Heard on admission.

Appeal is admitted for final hearing.

Also heard on I.A. No.5935 of 2025, which is third application under Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023/ 389(1) of the Code of Criminal Procedure for suspension of sentence and grant of bail to present appellant. The earlier applications of present appellant were dismissed as withdrawn vide orders dated 12.08.2024 and 08.01.2025 respectively.

This Criminal Appeal assails the judgment dated 07.10.2023 passed by the learned Special Judge (POCSO Act, 2012 and SC/ST (POA) Act, 1989, District Jabalpur (M.P.), in SC No.61 of 2019, whereby present appellant has been convicted for offence punishable under Section 376 of the Indian Penal Code and sentenced thereunder as mentioned in the impugned judgment.

It is submitted by learned counsel for the appellant that the prosecutrix has turned hostile completely and has not supported the story of the prosecution in toto. It is further submitted that the case of the prosecution is totally based on the DNA report but the person, who has issued the DNA report has not been examined.

Learned counsel for the appellant has drawn the attention of this Court to the statement of Investigating Officer Rajkumar (PW-10) and stated that the sampling for DNA Test has also not kept in the safe custody and in this respect, the register of malkhana has not been produced. He also relied upon the judgment of Hon'ble Apex Court in Karandeep Sharma alias Razia alias Raju Vs. State of Uttarkhand, 2025 SCC Online SC 773 which reads as under:-

          "38.The circumstance of the 'last seen' having been disbelieved and 'confessional statement' having been discarded, the only other circumstance which remains in the hands of the prosecution to connect the appellant with the crime as relied upon by the trial Court and the High Court are the DNA/FSL reports. The DNA/FSL reports were proved by Om Prakash Sharma, Investigating Officer(PW-14). The conclusions drawn in the DNA report18 are as follows: -

          * The DNA obtained from the Exhibit-15 (t-shirt of accused) is from a single female human source and matching with the DNA obtained from the Exhibit-1 (blood sample of the deceased).

          * The DNA obtained from the Exhibits-2, 3, 4 and 6 (hair of suspected, vaginal smear slide of deceased, paizami of deceased and underwear of deceased) are matching with the DNA obtained from the Exhibits-1 and 10 (blood sample of deceased and blood sample of accused).

          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. The relevant excerpt from his testimony is reproduced below: -

          "The following tests were sent from the injuries of the deceased in her vagina.

          No. 1: Extract was collected from the vagina and four slides were prepared for spectro majoa and smegma bacilli test and were sent to laboratory. 5 ml. blood was taken from the body of the deceased and sent for DNA test. The hair stuck on the vagina of the deceased and blood accumulated outside the vagina were also sent for DNA test. The following clothes of the deceased were sent in a sealed bundle for semen and blood test. Clothing of the deceased: no.1. readymade blue under wear stained with blood and mud. Printed Salwar of the deceased of white and green colour, stained with blood. One small towel with yellow linings, one bracelet, number 5th:- Mud-stained shirt of the deceased. The chip of the videography of all above samples of the deceased and of post mortem examination was sealed and handed over to the accompanied constables."

Learned counsel for the appellant has also drawn the attention of this Court to the judgment of Hon'ble Apex Court in Rahul Vs. State of Delhi, Ministry of Home Affairs and Another with Ravi Kumar Vs. State of NCT of Delhi with Vinod Alias Chhotu Vs. State Government of NCT of Delhi Home, (2023) 1 SCC 83 which reads as under:

          "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 Ex. 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 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. 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 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.

It is further submitted that present appellant is in jail for more than two years and five months and he has a good case on merit. The final disposal of this appeal will take considerable time. The appellant is ready to comply with the conditions as may be imposed by the Court. Therefore, it is prayed that the remaining jail sentence of present appellant may be suspended and he may be released on bail.

Per contra, learned counsel for State has vehemently opposed the prayer made by learned counsel for the appellant and prayed for rejection of application.

Having heard the rival contentions of learned counsel for the parties, perused the record and keeping in view the attending facts and circumstances of case, but without expressing any opinion on the merits of the case, I.A. No.5935 of 2025 is allowed. It is directed that subject to depositing the entire fine amount, if not already deposited, and on furnishing a personal bond of Rs.50,000/- (Rupees Fifty Thousand only) with a solvent surety in the like amount to the satisfaction of the concerned trial Court, the remaining jail sentence of present appellant shall remain suspended and he be released on bail. The present appellant is further directed to mark his appearance before the concerned trial Court on 20.04.2026 and on subsequent dates as may be fixed by the trial Court in this regard, till final disposal of this appeal.

List the case for final hearing in due course. I.A. Nos.27775 of 2025, 14574 of 2025 and 5935 of 2024 stand disposed of.

Certified copy as per rules.