Madhya Pradesh High Court: G.S. Ahluwalia, J., allowed a bail application which had been filed in connection with Crime No.337/2020 registered by Police Station Hazira Distt. Gwalior for offence punishable under Sections 363, 376 of IPC, Section 3/4 of POCSO Act and Section 3(1)(w)(ii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

Counsel for the applicant had submitted that the prosecutrix had turned hostile and she had not supported the prosecution case. State counsel was directed to obtain the DNA test report and the case was adjourned. On 14-09-2021   also, the DNA test report was not   available.On 27-09-2021 this criminal appeal was converted into a miscellaneous criminal case in the light of the judgment passed by the Division Bench of this Court in the case of  Pramod v. State of MP on 22-04-2021 in Cr.A. No.5189/2020. Again on the present date it was submitted that DNA test report has not been received and a letter has been received from FSL, Sagar that “consumables and the standard kit” which is used for conducting DNA test report is not available.

The Court found it unfortunate that prosecution was not serious towards the criminal trial. It relied on the judgment of the Supreme court in Hemudan Nanbha Gadhvi v. State of Gujarat, passed on  28-09-2018  in  Criminal Appeal No.913/2016 wherein it was held that even if the prosecutrix has turned hostile, still an accused can be convicted on the basis of scientific / forensic evidence. DNA rest report is one of the crucial circumstance which may prove the guilt of an accused. Even otherwise, under Section   53-A  of   Cr.P.C.,   DNA  test   is   compulsory.   Under   these circumstances, it is the primary responsibility of the State to ensure uninterrupted supply of “consumables and standard kit” to the RFSL so that DNA test can be conducted without any difficulty.

Taking in consideration the current circumstances of the case the Court directed the Director General of Police to immediately   look   into   the   matter   and   to   ensure uninterrupted supply of “consumables and standard kit” to RFSL, Sagar so that DNA test could be conducted as early as possible.

In the context of the question as to whether the accused can be allowed to languish in jail or not when the prosecution itself is not in a position to provide DNA test report the Court deemed it fit to direct for release the applicant on bail relying on the judgment of Hemudan Nanbha Gadhvi. The Court also reminded the judgment of the Supreme Court in IN   RE:   CONTAGION   OF   COVID   19   VIRUS   IN PRISONS in SUO MOTU W.P. (C) No. 1/2020 where it had directed the States to constitute a   High   Powered   Committee to consider the release of prisoners in order to decongest the prisons.[Deepak Tomar v. State of MP, MCRC-49075 of 2021, decided on 04-10-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Advocates before the Court:

Shri Rajiv Shrivastava, Counsel for the applicant.

Shri R.K. Awasthi,  Counsel for the State.

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