Page No.1 of 10 IN CRA-797-2016 2025:CGHC:58172-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 797 of 2016 [Arising out of judgment dated 07.05.2016, passed in Special Session Case No.04/2014 (State of Chhattisgarh v. Kista Sodhi and others) by the Special Additional Sessions Judge, Fast Track Court, Dantewada (CG)] Kista Sodhi, S/o Sodhi Narsa, aged about 25 years, R/o Nelakanker, P.S.- Usoor, District - Bijapur (Chhattisgarh) ... Appellant (On Bail) Versus State of Chhattisgarh, through Police Station Avapalli, District- Bijapur - Chhattisgarh ... Respondent [Cause-title taken from Case Information System (CIS)] ----------------------------------------------------------------------------------------------- For Appellant : Mr. PR Patankar, Advocate For Respondent-State : Mr. Sharad Mishra, Panel Lawyer ----------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board (01.12.2025) Sanjay K. Agrawal, J (1) Invoking criminal appellate jurisdiction of this Court, the sole appellant herein has preferred this criminal appeal under Section 374(2) of Cr.P.C., calling in question the legality, validity and correctness of the impugned judgment of conviction and order of SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 10 IN CRA-797-2016 sentence dated 07.05.2016, passed in Special Session Case No.04/2014 (State of Chhattisgarh v. Kista Sodhi and others) by the Special Additional Sessions Judge, Fast Track Court, Dantewada (CG), whereby he has been convicted and sentenced as under: Conviction Sentence U/s. 376 of IPC Imprisonment for life with fine of Rs.500/- and, in default of payment of fine amount, additional rigorous imprisonment for 06 months. U/s. 5(C) & 6 of the Protection of Children from Sexual Offences Act, 2012 [for short the “Act of 2012”] Imprisonment for life with fine of Rs.500/- and, in default of payment of fine amount, additional rigorous imprisonment for 06 months. [Both the sentences are directed to run concurrently] (2) The case of the prosecution, in short, is that from 2012 uptill 09.03.2014, the appellant herein committed repeated sexual intercourse with the victim (PW-01) against her will and consent and, due to which, she became pregnant and delivered male child in the month of April, 2014 and, as such, the appellant is said to have committed the aforesaid offences. (3) It is further case of the prosecution that when the aforesaid incident was reported to the police by the father of the victim (PW- 02), FIR (Ex.P/01) was registered was registered against the appellant and wheels of investigation started running in the crime, in which, site map was prepared vide Ex.P/02. The appellant was medically examined vide Ex.P/11 by Dr. Onkar Singh Patel (PW-12). Page No.3 of 10 IN CRA-797-2016 Further, DNA profiling has also been conducted and as per DNA report (though not exhibited by annexed at Page-59-67 of the paper- book), it has been opined that source Exhibit-C (Mr. Kista Sodh) and source Exhibit-A (Ku. Sarita Madkam) are the biological father and mother of the source Exhibit-B (newly born male child). Thereafter, statements of witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 14 witnesses and exhibited 13 documents, whereas the appellant- accused in support of his defence neither examined any witness not exhibited any document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, though acquitted other co-accused persons, but proceeded to convict the appellant herein for offence under Section 376 of IPC as also under Section 5(C) & 6 of the Act of 2012 and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. Page No.4 of 10 IN CRA-797-2016 (6) Mr. PR Patankar, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences, as the prosecution has failed to prove the same beyond reasonable doubt. He further submits that the victim (PW-01) was the consent party and her age to be minor has not at all been proved by the prosecution by leading evidence of clinching nature. Further, the learned trial Court has wrongly relied upon the VII Class mark-sheet and identification form to hold that the victim (PW-01) was minor on the date of offence for the reasons that neither the said documents have been exhibited nor any person/witness has been examined to prove the same. Even otherwise, according to the statement of the victim (PW-01), her date of birth is 24.02.1993 and, as such, on the date of offence, she was major. Moreover, as per Para-22 of the statement of the victim (PW- 01) also, she was major on the date of incident. As such, the victim (PW-01) cannot be held minor on the date of offence and, therefore, she was consenting party. Learned counsel also argued that though according to DNA report it has been opined that the appellant and the victim (PW-01) are biological father and mother of the baby male delivered by the victim (PW-01), but the author of the said DNA report has not been examined before the Court to prove same, therefore, in light of the decision of the Supreme Court in Rahul v. State of Delhi, Ministry of Home Affairs and another 1 , the 1 (2023) 1 SCC 83 Page No.5 of 10 IN CRA-797-2016 result/opinion of the said DNA report pales into insignificance and cannot be relied upon. Furthermore, the said DNA report has neither been exhibited nor put to the accused while recording his statement under Section 313 of CrPC. Hence, the learned trial Court is absolutely unjustified in convicting the appellant for the offence in question and, therefore, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charges on the basis of benefit of doubt. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 376 of IPC as also under Section 5(C) & 6 of the Act of 2012. Thus, the present appeal deserves to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. Age of the victim: (9) The first question is as to whether the victim (PW-01) was minor on the date of offence or not, which the learned trial Court recorded in affirmative by relying upon VII class mark-sheet of the Page No.6 of 10 IN CRA-797-2016 victim (PW-01) and the identification form of the victim (annexed at Page-65 of the paper-book). So far as the VII class mark-sheet is concerned, neither the said mark-sheet has been exhibited in evidence neither any witness has been examined to prove the same. As such, the same cannot be relied upon. Further, though the identification form is annexed at Page-65 of the paper-book, but the doctor/author, of the said identification form has not been examined, namely, SPR Prasad, therefore, the same cannot be relied upon with regard to date of birth of the victim (PW-01). Even otherwise, the victim (PW-01) in her statement before the Court has specifically stated that her date of birth is 24.02.1993 and, as such, on the date of offence, she was major. Moreover, as per Para-22 of the statement of the victim (PW-01) also, she has clearly admitted that she had attained majority at the time when accused for the first time committed sexual intercourse with her. The victim was subjected to some length of cross-examination, but nothing could be extracted from her to hold that she was minor on the date of offence. As such, for the aforesaid reasons, the prosecution miserably failed to established that the victim was minor on the date of offence. It is held accordingly. Consent of the victim: (10) The next question for consideration is as to whether the victim (PW-01) was consenting party or not ? A careful perusal of the statement of the victim, specifically Para-20 onward, would show Page No.7 of 10 IN CRA-797-2016 that the victim (PW-01) and the appellant knew each other very well. They like each other and wanted to solemnize marriage and, therefore, they used to have consensual sexual relationshiop with each other. As such, from the aforesaid admitted facts, it is quite clear that the victim (PW-01) was consenting party. It is held accordingly. DNA profiling: (11) The last piece of evidence which has been relied upon by the learned trial Court to hold the appellant guilt for the offence is the DNA report (though not exhibited by annexed at Page-59-67 of the paper-book), wherein it has been opined that source Exhibit-C (Mr. Kista Sodh) and source Exhibit-A (Ku. Sarita Madkam) are the biological father and mother of the source Exhibit-B (newly born male child). However, the author of the said DNA report, namely, SPR Prasad, Senior Technical Examiner, has neither been cited as witness nor brought to the witness-box to be examined before the Court. (12) In this regard, the Supreme Court in the matter of Rahul (supra) while dealing with the issue concerning evidentiary value of DNA report, has held that DNA profiling reports cannot be admitted in evidence ipso facto by virtue of Section 293 CrPC and it is necessary for the prosecution to prove that the techniques of DNA profiling were reliably applied by the expert and observed in Para-36 Page No.8 of 10 IN CRA-797-2016 & 38 as under: “36. The learned Amicus Curiae has also assailed the forensic evidence i.e. the report regarding the DNA profiling dated 18-4-2012 (Ext. P-23/1) giving incriminating findings. She vehemently submitted that apart from the fact that the collection of the samples sent for examination itself was very doubtful, the said forensic evidence was neither scientifically nor legally proved and could not have been used as a circumstance against the appellant- accused. The Court finds substance in the said submissions made by the Amicus Curiae. The DNA evidence is in the nature of opinion evidence as envisaged under Section 45 and like any other opinion evidence, its probative value varies from case to case. **** **** **** **** 38. It is true that PW 23 Dr B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ext. PW 23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the investigating officer on 14-2-2012 and 16-2-2012; and they were sent to CFSL for examination on 27-2-2012. During this period, they remained in the malkhana of the police station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the trial court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In the absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion.” Page No.9 of 10 IN CRA-797-2016 (13) The aforesaid principle of law laid down by their Lordships of the Supreme Court in Rahul (supra) has been followed with approval in the matter of Karandeep Sharma @ Razia @ Raju v. State of Uttarakhand 2 whereby it has been held that DNA reports cannot be admitted in evidence on account of non-examination of the scientific expert who carried out the DNA profiling and same is fatal and observed in Para-40 as under: “40. Thus, in the facts and circumstances of the present case, non-examination of the scientific expert who carried out the DNA profiling is fatal, and the DNA report cannot be admitted in evidence. That apart, we find that the very procedure of collection and forwarding of DNA samples to the FSL is full of lacunae and loopholes. The incident took place on the intervening night of 25th/26th June, 2016. The dead body of the child-victim was picked from the crime scene by the Investigating Officer(PW-14) on 26th June, 2016 at 06:16 AM and was forwarded to Dr. Madan Mohan, medical officer(PW-7) for carrying out the post-mortem examination. The medical officer, while deposing on oath, stated that he collected following samples and articles from the child-victim’s dead body for forensic examination.” (14) As such, in light of the above-quoted principle of law, non- examination of the author of DNA report, namely, SPR Prasad, Senior Technical Examiner, is fatal to the case of the prosecution and, the DNA report cannot be admitted in evidence to hold the appellant herein guilty of the offence that too when neither the said DNA report has been exhibited evidence nor the same has been put 2 2025 INSC 444 Page No.10 of 10 IN CRA-797-2016 to the accused while recording his statement under Section 313 of CrPC. We hereby hold accordingly. (15) In view of aforesaid discussion, the conviction and sentence of the appellant for offences punishable under Section Section 376 of IPC as also under Section 5(C) & 6 of the Act of 2012, as imposed upon him by the learned trial Court, are liable to be and are hereby set aside. The appellant is acquitted of the said charges on the basis of benefit of doubt. Since the appellant is already on bail, he need not to surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. (16) Consequently, this criminal appeal is allowed to the extent indicated herein-above. (17) Let a certified copy of this order alongwith original record be transmitted to the trial Court for necessary information and action, if any. sd/- Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge s@if