Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on :10.10.2025
Judgment pronounced on: 09.01.2026
+ CRL.A. 240/2023 & CRL.M.(BAIL) 375/2023
BADAL @ PRINCE MALHOTRA ..... Appellant
versus
STATE (NCT OF DELHI) ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Saurabh Upadhyay, Mr. Aakash
Yadav, Mr. Salil Dixit and Mr. Amit
Upadhyay, Advocates.
For the Respondent : Mr. Sunil Kumar Gautam, APP for the State
with SI Asha, PS Sarita Vihar.
Mr. Asheesh Jain, Senior Advocate (Amicus
Curiae) with Mr. Adarsh Kumar Gupta, Mr.
Vishal Gupta and Ms. Neha Yadav,
Advocates.
CORAM
HON’BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present appeal is filed challenging the judgment of
conviction dated 22.09.2022 (hereafter ‘ impugned judgment ’) and
order on sentence dated 29.11.2022 (hereafter ‘ impugned order on
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sentence ’), passed by the learned Additional Sessions Judge, New
Delhi District, Patiala House Courts, New Delhi in SC No. 9503/2016
arising out of FIR No. 322/2016 (‘ FIR ’), registered at Police Station
Sagarpur.
2. By the impugned judgment, the appellant was held convicted
for the offences under Section 376(2)(i) of the Indian Penal Code,
1860 (‘ IPC ’) and Section 4 of the Protection of Children from Sexual
Offences Act, 2012 (‘ POCSO Act ’).
3. By the impugned order on sentence, the appellant was
sentenced to undergo rigorous imprisonment for a term of 10 years
and to pay a fine of ₹20,000/-, and in default of payment of fine, to
undergo simple imprisonment for two months.
4. The brief facts of the case are as under:
4.1. On 01.07.2016, a complaint was made by the brother of the
victim, who was fourteen years of age at that time, in regard to her
being missing from the house since 11 AM. It was alleged that a sum
of ₹2 lakhs in cash, clothes and ID proofs of the victim were also
missing. This led to registration of FIR for the offence under Section
363 of the IPC.
4.2. Subsequently, on 07.07.2016, a PCR call was received that a
girl had been traced and her description matched with the victim. The
victim was produced before the concerned SHO, whereafter, she was
counselled and sent for medical examination. During medical
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examination, the victim told the doctor that she had left the house of
her own will and the accused was known to her since the last one
month. The victim allegedly also informed that the appellant had taken
her to his house and forcibly had sexual intercourse with her on
01.07.2016 and 02.07.2016. On 07.07.2016, the victim’s father
produced one red bag containing some clothes, pink purse, Samsung
phone and ₹62,000/-. On the same day, place of incident was
inspected at the instance of the victim and the appellant was arrested.
4.3. Age proof of the victim was collected from her school wherein
her date of birth was found to be 17.01.2001 as per the school record.
4.4. On 08.07.2016, the victim’s statement under Section 164 of the
Code of Criminal Procedure, 1973 (‘ CrPC ’) was recorded where she
stated that she had gone from her home on 01.07.2016 and met with
the appellant, who took her to his home. She stated that the appellant
purchased a Scooty from her money and also raped her for two days
without her consent. On 07.07.2016, she left the house of the
appellant, whereafter, her parents found her and a call was made to the
police.
4.5. The victim deviated from her earlier statements during
recording of her evidence and claimed that her statements about
having physical relations with the appellant on 01.07.2016 and
02.07.2016 was given under pressure of her parents. The parents of the
victim also deposed that the victim had not told them about having any
physical relation with the appellant.
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4.6. By the impugned judgment, the learned Trial Court found that
the prosecution had succeeded in proving the case against the
appellant. It was noted that although the victim had ultimately denied
that she had any sexual intercourse with the appellant, she had
admitted to staying with the appellant. It was also noted that the victim
had stated that she was subjected to sexual harassment without her
consent when she was produced for medical examination as well as in
her statement under Section 164 of the CrPC, her hymen was found to
be broken and the FSL report affirmed the presence of the DNA of the
appellant in the samples obtained from the vaginal and vulval regions
of the victim. It was also observed that the examination of the police
witnesses who had drawn the samples as well as the examination of
the doctors was dispensed with, and no circumstances were brought to
show that the investigation was improper or biased.
4.7. Aggrieved by the same, the appellant preferred the present
appeal.
4.8. When the victim could not be served despite best efforts as she
was not found to be available at the given address, by way of order
dated 25.02.2025, the Predecessor Bench appointed Mr. Asheesh Jain,
Sr. Adv. to assist the Court on behalf of the victim.
5. The learned counsel for the appellant submitted that the
appellant’s conviction cannot be sustained as the same is premised on
solely on the basis of scientific evidence, without appreciating that the
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same has no corroboration from the statements of the victim (PW2) or
her parents (PW3 and PW4).
6. He submitted that in cases pertaining to sexual offences, the
victim is the star witness and her testimony is the substantive
evidence. He submitted that all scientific and circumstantial materials
are only corroborative and once the prosecutrix and her parents have
not supported the case of the prosecution, the case loses its core
evidentiary foundation.
7. He submitted that the victim in the present case has
categorically deposed that her statement under Section 164 of the
CrPC was given under duress and pressure from her parents. He
further submitted that even in cross-examination, the victim only
admitted to voluntarily eloping with the accused and staying with him
voluntarily, not being forced into establishing sexual relations. He
submitted that the statement under Section 164 of the CrPC cannot
substitute a victim’s evidence during trial.
8. He submitted that the learned Trial Court erred in acting solely
on the basis of the positive DNA report, even though it is well-settled
that scientific evidence, especially DNA reports, are not infallible. He
submitted that the failure of defence to put a specific suggestion in
regard to collection and analysis of samples to the concerned witness
does not endorse the case of the prosecution. He placed reliance on the
judgment of the Hon’ble Apex Court in the case of Rahul v. State of
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Delhi Ministry of Home Affairs & Anr. : Criminal Appeal No.
611/2022 .
9. He submitted that the samples were taken on 07.07.2016, while
the alleged incident happened on 01.07.2016 and 02.07.2016, and the
samples were belatedly sent to the laboratory on 19.07.2016. He
submitted that the delay in sending the samplesfrom malkhana to the
laboratory raises serious doubt of potential contamination, which
cannot be ruled out merely because no suggestion in this regard was
put to the concerned police witness. He submitted that despite
conceding to the presence of gap in sending the samples to FSL, the
learned Trial Court erroneously shifted the onus on the defence for not
cross-examining in this respect.
10. He submitted that the reliance on Modi’s jurisprudence was
misplaced and medical jurisprudence indicates that presence of
spermatozoa alone is not conclusive of recent intercourse. He thus
submitted that presence of DNA after 5-6 days does not prove recent
or forced intercourse. He further submitted that hymen tear was old
and there were no external injuries which renders the medical
evidence as inconclusive.
11. He submitted that the absence of any substantive evidence
coupled with the procedural lapses ought to have led to the appellant
being acquitted. He submitted that when the victim turns hostile, the
Court is bound to seek independent corroboration and if the only
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remaining piece of evidence is unreliable, as in the present case, the
benefit of the same automatically accrues to the accused.
12. He further submitted that the foundational facts required for
raising the presumptions under Section 29 and 30 of the POCSO Act
were not established, despite which the same was applied even though
the victim and her parents did not support the case of the prosecution
and there was no eye witness to the alleged rape.
13. He submitted that the appellant was merely 19-20 years of age
at the time of his implication in the present case and the victim
admitted to having eloped with consent, which shows that no coercion
was involved. He submitted that in the absence of the victim or her
parents confirming physical relations, the appellant ought to be
acquitted in present circumstances.
14. The learned amicus curiae argued that the FSL report
conclusively shows that the appellant had established sexual relations
with the victim, when she was a minor. He submitted that as the
present case concerns allegations pertaining to sexual assault of a
minor, the presumption under Section 29 of the POCSO Act would act
against the appellant and it was upon the appellant to prove to the
contrary.
15. He also led this Court through a number of judgments on the
issue of medical evidence as a basis of conviction and the reliability of
a hostile witness.
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ANALYSIS
16. At the outset, it is relevant to note that while dealing with an
appeal against judgment on conviction and sentence, in exercise of
Appellate Jurisdiction, this Court is required to reappreciate the
evidence in its entirety and apply its mind independently to the
material on record. The Hon’ble Apex Court in the case of Jogi &
Ors. v. The State of Madhya Pradesh : Criminal Appeal No.
1350/2021 had considered the scope of the High Court’s appellate
jurisdiction under Section 374 of the CrPC and held as under:
“9. The High Court was dealing with a substantive appeal under
the provisions of Section 374 of the Code of Criminal Procedure
1973. In the exercise of its appellate jurisdiction, the High Court
was required to evaluate the evidence on the record independently
and to arrive at its own findings as regards the culpability or
otherwise of the accused on the basis of the evidentiary material.
As the judgment of the High Court indicates, save and except for
one sentence, which has been extracted above, there has been
virtually no independent evaluation of the evidence on the record.
While considering the criminal appeal under Section 374(2) of
CrPC, the High Court was duty bound to consider the entirety of
the evidence. The nature of the jurisdiction has been dealt with in a
judgment of this Court in Majjal v State of Haryaya [(2013) 6 SCC
799] , where the Court held:
‘6. In this case what strikes us is the cryptic nature of the
High Court's observations on the merits of the case. The
High Court has set out the facts in detail. It has mentioned
the names and numbers of the prosecution witnesses.
Particulars of all documents produced in the court along
with their exhibit numbers have been mentioned. Gist of the
trial court's observations and findings are set out in a long
paragraph. Then there is a reference to the arguments
advanced by the counsel. Thereafter, without any proper
analysis of the evidence almost in a summary way the High
Court has dismissed the appeal. The High Court's cryptic
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reasoning is contained in two short paragraphs. We find
such disposal of a criminal appeal by the High Court
particularly in a case involving charge under Section 302
IPC where the accused is sentenced to life imprisonment
unsatisfactory.
7. It was necessary for the High Court to consider whether
the trial court's assessment of the evidence and its opinion
that the appellant must be convicted deserve to be
confirmed. This exercise is necessary because the personal
liberty of an accused is curtailed because of the conviction.
The High Court must state its reasons why it is accepting
the evidence on record. The High Court's acceptable only if
it is supported by reasons. In such appeals it is a court of
first appeal. Reasons cannot be cryptic. By this, we do not
mean that the High Court is expected to write an unduly
long treatise. The judgment may be short but must reflect
proper application of mind to vital evidence and important
submissions which go to the root of the matter. Since this
exercise is not conducted by the High Court, the appeal
deserves to be remanded for a fresh hearing after setting
aside the impugned order.’ ”
(emphasis supplied)
17. The criminal jurisprudence is premised on the principle that a
conviction cannot be sustained on the basis of mere surmises or
conjecture. It is thus for the prosecution to establish, by means of
cogent and credible evidence, each element of the alleged offence
beyond reasonable doubt. Accordingly, a meticulous examination of
the impugned judgment as well as the material on record is
necessitated to discern as to whether material aspects of the case were
either summarily disregarded or addressed in sweeping
generalisations.
18. This Court is now required to determine the most fundamental
question that lies at the heart of every criminal trial: Does the
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prosecution’s evidence prove the case beyond reasonable doubt? In
doing so, this Court deems it apposite to carefully examine the events
that transpired during and post the occurrence of the alleged incident.
The inception of the present case occurred on a complaint given by the
brother of the victim in relation to the victim, who was less than
sixteen years of age, being missing. Subsequently, a PCR call was
received that a girl had been traced and the victim was produced
before the concerned SHO on 07.07.2016. Initially, the victim asserted
that she had left her home of her own free will and made allegations of
forceful penetrative sexual assault being committed by the appellant
on 01.07.2016 and 02.07.2016. It is the case of the prosecution that the
victim stayed at the appellant’s house from 01.07.2016 till she was
recovered and the appellant had forcibly established sexual relations
with her on two days, as per the victim’s statement recorded under
Section 164 of the CrPC.
19. The prosecution examined seven witnesses to prove its case,
that is, the victim (PW1), the victim’s brother (PW2), the victim’s
father (PW3), the victim’s mother (PW4), the investigating officer
(PW5), the officer who was on duty when the complaint was received
and who ultimately produced the victim before the SHO (PW6), and
the Senior Scientific Officer (Biology), FSL, Rohini who had prepared
the FSL report (PW7). Pertinently, in the present case, the appellant
had admitted quite a few documents under Section 294 of the CrPC,
including, the MLC of the victim, Gyne report of the victim, the MLC
of the appellant, the proceedings under Section 164 of the CrPC
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conducted by the concerned Magistrate, the admission form as well as
admission and withdrawal register, statement of Ct. Rishipal,
statement of W/Ct. Suman, statement of Ct. Jaswant and statement of
Raju.
20. Confronted with the peculiar circumstances of the present case
where the victim and her family members had turned hostile, the
learned Trial Court was still weighed to convict the appellant on the
basis of the FSL report which indicated that the DNA profile of the
appellant matched with the ones generated from the exhibits obtained
from the vaginal and vulval regions of the victim. As also recorded by
the learned Trial Court, even the prosecution had pressed for
conviction of the appellant in view of the FSL report, which stood
proved in evidence of PW7.
21. Before this Court, the entire case of the appellant is premised on
essentially two tenets– the key witnesses, including the victim, in the
present case have turned hostile; and the FSL report is only a
corroborative piece of evidence and the same cannot form the sole
basis of conviction, especially since there is significant doubt on the
cogency of the report as the exhibits were belatedly sent to FSL and
there is possibility of the samples being tampered.
22. Firstly , as far as the aspect of the victim and her family
members having turned hostile is concerned, in the opinion of this
Court, the same alone cannot lead to acquittal of the appellant. In the
present case, the victim stated during her medical examination as well
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as in her statement under Section 161 of the CrPC that the appellant
had established physical relations with her without her consent on
01.07.2016 and 02.07.2016. In her statement under Section 164 of the
CrPC, the victim stated that she had alleged that the appellant had
misbehaved with her and established physical relations with her on
two days when she was staying at the house of the appellant. Later on,
the victim turned hostile and claimed that the allegations of
misbehavior by the appellant were made under pressure of her parents.
She stated that she had made the allegations as she was under pressure
of her parents. She explicitly denied that the appellant had made
physical relations with her during her stay at his house. In this case,
parents of the victim also resiled during recording of their evidence
and stated that the victim had not told them anything about the
accused having established physical relations with her without her
consent.
23. Undeniably, the somersault of the victim and her parents during
recording of their evidence raises some suspicion in the mind of this
Court that they may have been won over by the appellant and his
family members before their evidence was recorded. However, it is
imperative to note that the present case is not one where the victim has
outrightly denied that she had leveled such allegations. Rather, she has
tendered a cogent explanation for making purportedly false
allegations. It is the very case of the prosecution that the victim had
willingly gone to the house of the appellant along with some cash and
jewelry. The victim has volunteered during her cross examination and
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iterated twice that she had made the allegations under pressure from
her parents as she had taken a huge amount from her house and she
was afraid.
24. Where the victim is a child, mere minor contradictions would
not adversely impact the matter. However, as discussed above, in this
case, the victim has gone on to deny the allegations in their entirety. It
is trite law that the accused can be convicted solely on the basis of
evidence of the victim as long as same inspires confidence and
corroboration is not necessary for the same, however, when a victim’s
testimony is marked by identified flaws or gaps or provides an
insufficient account of the incident, a conviction cannot be sustained
[Ref: Nirmal Premkumar v. State : 2024 SCC OnLine SC 260 ]. The
explanation offered by the victim does not appear to be implausible.
Albeit some doubt is cast that the victim may have turned hostile under
influence of the appellant, in the absence of any supporting material
evidencing the same, the fact that the victim did not support the case
of the prosecution would have been sufficient to return a finding of not
guilty without any supporting corroborative evidence.
25. In the present case however, the prosecution has leaned
significantly on the FSL report, the findings of which are severally
incriminating.
26. Thus, secondly , it is imperative to deal with the aspect of FSL
findings. The appellant has sought to question the credibility of the
report as well as the reliability of the same in addition to emphasizing
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that scientific evidence cannot be the sole basis of conviction.
27. While scientific evidence may not be sufficient for conviction,
however, the same can act as a corroborating factor which endorses
the earlier statements of the victim, even if she subsequently turns
hostile. Recently, in the case of Jahid v. State Govt of NCT of Delhi :
2025:DHC:11807 , this Court upheld the conviction of the appellant
under Section 6 of the POCSO Act even though the victim had
subsequently turned hostile, by taking into account the findings of the
FSL report which supported the case of the prosecution.
28. It is however imperative that such scientific evidence is proved
infallible by a staunch chain of custody of the samples. In the present
case, admittedly, there is an unexplained delay of 12 days in sending
the samples to FSL. Additionally, the malkhana incharge has not been
examined to endorse the safe keeping of the samples in malkhana.
Rather, the evidence of the investigating officer (PW5) has no mention
of the whereabouts of the samples in the intervening period. PW5 has
only asserted that she had taken the 9 sealed pullandas with the
samples of the victim along with the sample seal from W/Ct. Suman
on 07.07.2016, and Ct. Rishipal had handed over the sealed pullanda
containing the sample of the appellant along with the sample seal to
her on 07.07.2016 as well, which were sent to FSL through Ct.
Jaswant on 19.07.2016. In cross-examination, she denied suggestions
that the sealed samples were tampered.
29. The learned Trial Court has noted that although arguments in
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relation to delay in depositing samples with FSL and possibility of
tampering were agitated at the time of final arguments, however, no
such suggestion was given to the police witness and FSL expert. It
was also noted that no questions were put in relation to the
requirement for storage of samples at a particular temperature or in
regard to the report being defective due to contamination of samples.
It was also noted that the only suggestion put to PW7 was in regard to
rough notes used by him to prepare the report, which was negated. The
learned Trial Court was also weighed to reject the arguments in
relation to cogency of FSL report on account of the police officers–
Ct. Rishipal and W/Ct. Suman, who were material to the investigation
as the samples were collected in their presence, were not examined as
their testimony was dispensed with under Section 294 of the CrPC.
The MLC of both the appellant and the victim was also admitted.
Even though the appellant conceded to the evidence of the officers
who had dealt with the samples, that is, Ct. Rishipal, W/Ct. Suman
and Ct. Jaswant, the same does not absolve the prosecution of its duty
to prove the cogent chain of custody of the samples. Even otherwise,
there is nothing in the statements of these witnesses which sheds any
light on the safe custody of the samples in the intervening period.
Only Ct. Jaswant has mentioned that he had taken the samples from
the malkhana for depositing the same in FSL for examination,
however, the prosecution has made a fatal error in the present case by
not exhibiting the malkhana record or examining the malkhana in
charge. Even if this Court was to be persuaded to overlook the aspect
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of delay in light of the initial statements of the victim, especially due
to the same being not agitated in examination of the investigating
officer as well, however, the sheer dearth of clarity about the
whereabouts of the samples renders the same suspicious.
30. Reliance has been placed by the appellant on the case of Rahul
v. State of Delhi Ministry of Home Affairs & Anr. ( supra ), where in a
case involving allegations of rape and murder, the Hon’ble Apex
Court had rejected the DNA profiling by finding that the samples
remained in the malkhana of police station for more than 10 days.
Pertinently, in the present case, there is no material to per se show that
the samples remained in malkhana at all.
In this case, the DNA profile extracted from the vaginal swab
of the victim was found to have mixed male DNA profile, which was
similar to that of two of the accused persons. It was observed that the
possibility of tampering couldn’t be ruled out and the Courts below
had erred in not examining the underlying basis of the findings of the
DNA reports, whereby the evidence in regard to the DNA profiling
was rendered highly vulnerable. It was noted that the prosecution has
to bring home the charges beyond reasonable doubt. Noting the lapses
in trial, the Hon’ble Apex Court also noted that some material
witnesses were not cross-examined at all or not adequately cross-
examined. It was observed that Section 165 of the Indian Evidence
Act, 1872 confers unbridled powers upon the trial courts to putt
necessary questions to elicit the truth. The relevant portion of the
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judgment is as under:
“ 32. 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.
xxx
34. The Court is constrained to make these observations as the
Court has noticed many glaring lapses having occurred during the
course of the trial. It has been noticed from the record that out of
the 49 witnesses examined by the prosecution, 10 material
witnesses were not cross-examined and many other important
witnesses were not adequately cross-examined by the defence
counsel. It may be reminded that Section 165 of the Indian
Evidence Act confers unbridled powers upon the trial courts to put
any question at any stage to the witnesses to elicit the truth. As
observed in several decisions, the Judge is not expected to be a
passive umpire but is supposed to actively participate in the trial,
and to question the witnesses to reach to a correct conclusion….”
(emphasis supplied)
31. Placing reliance on the said case and adverting to a catena of
other precedents, recently, the Hon’ble Apex Court has discussed the
reliability of DNA evidence as well as necessity of a proper chain of
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custody in the case of Kattavellai v. State of T.N. : 2025 SCC OnLine
SC 1439 . The relevant portion is 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, on 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.
xxx
33. Rahul (supra) was a case concerning the kidnap, rape and
murder of a woman, wherein 3 persons were convicted by the
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Special Fast-Track Court, Dwarka Courts in Sessions Case No. 91
of 2013. These persons had kidnapped a woman as she returned
from work, proceeded to do horrible things to her, and then
dumped her lifeless remains in a field, from where it was
discovered four days later. The DNA evidence, here, was rejected
because it remained in the police Malkhana for two months and in
such time, the possibility of tampering could not be ruled out. It
was also held that neither the Trial Court nor the High Court had
examined the underlying basis of the findings in the DNA reports
or whether the techniques used had been reliably applied by the
concerned expert. As such, it was concluded that the DNA profile,
in the absence of such evidence, had become highly vulnerable
when the collection and sealing of the samples sent for
examination was not free from suspicion.
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 was 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
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investigators, have been careless in the handling of such sensitive
evidence. ”
(emphasis supplied)
32. Although the aforesaid case also pertained to allegations of rape
and murder as opposed to only rape of a minor under POCSO Act,
where the prosecution is benefited by the statutory presumption,
however, where such flagrant gaps exist in the chain of custody of the
samples, this Court is constrained to discard such evidence which is
not free from suspicion and where the possibility of contamination and
tampering cannot be ruled out. Shadow is cast on the genuineness of
FSL findings in such a case, which cannot be shirked off, especially
when the victim has also not supported the case of the prosecution.
Mere assertions of the samples being duly sealed are insufficient to
rule out possibility of tampering. Even so, when the samples are under
such doubt, such blemished scientific evidence ought not to be
heralded to convict the accused, even if the allegations are of a
sensitive nature.
33. It is also argued that the victim had initially alleged that the rape
took place on 01.07.2016 and 02.07.2016, and the presence of sperm
in the samples drawn after five days renders the samples circumspect.
It is further argued that although the learned Trial Court has noted that
spermatozoa may be found in vagina up to seventeen days after sexual
intercourse, however, the FSL report mentions that sperm was found
and not spermatozoa. While there appears to be some merit in the said
assertion, however, having found the FSL report to be unreliable due
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to the infirmity in proving safe custody of samples as well as the delay
in sending the same for examination, this Court is not inclined to delve
into the said aspect.
34. Pertinently, although POCSO Act provides for certain
presumptions, the threshold of proving charges beyond reasonable
doubt is not diluted in such cases and the presumptions can be
rebutted. In the opinion of this Court, the presumptions under POCSO
Act do not aid the case of the prosecution in the present case. It is
pertinent to note that while Section 29 of the POCSO Act provides for
a presumption as to the commission of certain offences, the said
presumption is not absolute in nature and only comes into play once
the prosecution establishes the foundational facts [Ref. Altaf Ahmed v.
State (GNCTD of Delhi) : 2020 SCC OnLine Del 1938 ]. For this
reason, in order to trigger the presumption, it is incumbent on the
prosecution to lead evidence to prove the foundational facts. If the
prosecution fails to do so, in the opinion of this Court, a negative
burden cannot be thrust upon the shoulders of the accused to prove
otherwise.
35. In the present case, a perusal of the material on record indicates
that the case of the prosecution, which is essentially based on the FSL
report, is marred with blemishes and fails to establish the case against
the appellant beyond reasonable doubt.
36. The infirmities are not just in the testimonies of the witnesses,
but also in the integrity and reliability of the scientific findings. In
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such circumstances, the conviction of the appellant cannot be
sustained.
37. At this juncture, this Court finds itself constrained to note that
despite repeated emphasis on safe handling of samples and need for
expediently sending the samples to FSL being emphasized in multiple
cases, unfortunately, such lapses of prosecution continue to persist. It
is due to this that trial courts ought to take a proactive role to ensure
that such lamentable situations which can be avoided by calling for
relevant evidence, if necessary, which may be lost after lapse of time
at time of appeal, and by putting relevant questions at the time of
examination of witnesses that are required to unearth the truth.
Accountability should also be levelled on police officials to help avoid
such incidents as much as possible.
Conclusion
38. The solemn duty of a criminal court is not to convict merely
because an allegation is made, but to convict only when the allegation
is proven beyond reasonable doubt.
39. It is a settled principle that when two views are possible— one
pointing to the guilt of the accused and the other towards his
innocence — the view favourable to the accused must be adopted.
This principle is not a technical rule; it is rooted in the foundational
notion that no person shall be deprived of liberty except through proof
that satisfies the judicial conscience.
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40. In the light of the foregoing, this Court is of the view that the
conviction recorded by the learned Trial Court is unsustainable. The
evidence led by the prosecution does not meet the standard of proof
required in a case of this nature. The benefit of doubt must go to the
appellant.
41. Accordingly, the impugned judgment and impugned order on
sentence are set aside.
42. The appellant is acquitted of all charges. He shall be released
forthwith, if not required in any other case.
43. The appeal is allowed and disposed of in the aforesaid terms.
Pending application also stands disposed of.
44. This Court appreciates the efforts put in by Mr. Asheesh Jain,
Senior Advocate, learned Amicus Curiae in assisting the Court.
45. The Delhi High Court Legal services Committee is directed to
pay the fees of the learned Amicus Curiae as per its scheduled rates
and rules.
46. A copy of this order be sent to the concerned Jail
Superintendent for necessary compliance.
AMIT MAHAJAN, J
JANUARY 09, 2026/ DU
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% Judgment reserved on :10.10.2025
Judgment pronounced on: 09.01.2026
+ CRL.A. 240/2023 & CRL.M.(BAIL) 375/2023
BADAL @ PRINCE MALHOTRA ..... Appellant
versus
STATE (NCT OF DELHI) ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Saurabh Upadhyay, Mr. Aakash
Yadav, Mr. Salil Dixit and Mr. Amit
Upadhyay, Advocates.
For the Respondent : Mr. Sunil Kumar Gautam, APP for the State
with SI Asha, PS Sarita Vihar.
Mr. Asheesh Jain, Senior Advocate (Amicus
Curiae) with Mr. Adarsh Kumar Gupta, Mr.
Vishal Gupta and Ms. Neha Yadav,
Advocates.
CORAM
HON’BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present appeal is filed challenging the judgment of
conviction dated 22.09.2022 (hereafter ‘ impugned judgment ’) and
order on sentence dated 29.11.2022 (hereafter ‘ impugned order on
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sentence ’), passed by the learned Additional Sessions Judge, New
Delhi District, Patiala House Courts, New Delhi in SC No. 9503/2016
arising out of FIR No. 322/2016 (‘ FIR ’), registered at Police Station
Sagarpur.
2. By the impugned judgment, the appellant was held convicted
for the offences under Section 376(2)(i) of the Indian Penal Code,
1860 (‘ IPC ’) and Section 4 of the Protection of Children from Sexual
Offences Act, 2012 (‘ POCSO Act ’).
3. By the impugned order on sentence, the appellant was
sentenced to undergo rigorous imprisonment for a term of 10 years
and to pay a fine of ₹20,000/-, and in default of payment of fine, to
undergo simple imprisonment for two months.
4. The brief facts of the case are as under:
4.1. On 01.07.2016, a complaint was made by the brother of the
victim, who was fourteen years of age at that time, in regard to her
being missing from the house since 11 AM. It was alleged that a sum
of ₹2 lakhs in cash, clothes and ID proofs of the victim were also
missing. This led to registration of FIR for the offence under Section
363 of the IPC.
4.2. Subsequently, on 07.07.2016, a PCR call was received that a
girl had been traced and her description matched with the victim. The
victim was produced before the concerned SHO, whereafter, she was
counselled and sent for medical examination. During medical
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examination, the victim told the doctor that she had left the house of
her own will and the accused was known to her since the last one
month. The victim allegedly also informed that the appellant had taken
her to his house and forcibly had sexual intercourse with her on
01.07.2016 and 02.07.2016. On 07.07.2016, the victim’s father
produced one red bag containing some clothes, pink purse, Samsung
phone and ₹62,000/-. On the same day, place of incident was
inspected at the instance of the victim and the appellant was arrested.
4.3. Age proof of the victim was collected from her school wherein
her date of birth was found to be 17.01.2001 as per the school record.
4.4. On 08.07.2016, the victim’s statement under Section 164 of the
Code of Criminal Procedure, 1973 (‘ CrPC ’) was recorded where she
stated that she had gone from her home on 01.07.2016 and met with
the appellant, who took her to his home. She stated that the appellant
purchased a Scooty from her money and also raped her for two days
without her consent. On 07.07.2016, she left the house of the
appellant, whereafter, her parents found her and a call was made to the
police.
4.5. The victim deviated from her earlier statements during
recording of her evidence and claimed that her statements about
having physical relations with the appellant on 01.07.2016 and
02.07.2016 was given under pressure of her parents. The parents of the
victim also deposed that the victim had not told them about having any
physical relation with the appellant.
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4.6. By the impugned judgment, the learned Trial Court found that
the prosecution had succeeded in proving the case against the
appellant. It was noted that although the victim had ultimately denied
that she had any sexual intercourse with the appellant, she had
admitted to staying with the appellant. It was also noted that the victim
had stated that she was subjected to sexual harassment without her
consent when she was produced for medical examination as well as in
her statement under Section 164 of the CrPC, her hymen was found to
be broken and the FSL report affirmed the presence of the DNA of the
appellant in the samples obtained from the vaginal and vulval regions
of the victim. It was also observed that the examination of the police
witnesses who had drawn the samples as well as the examination of
the doctors was dispensed with, and no circumstances were brought to
show that the investigation was improper or biased.
4.7. Aggrieved by the same, the appellant preferred the present
appeal.
4.8. When the victim could not be served despite best efforts as she
was not found to be available at the given address, by way of order
dated 25.02.2025, the Predecessor Bench appointed Mr. Asheesh Jain,
Sr. Adv. to assist the Court on behalf of the victim.
5. The learned counsel for the appellant submitted that the
appellant’s conviction cannot be sustained as the same is premised on
solely on the basis of scientific evidence, without appreciating that the
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same has no corroboration from the statements of the victim (PW2) or
her parents (PW3 and PW4).
6. He submitted that in cases pertaining to sexual offences, the
victim is the star witness and her testimony is the substantive
evidence. He submitted that all scientific and circumstantial materials
are only corroborative and once the prosecutrix and her parents have
not supported the case of the prosecution, the case loses its core
evidentiary foundation.
7. He submitted that the victim in the present case has
categorically deposed that her statement under Section 164 of the
CrPC was given under duress and pressure from her parents. He
further submitted that even in cross-examination, the victim only
admitted to voluntarily eloping with the accused and staying with him
voluntarily, not being forced into establishing sexual relations. He
submitted that the statement under Section 164 of the CrPC cannot
substitute a victim’s evidence during trial.
8. He submitted that the learned Trial Court erred in acting solely
on the basis of the positive DNA report, even though it is well-settled
that scientific evidence, especially DNA reports, are not infallible. He
submitted that the failure of defence to put a specific suggestion in
regard to collection and analysis of samples to the concerned witness
does not endorse the case of the prosecution. He placed reliance on the
judgment of the Hon’ble Apex Court in the case of Rahul v. State of
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Delhi Ministry of Home Affairs & Anr. : Criminal Appeal No.
611/2022 .
9. He submitted that the samples were taken on 07.07.2016, while
the alleged incident happened on 01.07.2016 and 02.07.2016, and the
samples were belatedly sent to the laboratory on 19.07.2016. He
submitted that the delay in sending the samplesfrom malkhana to the
laboratory raises serious doubt of potential contamination, which
cannot be ruled out merely because no suggestion in this regard was
put to the concerned police witness. He submitted that despite
conceding to the presence of gap in sending the samples to FSL, the
learned Trial Court erroneously shifted the onus on the defence for not
cross-examining in this respect.
10. He submitted that the reliance on Modi’s jurisprudence was
misplaced and medical jurisprudence indicates that presence of
spermatozoa alone is not conclusive of recent intercourse. He thus
submitted that presence of DNA after 5-6 days does not prove recent
or forced intercourse. He further submitted that hymen tear was old
and there were no external injuries which renders the medical
evidence as inconclusive.
11. He submitted that the absence of any substantive evidence
coupled with the procedural lapses ought to have led to the appellant
being acquitted. He submitted that when the victim turns hostile, the
Court is bound to seek independent corroboration and if the only
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remaining piece of evidence is unreliable, as in the present case, the
benefit of the same automatically accrues to the accused.
12. He further submitted that the foundational facts required for
raising the presumptions under Section 29 and 30 of the POCSO Act
were not established, despite which the same was applied even though
the victim and her parents did not support the case of the prosecution
and there was no eye witness to the alleged rape.
13. He submitted that the appellant was merely 19-20 years of age
at the time of his implication in the present case and the victim
admitted to having eloped with consent, which shows that no coercion
was involved. He submitted that in the absence of the victim or her
parents confirming physical relations, the appellant ought to be
acquitted in present circumstances.
14. The learned amicus curiae argued that the FSL report
conclusively shows that the appellant had established sexual relations
with the victim, when she was a minor. He submitted that as the
present case concerns allegations pertaining to sexual assault of a
minor, the presumption under Section 29 of the POCSO Act would act
against the appellant and it was upon the appellant to prove to the
contrary.
15. He also led this Court through a number of judgments on the
issue of medical evidence as a basis of conviction and the reliability of
a hostile witness.
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ANALYSIS
16. At the outset, it is relevant to note that while dealing with an
appeal against judgment on conviction and sentence, in exercise of
Appellate Jurisdiction, this Court is required to reappreciate the
evidence in its entirety and apply its mind independently to the
material on record. The Hon’ble Apex Court in the case of Jogi &
Ors. v. The State of Madhya Pradesh : Criminal Appeal No.
1350/2021 had considered the scope of the High Court’s appellate
jurisdiction under Section 374 of the CrPC and held as under:
“9. The High Court was dealing with a substantive appeal under
the provisions of Section 374 of the Code of Criminal Procedure
1973. In the exercise of its appellate jurisdiction, the High Court
was required to evaluate the evidence on the record independently
and to arrive at its own findings as regards the culpability or
otherwise of the accused on the basis of the evidentiary material.
As the judgment of the High Court indicates, save and except for
one sentence, which has been extracted above, there has been
virtually no independent evaluation of the evidence on the record.
While considering the criminal appeal under Section 374(2) of
CrPC, the High Court was duty bound to consider the entirety of
the evidence. The nature of the jurisdiction has been dealt with in a
judgment of this Court in Majjal v State of Haryaya [(2013) 6 SCC
799] , where the Court held:
‘6. In this case what strikes us is the cryptic nature of the
High Court's observations on the merits of the case. The
High Court has set out the facts in detail. It has mentioned
the names and numbers of the prosecution witnesses.
Particulars of all documents produced in the court along
with their exhibit numbers have been mentioned. Gist of the
trial court's observations and findings are set out in a long
paragraph. Then there is a reference to the arguments
advanced by the counsel. Thereafter, without any proper
analysis of the evidence almost in a summary way the High
Court has dismissed the appeal. The High Court's cryptic
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reasoning is contained in two short paragraphs. We find
such disposal of a criminal appeal by the High Court
particularly in a case involving charge under Section 302
IPC where the accused is sentenced to life imprisonment
unsatisfactory.
7. It was necessary for the High Court to consider whether
the trial court's assessment of the evidence and its opinion
that the appellant must be convicted deserve to be
confirmed. This exercise is necessary because the personal
liberty of an accused is curtailed because of the conviction.
The High Court must state its reasons why it is accepting
the evidence on record. The High Court's acceptable only if
it is supported by reasons. In such appeals it is a court of
first appeal. Reasons cannot be cryptic. By this, we do not
mean that the High Court is expected to write an unduly
long treatise. The judgment may be short but must reflect
proper application of mind to vital evidence and important
submissions which go to the root of the matter. Since this
exercise is not conducted by the High Court, the appeal
deserves to be remanded for a fresh hearing after setting
aside the impugned order.’ ”
(emphasis supplied)
17. The criminal jurisprudence is premised on the principle that a
conviction cannot be sustained on the basis of mere surmises or
conjecture. It is thus for the prosecution to establish, by means of
cogent and credible evidence, each element of the alleged offence
beyond reasonable doubt. Accordingly, a meticulous examination of
the impugned judgment as well as the material on record is
necessitated to discern as to whether material aspects of the case were
either summarily disregarded or addressed in sweeping
generalisations.
18. This Court is now required to determine the most fundamental
question that lies at the heart of every criminal trial: Does the
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prosecution’s evidence prove the case beyond reasonable doubt? In
doing so, this Court deems it apposite to carefully examine the events
that transpired during and post the occurrence of the alleged incident.
The inception of the present case occurred on a complaint given by the
brother of the victim in relation to the victim, who was less than
sixteen years of age, being missing. Subsequently, a PCR call was
received that a girl had been traced and the victim was produced
before the concerned SHO on 07.07.2016. Initially, the victim asserted
that she had left her home of her own free will and made allegations of
forceful penetrative sexual assault being committed by the appellant
on 01.07.2016 and 02.07.2016. It is the case of the prosecution that the
victim stayed at the appellant’s house from 01.07.2016 till she was
recovered and the appellant had forcibly established sexual relations
with her on two days, as per the victim’s statement recorded under
Section 164 of the CrPC.
19. The prosecution examined seven witnesses to prove its case,
that is, the victim (PW1), the victim’s brother (PW2), the victim’s
father (PW3), the victim’s mother (PW4), the investigating officer
(PW5), the officer who was on duty when the complaint was received
and who ultimately produced the victim before the SHO (PW6), and
the Senior Scientific Officer (Biology), FSL, Rohini who had prepared
the FSL report (PW7). Pertinently, in the present case, the appellant
had admitted quite a few documents under Section 294 of the CrPC,
including, the MLC of the victim, Gyne report of the victim, the MLC
of the appellant, the proceedings under Section 164 of the CrPC
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conducted by the concerned Magistrate, the admission form as well as
admission and withdrawal register, statement of Ct. Rishipal,
statement of W/Ct. Suman, statement of Ct. Jaswant and statement of
Raju.
20. Confronted with the peculiar circumstances of the present case
where the victim and her family members had turned hostile, the
learned Trial Court was still weighed to convict the appellant on the
basis of the FSL report which indicated that the DNA profile of the
appellant matched with the ones generated from the exhibits obtained
from the vaginal and vulval regions of the victim. As also recorded by
the learned Trial Court, even the prosecution had pressed for
conviction of the appellant in view of the FSL report, which stood
proved in evidence of PW7.
21. Before this Court, the entire case of the appellant is premised on
essentially two tenets– the key witnesses, including the victim, in the
present case have turned hostile; and the FSL report is only a
corroborative piece of evidence and the same cannot form the sole
basis of conviction, especially since there is significant doubt on the
cogency of the report as the exhibits were belatedly sent to FSL and
there is possibility of the samples being tampered.
22. Firstly , as far as the aspect of the victim and her family
members having turned hostile is concerned, in the opinion of this
Court, the same alone cannot lead to acquittal of the appellant. In the
present case, the victim stated during her medical examination as well
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as in her statement under Section 161 of the CrPC that the appellant
had established physical relations with her without her consent on
01.07.2016 and 02.07.2016. In her statement under Section 164 of the
CrPC, the victim stated that she had alleged that the appellant had
misbehaved with her and established physical relations with her on
two days when she was staying at the house of the appellant. Later on,
the victim turned hostile and claimed that the allegations of
misbehavior by the appellant were made under pressure of her parents.
She stated that she had made the allegations as she was under pressure
of her parents. She explicitly denied that the appellant had made
physical relations with her during her stay at his house. In this case,
parents of the victim also resiled during recording of their evidence
and stated that the victim had not told them anything about the
accused having established physical relations with her without her
consent.
23. Undeniably, the somersault of the victim and her parents during
recording of their evidence raises some suspicion in the mind of this
Court that they may have been won over by the appellant and his
family members before their evidence was recorded. However, it is
imperative to note that the present case is not one where the victim has
outrightly denied that she had leveled such allegations. Rather, she has
tendered a cogent explanation for making purportedly false
allegations. It is the very case of the prosecution that the victim had
willingly gone to the house of the appellant along with some cash and
jewelry. The victim has volunteered during her cross examination and
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iterated twice that she had made the allegations under pressure from
her parents as she had taken a huge amount from her house and she
was afraid.
24. Where the victim is a child, mere minor contradictions would
not adversely impact the matter. However, as discussed above, in this
case, the victim has gone on to deny the allegations in their entirety. It
is trite law that the accused can be convicted solely on the basis of
evidence of the victim as long as same inspires confidence and
corroboration is not necessary for the same, however, when a victim’s
testimony is marked by identified flaws or gaps or provides an
insufficient account of the incident, a conviction cannot be sustained
[Ref: Nirmal Premkumar v. State : 2024 SCC OnLine SC 260 ]. The
explanation offered by the victim does not appear to be implausible.
Albeit some doubt is cast that the victim may have turned hostile under
influence of the appellant, in the absence of any supporting material
evidencing the same, the fact that the victim did not support the case
of the prosecution would have been sufficient to return a finding of not
guilty without any supporting corroborative evidence.
25. In the present case however, the prosecution has leaned
significantly on the FSL report, the findings of which are severally
incriminating.
26. Thus, secondly , it is imperative to deal with the aspect of FSL
findings. The appellant has sought to question the credibility of the
report as well as the reliability of the same in addition to emphasizing
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that scientific evidence cannot be the sole basis of conviction.
27. While scientific evidence may not be sufficient for conviction,
however, the same can act as a corroborating factor which endorses
the earlier statements of the victim, even if she subsequently turns
hostile. Recently, in the case of Jahid v. State Govt of NCT of Delhi :
2025:DHC:11807 , this Court upheld the conviction of the appellant
under Section 6 of the POCSO Act even though the victim had
subsequently turned hostile, by taking into account the findings of the
FSL report which supported the case of the prosecution.
28. It is however imperative that such scientific evidence is proved
infallible by a staunch chain of custody of the samples. In the present
case, admittedly, there is an unexplained delay of 12 days in sending
the samples to FSL. Additionally, the malkhana incharge has not been
examined to endorse the safe keeping of the samples in malkhana.
Rather, the evidence of the investigating officer (PW5) has no mention
of the whereabouts of the samples in the intervening period. PW5 has
only asserted that she had taken the 9 sealed pullandas with the
samples of the victim along with the sample seal from W/Ct. Suman
on 07.07.2016, and Ct. Rishipal had handed over the sealed pullanda
containing the sample of the appellant along with the sample seal to
her on 07.07.2016 as well, which were sent to FSL through Ct.
Jaswant on 19.07.2016. In cross-examination, she denied suggestions
that the sealed samples were tampered.
29. The learned Trial Court has noted that although arguments in
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relation to delay in depositing samples with FSL and possibility of
tampering were agitated at the time of final arguments, however, no
such suggestion was given to the police witness and FSL expert. It
was also noted that no questions were put in relation to the
requirement for storage of samples at a particular temperature or in
regard to the report being defective due to contamination of samples.
It was also noted that the only suggestion put to PW7 was in regard to
rough notes used by him to prepare the report, which was negated. The
learned Trial Court was also weighed to reject the arguments in
relation to cogency of FSL report on account of the police officers–
Ct. Rishipal and W/Ct. Suman, who were material to the investigation
as the samples were collected in their presence, were not examined as
their testimony was dispensed with under Section 294 of the CrPC.
The MLC of both the appellant and the victim was also admitted.
Even though the appellant conceded to the evidence of the officers
who had dealt with the samples, that is, Ct. Rishipal, W/Ct. Suman
and Ct. Jaswant, the same does not absolve the prosecution of its duty
to prove the cogent chain of custody of the samples. Even otherwise,
there is nothing in the statements of these witnesses which sheds any
light on the safe custody of the samples in the intervening period.
Only Ct. Jaswant has mentioned that he had taken the samples from
the malkhana for depositing the same in FSL for examination,
however, the prosecution has made a fatal error in the present case by
not exhibiting the malkhana record or examining the malkhana in
charge. Even if this Court was to be persuaded to overlook the aspect
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of delay in light of the initial statements of the victim, especially due
to the same being not agitated in examination of the investigating
officer as well, however, the sheer dearth of clarity about the
whereabouts of the samples renders the same suspicious.
30. Reliance has been placed by the appellant on the case of Rahul
v. State of Delhi Ministry of Home Affairs & Anr. ( supra ), where in a
case involving allegations of rape and murder, the Hon’ble Apex
Court had rejected the DNA profiling by finding that the samples
remained in the malkhana of police station for more than 10 days.
Pertinently, in the present case, there is no material to per se show that
the samples remained in malkhana at all.
In this case, the DNA profile extracted from the vaginal swab
of the victim was found to have mixed male DNA profile, which was
similar to that of two of the accused persons. It was observed that the
possibility of tampering couldn’t be ruled out and the Courts below
had erred in not examining the underlying basis of the findings of the
DNA reports, whereby the evidence in regard to the DNA profiling
was rendered highly vulnerable. It was noted that the prosecution has
to bring home the charges beyond reasonable doubt. Noting the lapses
in trial, the Hon’ble Apex Court also noted that some material
witnesses were not cross-examined at all or not adequately cross-
examined. It was observed that Section 165 of the Indian Evidence
Act, 1872 confers unbridled powers upon the trial courts to putt
necessary questions to elicit the truth. The relevant portion of the
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judgment is as under:
“ 32. 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.
xxx
34. The Court is constrained to make these observations as the
Court has noticed many glaring lapses having occurred during the
course of the trial. It has been noticed from the record that out of
the 49 witnesses examined by the prosecution, 10 material
witnesses were not cross-examined and many other important
witnesses were not adequately cross-examined by the defence
counsel. It may be reminded that Section 165 of the Indian
Evidence Act confers unbridled powers upon the trial courts to put
any question at any stage to the witnesses to elicit the truth. As
observed in several decisions, the Judge is not expected to be a
passive umpire but is supposed to actively participate in the trial,
and to question the witnesses to reach to a correct conclusion….”
(emphasis supplied)
31. Placing reliance on the said case and adverting to a catena of
other precedents, recently, the Hon’ble Apex Court has discussed the
reliability of DNA evidence as well as necessity of a proper chain of
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custody in the case of Kattavellai v. State of T.N. : 2025 SCC OnLine
SC 1439 . The relevant portion is 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, on 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.
xxx
33. Rahul (supra) was a case concerning the kidnap, rape and
murder of a woman, wherein 3 persons were convicted by the
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Special Fast-Track Court, Dwarka Courts in Sessions Case No. 91
of 2013. These persons had kidnapped a woman as she returned
from work, proceeded to do horrible things to her, and then
dumped her lifeless remains in a field, from where it was
discovered four days later. The DNA evidence, here, was rejected
because it remained in the police Malkhana for two months and in
such time, the possibility of tampering could not be ruled out. It
was also held that neither the Trial Court nor the High Court had
examined the underlying basis of the findings in the DNA reports
or whether the techniques used had been reliably applied by the
concerned expert. As such, it was concluded that the DNA profile,
in the absence of such evidence, had become highly vulnerable
when the collection and sealing of the samples sent for
examination was not free from suspicion.
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 was 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
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investigators, have been careless in the handling of such sensitive
evidence. ”
(emphasis supplied)
32. Although the aforesaid case also pertained to allegations of rape
and murder as opposed to only rape of a minor under POCSO Act,
where the prosecution is benefited by the statutory presumption,
however, where such flagrant gaps exist in the chain of custody of the
samples, this Court is constrained to discard such evidence which is
not free from suspicion and where the possibility of contamination and
tampering cannot be ruled out. Shadow is cast on the genuineness of
FSL findings in such a case, which cannot be shirked off, especially
when the victim has also not supported the case of the prosecution.
Mere assertions of the samples being duly sealed are insufficient to
rule out possibility of tampering. Even so, when the samples are under
such doubt, such blemished scientific evidence ought not to be
heralded to convict the accused, even if the allegations are of a
sensitive nature.
33. It is also argued that the victim had initially alleged that the rape
took place on 01.07.2016 and 02.07.2016, and the presence of sperm
in the samples drawn after five days renders the samples circumspect.
It is further argued that although the learned Trial Court has noted that
spermatozoa may be found in vagina up to seventeen days after sexual
intercourse, however, the FSL report mentions that sperm was found
and not spermatozoa. While there appears to be some merit in the said
assertion, however, having found the FSL report to be unreliable due
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to the infirmity in proving safe custody of samples as well as the delay
in sending the same for examination, this Court is not inclined to delve
into the said aspect.
34. Pertinently, although POCSO Act provides for certain
presumptions, the threshold of proving charges beyond reasonable
doubt is not diluted in such cases and the presumptions can be
rebutted. In the opinion of this Court, the presumptions under POCSO
Act do not aid the case of the prosecution in the present case. It is
pertinent to note that while Section 29 of the POCSO Act provides for
a presumption as to the commission of certain offences, the said
presumption is not absolute in nature and only comes into play once
the prosecution establishes the foundational facts [Ref. Altaf Ahmed v.
State (GNCTD of Delhi) : 2020 SCC OnLine Del 1938 ]. For this
reason, in order to trigger the presumption, it is incumbent on the
prosecution to lead evidence to prove the foundational facts. If the
prosecution fails to do so, in the opinion of this Court, a negative
burden cannot be thrust upon the shoulders of the accused to prove
otherwise.
35. In the present case, a perusal of the material on record indicates
that the case of the prosecution, which is essentially based on the FSL
report, is marred with blemishes and fails to establish the case against
the appellant beyond reasonable doubt.
36. The infirmities are not just in the testimonies of the witnesses,
but also in the integrity and reliability of the scientific findings. In
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such circumstances, the conviction of the appellant cannot be
sustained.
37. At this juncture, this Court finds itself constrained to note that
despite repeated emphasis on safe handling of samples and need for
expediently sending the samples to FSL being emphasized in multiple
cases, unfortunately, such lapses of prosecution continue to persist. It
is due to this that trial courts ought to take a proactive role to ensure
that such lamentable situations which can be avoided by calling for
relevant evidence, if necessary, which may be lost after lapse of time
at time of appeal, and by putting relevant questions at the time of
examination of witnesses that are required to unearth the truth.
Accountability should also be levelled on police officials to help avoid
such incidents as much as possible.
Conclusion
38. The solemn duty of a criminal court is not to convict merely
because an allegation is made, but to convict only when the allegation
is proven beyond reasonable doubt.
39. It is a settled principle that when two views are possible— one
pointing to the guilt of the accused and the other towards his
innocence — the view favourable to the accused must be adopted.
This principle is not a technical rule; it is rooted in the foundational
notion that no person shall be deprived of liberty except through proof
that satisfies the judicial conscience.
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40. In the light of the foregoing, this Court is of the view that the
conviction recorded by the learned Trial Court is unsustainable. The
evidence led by the prosecution does not meet the standard of proof
required in a case of this nature. The benefit of doubt must go to the
appellant.
41. Accordingly, the impugned judgment and impugned order on
sentence are set aside.
42. The appellant is acquitted of all charges. He shall be released
forthwith, if not required in any other case.
43. The appeal is allowed and disposed of in the aforesaid terms.
Pending application also stands disposed of.
44. This Court appreciates the efforts put in by Mr. Asheesh Jain,
Senior Advocate, learned Amicus Curiae in assisting the Court.
45. The Delhi High Court Legal services Committee is directed to
pay the fees of the learned Amicus Curiae as per its scheduled rates
and rules.
46. A copy of this order be sent to the concerned Jail
Superintendent for necessary compliance.
AMIT MAHAJAN, J
JANUARY 09, 2026/ DU
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