The Madhya Pradesh High Court has clarified that a rape accused cannot claim acquittal in cases merely because the DNA report has not been proved, if the facts otherwise establish the guilt of the accused. [2026 LiveLaw (MP) 285]

The division bench of Justice GS Ahluwalia and Justice Anuradha Shukla observed:

"Although it is argued that the DNA report has not been proved by prosecution, but no settled law could be cited to show that in every case of rape, the DNA report should compulsorily be proved. In a case, where facts of crime have been proved otherwise, the accused cannot claim acquittal only for the reason that DNA report was not proved".

An appeal was filed challenging the order of conviction for rape (Section 376) of the IPC passed by the Trial Court.

According to the facts, the victim was 2 years old at the time of the incident. The appellant was an acquaintance of her father. One day, while the victim and her father were standing in front of their house with a motorcycle parked nearby, the appellant, on the pretence of playing with the victim, grabbed her and fled on the motorcycle. He was chased by several people but managed to flee.

Subsequently, a crime was registered against the appellant. He was later traced and interrogated, and upon his information, the victim and other items were also recovered. The victim in her medical examination was found to be brutally raped and injured, and left alone to die in the bushes. Thus, the appellant was convicted.

The counsel for the appellant contended that he had served 12 years for a crime he was falsely implicated in due to enmity. Per the counsel, there was some financial dispute between him and the victim's father, which led to a false report. The counsel further argued that no DNA examination was done to fix the culpability of the appellant in the alleged crime, and even the victim was not examined as a witness.

The counsel for the State argued that no case of enmity was proved by the accused.

Regarding the issue of the victim not being examined as a witness, the court relied on the case of Sakshi v Union of India and reiterated that some arrangements must be made so that a child victim does not have to see the body or face of the accused.

Further, the court noted that the appellant failed to show any evidence of enmity between him and the victim's father as he claimed. Further, his act of kidnapping the child was independently supported by multiple witness testimonies, which the appellant had not challenged. Thus, the bench held that there was no lapse in the prosecution's case, even if it failed to examine the child victim aged 2 years.

The court further noted that dock identification was not permissible under Section 36 of the Protection of Children from Sexual Offences Act 2012, and did not explain what other factors were required to be proved through testimony of such a young child having a limited vocabulary.

The bench further noted that the evidence established that the appellant had kidnapped the child in the presence of her father and other witnesses, and she was recovered 19 hours later in a roadside bush on the basis of the appellant's information.

Examining the theory of last seen, Section 106 of the Evidence Act, the court noted that the burden was upon the appellant to disclose the circumstances under which he kidnapped the child and the physical state of the child at the time. However, it was observed that the appellant was silent on these aspects.

Referring to the case of Teja v State of UP and Ravasaheb v State of Karnataka, the bench reiterated that "explanation on the part of accused becomes necessary under section 106 of Evidence Act when the last seen theory is coupled with other factors such as recovery of items of deceased at the behest of accused, the proximity of time to the recovery, etc. and if in such a situation the accused does not do so or furnishes a wrong explanation or if motive is established, completing securely the conviction of accused and closing out the possibility of any other hypothesis, then a conviction can be based thereon".

In the present case, the court noted that the facts not only prove the kidnapping of the child victim but also that he fled the scene despite resistance by witnesses. Therefore, the court held that the circumstances clearly prove that the appellant had the motive to kidnap the child and rape her. Further, the appellant's act of leaving the victim on roadside bushes in a ravaged state also shows that the appellant had the intention to facilitate the death of the victim.

Additionally, the bench cited the case of Sunil v State of MP, reiterating that despite non-holding of DNA test, conviction may still be possible based on remaining evidence, provided it's clinching in nature.

Further, the bench noted that if the DNA report was of such a nature as it would have helped the defence, a request could have been made by the appellant to the trial court to call for that report. However, the order sheet shows that no such prayer was made by the appellant. Therefore, at this belated stage, the appellant cannot plead innocence on the basis of non-production of the DNA report.

The bench noted that the conviction of the appellant was sustainable, but noted that Section 386(2)(i) of IPC also admits a minimum sentence. The court, therefore, held that the appellant's conviction could be modified from life imprisonment till natural death to a limited period.

The bench held,

"Accordingly, this appeal is partly allowed partly allowed only with a modification in the sentence for the offence of Sections 376 (2) (i) of IPC. All the substantial sentences shall run concurrently".

Case Title: Mukesh Jatav v State of Madhya Pradesh, CRA-906-2017

Citation: 2026 LiveLaw (MP) 285

For Appellant: Advocate Ashok Jain

For State: Public Prosecutor CP Singh

Click here to read/download the Order