Himachal Pradesh High Court
State Of Himachal Pradesh vs Narcotic Cell (1999) 6 on 26 November, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLENONREPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 26th DAY OF NOVEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN, JUDGE
&
HON'BLE MR. JUSTICE SATYEN VAIDYA, JUDGE
BETWEEN:
CRIMINAL MISCELLANEOUS PETITION NO. 17/2020 IN CRIMINAL
APPEAL No . 135 of 2020
STATE OF HIMACHAL PRADESH
........... APPLICANT/APPELLANT
( BY SH. ASHOK KUMAR, A.G. WITH MR.
RAJINDER DOGRA, SR. ADDL. ADVOCATE
GENERAL, MR VINOD THAKUR, MR. SHIV
PAL MANHANS,MR. HEMANSHU MISRA,
ADDL. A.GS. & MR. BHUPINDER THAKUR,
DEPUTY ADVOCATE GENERAL )
AND
1. MADAN LAL, SON OF SHRI BRIJ LAL,
AGED 50 YEARS.
2. VISHAL, SON OF SHRI MADAN LAL,
AGED 25 YEARS.
BOTH RESIDENTS OF ADARSH
NAGAR, PO PUTRIAL, TEHSIL AND P.S
NADAUN, DISTRICT HAMIRPUR, H.P.
........... NONAPPLICANTS/RESPONDENTS
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2
(BY SH. SHANTI SWAROOP, ADVOCATE )
.
RESERVED ON: 17.11.2021
DECIDED ON: 26.11.2021
This application coming for orders this day Hon'ble Mr.
Justice Satyen Vaidya, passed the following;
ORDER
This is a State appeal against the judgment of acquittal dated 02.05.2019, passed by learned Special Judge, Hamirpur in Sessions Trial No. 07 of 2018. Respondents herein were charged under Sections 376(2) D, 506 read with Section 34 of IPC and Sections 4 & 6 of Protection of Children from Sexual Offences Act, 2012 (POCSO) and have been acquitted after the trial. The victim is none other than daughter of respondent No.1 and step sister of respondent No.2.
2. During pendency of the appeal, applicant/appellant has filed an application under Section 391, 311 read with Section 482 of Cr.P.C. for following reliefs:
" It is, therefore, respectfully prayed that in view of the reasons stated above the present application may kindly be allowed and Annexure A/1, DNA report may kindly be taken on record and the case may be remanded back to the Ld. Trial Court for fresh decision after perusing the ::: Downloaded on - 31/01/2022 23:20:22 :::CIS 3 DNA report and the investigating agency may also be permitted to file fresh supplementary charge sheet under Section 173(8) Cr.P.C in the interest of justice and justice .
be done."
3. It is stated in the application that the victim at the time of registration of case was pregnant. The pregnancy eventually was medically terminated. Sample products of conception were preserved for the purposes of DNA matching. During investigation the blood samples of victim and non-applicants/respondents were also obtained and preserved. All these samples were sent to State Forensic Science Laboratory, Junga (SFSL) on 20.11.2017. Report of DNA profiling is stated to have been received by the police from SFSL on 01.07.2019. The date of preparation of such report is stated to be 22.06.2019. A copy of the DNA report has been placed on record as Annexure A/1. The contention of the applicant-
appellant is that due to the reason of delay in submission of SFSL report in respect of DNA profiling, the same could not be placed and proved on record during the trial. According to the applicant/appellant, the SFSL report in respect of DNA profiling is an important piece of evidence in the case, without which, the interest of justice is likely to suffer adversely. It has further been submitted that SFSL report Annexure A/1 incriminates non-applicant/ respondent No.1.
::: Downloaded on - 31/01/2022 23:20:22 :::CIS 44. In response, it has been submitted on behalf of the non-applicants/respondents that the victim was a psychiatric .
patient and was taking medicines for this purpose. The victim used to leave her house without consent of her parents. It has also been asserted that none of the prosecution witnesses including victim had deposed against the non-
applicants/respondents during the trial. The DNA report, Annexure A/1 is said to be fabricated and highly suspicious, having seen the light of the day after a long period of alleged collection of samples. It has further been submitted that keeping in view the conduct of the victim, before and after the trial, it cannot be said that she will suffer in absence of the SFSL report sought to be placed on record. It has been contended that the non-applicants/respondents shall be seriously prejudiced if the application is allowed.
5. We have heard learned counsel for the parties and have also perused the records.
6. Record reveals that Dr. Arti Chauhan, PW-5, had taken sample products of conception for DNA and had handed over the same to the police. Blood samples of non-
applicants/respondents were obtained by Dr. B.S. Rana, PW-7, on FTA Cards and were submitted to the police. All these samples were deposited in police "Malkhana". On 20.11.2017, the above ::: Downloaded on - 31/01/2022 23:20:22 :::CIS 5 noticed samples were handed over to Constable Rajiv Kumar vide R.C. No. 162 of 2017 for being deposited at SFSL, Junga. The said .
witness ( PW-19) deposited the samples for DNA profiling at SFSL, Junga, on 20.11.2017. It is pertinent to notice that the case had been registered vide FIR No. 100 of 2017 on 09.11.2017.
7. Perusal of Annexure A/1 i.e. copy of report of DNA profiling prepared by SFSL, Junga, reveals that the samples were received in the laboratory on 20.11.2017 through Constable Rajiv Kumar No. 282 (PW-19). Thus, it is evident that the investigating officer had acted with sufficient promptitude in collecting the evidence and sending it for scientific analysis and expert opinion. The report Annexure A/1 is signed on 21.6.2019 by Dr. Vivek Sahajpal, Assistant Director, DNA Division, State Forensic Science Laboratory, Directorate of Forensic Science, H.P., Shimla Hills, Junga. This makes it evident that the report was prepared after more than one year and eight months of the submission of samples. Strangely, duration of examination has been mentioned from 23.11.2017 to 21.06.2019. It is not understandable, as to how, it can take more than 20 months for completion of scientific analysis of the samples for the purpose of DNA profiling.
8. Be that as it may, coming to the merits of the ::: Downloaded on - 31/01/2022 23:20:22 :::CIS 6 application, we find that the report prepared and submitted by SFSL in respect of DNA profiling of the samples of products of .
conception and the accused is a relevant piece of evidence and needs to be placed and proved on record in accordance with law.
The charge against the non-applicants/respondents is of commission of rape on the victim. The relevancy and admissibility of scientific evidence in the shape of DNA profiling is well established. Such report, if proved, being relevant under Section 45 of the Evidence Act, cannot be brushed aside.
9. The reason that the report was submitted belatedly does not lead to inevitable conclusion that the same is procured. It is not in dispute that the samples were submitted to the SFSL, Junga, on 20.11.2017 and the fact that report was prepared at a much belated stage cannot be a factor to ignore such an important piece of evidence. The purpose of the adjudication by Courts of Law in India is to arrive at truth of the matter and to impart justice to the parties. This salutary purpose cannot be allowed to be defeated or frustrated merely on technical grounds. The inclusion of the provisions of Section 391 of the Code of Criminal Procedure itself suggests that the Appellate Court is empowered to take additional evidence even after the conclusion of the trial, if found necessary.
10. Reference can be made to the observations made by ::: Downloaded on - 31/01/2022 23:20:22 :::CIS 7 Hon'ble Supreme Court in Zahira Habibulla H. Sheikh and another. V. State of Gujarat and others, (2004) 4 SCC .
158, which is reproduced as under:-
"47. Section 391 of the Code is another salutary provision which clothes the courts with the power to effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the court can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate court considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate court to call for further evidence before the appeal is disposed of. The appellate Court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, especially on behalf of the prosecution test the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of a guilty man's escape through some careless or ignorant ::: Downloaded on - 31/01/2022 23:20:22 :::CIS 8 proceedings before a court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted .
to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable.
48. The legislative intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct and proper finding, it would be justified in taking action under Section 391.
49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the section are only to be invoked when formal proof for the prosecution is necessary. If the appellate court thinks that it is necessary in the interest of justice to take additional evidence, it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of discretion of the appellate court. As reiterated supra, the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the court in the discharge of its judicial ::: Downloaded on - 31/01/2022 23:20:22 :::CIS 9 functions".
11. The object of Section 391 of the Code of Criminal .
Procedure is to sub-serve the cause of justice. The Court has to keep this valuable principle in view. The only caveat is that the discretion vested in the Appellate Court is to be exercised judicially by recording reasons there for.
12. Adverting to the objections raised on behalf of the non-applicants-respondents, we are constrained to observe that, mere fact that the victim has not supported the case of the prosecution during trial, cannot be a valid reason to disallow the prayer for additional evidence, especially, when the same is in the shape of an expert opinion. The report Annexure A/1 is revealing by itself on scientific analysis of samples of the victim and non-applicants/respondents. The alignment of witnesses with accused in criminal trials, in our country, is well known. It cannot be ignored that in the instant case, the victim is daughter of non-
applicant/respondent No.1 and sister of non-
applicant/respondent No.2. It is true that probative and evidentiary value of Annexure A/1 is not to be looked at this stage by this Court. Nonetheless, the content of the report are definitely a factor in holding the necessity of such piece of evidence to be placed on record by way of additional evidence.
13. In Rajendra Prashad Vs. Narcotic Cell (1999) 6 ::: Downloaded on - 31/01/2022 23:20:22 :::CIS 10 SCC 110, the Hon'ble Apex Court has held as under:-
"8. Lacuna in the prosecution must be understood .
as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better".
14. Thus, we are of the considered view, that the report of SFSL, Junga, Annexure A/1, is necessary to be proved in the facts and circumstances of the case and for such purpose, the application under consideration is allowed. The matter is, accordingly, remitted back to learned Special Judge, Hamirpur, for affording the prosecution an opportunity to place and prove on record report dated 21.06.2019 of SFSL Junga, Annexure A/1 in accordance with law by strictly adhering to the provisions of Chapter-XXIII of the Code of Criminal Procedure. Learned Special Judge, Hamirpur, shall thereafter certify such evidence to this ::: Downloaded on - 31/01/2022 23:20:22 :::CIS 11 Court. The parties are directed to appear before learned Special Judge, Hamirpur, on 6.12.2021. On said date, learned Special .
Judge, Hamirpur, shall fix further date, affording opportunity to the applicant/appellant to prove above noticed additional evidence in accordance with law. This entire exercise shall be completed by learned Special Judge, Hamirpur, on or before 31.12.2021 and the compliance shall be reported to this Court on or before 6.1.2022.
15. Before parting we must express our anguish and despair on the extreme remissness and casual approach in which prosecution has been conducted in the case. Despite the fact that samples for DNA profiling were submitted at SFSL, Junga on 20.11.2017, no effort was made to procure and submit the DNA report before learned trial court before conclusion of trial. It is also equally disturbing that SFSL Junga took more than 20 months to prepare its report. The seriousness of the matter requires a thorough probe and therefore, we direct the Secretary Home, Government of Himachal Pradesh to get the entire matter of delay in preparation and submission of DNA Report dated 21.6.2019, in FIR 100/2017 registered at Police Station, Nadaun, District Hamirpur, by SFSL, Junga and also the conduct of prosecution agency, enquired from an officer not below the rank of Inspector General of Police and to report compliance to this ::: Downloaded on - 31/01/2022 23:20:22 :::CIS 12 Court on or before 6.1.2022.
16. Perusal of the impugned judgment also reveals that .
learned Special Judge has noticed in para-16 of judgment as under:-
"16. The medical evidence only proves that the victim was pregnant. However, the source of pregnancy was not detected. The police had obtained the blood samples of the accused and the victim. The fetus was also preserved. These were lying with the police. However, they were never sent for analysis to determine whether the accused were the father of the baby. It was stated in the charge-sheet that result from SFSL Junga is awaited regarding DNA profiling. The charge-sheet was filed on 20.1.2018. It is impossible to believe that the sample could not have been analyzed in more than one year and three months.
Therefore, in the absence of DNA profiling, there is nothing to connect the accused with the commission of an offence".
17. There was overwhelming material on record to show that the relevant samples were collected during investigation, preserved and submitted for DNA profiling at SFSL, Junga, on 20.11.2017. This fact was recorded in the charge sheet and was also noticed by learned Special Judge as detailed hereinabove. It had come in the statement of PW-19, Constable Rajiv Kumar that ::: Downloaded on - 31/01/2022 23:20:22 :::CIS 13 he had deposited the samples with SFSL, Junga, on 20.11.2017.
This being so, it is not understandable that on what basis, .
learned Special Judge had observed that the blood samples of the accused and victim as well as samples of fetus were never sent for analysis. The concerned Special Judge should have been more careful in his approach, while deciding matter involving serious offences.
18. The application is accordingly disposed of in above terms. The matter be listed for compliance of this order on 6.1.2022. Records of trial Court with a copy of this order be immediately remitted to learned Special Judge, Hamirpur for compliance.
Registry is also directed to forthwith send copies of this order to Secretary Home, Government of Himachal Pradesh for compliance and also to concerned Special Judge.
( Tarlok Singh Chauhan ) Judge ( Satyen Vaidya ) Judge November 26, 2021 (sushma) ::: Downloaded on - 31/01/2022 23:20:22 :::CIS 14 .
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