerned Jail Superintendent for information and necessary action.
Sd/ Sd/
(Rajani Dubey) (Amitendra Kishore Prasad)
Judge Judge
Digitally signed
by MOHD
MOHD AKHTAR
KHAN
AKHTAR Date:
KHAN 2025.08.20
16:25:39
+0530
Khan
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