Himachal Pradesh High Court
State Of Himachal Pradesh vs Partap Singh on 17 November, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 332 of 2019 a/w Cr.
Appeal No. 199 of 2019.
Judgment reserved on : 08.11.2023 Date of decision: 17.11.2023.
1. Cr. Appeal No. 332 of 2019.
State of Himachal Pradesh .....Appellant.
Versus
Partap Singh .....Respondent.
2. Cr. Appeal No. 119 of 2019
Partap Singh ......Appellant.
Versus
State of Himachal Pradesh ......Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 No. Cr. Appeal No. 332 of 2019.
For the Appellant : Mr. Navlesh Verma, Ms. Sharmila Patial, Additional Advocate Generals and Mr. J.S.Guleria, Deputy Advocate General.
For the Respondent : Mr. N.S.Chandel, Senior Advocate with Mr. Vinod Kumar Gupta, Advocate.
1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 Cr. Appeal No. 119 of 2019.
For the Appellant : Mr. N.S.Chandel, Senior Advocate with Mr. Vinod Kumar Gupta, Advocate.
For the Respondent : Mr. Navlesh Verma, Ms. Sharmila Patial, Additional Advocate Generals and Mr. J.S.Guleria, Deputy Advocate General.
Tarlok Singh Chauhan, Judge Partap Singh was made to face trial in connection with case FIR No. 13/2016 dated 28.09.2016, registered under Sections 450, 376 and 377 of the Indian Penal Code (for short 'IPC') and Section 4 of the Protection of Children from Sexual Offences Act, 2012, (for short 'POCSO ACT'), registered with the Women Police Station, BCS, New Shimla, H.P.
2. After trial, the accused Partap Singh was acquitted of the offences under Section 377 of IPC and Section 4 of the POCSO Act against which the State has filed Criminal Appeal No.332 of 2019.
3. As regards the offences under Section 450 and 376 of IPC, the learned Special Judge convicted and sentenced accused Partap Singh to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- under Section 376 of IPC and further convicted and sentenced him to undergo rigorous imprisonment for 3 2 years and to pay a fine of Rs.2,000/- under Section 450 of IPC. In default of payment of fine under Section 376 IPC, the accused was directed to undergo simple imprisonment for two months and in default of payment of fine under Section 450 of IPC, he was directed to undergo simple imprisonment for one month. Both the sentences were directed to run concurrently and the period of detention during investigation and trial was ordered to be set off under Section 428 Cr.P.C.
4. Since, Partap Singh has been convicted for some of the offences, therefore, we would hereinafter refer him as "convict".
5. The case of the prosecution as emerges from the records is that in the year 2016, the child victim (PW-3) was studying in the 7th Class in a Government Senior Secondary School. PW-4 mother of the child-victim was supporting the family since her husband had died. On 27.09.2016, PW-3 returned from school at about 2.00 p.m. and when she was sitting outside her house and reading a book, she noticed that the convict had passed near the 'dhara' towards the forest side and was making gestures to her to accompany him towards the forest area. PW-3 got frightened and went inside her room. The convict followed her in the room. He caught hold of her by her hand. Even though, she tried to free herself, but to no avail and rather she sustained injury in her hand. 4 The convict did not free her and and, on the other hand, he tightly caught hold of her and then made her lie down on the bed and then put off his pants and laid down her and committed sexual intercourse with her and thereafter also committed unnatural intercourse with her. (However, the learned Special Judge has incorrectly recorded in its judgment that the convict had removed 'salwar' of the child victim). Thereafter, the convict put his sputum in her private part and also put his tongue in her vagina. The convict asked her to marry him because he was not having a male child. On this, PW-3 declined the offer of the convict and told him that he should be ashamed of himself. PW-3 started weeping and then the wife of the convict came there and asked her as to why she was weeping on which she disclosed natural and unnatural intercourse having been committed with her by the convict. On coming to know about this occurrence, the wife of the convict had given beatings to him with slippers (chappal). The convict then ran away and her wife followed him. (Here, again learned Special Judge has wrongly recorded that PW-3 started weeping and it was on hearing this that the wife of the victim came there).
6. The further story of the prosecution is that the mother of the child victim (PW-4) returned in the evening and it was then the child victim (PW-3) who narrated the entire incident to her. Since, it 5 was too late to report the matter on that day, therefore, PW-3 and PW-4 went to the Women Police Station, BCS, New Delhi, Shimla, on the next day i.e. 28.09.2016. PW-3 made a written complaint Ext. PW-3/A and on that basis an FIR Ext. PW-12/A was registered. Endorsement on FIR Ext. PW-12/B was also made on the complaint. The complaint Ext. PW-3/A was handed over to HC Manoj Kumar (PW-7) for generating the FIR on the computer. PW-7 issued a certificate Ext. PW-7/A that on the said date, the computer was functioning properly. The child victim was sent for medical examination with LC Suchitra (PW-10) and PW-4 accompanied the child victim to Deen Dayal Upadhyay Hospital, Shimla and there an application Ext. PW-12/C was moved for medical examination of the child-victim. PW-3 was examined by Doctor Amita Bhatnagar (PW-
13). During the medical examination, underwear Ext. P-9 and sleeveless vest Ext. P-10 of PW-3 were taken into possession by PW-13 and these were put in a parcel Ext. P-11 which was properly sealed. The vaginal swab, pubic hair and slides Ext.P-12 duly sealed in vials Ext.P-13 to P-15 and blood samples of PW-3 on FTA card Ext. P-16 were taken into possession.
7. The convict was arrested on 28.09.2016 and taken for medical examination to Deen Dayal Upadhyay Hospital where his medical examination was conducted by doctor Vinod Gupta (PW-1), 6 who had also taken into possession his underwear Ext. P-1, blood sample on FTA card Ext. P-3, nail pieces Ext. P-4 in a vial, semen Ext. P-5 in a vial and paper packing containing pubic hair Ext. P-7. All these articles were put in a cloth parcel Ext. P-8 which was properly sealed.
8. The police visited the spot on 29.09.2016 and map of the place Ext. PW-12/D was prepared at the instance of PW-3 and PW-4. PW-3 handed over the bed sheet Ext. P-12 which was spread over the cot where the convict is alleged to have committed rape on her and the same was taken into possession vide memo Ext. PW- 3/B in the presence of PW-11 and PW-4. The bed sheet was put in a parcel Ext. P-13. On 30.09.2016, the convict made a disclosure statement Ext. PW-11/A that he could identify the place where he had committed rape on PW-3 and regarding this memo Ext. PW- 11/B was prepared in the presence of PW-11 and the Investigating Officer PW-12. The map of this place Ext. PW-12/D was also prepared at the instance of the convict. The child victim was taken before the Judicial Magistrate 1st Class, Court No.8, Shimla for recording her statement under Section 164 Cr.P.C. An application Ext. PW-12/F was moved before the Court for taking such statement. The learned Magistrate before recording the statement of the child victim satisfied herself about the competence of the child- 7 victim to give the statement and such satisfaction was recorded in Ext. PW-3/E. Thereafter, the statement of PW-3 Ext. PW-3/D was recorded.
9. The samples which were taken into possession by PW- 1 and PW-13 were handed over to the police and these were deposited with HC Manoj Kumar (PW-7). An entry in this regard was made in the Rojnamcha register vide Ext. PW-7/B. The samples were sent to SFSL, Junga vide R.C. Ext. PW-7/C through LC Jyoti (PW-5) and after depositing the case property, PW-5 returned R.C. to PW-7.
10. The police also moved an application Ext. PW-2/A to the school where PW-3 was studying for obtaining documents relating to her age. Shri Sanjeev Kumar (PW-2), the officiating Principal handed over certificates Ext. PW-2/B and Ext. PW-2/C wherein her date of birth was recorded as 09.02.2003.
11. On 07.10. 2016, the wife of the convict produced 'aadhar' card Ext. PW-6/A belonging to the convict which was taken into possession vide memo Ext. PW-6/B in the presence of HC Ranjana (PW-6) and the Investigating Officer and the wife of the convict had also put her thumb impression on it. On 11.07.2017, an information was received at Women Police Station, BCS, New Shimla that the report of the SFSL was ready and, therefore, 8 Constable Rohit was sent to collect the said report and entry in this regard was made vide Ext. PW-9/A. Constable Rohit No. 728 collected the said report and the parcel was handed over to MHC and entry in this regard was also recorded in the daily station diary vide Ext. PW-9/B. In the report of SFSL, Ext. PW-8/A, it was opined that there was human semen on the underwear of PW-3 and in the DNA profiling, semen was found to be that of the convict.
12. After completing the investigation, police came to the conclusion that the convict had committed trespass at about 2.00 p.m. on 27.09.2016 by entering into the 'dhara' of PW-3 with the intent of committing an offence of rape and had further committed unnatural intercourse with the child-victim and thereby committed offences under Sections 450, 376 and 377 of IPC and Section 4 of the POCSO Act.
13. Charge was framed accordingly to which the convict pleaded not guilty and claimed trial. The prosecution examined as many as 14 witnesses in support of its case.
14. Doctor Vinod Gupta, (PW-1) Medical Officer, DDU Hospital, Shimla, medically examined the convict and took into possession his underwear, blood sample on FTA card, nail pieces, semen and pubic hair and the same were put in the vials. These 9 samples were further put in cloth parcels and sealed. After examination of the convict, PW-1 issued MLC Ext. PW-1/B.
15. PW-2 is Sanjeev Kumar, Lecturer, Government Senior Secondary School, who on behalf of the Principal of the school where the child-victim was studying, handed over the certificates Ext. PW-2/B and Ext. PW-2/C about the date of birth of the child-victim in pursuance of application Ext. PW-2/A.
16. PW-3 is child-victim and PW-4 is mother of the child- victim.
17. PW-5 LC Jyoti No. 1589, Women Police Station, BCS, New Shimla took the case property to the SFSL, Junga vide R.C. Ext. PW7/C and deposited the same with SFSL, Junga.
18. PW-6 LHC Ranjana No. 184, Women Police Station, BCS, New Shimla, stated that the wife of the convict handed over the 'Aaadar' card Ext. PW-6/A of the convict in her presence.
19. PW-7 HC Manoj Kumar No. 47, Women Police Station, BCS, New Shimla, remained posted as MHC from January 2015 till November 2016 in whose custody the case property was given and he further gave it for depositing the same at SFSL, Junga for chemical analysis.
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20. PW-8 Reena remained posted as SHO, Women Police Station, BCS, New Shimla at the relevant time and put up the challan against the convict.
21. PW-9 HC Naresh No. 86, remained posted as MHC, Women Police Station, BCS, New Shimla since 2017 and on receiving the information from SFSL, Junga, he deputed Constable Rohit to bring the report.
22. LC Suchitra No. 415 (PW-10), Women Police Station, BCS, New Shimla accompanied the child-victim to DDU, Shimla, for her medication examination.
23. PW-11 ASI Het Ram was present with the Investigating Officer on 29.09.2016 and 30.09.2016. In his presence, the map of the place was prepared and bed sheet was taken into possession by the police. The convict also gave disclosure statement under Section 27 of the Evidence Act in his presence.
24. Inspect Mamta (PW-12) is the Investigating Officer.
25. PW-13 is doctor Amita Bhatnagar, Medical Officer, DDU Hospital, Shimla, who medically examined child-victim and took into possession her underwear, vaginal swab, pubic hair, slides and blood samples on FTA card. The parcels as well as samples after sealing were handed over to the police.
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26. PW-14 Shri Vivek Sehaj Pal, Assistant Director, D.N.A. Division, SFSL, Junga did DNA profiling by examining the samples sent to his division. On examination, report Ext. PW-8/A was issued by him.
27. After the closure of the prosecution evidence, the convict was examined under Section 313 Cr.P.C. The convict pleaded innocence and took the plea that he had been falsely implicated by PW-4 as she had borrowed a sum of Rs.20,000/- from him and when he went to demand the said amount, a quarrel took place and accordingly a false case had been foisted against him. In support of his case, he examined one witness Ravi Kumar as DW-1 to the effect that on 27.09.2016, the date of the alleged occurrence, the convict was working with him under the contractor Shri Umesh Kumar at Summerhill and he remained there up to 5.00 p.m.
28. As observed above, the learned Special Judge acquitted the convict under Section 377 of IPC and Section 4 of the POCSO Act and convicted him under Sections 450 and 376 of IPC and it is against the acquittal that the State has filed Criminal Appeal No. 332 of 2019 and the convict, on the other hand, has filed Criminal Appeal No 119 of 2019 against his conviction.
29. It is vehemently argued by Shri N.S. Chandel, Senior Advocate assisted by Shri Vinod Kumar Gupta, Advocate that the 12 learned Special Judge has rightly acquitted the convict of the offences under Sections 377 of IPC and 4 of the POCSO Act but has erred in convicting him under Sections 450 and 376 of IPC
30. The following points have been raised by the convict:
(i) Age of child-victim not proved.
(ii) The presence of the child-victim at the place of alleged occurrence is highly doubtful.
(iii) Semen could not have been found on the underwear of the child-victim.
(iv) FTA Card loses its significance for want of identification form.
(v) Guidelines of DNA not followed.
(vi) Non-examination of the wife of the convict fatal to the case of the prosecution.
31. On the other hand, Shri J.S.Guleria, learned Deputy Advocate General would argue that since the testimony of the child- victim is consistent and inspiring confidence, therefore, the convict ought to have been convicted for the offences under Sections 377 of IPC and 4 of the POCSO Act in addition to the offences under Sections 450 and 376 of IPC.
32. We have heard the learned counsel for the parties and have gone through the records of the case.
33. We would now deal with point-wise contentions raised by both parties.
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(i) Age of child-victim not proved.
34. It needs to be noticed that there can be no quarrel that the determination of age is vital to bring the case of the prosecution under the POCSO Act. As per the prosecution, child-victim was studying in 7th Class and had got admission in 6th Class on the basis of the school leaving certificate Ext.PW-2/B. PW-2 issued certificate Ext. PW-2/C to the effect that in the year 2016, the child- victim was studying in the 7th Class. In Ext. PW-2/B, date of birth of child-victim is recorded as 09.02.2003. However, it needs to be noticed that the certificate produced on record has not been issued by PW-2, but he has simply attested the same. As a matter of fact, the certificate has been issued by the school where the child-victim had been studying prior to the date of the incident and did not pertain to the school and had in fact been submitted by the school of which PW-2 was an officiating-Principal. Thus, the certificate was totally inadmissible and could not have been looked into. After all, it was the official of the school, who had issued the certificate Ext. PW-2/C, who could have deposed regarding its correctness and in the absence of there being any evidence led by the prosecution as to who entered the date of birth of the child-victim in the school record and on what basis, it cannot be held that the child-victim was 14 either minor or a child as defined under sub-section (12) of Section 2 of the Juvenile Justice(Care and Protection of Children), Act, 2015.
35. In addition to that we find that the certificate Ext.PW-2/B so issued is only a photostat copy prepared by PW-2 and, therefore, in the absence of its original, the same could not have otherwise been exhibited in the Court. The evidence so led by the prosecution does not in any way prove the age of the child-victim so as to fulfill the requirement of the Juvenile Justice (Care and Protection of Children) Act, 2015. Moreover, it would be noticed that school leaving certificate Ext. PW-2/B was issued by the school where the child-victim had been studying for the purpose of getting admission in the 6th Class in another school. So, the documents would essentially be in the nature of the school leaving certificate and thus not admissible in evidence, even if, it is assumed that the child- victim was a minor.
36. In coming to such a conclusion, we are duly fortified and supported by the recent judgment of the Hon'ble Supreme Court in P. Yuvaprakash vs. State Rep. by Inspector of Police, JT 2023 (7) SCC 261. It shall be apt to reproduce paras 10 to 19 thereof, which read as under:-
10. Mr. V. Krishnamurthy, Learned Additional Advocate General appearing for the State, supported the concurrent 15 conviction and sentence recorded by the Courts below; he submitted that even though the victim and the appellant knew each other, and even if it was accepted that they had feelings for each other, the fact remains that the victim was below the statutory age, and consent is irrelevant. He submitted that the findings of the courts below with respect to the age of the victim were supported or corroborated only by the testimony of DW-2, the Head Mistress of the school where M had studied. She had deposed that according to the school records, M's date of birth is 11.07.1997. Analysis and conclusions
11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act which reads as follows:
"34. Procedure in case of commission of offence by child and determination of age by Special Court. - (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).
(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person."
12. In view of Section 34 (1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:
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"94. Presumption and determination of age. - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining -
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age 17 of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:
"(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board".
14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court 18 summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW- 3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors., this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:
"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also 19 provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."
16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:
"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category
(ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain v State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.
18. Reverting to the facts of this case, the headmaster of M's School, CW- 1, was summoned by the court and 20 produced a Transfer Certificate (Ex.C-1). This witness produced a Transfer Certificate Register containing M's name. He deposed that she had studied in the school for one year, i.e., 2009-10 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. DW-2 TMT Poongothoi, Headmaster of Chinnasoalipalayam Panchayat School, answered the summons [2012] 9 SCR 224 served by the court and deposed that 'M' had joined her school with effect from 03.04.2002 and that her date of birth was recorded as 11.07.1997. She admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue, i.e., the date of birth, Thiru Prakasam, DW-3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office.
19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating "that the age of the said girl 21 would be more than 18 years and less than 20 years". In the cross-examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor". This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9."
(ii) The presence of the child-victim at the place of alleged occurrence is highly doubtful.
37. It is contended by Shri Chandel learned Senior Counsel for the convict that it is highly doubtful that the child-victim was at the place of alleged occurrence as it has categorically come in the statement of the child-victim as also her mother that the child-victim 22 had been staying in the house of one Renu to whom the child-victim referred to her 'Aunti'. However, we really find no merit in such contention as the child-victim categorically stated about the place of occurrence when she states that on 27.09.2016 after coming from school at about 2.00 p.m., she was sitting outside her house and reading a book and then the convict came there and committed rape on her. In cross-examination, she stated that she used to go to school from the house of 'Aunti' and after school timing is over, she used to go to her 'dhara' where her mother had been residing and thereafter she used to go there where she had been residing and working. Likewise, the mother of the child-victim, who appeared as PW-4 in the witness box, in addition to her examination-in-chief, in the cross-examination admitted the suggestion that her daughter(child-victim) had been residing in the house of Madam Renu for the last 2 years and had been going to school from there. She even denied the suggestion that on 27.09.2016, the child-victim was in the house of Madam Renu and she had not come to 'dhara' on the said date. She volunteered to state that child-victim had been residing in her house for the last one week. Even if, the last part of the statement of PW-4 is taken to be an improvement, there is nothing on record to suggest that child-victim had not been coming to 'dhara' after school hours and staying there till about 5.00 p.m. 23
(iii)Semen could not have been found on the underwear of the child-victim.
38. It is the prosecution case that the child-victim had been medically examined and for this purpose, LC Suchitra (PW-10) had been deputed. PW-10 was accompanied by the mother of the child- victim and this is so specifically stated by the witness while appearing as PW-10 when she specifically stated that she had taken the child-victim for medical examination to DDU, Shimla and the mother of the child-victim had also accompanied her at that time.
39. In this background, the testimony of the mother of the child-victim would be necessary because, on the date of the alleged incident i.e. 27.09.2016, the child-victim had not approached the police for registration of the case and had gone with her mother on the next day to lodge the complaint on which date i.e. 28.09.2016, the child-victim had been medically examined.
40. Now in case we advert to the testimony of PW-4, she in her cross-examination categorically stated that the clothes of the child-victim were taken into possession on 28.09.2016 at the time of her medical examination. The child-victim had gone for a medical examination with changed clothes. PW-4 stated that she did not remember where the undergarments of the child-victim had been taken into possession by the police. The undergarments had been 24 handed over by the child-victim herself to the police. PW-4 further stated that she was present at the time of the medical examination of the child-victim, who had worn undergarments at the time of her medical examination.
41. It needs to be observed that it is the specific case of PW-4 that child-victim had gone for a medical examination with changed clothes and it were these changed clothes that were taken into possession by the doctor PW-13 including the underwear Ext. P-9 which was put in parcel Ext. P-11. The police of its own had not taken any clothes of the child-victim including the undergarments as there is no document whatsoever produced by the prosecution to prove the same. The only undergarment that was taken into possession was Ext.P-9 and that was taken into possession as already observed by PW-13 and was not the underwear that the child-victim was wearing on the date of the alleged incident. This is clear from the fact that the child-victim while appearing as PW-3 has categorically stated in her examination-in-chief as under:
"On the same day, I was medically examined. At the time of my medical examination the doctor had taken my undergarments into possession, which were sealed in a cloth parcel. (At this stage, learned PP has produced one sealed cloth parcel which is stated to contain the undergarments of the child victim. The parcel is sealed with seven seals. Three seals are of CMOS and the other four seals are of FSL, 25 Junga. All the seals are intact. Permission to open the parcel is granted. On opening the parcel, one underwear and one under-vest are taken out). The underwear Ext. P-9 and under-vest P-10 are the same which were sealed by the Medical Officer at the time of medical examination in cloth parcel Ext.P-11."
42. It would be noticed that nowhere does the child-victim claim the underwear and under-vest to be the one which she had been wearing at the time of the alleged incident and as per the mother of the child-victim, child-victim had changed her clothes and, therefore, how semen appeared on the underwear of the child-victim remains a mystery. Since, the semen of the convict had been taken by the Investigating Agency, therefore, the possibility of it having been misused in the given facts and circumstances of the case cannot be ruled out as it was otherwise impossible for semen to have appeared on the underwear of the child-victim.
(iv) FTA Card loses its significance for want of identification form.
43. Even the FTA Card, on the basis of which the convict has been convicted and sentenced, for want of identification form is of no avail to the prosecution. After all, it was for the prosecution to have proved on record the identification form and only thereafter credence, if any, could have been led to the FTA Card. In the 26 absence of an identification form, FTA Card alone had no value whatsoever much less could have been made the basis of convicting the convict.
(v) Guidelines of DNA not followed.
44. As regards DNA guidelines, there is nothing on record to prove that these infact have been scrupulously followed by the prosecution and further the issue whether conviction can be based on a DNA report alone has been elaborately discussed by the Division Bench of this Court of which one of us (Justice Tarlok Singh Chauhan) was a member in Criminal Appeal No. 321 of 2021 titled Mukesh Kumar vs. State of H.P., decided on 27.12.2022, wherein it was observed as under:
"50.The legislature, in its wisdom, has inserted Section 53A and Section 164A of the Cr.P.C by the Act 25 of 2005 w.e.f. 23.06.2006. Sections 53A and Section 164A of the Cr.P.C are reproduced as under:-
"[53A. Examination of a person accused of rape by medical practitioner.- (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, 27 to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely;-
(i) the name and address of the accused and
of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and".
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted in the report.
(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause
(a) of Sub-Section (5) of that section.]"
"[164A. Medical examination of the victim of rape.-(1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority 28 and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty- four hours from the time of receiving the information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely:-
(i) the name and address of the woman and of the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman;
and
(vi) other material particulars in reasonable detail, (3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The report shall specifically record that the consent of the woman or of the person competent, to give such consent on her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the examination shall also be noted in the report.
(6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of 29 the documents referred to in clause (a) of Sub- Section (5) of that section.
(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf."
51. Apart from collecting the other physical evidence, as referred above, the police, during the investigation had also collected the blood samples for DNA profiling. The DNA report is Ext. P-Y.
52. The scope of DNA test has elaborately been discussed by the Hon'ble Apex Court in case titled as Anil alias Anthony Arikswamy Joseph vs. State of Maharashtra (2014) 4 SCC 69. The relevant paragraph 18 of the same is reproduced as under:-
"18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory.
(self emphasis supplied)
53. The procedure, which is to be adopted for collecting the samples as well as the precautions, which are to be taken for conducting the DNA test has elaborately been discussed by the Hon'ble Apex Court in case titled as Mukesh and another vs. State (NCT of Delhi) and others, 30 (2017) 6 SCC 1. The relevant paragraphs No. 211 to 228 of the same are reproduced as under:-
"211. DNA is the abbreviation of Deoxyribo Nucleic Acid. It is the basic genetic material in all human body cells. It is not contained in red blood corpuscles. It is, however, present in white corpuscles. It carries the genetic code. DNA structure determines human character, behaviour and body characteristics. DNA profiles are encrypted sets of numbers that reflect a person's DNA makeup which, in forensics, is used to identify human beings. DNA is a complex molecule. It has a double helix structure which can be compared with a twisted rope 'ladder'.
212. The nature and characteristics of DNA had been succinctly explained by Lord Justice Phillips in Regina v. Alan James Doheny & Gary Adams[83]. In the above case, the accused were convicted relying on results obtained by comparing DNA profiles obtained from a stain left at the scene of the crime with DNA profiles obtained from a sample of blood provided by the appellant. In the above context, with regard to DNA, the following was stated by Lord Justice Phillips:
"Deoxyribonucleic acid, or DNA, consists of long ribbon-like molecules, the chromosomes, 46 of which lie tightly coiled in nearly every cell of the body. These chromosomes - 23 provided from the mother and 23 from the father at conception, form the genetic blueprint of the body. Different sections of DNA have different identifiable and discrete characteristics. When a criminal leaves a stain of blood or semen at the scene of the crime it may prove possible to extract from that crime stain sufficient sections of DNA to enable a comparison to be made with the same sections extracted from a sample of blood provided by the suspect. This process is complex and we could not hope to describe it more clearly or succinctly than did Lord Taylor C.J. in the case of Deen (transcript: December 21, 1993), so we shall gratefully adopt his description.
"The process of DNA profiling starts with DNA being extracted from the crime stain and also from a sample taken from the suspect. In each case 31 the DNA is cut into smaller lengths by specific enzymes. The fragments produced are sorted according to size by a process of electrophoresis. This involves placing the fragments in a gel and drawing them electromagnetically along a track through the gel. The fragments with smaller molecular weight travel further than the heavier ones. The pattern thus created is transferred from the gel onto a membrane. Radioactive DNA probes, taken from elsewhere, which bind with the sequences of most interest in the sample DNA are then applied. After the excess of the DNA probe is washed off, an X-ray film is placed over the membrane to record the band pattern. This produces an auto radiograph which can be photographed. When the crime stain DNA and the sample DNA from the suspect have been run in separate tracks through the gel, the resultant auto-radiographs can be compared. The two DNA profiles can then be said either to match or not.""
213. In the United States, in an early case Frye v. United States[84], it was laid down that scientific evidence is admissible only if the principle on which it is based is substantially established to have general acceptance in the field to which it belonged. The US Supreme Court reversed the above formulation in Daubert v. Merrell Dow Pharmaceuticals, Inc.[85] stating thus:
"Although the Frye decision itself focused exclusively on "novel" scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence. Of course, well- established propositions are less likely to be challenged than those that are novel, and they are more handily defended. Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Fed.Rule Evid. 201.
This is not to say that judicial interpretation, as opposed to adjudicative fact finding, does not share basic characteristics of the scientific endeavor: "The work of a judge is in one sense 32 enduring and in another ephemeral... In the endless process of testing and retesting, there is a constant rejection of the dross and a constant retention of whatever is pure and sound and fine."
B.Cardozo, The nature of the Judicial Process 178, 179 (1921)."
214. The principle was summarized by Blackmun, J., as follows: "To summarize: "general acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence--especially Rule 702--do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.
The inquiries of the District Court and the Court of Appeals focused almost exclusively on "general acceptance," as gauged by publication and the decisions of other courts. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion."
After the above judgment, the DNA Test has been frequently applied in the United States of America.
215. In District Attorney's Office for the Third Judicial District et al. v. William G. Osborne[86], Chief Justice Roberts of the Supreme Court of United States, while referring to the DNA Test, stated as follows:
"DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices. The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure- usually but not always through legislation.
Modern DNA testing can provide powerful new evidence unlike anything known before. Since its 33 first use in criminal investigations in the mid- 1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue."
216. DNA technology as a part of Forensic Science and scientific discipline not only provides guidance to investigation but also supplies the Court accrued information about the tending features of identification of criminals. The recent advancement in modern biological research has regularized Forensic Science resulting in radical help in the administration of justice. In our country also like several other developed and developing countries, DNA evidence is being increasingly relied upon by courts. After the amendment in the Criminal Procedure Code by the insertion of Section 53A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme. Section 53A relates to the examination of a person accused of rape by a medical practitioner.
217. Similarly, under Section 164A inserted by Act 25 of 2005, for medical examination of the victim of rape, the description of material taken from the person of the woman for DNA profiling is must. Section 53A sub- section (2) as well as Section 164(A) sub-section (2) are to the following effect:
"Section 53A. Examination of person accused of rape by Medical Practitioner.-(1) ... ... ...
(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused, 34
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail.
Section 164A. Medical Examination of the victim of rape.-
(1) ... ... ... ...
(2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely:-
(i) the name and address of the woman and of the person by whom she was brought;
(ii) the age of the woman;
(iii)the description of material taken from the person of the woman for DNA profiling;
(iv)marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi)other material particulars in reasonable detail."
218. This Court had the occasion to consider various aspects of DNA profiling and DNA reports. K.T. Thomas, J. in Kamti Devi (Smt.) and another v. Poshi Ram[87], observed:
"10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a 35 genuine DNA test is said to be scientifically accurate. ..."
219. In Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh[88], a two-Judge Bench had explained as to what is DNA in the following manner:
"41. Submission of Mr Sachar that the report of DNA should not be relied upon, cannot be accepted. What is DNA? It means:
"Deoxyribonucleic acid, which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting, identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred per cent precise, experts opine." There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high molecular weight DNA, complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See article of Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA profiling and its applications.) But in this case there is nothing to show that such precautions were not taken.
42. Indisputably, the evidence of the experts is admissible in evidence in terms of Section 45 of the Evidence Act, 1872. In cross-examination, PW 46 had stated as under:
"If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population."
220. In Santosh Kumar Singh v. State Through CBI[89], which was a case of a young girl who was raped and 36 murdered, the DNA reports were relied upon by the High Court which were approved by this Court and it was held thus:
"71. We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out against the two experts who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Devi v. Poshi Ram (supra). In arriving at its conclusions the trial court was also influenced by the fact that the semen swabs and slides and the blood samples of the appellant had not been kept in proper custody and had been tampered with, as already indicated above. We are of the opinion that the trial court was in error on this score. We, accordingly, endorse the conclusions of the High Court on Circumstance
9."
221. In Inspector of Police, Tamil Nadu v. John David[90], a young boy studying in MBBS Course was brutally murdered by his senior. The torso and head were recovered from different places which were identified by the father of the deceased. For confirming the said facts, the blood samples of the father and mother of the deceased were taken which were subject to DNA test. From the DNA, the identification of the deceased was proved. Paragraph 60 of the decision is reproduced below:
"60. ... The said fact was also proved from the DNA test conducted by PW 77. PW 77 had compared the tissues taken from the severed head, torso and limbs and on scientific analysis he has found that the same gene found in the blood of PW1 and Baby Ponnusamy was found in the recovered parts of the body and that therefore they should belong to the only missing son of PW1."
222. In Krishan Kumar Malik v. State of Haryana[91], in a gang rape case when the prosecution did not conduct DNA test or analysis and matching of semen of the appellant-accused with that found on the undergarments of the prosecutrix, this Court held that 37 after the incorporation of Section 53- A in CrPC, it has become necessary for the prosecution to go in for DNA test in such type of cases. The relevant paragraph is reproduced below:
"44. Now, after the incorporation of Section 53- A in the Cr.P.C w.e.f 23.06.2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in CrPC the prosecution could have still restored to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences."
223. In Surendra Koli v. State of Uttar Pradesh and others[92], the appellant, a serial killer, was awarded death sentence which was confirmed by the High Court. While confirming the death sentence, this Court relied on the result of the DNA test conducted on the part of the body of the deceased girl. Para 12 is reproduced below:-
"12. The DNA test of Rimpa by CDFD, a pioneer institute in Hyderabad matched with that of blood of her parents and brother. The doctors at AIIMS have put the parts of the deceased girls which have been recovered by the doctors of AIIMS together. These bodies have been recovered in the presence of the doctors of AIIMS at the pointing out by the accused Surendra Koli. Thus, recovery is admissible under Section 27 of the Evidence Act."
224. In Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State of Maharashtra[93], the accused was awarded death sentence on charges of killing large number of innocent persons on 26th November, 2008 at Bombay. The accused with others had come from Pakistan using a boat 'Kuber' and several articles were recovered from 'Kuber'. The 38 stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA test and the DNA test matched with several accused. The Court observed:
"333. It is seen above that among the articles recovered from Kuber were a number of blankets, shawls and many other items of clothing. The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA profiling and, excepting Imran Babar (deceased Accused 2), Abdul Rahman Bada (deceased Accused 5), Fahadullah (deceased Accused 7) and Shoaib (deceased Accused 9), the rest of six accused were connected with various articles found and recovered from the Kuber. The appellant's DNA matched the DNA profile from a sweat stain detected on one of the jackets. A chart showing the matching of the DNA of the different accused with DNA profiles from stains on different articles found and recovered from the Kuber is annexed at the end of the judgment as Schedule III."
225. In Sandeep v. State of Uttar Pradesh[94], the facts related to the murder of pregnant paramour/girlfriend and unborn child of the accused. The DNA report confirmed that the appellant was the father of the unborn child. The Court, relying on the DNA report, stated as follows:
"67. In the light of the said expert evidence of the Junior Scientific Officer it is too late in the day for the appellant Sandeep to contend that improper preservation of the foetus would have resulted in a wrong report to the effect that the accused Sandeep was found to be the biological father of the foetus received from the deceased Jyoti. As the said submission is not supported by any relevant material on record and as the appellant was not able to substantiate the said argument with any other supporting material, we do not find any substance in the said submission. The circumstance, namely, the report of DNA in having concluded that accused Sandeep was the biological father of the recovered foetus of Jyoti was one other relevant 39 circumstance to prove the guilt of the said accused."
226. In Rajkumar v. State of Madhya Pradesh[95], the Court was dealing with a case of rape and murder of a 14 year old girl. The DNA report established the presence of semen of the appellant in the vaginal swab of the prosecutrix. The conviction was recorded relying on the DNA report. In the said context, the following was stated:
"8. The deceased was 14 years of age and a student in VIth standard which was proved from the school register and the statement of her father Iknis Jojo (PW1). Her age has also been mentioned in the FIR as 14 years. So far as medical evidence is concerned, it was mentioned that the deceased prosecutrix was about 16 years of age. So far as the analysis report of the material sent and the DNA report is concerned, it revealed that semen of the appellant was found on the vaginal swab of the deceased. The clothes of the deceased were also found having appellant's semen spots. The hair which were found near the place of occurrence were found to be that of the appellant."
227. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another[96], the appellant, father of the child born to his wife, questioned the paternity of the child on the ground that she did not stay with him for the last two years. The Court directed for DNA test. The DNA result opined that the appellant was not the biological father of the child. The Court also had the occasion to consider Section 112 of the Evidence Act which raises a presumption that birth during marriage is conclusive proof of legitimacy. The Court relied on the DNA test holding the DNA test to be scientifically accurate. The pertinent observations are extracted below:
"19. The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports 40 prove to the contrary. We are conscious that an innocent child may not be bastardised as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice.
20. As regards the authority of this Court in Kamti Devi, this Court on appreciation of evidence came to the conclusion that the husband had no opportunity whatsoever to have liaison with the wife. There was no DNA test held in the case. In the said background i.e. non-access of the husband to the wife, this Court held that the result of DNA test "is not enough to escape from the conclusiveness of Section 112 of the Act."
The judgment has to be understood in the factual scenario of the said case. The said judgment has not held that DNA test is to be ignored. In fact, this Court has taken note of the fact that DNA test is scientifically accurate. We hasten to add that in none of the cases referred to above, this Court confronted with a situation in which a DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act. In view of what we have observed above, these judgments in no way advance the case of the respondents."
228. From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non- acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted."
(self emphasis supplied)
54. The Hon'ble Apex Court, in a recent decision in case titled as Pattu Rajan vs. State of Tamilnadu (2019) 4 SCC 771 has again discussed the evidentiary value of the DNA report, in the light of the provisions of Section 45 of the 41 Evidence Act. The relevant paragraphs No. 49 to 52 of the same are reproduced as under:-
"49. One cannot lose sight of the fact that DNA evidence is also in the nature of opinion evidence as envisaged in Section 45 of the Indian Evidence Act. Undoubtedly, an expert giving evidence before the Court plays a crucial role, especially since the entire purpose and object of opinion evidence is to aid the Court in forming its opinion on questions concerning foreign law, science, art, etc., on which the Court might not have the technical expertise to form an opinion on its own. In criminal cases, such questions may pertain to aspects such as ballistics, fingerprint matching, handwriting comparison, and even DNA testing or superimposition techniques, as seen in the instant case.
50. The role of an expert witness rendering opinion evidence before the Court may be explained by referring to the following observations of this Court in Ramesh Chandra Agrawal v. Regency Hospital Limited & Ors:
"16. The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of an expert cannot be disputed..."
(emphasis supplied)
51. Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate 42 conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts. (See The State (Delhi Adminstration) v. Pali Ram, (1979) 2 SCC 158; State of H.P. v. Jai Lal & Ors., (1999) 7 SCC 280; Baso Prasad & Ors. v. State of Bihar, (2006) 13 SCC 65; Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors. (supra); Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors., (2010) 2 SCC (Cri) 299).
52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party."
(self emphasis supplied)
55. The Hon'ble Apex Court in a recent decision in a case titled as Manoj and others vs. State of Madhya Pradesh 2022(9) scale has elaborately discussed the evidentiary value of the DNA report and the procedure for collecting the samples. The relevant paragraphs No. 134 to 141 of the same are reproduced as under:-
134. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata40 was relied upon. The relevant extracts of the article are reproduced below:
"Deoxyribonucleic acid (DNA} is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with Intercalated proteins.43
Twenty- three pairs of chromosomes present In each nucleated cells and an individual Inherits 23 chromosomes from mother and 23 from father transmitted through the ova and sperm respectively. At the time of each cell division, chromosomes replicate and one set goes to each daughter cell. All Information about Internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases: Adenine (A), Guanine (G}, Thymine (T} and Cytosine (C) along with sugar- phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have exactly same DNA but it varies from individual to Individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA} found in large number of copies in the mitochondria is circular, double stranded, 16,569 base pair in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also being in large number of copies than nuclear DNA, it can be used in the analysis of degraded samples.
Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures. Only 0.1 % of DNA (about 3 million bases} differs from one person to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples.
................................................ DNA Profiling Methodology DNA profile is generated from the body fluids, stains, and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be established. DNA Profiling Is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed Genetic Markers. The current genetic markers of choice for forensic purposes are Short 44 Tandem Repeats (STRs). Analysis of a set of 15 STRs employing Automated DNA Sequencer gives a DNA Profile unique to an Individual (except monozygotic twin). Similarly, STRs present on Y chromosome (Y- STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of azoo11permic or vasectomized" male. Cases In which DNA had undergone 40 DNA profiling in Justice Delivery System, Central Forensic Science Laboratory, Directorate of Forensic Science, Kolkata (2007). environmental stress and biochemical degradation, min lSTRs can be used for over routine STR because of shorter amplicon size.
DNA Profiling is a complicated process and each sequential step involved in generating a profile can vary depending on the facilities available In the laboratory. The analysis principles, however, remain similar, which include:
1. isolation, purification & quantitation of DNA
2. amplification of selected genetic markers
3. visualising the fragments and genotyping
4. statistical analysis & interpretation.
In mt DNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples:.... Statistical Analysis Atypical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison:
1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched.45
2) Exclusion: If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources.
3) Inconclusive: The data does not support a conclusion Of the three possible outcomes, only the "match" between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA profile in a population.
In case of paternity/maternity testing, exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci possible mutations should be taken Into consideration while reporting a match. Paternity of Maternity Indices and Likelihood Ratios are calculated further to support the match.
Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, It will not meet the legal and scientific requirements for admissibility in. a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be Identified, preserved, packed and sent for DNA Profiling." (self emphasis supplied)
135. In an earlier judgment, R v Dohoney & Adams41 the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials: (1) the scientist should adduce the evidence of the DNA 41 1997 (1) Crl App Rep 369 comparisons 46 together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.
136. The Law Commission of India in its report42, observed as follows:
"DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not 'match', then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 100,000: This is described as the 'random occurrence ratio' (Phipson 1999).
Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law."
137. In Dharam Deo Yadav v. State of UP43 this court discussed the reliability of DNA evidence in a criminal trial, and held as follows:
"The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made-up of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines.....DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually 47 infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory." 42 185th Report, on Review of the Indian Evidence Act, 2003 43 (2015) 5 SCC 509.
138. The US Supreme Court, in District Attorney's Office for the Third Judicial District v. Osborne, 44 dealt with a post-conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that "Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others."
139. Several decisions of this court - Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh45, Santosh Kumar Singh v. State Through CBI 46, Inspector of Police, Tamil Nadu v. John David 47, Krishan Kumar Malik v. State of Haryana48, Surendra Koli v. State of Uttar Pradesh & Ors 49, and Sandeep v. State of Uttar Pradesh50, Rajkumar v. State of Madhya Pradesh51 and Mukesh & Ors. v. State for NCT of Delhi & Ors. 52 have dealt with the increasing importance of DNA evidence. This court has also emphasized the need for assuring quality control, about the samples, as well as the technique for testing- in Anil v. State of Maharashtra53 48 "7. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, 44 557 U.S. 52 (2009) 45 (2009) 14 SCC 607 46 (2010) 9 SCC 747 47 (2011) 5 SCC 509 48 (2011) 7 SCC 130 49 (2011) 4 SCC 80 50 (2012) 6 SCC 107 51 (2014) 5 SCC 353 52 (2017) 6 SCC 1 53 (2014) 4 SCC 69 but variance in a particular result depends on the quality control and quality procedure in the laboratory."
140. This court, in one of its recent decisions - Pattu Rajan v. The State of Tamil Nadu54, considered the value and weight to be attached to a DNA report:
"33. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party."
141. This court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance, was to corroborate. This court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative 49 value of such evidence has to vary from case to case." (Self emphasis supplied).
56. It is the basic principle of criminal jurisprudence that the accused is presumed to be innocent until and unless his guilt is proved by the prosecution by leading the cogent and convincing evidence. The prosecution is duty bound to prove the guilt of the accused beyond any shadow of doubt. In other words, it can be said that the onus to prove the guilt of the accused beyond any shadow of doubt is always upon the prosecution.
58. The prosecution, in the present case, has to prove the guilt of the accused by leading oral as well as scientific evidence. The learned trial Court has convicted the accused on the basis of the DNA report as well as the on the basis of presumption under Section 29 of the POCSO. The report of DNA Ext. P-Y has simply been tendered in evidence. It has been held by the Hon'ble Apex Court in Pattu Rajan's case supra (para 49) that the DNA evidence, is in the nature of opinion evidence as per Section 45 of the Indian Evidence Act. This view has again been reiterated in the Manoj's case cited supra, wherein, it has been held that the evidence in the shape of DNA report is "an opinion" and also held that the probative value of such evidence has to vary from case to case. The science of DNA is at a developing stage, as such, it will be risky to solely rely upon the DNA report Ext. P-Y in the absence of any substantive piece of evidence. The positive evidence regarding the fact that all the precautions have been taken by the doctors as well as by the police officials regarding the preservations of the DNA samples."
50
45. Judged in the light of the aforesaid exposition of law, it would be noticed that PW-1, who examined the convict has not stated anything regarding the FTA Card, its number and the FTA Card being kept in safe condition right from obtaining the blood sample till the same had been submitted to the authority for DNA profiling.
(vi) Non-examination of the wife of the convict fatal to the case of the prosecution.
46. It is the specific case of the prosecution that the wife of the convict came to the place of occurrence immediately after the alleged incident but has not been examined. She could have been the best witness to depose about the alleged incident or else the prosecution's case does smack of a consensual relationship given the fact that certain injuries were noticed on the face of the convict.
47. Now coming to the arguments of the learned Deputy Advocate General that the statement of the child-victim is consistent and inspiring confidence. We need to notice that ex-parte statements could always be consistent and would normally inspire confidence and when tested on the anvil of cross-examination and once the testimony of the mother of the child-victim is appreciated in 51 its right perspective, we find that the case against the convict has not at all been proved.
48. Firstly, it is not in dispute that there is a police post in Summerhill which could be covered in time duration of about 10 minutes from 'dhara' as has been stated by the child-victim herself. It is also not in dispute that the mother of the child-victim had come in the evening (not night) when the child-victim is alleged to have informed her mother about the entire incident. Yet, neither the child- victim nor her mother thought it appropriate to approach the police post which was at a walking distance of 10 minutes and instead of approaching the police post, approached the police station, which was situated at a far of place. Further, there is no explanation as to why the child-victim and her mother, even if, they were reluctant to approach the authorities, did not think it appropriate to inform Renu in whose house admittedly PW-3 had been residing and doing the household work.
49. That apart, even the medical evidence does not in any manner support the case of the prosecution. Rather, there is no finding that the child-victim had been subjected to either natural or unnatural intercourse. Rather, the opinion of the doctor is categoric to the effect that there was no injury on the body or even the private parts of the child-victim.
52Unfortunately, all these factors have been conveniently ignored by the learned Special Judge.
50. In view of the aforesaid discussion and for the reasons stated above, we find no merit in the appeal i.e. Criminal Appeal No. 332 of 2019 filed by the State and accordingly the same is dismissed. On the other hand, the appeal filed by the convict i.e. Criminal Appeal No.119 of 2019 is allowed and the judgment and order passed by the learned Special Judge on 23.02.2019/ 28.02.2019, thereby convicting and sentencing him, are set aside and the convict is acquitted of the offences under Sections 450 and 376 of IPC.
51. Consequently, the convict, in Criminal Appeal No.119 of 2019 is ordered to be released immediately, if not required in any other case.
52. The Registry is directed to prepare release warrants of the convict.
53. In view of the provisions of Section 437A Cr.P.C., the convict-appellant in Criminal Appeal No. 119 of 2019 is directed to furnish a personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this 53 judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
54. Pending application(s), if any, also stands disposed of. KALYAN (Tarlok Singh Chauhan) CHAND Digitally signed by KALYAN CHAND AWASTHI DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=068e8173504da3a6d6e56308707033e63c7253b4e6eb0f2a8f0285 cdb5737f49, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=7fe19e609f07c9899a24f7f61744de9a7a35cc62f67431 d8415b71bf186fbd4f, CN=KALYAN CHAND AWASTHI Judge AWASTH Reason: I am approving this document Location:
Date: 2023-11-17 15:19:55 I (Satyen Vaidya) Judge 17th November, 2023.
(krt)