Tripura High Court
Convict vs The State Of Tripura on 1 September, 2021
Author: Arindam Lodh
Bench: Akil Kureshi, Arindam Lodh
Page 1 of 66
HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) NO.65 OF 2019
Sri Rashida Tripura,
S/o. Sri Gajendra Tripura
R/o. Dasarai Para, P.O:- Rasishyabari
District:- Dhalai Tripura.
------Convict-Appellant
Versus
The State Of Tripura
------Respondent
For the Appellant(s) : Mr. A. Acharjee, Advocate.
For the Respondent(s) : Mr. S. Debnath, Addl. P.P.
Date of hearing : 14.07.2021.
Date of delivery of
Judgment & Order : 01.09.2021.
Whether fit for reporting : YES.
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER
( Arindam Lodh, J )
Convict, Rashida Tripura has filed the instant appeal challenging the judgment and order of conviction and sentence dated 28.01.2019, passed by the learned Special Judge, Ambassa, Dhalai Tripura in Case No. Special(POCSO)21 of Page 2 of 66 2015, whereby and whereunder the appellant and the other accused-person, namely Jani @ Jane Tripura have been convicted under Section 376D of IPC and Section 302 of IPC read with Section 34 of IPC and thereby sentenced to suffer rigorous imprisonment of 20 years with a fine of Rs.10,000/- only each with default stipulation and further to suffer R.I. for life with a fine of Rs.10,000/- only each with default stipulation for commission of offence punishable under Section 302 read with Section 34 of IPC.
2. Prosecution case was set on motion with the registration of an FIR No.3/2014 dated 08.02.2014 on the basis of a complaint (Exbt-3) lodged by Dimsing Tripura, the father of the victim to the Officer-in-charge of Raisyabari P.S., Dhalai District. According to the said complaint (Exbt-3), his daughter aged about 12 years, at about 2.00 p.m. on 07.02.2014 went to the house of their neighbour, namely Rashida Tripura, the appellant herein for watching T.V. After watching T.V. at that house till 5.00 p.m., his daughter was found missing. Thereafter, they searched for her at different places, and on 08.02.2014 A.D. at about 7.00 a.m., he found the dead body of his daughter inside the jungle, adjacent to his village. He informed the police administration. The police went to the place Page 3 of 66 of occurrence and conducted investigation. The police found strangulation marks on the neck, swollen vagina with bleeding injuries. Bleeding injuries were also detected in the lower lip of his daughter. The complainant further alleged that some unknown miscreants had forcibly taken away his daughter to the jungle and committed rape upon her and had killed her by way of strangulation. He has prayed for justice.
3. During investigation, inquest was made upon the body of the deceased victim. The appellant along with Jani Tripura were arrested by the investigating officer (I.O.), and post mortem examination over the body of the deceased was conducted. Available witnesses were examined, disclosure statements of the accused persons were recorded by the police, the wearing apparels of the victim as well as the accused persons were seized in presence of the witnesses, which were subsequently sent for forensic examination by the experts. The I.O collected the forensic reports. Recorded the statements of the scientific experts as well as the doctor who conducted post mortem examination of the victim and having found sufficient materials and evidence about the involvement of the accused persons in committing the crime, the investigating officer submitted charge-sheet. Page 4 of 66
4. The learned judicial Magistrate, taking cognizance of the offence had committed the case to the learned Special Judge, North Tripura Judicial District, Kailashahar Tripura. After receipt of the records relating to the case, Special Case No.14 of 2014 was registered in the Court of Special Judge. The learned Special Judge thereafter had framed charges against both the accused persons. The charges framed against the accused-Rashida Tripura is reproduced hereunder in verbatim:-
― CHARGE I, Shri G. Debnath, Special Judge, North Tripura Judicial District, Kailashahar do hereby charge you, namely, RASHIDI TRIPURA AND JHANI @ JANE TRIPURA , as follows:-
Firstly, that, both of you on 07.02.2014 at any time at Dasarai Para under Raishyabari P.S. agreed to do an illegal act, namely, murder and gang rape of the victim girl, daughter of Demsing Tripura, which is punishable with death or imprisonment of life and that you thereby committed an offence punishable under section 120B of the Indian Penal Code and within my cognizance.
Secondly, that, both of you on 07.02.2014 at about 1700 hours in a jungle of Darasai para under Raishyabari P.S. in furtherance of common intention committed gang rape on the victim girl ( under the age of 18 years) and thereby committed an offence punishable under Section 376D of the Indian Penal Code and within my cognizance.
Thirdly, that, on the same date, time and place after committing gang rape on the victim girl both of you in furtherance of common intention did commit murder by intentionally causing the death of the victim girl and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and within my cognizance.
Fourthly, that, both of you on the same date, time and place committed penetrative sexual assault of victim girl by entering your penis into the vagina of victim girl and thereby committed an offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 and within my cognizance.
CHARGE Page 5 of 66 I, Shri G. Debnath, Special Judge, North Tripura Judicial District, Kailashar do hereby charge you, namely RASHIDA TRIPURA as follows:-
That you on 07.02.2014 at about 1700 hours of Dasarai para under Raishyabari P.S. kidnapped a minor girl, namely, the victim girl (under the age of 18 years), daughter of Demsing Tripura from the lawful custody of her legal guardian and forcefully took her in a jungle of Dasari para with intent that she may be compelled to illicit intercourse with uou against her will and thereby committed an offence punishable under Section 366 of the Indian Penal Code within my cognizance. ‖
5. After framing the aforesaid charges, trial was commenced. In course of trial, prosecution had examined as many as 47 witnesses including the investigating officer and scientific experts. After conclusion of the recording of evidence, the accused persons were examined under Section 313 of Cr.P.C. During such examination, incriminating evidence and materials were brought to their notice, which they claimed to be false.
6. Having heard the learned counsel appearing for the parties, the learned Special Judge held the accused-
persons guilty of committing offences as stated here-in-above.
7. It is noticed that while imposing sentence upon the accused persons, the learned Special Judge had taken the recourse of Section 42 of the POCSO Act, and keeping in view the period of sentence as provided in Section 376D of the IPC and Section 6 of the POCSO Act, decided to sentence the accused persons under the relevant provisions of IPC, since, Page 6 of 66 Section 376D provides for punishment which is greater in degree than that of Section 6 of the POCSO Act, 2012 and ultimately, sentenced the accused persons under Section 376(D)/302 read with Section 34 of IPC.
8. Being aggrieved by and dissatisfied with the aforesaid conviction and sentence, the convict has preferred the instant appeal before this Court.
9. We have heard Mr. A. Acherjee, learned counsel appearing on behalf of the convict-appellant as well as Mr. S. Debnath, learned Addl. P.P. appearing for the respondent- State.
10. Mr. Acharjee, learned counsel for the appellant submitted that the entire prosecution case was based upon conjectures and surmises, since the prosecution had failed to adduce any evidence in regard to the circumstance that the victim-girl had at all visited the house of the appellant on the said date and time as alleged in the FIR. Mr. Acharjee, learned counsel questioned the absence of the names of the accused persons in the FIR, though it is the prosecution case that the victim visited the house of Rashida Tripura on that date. The father of the victim did not state anything regarding his doubt Page 7 of 66 about the involvement of Rashida Tripura in the crime. Besides P.W.3, P.W.4 and P.W-10 deposed for the first time before the Court.
11. Mr. Acharjee, learned counsel for the appellant empathetically contended that the ocular evidence adduced by the prosecution could not establish the facts and circumstances of 'rape', and the conviction and sentence were solely based upon the scientific report which is also found to be contradictory. Learned counsel for the appellant submitted that the prosecution has failed to relate the circumstances between the commission of „rape‟ and subsequent murder. Mr. Acharjee, learned counsel criticized the way the learned Special Judge, took the recourse of Section 42 of the POCSO Act in imposing the sentence upon the appellant, and according to him, the appellant could be convicted under Section 4 of the POCSO Act. Learned counsel for the appellant candidly argued that even the scientific examination of the semen of the appellant spoke about the fact that the sample of semen collected from the appellant was only found in the panty of the victim and not matched with the internal vaginal swab collected from the victim, which fact clearly demonstrates a suspicious circumstance in regard to the commission of penetrative sexual Page 8 of 66 assault upon the victim. Learned counsel for the appellant vehemently argued that the scientific officer namely Smt. Rupa Majumder, who visited the place of occurrence and submitted her report dated 11.02.2014 had observed that the victim was found in dressed condition and the colour of the panty of the victim was green. Proceeding further, learned counsel argued that the forwarding report of the Sub Divisional Police Officer reveals that a black coloured underwear belonging to the appellant was sent for forensic examination, but in the forensic report, it was stated that they received one deep blue colour underwear of the appellant in a sealed packet. In view of those discrepancies, learned counsel for the appellant has urged this Court not to rely upon the reports of P.W.14 & P.W.-15. In his concluding deliberations, learned counsel for the appellant defended the finding of the Learned Special Judge that the disclosure statements recorded by the IO would have no evidentiary value and thus, prayed for acquittal of the appellant.
12. On the other hand, Mr. S. Debnath, learned Addl. P.P. defending the impugned judgment and order of conviction and sentence, contended that the facts and circumstances relating to the commission of crimes of rape and murder of the Page 9 of 66 minor victim-girl clearly points towards the guilt of the appellant and his associate-Jani Tripura, who did not prefer any appeal against his conviction and sentence. According to the learned Addl. P.P., the present case is the case of last seen together theory. Both the parents of the victim deposed that on the relevant date and time, the victim visited the house of the appellant, wherefrom she was found missing after 5.00. p.m. Both the appellant and Jani Tripura, another convict were all along together, which would be evident from the medical examination of the victim-girl. Learned Addl. P.P. further argued that there are no propositions of law that conviction of an accused could not be based upon medical evidence followed by related scientific examination reports if those were found to be consistent with each other. To conclude, learned Addl. P.P. prayed for confirmation of the impugned judgment and order of conviction and sentence imposed upon the appellant by the learned Special Judge.
13. We have given our thoughtful considerations to the rival submissions rendered by the learned counsels appearing for the parties. We have perused and scrutinized the evidence and materials on record as adduced by the parties. Page 10 of 66
14. True it is, the entire prosecution case hinges upon the circumstantial evidence and for this, due care must be taken in evaluating the circumstantial evidence to ensure that the circumstances on which the prosecution relied are wholly consistent with the sole hypothesis of the guilt of the accused. Further, circumstance must be of such a nature as to be capable of supporting the exclusive hypothesis of which the appellant is charged as the circumstances so shown by the prosecution are compatible with no other reasonable hypothesis. Commission of crime of „rape' is a heinous act caused by the rapist. It is a crime not against a particular woman but against the entire society. Therefore, the Court must deal with such cases with the utmost sensitivity. The Court should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies which are not of a fatal nature to throw out an otherwise reliable prosecution case.
15. Having kept the aforesaid principle in mind, we have proceeded to scrutinize the evidence and materials of the case.
Page 11 of 66
16. On a glimpse of the records, we find that there is one set of witnesses comprising of the parents and the relatives of the victim; another set of witnesses relate to the seizure of wearing apparels of the victim and the accused- persons; the third set of witnesses comprises the doctors and SFSL experts; the fourth set of witnesses consists the villagers who were associated with the search to locate the whereabouts of the victim and the witnesses who accompanied the police officials to identify the places of occurrence according to the disclosure statements as well as the confessional statement made by the accused-persons including the appellant. The police official form one set of witnesses.
17. Firstly, we like to deal with the evidence as adduced by the related witnesses of the victim forming one set of witnesses to scrutinize the veracity of their depositions. 17.1. P.W.-3, Sri Dimsim Tripura is the father of the victim-girl. He deposed before the Court that on 07.02.2014, he himself accompanied by his 11 years only daughter and his one and a half-year-old kid went to the house of the appellant- Rashida Tripura at around 2.00 p.m. to witness T.V. They enjoyed the T.V. for about 15 minutes. Thereafter due to the Page 12 of 66 disruption of electricity supply (load shedding), he and his kid preferred to return back together to home but his victim- daughter pleaded that she would wait for some time. At around 4.30 p.m., P.W.3 went to catch fish near his house. In that meanwhile, Jani Tripura came out of a nearby jungle and enquired with him about his fishing. On his return to home in the evening, he came to know from his wife that his daughter did not return home. He went to the house of Rashida Tripura situated at a distance of 40/50 cubits from his house. There he found his daughter not available. He went to the house of Madhumati Tripura, his sister-in-law, P.W.5, and found Rashida Tripura consuming alcohol. Madhumati Tripura, his sister-in- law (P.W.5) confirmed that his daughter did not go to their house. At his request, Jani and Rashida accompanied him to the nearby locality in search of his daughter but she was not found. Thereafter, they went to TSR camp and on their request, some of the TSR personnel accompanied them and they searched till 2.00 a.m., but in vain. P.W.-3 continued to depose that on the following day again he himself accompanied by Rashida and Jani and Subhas (P.W.37) started to search nearby jungle when Rashida found the dead body of his daughter first and called him. They assembled there and found Page 13 of 66 his daughter lying dead. At that time, his victim-daughter was wearing a black colour T-shirt, one pachra, but her panty was found to be partly removed. There was fingerprint around her neck with blood-stained mouth. P.W.-3 deposed that by that time, some TSR jawans assembled there and police was informed. On arrival of police personnel, they examined the dead body and opined that his daughter was raped and then killed. Thereafter, he lodged a case which was written by Sri Chandra Kishore Tripura (P.W.13) as per his version and he signed on it. His signature on the ejahar was marked as Exbt-
3. P.W.3 deposed that at the time of the incident, his daughter was attaining the age of 11 years and a student of class-V. He further deposed that his eldest daughter P.W.-4 was 15 years old. Thereafter, the dead body of his daughter was shifted to hospital. Inquest was prepared and after completion of post- mortem examination, the dead body was handed over to him. P.W.3 identified the wearing apparel of his deceased daughter which were marked as Exbt-M.O.1 series. P.W.3 deposed that the accused-Rashida and Jani nourished grudge against him due to purchase of one kani of land one month prior to the incident and making that an issue, Rashida used to create nuisance consuming alcohol. Prior to the incident, one day, Page 14 of 66 Rashida went to his house consuming liquor and committed nuisance when he requested him not to come to his house under the influence of liquor. P.W.3 further deposed that the cattle of Rashida and Jani used to damage his crops and his request to stop such act went in vain. P.W.3 went on deposing that his elder daughter used to prosecute her study staying in a hostel at Raisyabari. On the occasion of Poush-Sankranti, she came to the house and one day when she went to take bath to a nearby pond one week prior to the death of his daughter, Rashida and Jani threatened her that they would „rape' either of the sisters i.e. two daughters of P.W.3. P.W.3 deposed that there were five houses on the tilla of his homestead land and the houses of Jani and Rashida were also on the same tilla. He identified both the accused in the dock.
Being confronted with the cross-examination, he deposed that the house of the accused-Jani was situated to the north side of his house and the house of accused Rashida was intervened by another house from the house of the accused Jani. The dead body of the victim was recovered from jungle to the western side of his house. The place of occurrence would be at the distance of about half a mile from the house. The pond in which he was catching fish was situated to the western Page 15 of 66 side of his house and the foot track leading to the place of occurrence run by the side of that pond. He also deposed that he wrote the ejahar on the following day of recovery of the dead body and he stated to the investigating officer that his daughter had a panty as one of her wearing apparels. P.W. 3 admitted that he stated to the investigating officer that one month prior to the incident, the accused persons picked up a quarrel with him over the issue of purchase of one kani of land. 17.2. P.W.4, Tularani Tripura is the sister of the victim girl. She deposed that her victim-sister was not found available on 07.02.2014. On 08.02.2014, the dead body of her victim-sister was recovered. P.W.4 further deposed that on the occasion of Poush-Sankranti, she came home and she along with her victim-sister went to a nearby pond to take bath when both Rashida and Jani proposed her to do sexual intercourse with them. She raised protest. Out of shame, she did not inform the matter to her parents. After one day of the incident of murder of her sister, she stated this fact to her father.
During her cross-examination, she did not admit the suggestion put forth by the defence that Rashida and Jani did not propose to do sexual intercourse with them. Page 16 of 66 17.3. P.W.-5, Madhumati Tripura deposed that about five months back in one evening, her sister i.e. the mother of the victim-girl went to her house to search for her victim-daughter. At that time, Rashida Tripura had been consuming liquor in her house. The whereabouts of the victim was searched that night but to no good. On the following day, her body was recovered from a jungle.
17.4. P.W.6, Khirojan Tripura deposed that about five months back in one night when he returned home at around 10.00 p.m., then his wife Madhumati, P.W.5 informed her that the daughter of Dimsim (P.W.3), his brother-in-law was missing. On the following morning, he went to his house and he himself along with Dimsim, Subhash, Rashida and Jani started to search for the victim girl. P.W.6 further deposed that Jani and Rashida first detected the dead body of the victim girl in the jungle. They found the victim lying dead with marks of injury on her neck and face. Police personnel came to the spot.
During his cross-examination, he stated that he did not state that Dimsim(PW-3) had enmity with Rashida and Jani on a dispute over a plot of land.
Page 17 of 6617.5. P.W.10, Mrs. Chikanbati Tripura, mother of the victim-girl deposed that on 07.02.2014, her deceased daughter went to the house of Rashida at 3.00 p.m. with PW-3 to enjoy T.V. The victim and her other family members now and then used to go to the house of Rashida to enjoy T.V. P.W.10 also deposed that on that day, the victim-girl did not return home from the house of Rashida and in the evening her mother went to the house of Rashida to enquire the whereabouts of her victim daughter but the mother-in-law of Rashida informed that her victim-daughter went back to her house. Then, she went to the house of Madhumati, P.W.-5 to inquire about her whereabouts. However, her victim-daughter was not found but Rashida was found drinking alcohol in the house of Madhumati. On that night, her husband, P.W.3 along with Rashida and Jani searched for the whereabouts of her daughter but in vain. On the following morning, her husband, P.W.-3 along with Rashida and Jani again searched for the whereabouts of her victim-daughter. Rashida first identified her dead body in the jungle to the eastern side of their house (P.W.3 and P.W.10). She went to the place of occurrence and found the dead body. Later on, police arrived at the spot. She also deposed that when her another daughter Tularani (P.W.2) Page 18 of 66 and her victim-daughter one day went to the pond to take bath, at that time both Rashida and Jani proposed for sexual intercourse when Tularani scolded them.
Material contradictions were not noticed during her cross-examination.
17.6. P.W.11 and P.W.12 did not say anything.
17.7. P.W.13, Shri Chandra Kishore Tripura scribed the ejahar (complaint) as per the version of P.W.3.
18. WITNESSES RELATING TO SEIZURE:
18.1. P.W.-1. Krishna Mohan Tripura, a neighbour of PW-3 deposed that the victim-girl was known to him. He accompanied others when the deceased was recovered from the jungle by the police. P.W.1 further deposed that police recovered blood-stained earth, a ‗pachra', one T-shirt and one panty belonging to the victim by preparing a seizure list (Exbt-1). P.W.1 also identified his signature in the inquest report (Exbt-2). On identification, pachra, black colour T-shirt and the panty were marked as Exbt.M.O.1 series.
18.2. P.W.2, Bidyajoy Roaja being a resident of the nearby locality deposed that the police officers seized some Page 19 of 66 blood sample from the victim girl pouring it in a bottle besides seizure of the wearing apparel of the victim girl i.e. one black colour T-shirt, one pachra and a panty. He identified his signature on the said seizure list (Exbt- 1/1). He also identified his signature in the inquest report as well as his signature upon the material objects (Exbt-M.O.1 series).
18.3. P.W.16, Shambhu Debbarma being the head-constable of Raisyabari P.S. deposed that on 08.02.2014, S.I., Jhutan Jamatia seized one under-garment and one white colour T-shirt of the accused Rashida Tripura by preparing a seizure list. On identification of his signature, it was marked as Exbt-6. He further deposed that after P.M. examination, one police officer put the vaginal swab in a container followed by seizure; viscera, piece of gauge cloth also were seized by preparing a seizure list. P.W.16 identified his signature on the said seizure list (Exbt-7).
18.4. P.W.20, Debaranjan Tripura deposed that on 09.02.2014, when he was in Gandacherra hospital, a piece of gauge cloth containing blood sample of Rashida Tripura, swab, and few pubic hairs of Rashida Tripura were handed over Page 20 of 66 to the police officer who seized those articles by preparing a seizure list. P.W.20 signed on the said seizure list (Exbt-8).
18.5. P.W.25, Sri Sankar Das is a witness related to the seizure of photographs, where he put his signatures (Exbt-M.O. 4 series).
18.6. P.W.26, Sri Ratimohan Tripura is a witness relating to the seizure of the potency test report of Jani Tripura which was seized by preparing a seizure list where he put his signature (Exbt-12).
18.7. P.W.27, Dr. Abhijit Pal deposed that on 09.02.2014, he collected the blood sample of Rashida Tripura, few pubic hairs and a panel swab of Rashida Tripura which were handed over to the Investigating Officer who subsequently seized those articles. He identified his handwriting and signature which he put on the seizure list (Exbt-14).
18.8. P.W.-29, Narendra Tripura, P.W.-30, Dilip Das, P.W.-31, Jiban Chowdhury, P.W.-32, Rajesh Debbarma, P.W.-34, P.W.- 35, Shri Debasish Das, P.W.-36, Shri Bidesh Kumar Reang, P.W.-38, Sri Pradip Kumar Das and P.W.-41, Sri Binode Tripura were the witnesses relating to the seized Page 21 of 66 articles and blood samples collected from the accused-Rashida Tripura and Jani Tripura. They put their respective signatures on the seizure list.
19. P.W.42 and P.W.43 were the TSR personnel who deposed that, P.W.3 in the night at about 11.00 p.m. on 07.02.2014 went to their camp in search of his victim-
daughter. They made a search operation. On the following morning, the body of the victim was recovered from a nearby jungle. She was lying dead with a ligature mark around her neck and blood stain on her lip.
20. P.W.46, Sri Jutan Jamatia was the first investigating officer who was posted in Raisyabari P.S. on 08.02.2014. He deposed that on 7.15 a.m. he received information from one Biswajit Debbarma, a TSR personal that one dead body of a young girl was detected at Dasarai Para. After entering the fact in the G.D. Book, vide entry No. 168 dated 08.02.2014, he accompanied by Officer-in-Charge, Nityananda Sarkar and SDPO, Gandecherra proceeded to the place of occurrence. The father of the victim led them to the place of occurrence when they found the dead body of the daughter of P.W.3. They cordoned the place of occurrence and Page 22 of 66 also called for dog squad and forensic experts. Inquest report was prepared, wearing apparels of the victim-girls were seized. The forensic experts also collected blood-stained from the place of occurrence. All the articles were seized by preparing a seizure list. He identified his signature on the seizure list. He recorded the statements of the persons present therein. P.W.46 apprehended Rashida Tripura and on interrogation he was formally arrested. His wearing apparel also were seized by preparing a seizure list. He identified his signature on the said seizure list. Rashida Tripura was medically examined. Doctor collected blood sample, panel swab and pubic hair of Rashida Tripura which the doctor handed over to him. Those articles were seized by him by preparing a seizure list. P.W.46 further deposed that Rashida Tripura divulged the name of Jani Tripura as his accomplice to the offence. Interrogation of Rashida Tripura and Jani Tripura revealed that Jani Tripura had enmity with Dimsim Tripura over paddy-land. List of seized articles is reproduced here-under:-
3. Description of seized articles:-
i) One vial with vaginal swab(external) of victim girl in it.
ii) One vial with vaginal swab (internal) of victim girl in it.
iii) One glass vial with cervical swab (external) of victim girl in it.
iv) One glass vial with cervial swab (internal) of victim girl in it.Page 23 of 66
v) One vial with scalp hair of victim girl in it.
vi) one gauge cloth with some blood in it belonging to victim girl.
vii) Viscera, stomach, intestine, liver inside a plastic container that belongs to victim girl.
viii) Spleen left kidney inside a plastic container that belongs to victim girl.
The seized articles were sent to forensic science laboratory for examination. In the police station, the appellant and Jani Tripura confessed their guilt. They led the police officials and other persons to the place of occurrence where they committed rape and killed the daughter of P.W.-3. Disclosure statements were recorded and pointing out memorandum was prepared. Accordingly, Deputy Collector and Magistrate, P.W.39, and two other social activists i.e. P.W.17 and P.W.18 were also present at the police station at the time of confession made by the accused persons about their guilt and their statements relating to the commission of crime. He further stated that such confessional statements and discovery of the place of occurrence were recorded by a videographer (P.W.23).
21. P.W.47, Sri Kishore Debbarma was posted as Addl. S.P., Dhalai at the time of incident. He reiterated the versions of P.W.46 being taken over the charge of investigation from him. He submitted charge-sheet.
Page 24 of 66
22. Falguni Tripura and Sathyabhusan Chowdhury deposed as P.W.-17 and P.W.-18. They deposed that they were members of NGO „Mahadev‟ and on 11.02.2014 they went to the chamber of Officer-in-Charge, Raisyabari P.S. where they found P.W.47 and the Deputy Collector and Magistrate, Gandechara. They further deposed that in front of them, the appellant and his associate, Jani Tripura confessed that they were responsible for committing offence of rape upon the victim-daughter of P.W.3, and later on they had killed her. P.W.17 and P.W.18 further deposed that they made disclosure statements relating to the discovery of the place of occurrence and all of them were led by the accused persons to the place of occurrence.
23. P.W.39, the Deputy Collector and Magistrate also deposed in the same tune as those of P.Ws-.17 and 18.
24. Now the fifth set of witnesses constitutes the most vital part to find out the link of the appellant and his associate, Jani Tripura with the commission of crime and it relates to the medical examination of the body of the victim- girl, which includes external and internal examination of the body of the victim.
Page 25 of 66
INQUEST REPORT 24.1. On perusal of the inquest report (Exbt-2/3) prepared by the investigating officer, P.W.46, depicts blood stain on the lower lip, strangulation marks in the neck and vagina was found swollen with bloodstain.
EVIDENCE IN SUPPORT OF POST MORTEM EXAMINATION
24.2. P.W.14, Dr. Subhasish De and P.W.15, Dr. Tamal Sarkar, the medical officers of Gandechara Sub-Division Hospital, conducted post-mortem examination over the dead body of the victim and submitted its report. According to their depositions, externally, ―there was abrasion mark over the right side of neck just below the mandible angle, two marks over right lateral side of neck at level of thyroid cartilage, one mark over left lateral side of neck at same level right low back 5 cm above iliac spine. Bruises were present over lower lip front of neck, lower abdomen, inguinal area over the vagina, labia majora and labia minora, two finger tip mark present, one over the anterior left lateral side of neck just at the level of thyroid cartilage and another laterally 2 cm from the first‖. Page 26 of 66
P.W.14 further deposed that "Rigor Mortis was present over hip, knee, shoulder, elbow, completely and partially over ankle, wrist, finger joints and the hymen was found ruptured. One tear or cut injury was present over the vagina on right side. Vaginal Swab, cervical swab, scalp hair, blood over the gauge piece were sent for forensic analysis, pubic hair absent, not developed, breasts development began, no injury mark over chest or breast. On dissection over neck subcutaneous tissue was white, neck muscle were bruised. Thyroid cartilage was fracture, on dissecting abdomen house smelling gas came out. All the internal organs were congested, uterus was empty inside, part of stomach, small and large intestine, liver, spleen, left kidney was sent for forensic analysis to Agartala FSL". P.W.-14 also deposed that "cause of death was due to violent asphyxia due to constriction of neck, resulting in occlusion of carotid arteries and this is mostly due to manual strangulation". That apart, P.W.-14 detected recent signs of vaginal injuries and that was due to sexual intercourse and it was consistent with the history as given in the surthal report (inquest report). Proceeding further, P.W.4 deposed that on receipt of the forensic analysis report they gave confirmation report that there was no poison or insecticide in visceral Page 27 of 66 analysis. P.W.14 further deposed that "blood stain at place of occurrence Ext.A matches with pachra Ext.C, Blue panty Ext.D. Same blood group A with blood sample in gauge cloth Ext.J taken from dead body of the victim-girl. Similar stain in blue panty Ext.D originates from Exts.Z6 Jani Tripura and Ext.Z7 Rasida Tripura. Similar stain Ext.3 and F. (Vaginal swab, external and internal). Ext. G and H (cervical swab external and internal) originates from Ext.Z7 Rasida Tripura".
According to P.W.14, "sexual intercourse was proved and done by both the male persons as mentioned. I wrote the report, and signed there on. This is the report bearing my hand writing and signature, on identification marked Ext. 4. On the day of writing of final report myself and Dr. Tamal Sarkar signed again on 27.03.14. Dr. Abhijit was on leave on that day. This is my signature marked Exbt.4/1‖.
No material contradictions were found during cross examination.
24.3. P.W.15, Dr. Tamal Sarkar deposed that he participated in the post-mortem examination of the body of the victim-girl along with Dr. Abhijit Pal and Dr. Subhasish De. He identified his signature on the report. P.W.15 deposed that he Page 28 of 66 clinically examined accused-Jani Tripura and found nothing to suggest that under normal circumstance he was incapable to perform sexual intercourse. He identified his signature (Exbt.5).
24.4. P.W.45, Dr. Subhankar Nath deposed that he received two parcels from Biological Division for DNA profiling examination. He deposed about the result of examination of articles and samples he received from the investigating officer which are as under:-
―Result of Exam:- 1. DNA was extracted from the blood sample detected in Ext. A, C, J, Z6 and Z7 by organic extraction method DNA was extracted from the semen stain detected from Ext. D, E, F, G and H by organic extraction method. DNA recovered from the above said ext. were subjected to multiplex PCER Director for co amplification of the 15 STR LOCI and amaelogenim using AMPFLSTR identifier Plus TM PCR amplification Kit. The amplified products alogn with controls were run on the automated DNA sequencer. The sizing of the fragments was carried out using gin mapper ID software V3 point 2 with respect to gin scamp 500 m size-standard. The resultant allelic distribution for the studied loci in the different ext. is shown in table Annexer. A. observation. On the bisis of observation I concluded as follows:-
1. The contributor of blood stain at place of occurrence Ext.A, C originated form Ext. j.
2. The contributor of semen of Ext. D originated from 2 different source marked Ext. Z6 and Z7. 3. The contributor of semen in the Ext. E,F, G,H, originated from single source ext.Z7. This is my report bearing my sig. On identification marked Ext. 27. Since I received the exhibits from the biological division of our laboratory, I forwarded the exhibits and my report to the biological division. This is Annexure A in 4 sheets bearing my signature. On identification marked Ext. 28 series. ‖
25. ANALYSIS OF THE ABOVE EVIDENCES AND FINDINGS THEREOF.
Page 29 of 6625.1. We have carefully scrutinized the above evidence recapitulated from the records. We have also gone through the judgment of conviction and sentence rendered by the learned Sessions Judge. We have also kept in mind the rival submissions of the learned counsel appearing for the parties. 25.2. Rarely, it is seen that an incident of rape is committed in front of any eyewitnesses. The present case is not an exception. There is no eyewitness who had seen the commission of crime as allegedly committed by the accused- persons including the appellant herein. Indubitably, the entire case is based upon circumstantial evidence where an unfortunate girl of only 11 years had been alleged to be raped and killed by the appellant and his associate Jani Tripura. If the circumstances connecting the appellants towards the commission of crime are firmly established and led only to the irresistible conclusion that the appellant alone was the perpetrator of the crime as alleged and the entire episode in the chain of circumstances is found to be of conclusive nature consistent only with the hypothesis of guilt of the appellant, only then, the appellant shall be convicted and liable to be awarded with stringent punishment.
Page 30 of 6625.3. In the instant case, the first episode had begun with the visit of victim-girl with her father P.W.3 (Dimsim Tripura) at the house of the appellant-Rashida Tripura to watch T.V. at around 2.00 p.m., on 07.02.2014. Due to disconnection of electricity (load-shedding) after 15 minutes P.W.3 returned back to home just with the little kid of one and a half year but the victim-girl preferred to wait for sometime at the house of the appellant. On his return to home in the evening, he found that his victim daughter had not returned home. He went to the house of the appellant which was situated at a distance of 40/50 cubits from the house. But his daughter was not found available. Then, he went to the house of his sister-in-law Madhumati Tripura, P.W.5 to make inquiry of his daughter, but he found the appellant consuming liquor in that house. P.W. 3 along with others unsuccessfully looked for his daughter during that night and on the following morning when they again started to search for his daughter accompanied by the neighbours including, the appellant and his associate Jani Tripura, they detected the body of the daughter of P.W.3. According to P.W.3, the appellant found the body of his daughter first in the jungle and called him. His daughter was found lying dead. At that time, she was wearing black colour T- Page 31 of 66 Shirt, one „pachra‟ but her panty was found to be partly removed. From his evidence, it is further revealed that he detected finger print around the neck of his daughter and there were marks of blood at her mouth. The TSR jawans and police personnel had assembled at the spot and opined that his daughter was raped and thereby killed. One most important evidence, P.W.3 had led is that at the time of the death of his daughter, she was attaining the age of 11 years and her elder daughter (P.W.4) was aged about 15 years and both of them were studying at class-V. Evidence of P.W.3 further reveals that there was enmity between him and the accused person regarding purchase of one kani of land. Out of grudge, both the appellant and Jani used to commit nuisance by consuming alcohol at his house, when he once warned them not to repeat such nuisance. His evidence also divulges that both Rashida and Jani proposed both Tularani Tripura and his victim- daughter to intercourse with them.
25.4. We have given our bird‟s-eye view to the cross- examination of P.W.3. It transpires that there was no direct denial on behalf of the defence that P.W.3 along with his victim-daughter and one and a half year old kid did not visit on that date and time for watching T.V. at the house of the Page 32 of 66 appellant. It is stated by P.W.3 that "it is fact that most often we enjoy T.V. in the house of Rashida". On being confronted during cross-examination, P.W.3 denied the suggestion that Tularani or his victim-daughter did not divulge the fact that the accused-persons expressed their intention to commit rape upon them. The circumstance that both the accused-persons intended to commit rape upon Tularani and the victim-girl was confirmed by P.W.4, Tularani Tripura. In her cross- examination, Tularani Tripura, P.W.4 denied the suggestion that Rashida and Jani did not propose to do sexual intercourse with them. Furthermore, P.W.4 confirmed that after one day of recovery of the body of her victim sister, she disclosed the fact of such proposal of intercourse with them by the accused- persons. The statement of P.W.3 that he visited the house of P.W.5, Madhumati Tripura in search of his victim daughter when Rashida i.e. the appellant had been consuming liquor at her house has also been confirmed by P.W.5. The statement of P.W.3 that Jani and Rashida first detected the dead body of his victim-daughter in the jungle has been confirmed by P.W.6, Khirajan Tripura. P.W.6 also confirmed about the enmity of P.W.3 with both Rashida and Jani. The episode that P.W.3 went to the house of the appellant to enjoy T.V. has also been Page 33 of 66 confirmed by P.W.-10, Chikanbati Tripura. The fact of enmity and the proposal of intercourse with the victim-girl and Tularani Tripura, P.W.-4 has been further confirmed by P.W.10. The fact of lodging FIR on the version of P.W.-3 has been confirmed by P.W.13, the scribe.
25.5. From the above discussions, according to us, it has been proved beyond reasonable doubt that on 07.02.2014, P.W.-3 along with the victim-girl visited the house of the appellant to enjoy T.V. After about 15 minutes due to load shedding, P.W.-3 left the house of the appellant when his victim daughter desired to remain there and till evening she did not return to home. This was the last time, the victim girl was seen alive. Her dead body was found later. The last seen theory with the appellant is thus established. Thereafter, P.W.- 3 along with others went to look for the victim-girl but remained unsuccessful. On the following morning, the body of the victim was recovered from the nearby jungle and the body was first detected by the appellant and Jani.
NEXT CIRCUMTANCES:
25.6. On recovery of the body of the victim, her wearing apparels i.e. the T-shirt, one pachra and panty were Page 34 of 66 seized by the police. Inquest report was prepared over the body of the victim on the spot. P.Ws 1, 2 & 3 along with the police witnesses had confirmed such seizure of wearing apparels. The blood stain soil also was collected from the spot by preparing a seizure list which was also confirmed by the said witnesses. Defence could not raise any question about the seizure made by the investigating officer. No question was also raised regarding packing and sealing of the articles seized as per the seizure list. Thereafter, the body of the victim was sent for post-mortem examination.
25.7. Here, it is pertinent to refer the argument of the learned counsel for the appellant, who, to brush aside the submissions of the learned Addl. P.P. regarding the theory of „last seen together‟ submitted that none had seen the appellant with the victim-girl to proceed towards the jungle and while convicting the appellant, the learned Special Judge ought to have considered that the failure on behalf of the prosecution to explain this circumstance as to how the victim came to the jungle and who brought her to the place of occurrence, Mr. Acharjee, learned counsel for the appellant strenuously argued that failure on the part of prosecution to establish this circumstance would render the chain broken, enabling the Page 35 of 66 appellant to be acquitted. Learned counsel for the appellant tried to persuade this Court with his specific submission that DNA test or its analysis is not absolutely authentic and is not a fully grown scientific method at least in India.
25.8. We have given our thoughtful consideration to both the said two questioned circumstances as urged by Mr. Acharjee, learned counsel for the appellant. In view of the submissions of the learned counsel for the appellant, the question rests upon us thus:-
i) Whether the theory of ‗last seen alive' would be applicable in the case to complete the entire chain of circumstances;
ii) Whether the evidentiary value of DNA test by the experts.
25.9. Firstly, to deal with the question whether the theory of „last seen alive‟ would be applicable in the instant case, we find that, true it is none had seen the victim or the appellant and his associate to go to jungle at any point of time. On critical scanning of the evidence of P.W.-3 supported by other witnesses, no room is left for us to doubt the circumstance that the victim along with her father visited the Page 36 of 66 house of the appellant on 07.02.2014. P.W.-3 left the place after few minutes, but the victim preferred to stay at the house of the appellant, meaning thereby that the victim was at the company of the appellant at the house of the appellant. Thereafter, the victim did not return to her house and on the following morning, her body was recovered from the jungle. The reasonable conclusion for any prudent person would be that the victim and the appellant were „last seen alive‟ at the house of the appellant. It is the circumstance where the accused-appellant ought to have come out with a reasonable and plausible explanation to show and justify that as to when the victim had left his house or as to the circumstances in which she departed the company of the appellant in respect of which he had special knowledge. A 3(three) Judge Bench of the Apex Court while explaining this position of law as covered under Section 106 of the Indian Evidence Act in a very recent case, titled as Surajdeo Mahato and Anr. Vs. The State of Bihar in Criminal Appeal No.1677 of 2011 reported in 2021 SCC OnLine SC 542 placing reliance upon the case of Satpal Vs. The State of Haryana passed in Criminal Appeal No.261 of 2021 reported in 2021 SCC OnLine SC 163 had adequately clarified that "if the accused fails to offer any Page 37 of 66 plausible explanation, an adverse inference can be drawn against the accused‖. Simultaneously, the Bench also cautioned that ―unless the fact of 'last seen' is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the accused, would by itself, only be a weak kind of evidence‖.
25.10. The Apex Court in Satpal (supra) further held that:-
――.................Succinctly stated, it may be a weak kind evidence by itself to found conviction upon the same singularly.But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.‖ 25.11. In Surajdeo Mahto (supra), the Apex Court observed thus:-
―We may hasten to clarify that the fact of last seen should not be weighed in isolation or be segregated from the other evidence led by the prosecution. The last seen theory should rather be applied taking into account the case of the prosecution in its entirety. Hence, the Courts have to not only consider the factum of last seen, but also have to keep in mind the circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the accused‖.
25.12. On meticulous consideration of the principles enunciated here-in-above, we may scale down the ratio that in Page 38 of 66 a case of circumstantial evidence, all the circumstances in the chain have to be compatible without any doubt or break in the link. The failure to give adequate explanation on behalf of the accused as obligated under Section 106 of the Evidence Act, can only be held to be an additional link to complete the chain of circumstances and when all the circumstances in the chain consistently point towards the guilt of the accused, then, the failure to give explanation on behalf of the accused as obligated under Section 106 of the Evidence Act can only be held as an additional link to complete the chain of circumstance.
25.13. Keeping in view the above proposition, we have given our bird‟s eye view to the scientific examination of the body of the deceased victim both external and internal, and more significantly the DNA report and the evidence thereon as transpired from the deposition of P.W.14, Dr. Subhasish De who conducted post-mortem examination along with P.W.-15 followed by the depositions Dr. Sabyasachi Nath(PW44) and Dr. Subhankar Nath(PW45).
25.14. Post-mortem report reveals that abrasion marks were present over the right side of the neck just below the Page 39 of 66 mandibular angle, right lateral side of neck, and left lateral side at the level of thyroid cartilage at right lower back 5 cm.
above iliac spine, left mid-forearm and over right leg (lower medial side) bruises were further detected over the lower lip, front of neck, lower abdomen, inguinal area, vaginal area over labia majora and labia minora. One bloodstain cut injury was found over the right side of vagina. On dissection over neck, subcutaneous tissue was found white and neck muscle was bruised. Thyroid cartilage was found to be fracture. Based on these injuries, P.W.14, the post-mortem doctor whose specialization over the subject was not disputed by the defence during trial finally opined that the cause of death of the girl was due to violent asphyxia due to constriction of neck resulting in occlusion of carotid arteries and this is mostly due to manual strangulation. That apart, post-mortem doctor opined that there were recent signs of vaginal injuries caused due to sexual intercourse and it was consistent with the history as given in the surathal(inquest) report. P.W.-15 wholly corroborated the evidence of P.W.14. P.Ws. 14 and 15 being the doctors in the field of post-mortem examination, according to us, are the ‗experts' and we are of the considered view that in absence of any challenge over the procedure adopted by the Page 40 of 66 ‗experts' in conducting the post mortem examination over the body of the victim shall not be doubted in any manner whatsoever. Further, the evidence of such ‗experts' are very much relevant so far the detection of injury sustained by the victim on various parts of her body and therefore, admissible in evidence.
26. To deal with the submission of the learned counsel for the appellant raising his doubt about the authenticity of the DNA examination and its report, in the interest of justice, it would be appropriate to refer to the relevant provisions of the law and jurisprudence, and to know about DNA and DNA evidence. For this purpose, Sections 53, 53A, 54 & 293 of the Code of Criminal Procedure carry much relevance to answer the questions posed to us, which are reproduced hereunder:-
―53. Examination of accused by medical practitioner at the request of police officer.--
(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-
inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. Page 41 of 66 [Explanation.--In this section and in sections 53A and 54,--
(a) ―examination‖ shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;
(b) ―registered medical practitioner‖ means a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.] 53A. Examination of 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 kilometres 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, 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 to 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 subsection (5) of that section.]
54. Examination of arrested person by medical officer.--Page 42 of 66
(1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made:
Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.
(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.
(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.]
293. Reports of certain Government scientific experts.--
(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
(3) Where any such expert is summoned by a Court, and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely:--
(a) any Chemical Examiner or Assistant Chemical Examiner to Government; 3
(b) the Chief Controller of Explosives;]
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director 1 [, Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government;Page 43 of 66
[(g) any other Government scientific expert specified, by notification, by the Central Government for this purpose.]‖ 26.1. Similarly, Sections 5 to 9, 45, 46, 47, 50 & 51 of the Chapter II relating to Relevancy of Fact embodied in the Indian Evidence Act are also necessary to be extracted here-in- below:-
―5. Evidence may be given of facts in issue and relevant facts. -- Evidence may be given in any suit or proceeding of the existence of non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation. -- This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure .
6. Relevancy of facts forming part of same transaction.--Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
7. Facts which are the occasion, cause or effect of facts in issue. -- Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.
8. Motive, preparation and previous or subsequent conduct.--Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1.--The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
Page 44 of 66Explanation 2.--When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
9. Facts necessary to explain or introduce relevant facts. -- Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose
45. Opinions of experts. -- When the Court has to form an opinion upon a point of foreign law or of science, or art, or as to identity of handwriting, 2 [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 3 [or in questions as to identity of handwriting] 2 [or finger impressions] are relevant facts. Such persons are called experts.
46. Facts bearing upon opinions of experts. -- Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
47. Opinion as to hand-writing, when relevant. -- When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation. --A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
50. Opinion on relationship, when relevant. -- When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869), or in prosecutions under sections 494, 495, 497 and 498 of the Indian Penal Code (45 of 1860).
51. Grounds of opinion, when relevant. -- Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant". Page 45 of 66 26.2. Now, what is DNA? "DNA, or deoxyribonucleic acid, is the hereditary material in humans and almost all other organisms. Nearly every cell in a person's body has the same DNA. Most DNA is located in the cell nucleus (where it is called nuclear DNA), but a small amount of DNA can also be found in the mitochondria (where it is called mitochondrial DNA or mtDNA)".
26.3. Further, "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" (Sarkar Law of Evidence, Vol-I, Page-1229, Section 45).
26.4. An important property of DNA is that it can replicate or make copies of itself. Each strain of DNA in the double helix can serve as a pattern for duplicating the sequence of a basis. This is critical when cells divide because Page 46 of 66 each new cells need to have an exact copy of the DNA, present in the home cell.
26.5. Mr. Justice R.K. Abhichandani, Judge, High Court of Gujarat had written an article on " New Biology and Criminal Investigation", extracts from the article are as under:-
―........technological advances have made it more reliable, efficient and acceptable. DNA evidence can help to bring home the guilt, acquit the innocent, or exonerate those wrongly convicted. Forensic DNA Technology has revolutionized the modes of investigation of violent crimes as a result of its awesome ability to convict a perpetrator or exonerate a convicted offender. In sexual assault and homicidal cases, DNA evidence has become a powerful crime-fighting tool. The DNA evidence in the form of saliva, blood, skin tissue, hair and semen is often recovered from crime scenes and is a crucial tool for the investigation of violent crimes. Testing methods currently used for analyzing the DNA evidence are considered to be very reliable. Polymerase Chain Reaction (PCR) is the most common form of DNA analysis, because of its capability to amplify very small quantities of DNA. DNA testing can lead to three types of results, namely, inclusion, i.e. when the DNA profile of a known individual (a victim or suspect) matches the DNA profile from the crime-scene evidence; exclusion i.e. when the DNA profile from an individual (a victim or suspect) does not match the DNA profile from the crime-scene evidence; and inconclusive where the DNA testing did not produce information that would allow an individual to be either included or exonerated as the source of the biological evidence. The real investigative power of DNA technology is realized in the context of the cases where a suspect has not yet been identified 26.6. In the case of Selvi & Ors vs State of Karnataka in Criminal Appeal No. 1267 of 2004 reported in (2010) 10 SCC 263, the Supreme Court has considered the admissibility of the scientific evidence at great length and the responsibility of the Court. Reference had been made to the pronouncement of the United States Supreme Court in Daubert vs. Merrell Dow Pharmaceuticals Inc., 125 L Ed 2d 469; 509 US 579 Page 47 of 66 (1993). In this case, the Supreme Court of the USA dealing with the testimony of experts observed that the "standard of general acceptance of the particular field" changed the rules with regard to the admissibility of the scientific evidence for several decades. In para-26 of the Selvi(supra), the Supreme Court of India has quoted from the majority opinion in Daubert case on the manner in which the Trial Court should evaluate scientific evidence; the relevance as well the reliability of the scientific technique in question.
Trial Judge‟s first step should be a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid; whether it properly applies to the facts in issue; whether the theory/technique stands tested; stands subjected to peer review and publication; its known or potential error rate; existence and maintenance of standards controlling its operation; and whether it has attracted widespread acceptance within scientific community. The inquiry has been recommended to be a flexible one with its focus solely on principles and methodology, not on the conclusions which were generate, with the trial Judge performing a "gate keeping" role to decide on the admission of the expert testimony based on scientific techniques. These Page 48 of 66 observations have relevance in as much as there is no specific legislation governing DNA profiling or guiding a Court on its permissibility, evaluation, application or methodology.
27. We may refer a celebrated judgment on the subject authored by one of us(A. Kureshi, C.J., sitting in Division Bench as a Judge of the High Court of Gujarat at Ahmedabad) decided on 05-06/08/2013 in Criminal Appeal No.133 of 2012(titled as State of Gujarat vs. Mohan Hamir Gohil Dalit & Anr.) where the subject we are mostly concern here has been extensively dealt with and gives us valuable assistance to decide the importance of technically advanced forensic science, particularly, relating to DNA profile analysis to identify the real culprits, in other words, the innocence or guilt of an accused connected with the crime. It would be very useful to us to reproduce the relevant extracts of the said judgment in its exact words as under:
"27. Before concluding this issue, one important aspect of forensic science needs to be dealt with. A ticklish issue of conflicting forensic opinions has arisen in this case. It would be necessary for us, therefore, to clear such doubt. Forensic science over a period of time has made great strides in investigation of crimes. It has often times enabled the investigating agencies to catch the real culprit and aided the courts to come to just conclusion by using such evidence in addition to other eye- witness and circumstantial evidence. Equally, importantly, this science has often times been used for exclusion of a person from false charges. In other words, not only for convicting a real culprit, such science is equally useful in acquitting a person who has been falsely accused of commission of a crime. Enormous strides in the field of DNA testing in recent times has completely changed the complexion of criminal investigation. Every technology, however, must been seen in light of the limitation it comes with. While, Page 49 of 66 therefore, appreciating any medical evidence or forensic reports, it would be of utmost importance for the court to properly understand its effectiveness, its fallibility or unfallibility as also the reason why a particular test may either fail or give misleading results.
28. This preamble was necessary since we found certain apparently conflicting forensic results. Immediately after the case was reported, various articles as part of rape investigation was collected from the victim , such as, her clothes, under-garments, saliva, vaginal swab, vaginal smear, etc. All these articles were sent for analysis to the Forensic Science Laboratory, Junagadh. Report Exh.392 confirmed the presence of human semen from three of these samples, namely, vaginal swab, vaginal smear and knickers of the victim. No blood was detected from these samples. In Exh.393, the serological report of these samples the semen is shown to be of ‗B' group. The same report also confirmed that the victim's blood group was B. In isolation, this by itself would not be a matter of great concern. The accused were apprehended later on and their blood samples were collected for DNA testing. The Forensic Science Laboratory, Junagadh under serological report Ex.412 opined that accused No.1 has blood group ‗A' and accused No.2 has blood group ‗O'. Their saliva and semen samples also confirmed the same group. It would thus mean that the group of the semen found from the vaginal swab, smear and the knickers of the victim did not match with the blood group of either of the two accused.
29. As noted earlier, after arrest blood samples of both the accused were also sent for DNA testing along with the vaginal swab and vaginal smears and knickers of the victim. These samples were collected by Dr. Devendra Sojitra PW-32. He in his deposition at Exh.137 described the various samples collected from the accused. He had also produced supporting documents. Samples were taken under panchnama Ex.85. Though the panch witness Bodubhai Shaikh turned hostile, he admitted his signature on the panchnama. In view of the testimony of the doctor, we have no reason to doubt the sample. DNA analysis report of FSL Gandhinagar Ex.247 recorded the following conclusions:
―Conclusion From the above observations, it is concluded that:
1. Accused Mahesh @Bhada Mulji Dalit (Exhibit: BB) is consistent as source of semen stains present in Knickets (Exhibit: G 4) of victim Jyotiben D/O Dilip Chanabhai Khant.
2. Since only single human DNA profile is obtained from Semen Stains present on knickers (Exhibit: G 4), opinion regarding DNA match could not be offered for accused Mohan Hamir Dalit Exhibit: AA)."
Two things emerge from these reports. Insofar as serological report is concerned, though there was semen detected in the vaginal swab, vaginal smear and knickers of the girl, it was analyzed as belonging to group B. On the other hand, two accused had blood group of A and O respectively. At the first blush, therefore, this report must be construed as excluding involvement of either of the two accused. Second aspect is that DNA analysis confirmed that the semen Page 50 of 66 sample found from the knickers of the victim matched with the DNA profile of accused No. 2 while it did not match with that of accused No.1. We may record that in such report, it was indicated that since the samples from vaginal swab and vaginal smear were used up by FSL, Junagadh earlier, it was not possible to use such samples for DNA testing.
30. Thus, the conflict between the two scientific opinions is that according to the serological test, the semen did not belong to either of the two accused whereas the DNA analysis clearly establishes that semen belonged to accused No.2 and none else. The question, therefore, is how do we interpret these two reports and in case of unresolvable conflict, which of the two reports should be relied upon.
31. In order to do so, we may briefly appreciate what exactly the DNA technology is. DNA is the acronym of deoxyribonucleic acid. DNA technology is often times referred to as the finger printing of 21st century. In the book titled ‗Handwriting and Finger Prints Analysis in Criminal Trial and Investigation' by B.L.Bansal and Rajiv Rajeja, DNA is explained in simple terms as under:
―Simply stated, DNA is the blueprint of the body of every human being. The human body is made up of cells, each of which contains a nucleus. The nucleus is a special compartment that contains chromosomes which, in the human body, number forty-six. These chromosomes (23 from each parent) are composed of tightly wound up DNA molecules which lend each chromosome its unique characteristic shape. Each cell in the human body has the identical DNA makeup. Each DNA strand is composed of genes which determine a person's unique characteristics, such as body structure, or hair and eye colour. There are no two humans with identical DNA compositions.‖ In ―A Textbook of Medical Jurisprudence and Toxicology‖ by Modi, Twenty-Fourth Edition, it is stated that :
"DNA fingerprinting profiles are unique to each individual. When adequate number of DNA patterns in two unrelated individuals are compared, the chances of complete similarity are 1 in 30 billion to 300 billion, ie half the population of the world."
xxx In DNA typing, the DNA from samples like blood, semen, hair etc is cut into fragments of sequence patterns using a specific enzyme. The fragments are separated into bands by gel electrophoresis and then the DNA pattern is transferred to an nylon membrane to which a radioactive probe is added. An X-ray is then taken. From any sample in that particular fragment length, the bands from the same source are the same. This individualization is utilised for comparison. The developed X-ray film shows the, DNA bands. They are then matched with the suspect. If they match, we can say that the person or the specimen is identified and its individuality established. Thus, it is now possible to connect the blood, semen, tooth, hair, form the crime scene or from a body to a particular individual.‖ Page 51 of 66 In ‗Rape Investigation Handbook' by Joyn O. Savino and Brent E. Turvey, it is stated as under:
"DNA is the genetic code found within every living cell. With the exception of identical twins, we are all genetically unique, a product of generations of genetic shuffling making us truly individuals. Our genetic material is inherited from our parents - one half from our mother and one half from our father, whose parents passed on their genetic patterns, and so on up the line. Children of the same parents differ from one another because the DNA passed on from each parent is really a jumble of different combinations of genetic patterns such that no two children ;get exactly the same mix.
DNA is made up of four major ―building blocks‖ called nucleotides. They are adenine, guanine, cytosine, and thymine, or simply A, G, C, and T. These letters join to one another like four different-coloured breads placed apparently randomly on a very, very long string. These patterns somehow account for the structure and function of our bodies. Like a computer code that looks mostly like gibberish to the untrained eye, the large majority of our DNA does not code for things we can physically identify such as hair color or diseases. It is within these vast nonsensical regions that are found discrete patterns that only differ somewhat from person to person and can be used for identification purposes.‖ In ‗Forensic Science in Criminal Investigation and Trials' by B.R.Sharma, the author states that:
―There was never doubt about the individuality of body materials even before the diversity of DNA molecule structure was discovered. Scientists had not been able to establish the individuality of material from a particular source. The body materials were extensively utilised for blood group substances, enzyme and isoenzyme systems. In some cases the possibility of a particular source of the material could be excluded but positive identity of the individual source always remained elusive. DNA profiling has changed the whole context. It provides positive linkage with the possible source and equally positive delinkage inthe case of an innocent suspect.‖ xxx ―DNA profiling is of immense help in the following type of problems:-
1. Linkage of the criminal, the victim, the weapon of offence, vehicle used in the crime, scene of occurrence, routes, etc. inter se through body materials exchanged or deposited as clue materials.
2. Identification of the culprit or the victim, through body materials including fallen or pulled-out hairs.
3. Identification of culprit from semen, semen stains or vaginal swabs in rape cases.‖ The author goes on to record that:
"The structure of DNA varies from individual to individual. Each individual consequently is unique- different from all others. In monozygotic twins DNA structure is the same because they come forth by the division of single fertilised egg. Monozygotic Page 52 of 66 twins are genetically identical."
32. There are several methods of analyzing DNA samples developed by the scientists over a period of time. Short Tandem Repeat (STR) method is considered to be the latest and highly sophisticated method of analyzing the DNA samples. This was the method employed by the Forensic Science Laboratory, Gandhinagar in this case. The book titled, ―Criminalistics An Introduction to Forensic Science by Richard Saferstein, brieflyexplains this method as under:
"Short Tandem Repeats (STR) The latest method of DNA typing, short tandem repeat (STR) analysis, may just prove to be the most useful technique of all. Not only does this process have the potential for a higher discrimination than RFLP DNA typing, but it also reduces the amount of time to obtain results from a sample and requires a sample size smaller than that needed for the current RFLP methods.
STRs are locations (loci) on the chromosome that contain short sequence elements that repeat themselves within the DNA molecule. They serve as helpful markers for identification because they are found in great abundance throughout the human genome. What is important to appreciate is that the repeating sequence is relatively short in length, 3 to 7 bases, and that the entire strand of an STR is also very short, less than 400 bases in length. This means that STRs are much less susceptible to degradation and may often be recovered from bodies or stains that have been subject to extreme decomposition. In order to understand the utility of STRs in forensic science, let's look at one commonly used STR known as HUMTHO1. This DNA segment contains the repeating sequence A-A-T-G. There have been seven HUMTH01 variants identified in the human genome. These varients contain five through eleven repeats of A-A-T-G. Figure 13-11 illustrates two such HUMTH01 variants, one containing six repeates and the other containing eight repeats of A-A-T-G. During a forensic examination, HUMTH01 is extracted from biological materials and amplified by PCR in the same manner that was described on pp.416-419. The ability to copy an STR means that extremely small amounts of the molecule can be detected and analyzed. Once the STRs have been copied or amplified, they are separated on an electrophoretic gel. By examining the distance the STR has migrated on the electrophoretic plate, one can determine the number of A-A-T-G repeats that exist in the STR. Every person has two STR types for HUMTH01, each inherited from one parent. Thus, for example, one may find in a semen stain HUMTH01 with six repeats and eight repeats. This combination of HUMTH01 is found in approximately 3.5 per cent of the population.
What makes STRs so attractive to forensic scientists is that there are hundreds of different types of STRs found in human genes. The more STRs one can characterize, the smaller will be the percentage of the population from which these STRs can emanate. This gives rise to the concept of multiplexing. Using the technology of PCR, one can Page 53 of 66 simultaneously extract and amplify a combination of different STRs. For example, one system on the commercial market is the STR Blue kit. This kit provides that necessary materials for the coamplification and detection of three STRs
- D3S1358, vWA, and FGS (triplexing). The design of the system ensures that the size of the STRs does not overlap, thereby allowing each marker to be viewed clearly on an electrophoretic gel (see Figure 13-12). The combination of these STRs typically produces a frequency of occurrence of about 1 to 5000. Used in conjunction with DQA1 and Polymarker, the combination of these methods provides an impressive frequency of occurrence of about 1 in 25,000,000!‖
33. From the above literature, it can be seen that over a period, the technology of DNA testing has made great strides and achieved sophistication leading to results which can often times be used either for inclusion or exclusion of the accused. DNA of a person is considered unique to himself (except in cases of identical twins) and can be traced from smallest quantity of blood, saliva, semen, root of hair, skin, nail and such like. Subject, of course, to the laboratory analyzing the sample following the scientific protocols, the DNA result becomes absolutely unquestionable.
34. Let us now see how the courts have viewed the advancement in DNA technology. Section 53A of the Criminal Procedure Code was introduced by Amendment Act 25 of 2005 with effect from 25.3.2006. Sub-section (1) section 53A, provides that a 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 to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. Consent of the accused thus in giving blood sample, etc. is no longer necessary. Sub-section (2) of section 53A provides that such medical practitioner conducting the examination shall without delay, examine such person and prepare a report of his examination giving various details including the description of the material taken from the person of the accused for DNA profiling. This provision came up for consideration before the Supreme Court in the case of Krishan Kumar Malik v. State of Haryana, 2011 Cri.L.J. 4274, in which it was observed as under:
―45. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by 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 the Cr.P.C. prosecution could have still resorted 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.‖ In the case of Raghuvir Dessai v. State, 2007 Cri.L.J. 829, learned Single Judge of the Bombay High Court observed as under:Page 54 of 66
―........... The clinching evidence has come from the Senior Scientific Officer Shri Sathian PW 15 who carried out the DNA test on the basis of the material forwarded to him and which was ;collected by Dr.Sapeco/PW 5. He has confirmed that the accused is the contributor of the semen which was collected by Dr.Sapeco in the form of vaginal swab. DNA (Deoxyribonucleic acid) is found specially in cell nuclei which are the foundation of heredity. DNA is the genetic blue print for life and is virtually contained in every cell. NO two persons, except identical twins have ever had identical DNA. DNA testing can make a virtually positive identification when the two samples match. It exonerates the innocent and helps to convict the guilty (See page 249 of Jhala and Raju's Medical Jurisprudence Sixth Edition). The DNA testing hits the nail on the head of the accused and is the last and clinching piece of evidence which shows that it is the accused and the accused alone who committed the rape of the victim/PW11.‖ In the case of Sanjay Singh v. State of Delhi, 2007 Cri.L.J.964, a Division Bench of the Delhi High Court observed as under: ―Dr.A.K.Sharma has held that while conducting past- mortem on local physical examination of private parts, it was noticed that black, curly, non-matted pubic hair and hymen intact, no tearing present, admitting one finger only. He has also given his opinion that the deceased has not been subjected to sexual intercourse. However, it is the DNA test conducted on the vaginal swabs, vaginal slide and underwear of the deceased compared with the blood sample of the accused that the experts have come to the conclusion that there is sperm present in the vaginal swabs and the DNA of the sperm so found present, matches with DNA of the accused obtained from his blood sample.‖ xxxx ―48. The next question that engages us is whether the DNA test conducted was proper? It is in evidence of Dr.Lalji that the method used and the test conducted in determining and arriving at the conclusion were done as per standard practice as also per scientific technology suitable for such tests. The trial Court has elaborately introduced its learning based on literature which, to a large extent, was never even put to the expert witness and even otherwise there is no positive evidence on record to show that the test so conducted by the experts were perverse and/or not in keeping with the standard scientific methodology. We may make useful reference to judgments of the Supreme Court in AIR 1954 SC28 : (1954 Cri LJ 257); Sundar Lal v. State of Madhya Pradesh, AIR 1957 SC 580 : (1957 Cri LJ 889); Bhagwan Das v. State of Rajasthan wherein it has been held by the Supreme Court that findings of an expert witness can not be set aside by a Court by making a reference to some literature/book without confronting the expert with them and directing his opinion on it. In another case decided by the Hon'ble Supreme Court in AIR 1982 SC 1157 : (1982 Cri LJ 1243): Gambhir v. State of Maharashtra, it was held that the Court should not usurp the function of an expert by arriving at its own conclusions contrary to the one given by the expert witness. There has been great effort made by counsel for the accused to discredit the test conducted as such by referring to either possibility of contamination and/or with reference to snippets of replies given by the experts in cross-examination but we find that at no stage has any Page 55 of 66 of the expert witness said that the tests conducted by them have given a wrong result or there is a possibility that the test so conducted by them would have l;given a wrong result. On the contrary, they have categorically ruled out any such possibility of contamination and/or erroneous results.‖ In the case of Thogorani v. State of Orissa, 2004 Cri. L.J. 4003, a Division Bench of the Orissa High Court observed as under:
―11. Before answering the above contentions raised by the learned counsel for opponent No.3 it would be apt to note that the DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at scene of crime. DNA testing on samples such as saliva, skin, blood, hair or semen not only helps to convict but also serves to exonerate. The sophisticated technology makes it possible to obtain conclusive results in case win which the previous testing had been inconclusive. Moreover, DNA sampling may also impinge on familial privacy where information obtained from one person's sample provides information regarding his or her relatives."
In the case of Pantangi Balarama Venkata Ganesh v. State of A.P. 2003 Cri.L.J. 4508, a Division Bench of the Andhra Pradesh High Court described DNA as a perfect science and observed as under:
―Thus, the evidence of DNA expert is admissible in evidence as it is a perfect science. In the cross-examination P.W.46 has deposed 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 million world population'. It means that DNA test gives the perfect identity. It is very advanced science."
In the case of Sajeera v. P.K.Salim, 2000 Cri. L. J. 1208, learned Single Judge of the Kerala High Court observed that DNA fingerprinting test has been much advanced and resorted by the courts of law to resolve the dispute regarding paternity of the child. It was observed as under:
―15. It has been held in several cases that blood test is an important piece of evidence to determine the paternity of the child. Though by a blood test it cannot positively establish the paternity of the child, it can certainly exclude certain individual as the father of the child. Therefore, while the negative finding in a blood test is definite, the positive finding only indicates a possibility. Now the DNA finger-printing test has been much advanced and resorted to by the Courts of law to resolve the dispute regarding paternity of the child. It is true that without the consent of the person blood test cannot be conducted and there is no law in India enabling Page 56 of 66 the Court to compel any person to undergo blood test as available in England.‖
35. From the above, it can be seen that several courts in India over a period of time have accepted DNA analysis as totally reliable, of course, as long as, the laboratories employ sufficient skill and care in doing so. DNA analysis is employed by various countries for criminal investigation and prosecution. Various countries have created data banks of DNA profile of the persons who are already convicted which can be matched with DNA profile of the samples collected from crime scene. We are aware that creating such data-base has several legal and constitutional issues. We are, however, in the present case, neither required nor called upon to enter such arena. We are only trying to demonstrate effectiveness of the DNA technology and that when properly done its results are infallible.‖
28. In our considered view, in the present scenario, when the crime against women have been increasing alarmingly and threatening the societal morality and sanctity, extensive use of biological evidence is made in crime investigations. DNA evidence has assumed great significance and legal recognition. In fact, DNA Profiling Bill, 2007 is pending before Parliament. The fact that such a bill has been introduced itself shows what is the need and importance of DNA evidence. Scientific investigations are the need of the hour and must be carried out. DNA test is a scientific test and its accuracy is 99.99 percent and as such, this must be used as evidence in sexual assault and violent crime cases.
29. In the instant case, one of the most important circumstances relates to DNA test and its profile analysis. Sections 5 to 9 of the Evidence Act relate to relevancy of fact and the outcome of the DNA test can certainly be treated as Page 57 of 66 relevant evidence, according to these provisions. It is a settled principle of law that all relevant evidence is admissible as per the provision of the Evidence Act of India. The outcome of the DNA test in addition is governed by provisions relating to expert evidence. Section 45 of the Evidence Act governs the expert opinion and Court‟s power to form an opinion upon the report of that person who is specifically skilled having obtained specialised expertise in such science. Section 46 refers to the facts having bearing upon the expert opinion. Section 51 refers to grounds when opinion becomes relevant. Opinion of the expert is subject to limitation on the admissibility of the scientific evidence. Having due regard to the laws encrypted in our statute books, we can firmly lay down the principle that expert testimony; reasoning or method is scientifically valid and is relevant to the issue in a case of similar nature. However, admissibility would depend on factors such as:-
i) Whether the theory or the technique can be or has been tested;
ii) Whether the theory or techniques has been subjected to peer review and publication;
iii) The know or potential rate of error;
iv) The existence and maintenance of standards controlling the techniques and operation;
v) Whether the theory or technique is generally accepted in the scientific community?Page 58 of 66
30. After critical analysis of the relevant provisions of the Cr.P.C and the Evidence Act, in our opinion, the Courts should give official recognition to the DNA analysis as evidence. According to us, DNA evidence is admissible when it is relevant to the fact in issue. We reiterate that Section 45 which governs the admissibility of the expert testimony provides that the opinion of the witnesses on a matter requiring special knowledge, skill, experience or training which he is shown to posses can be received in evidence. Thus, physical evidence corroborated by circumstantial evidence and DNA test result would establish if the person/s, accused of committing crime is/are the real culprit or not. We may unhesitatingly hold that the right of police to draw the sample from the accused for the purpose of DNA profiling is accepted by law. Moreover, after incorporation of Section 53(A) in Cr.P.C., DNA test of the accused is must in cases of rape. (emphasis supplied)
31. To this effect, the Supreme Court in Criminal Appeal No. 1252 of 2011 titled as Krishan Kumar Malik Vs. The State of Haryana reported in (2011) 7 SCC 130 observed thus:-
―Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, it has become necessary for the prosecution to go in for DNA test in such type of Page 59 of 66 cases facilitating the prosecution to prove its case against the accused‖
32. In the light of the above analysis, the submission of the learned counsel appearing on behalf of the appellant that the Court should not rely upon the DNA evidence being devoid of merit is, thus, repelled.
33. In the case in hand, we find the reference of sampling procedure, etc., which were followed by the scientific experts. We have given visible reference about the collection of samples, like blood-stained earth from the place of occurrence, blood stains and vaginal swabs external and internal and etc., from both the deceased and the accused persons which were seized by the police and sent for forensic examination. Now for convenience, we may extract the results of examination of those samples which were recorded and admitted in evidence being adduced and confirmed by P.W.-44 and P.W.-45:-
― RESULT OF EXAMINATION (With reference of sampling procedure etc., use separate sheets if necessary) A portion of the blood stain of exhibit- A (source: a gauze piece bearing light brown stain said to be the blood stain collected from place of occurrence), exhibit-C (source: one blue, violet, red and yellow color pachra said to e the wearing apparel of deceased collected from place of occurrence), exhibit-J (source : One sealed polythene packet contained red stain gauze said to be the sample blood of deceased), exhibit-Z-6 (source: Sample blood of Shri Jhani Tripura @ Jane Tripura in sterile Page 60 of 66 gauze piece) and exbibit-Z-7 (source: sample blood of Sri Rashida Tripura in sterile gauze piece) were subjected to DNA isolation by organic extraction method.
A portion of the semen stain of exhibit-D (source: a blue color panty said to be the wearing apparel of deceased collected from place of occurrence), exhibit-E (source : vaginal swab (external) of deceased, exhibit-G (source: Cervical swab (external) of deceased and exhibit-H (source: cervical swab (internal) of deceased were subjected for DNA isolation by organic extraction method.
DNA recovered from the above-mentioned exhibits were subjected to multiplex PCR reaction for co-amplification of the4 15 STR loci Amelogenin using AmpF/STR identifiler plus. PCR amplification kit. The amplified products along with controls were run on the Automated DNA Seqencer. The sizing of the fragments was carried out using Gene Mapper ID software V3.2 with respect to Gene Scan 500 LIZ size standard. The resultant allelic distribution for the studied loci in the different exhibits is shown in the table of Annexure-A Observation:-
a) A female genetic profile generated from exhibit-A (source : a gauze piece being light brown stain said to be the blood stain collected from place of occurrence).
b) A female genetic profile generated from exhibit-C (source: one blue, violet, red and yellow color pachra said to be the wearing apparel of deceased collected from place of occurrence).
c) that the alleles of the amplified loci of genetic profile of Exhibit-
A(source: a gauze piece bearing light brown stain said to be the blood stain collected from place of occurrence) and Exhibit-C (source: one blue, violet, red and yellow colour pachra said to be the wearing apparel of deceased collected from place of occurrence) are matches with each other.
d) The genetic profile generated from exhibit-J (source: sample blood of deceased) indicative of human female origin.
e) that the alleles of amplified loci of genetic profile of exhibit-A(source:
a gauze piece bearing light brown stain said to be the blood stain collected from place of occurrence and exhibit-C (source: one blue, violet, red and yellow color pachra said to be the wearing apparel of deceased collected from place of occurrence) matches with the alleles of the amplified loci of genetic profile of exhibit-J (source: sample blood of deceased)
f) two different male genetic profile generated from exhibit-D (source: a blue color panty said to be the wearing apparels of deceased collected from place of occurrence).
g) The alleles of the amplified loci of one genetic profile generated from exhibit-D (source: a blue color panty said to be the wearing apparel of deceased collected from place of occurrence) matches with the alleles of the amplified loci of genetic profile of exhibit Z-6 (source: Sample blood of Sri Jhani Tripura @ Jane Tripura in sterile gauze piece).Page 61 of 66
h) The alleles of the amplified loci of another genetic profile generated form exhibit-D (source: a blue color panty said to be the wearing apparel of deceased collected from place of occurrence) matches with the alleles of the amplified loci of genetic profile of exhibit-Z-7(source: sample blood of Sri Rashida Tripura in sterile gauze place).
i) the alleles of the amplified loci of genetic profile generated from the seminal stain of exhibit-E (source : vaginal swab (external) of deceased exhibit-F (source: vaginal swab (internal) of deceased exhibit-G (source:
cervical swab (external) of deceased and exbibit-H (source cervical swab (internal) of deceased are matches with each other.
j) The alleles of the amplified loci of one genetic profile generated from exhibit-d (source: a blue color panty said to be the waring apparel of deceased collected from place of occurrence) matches with the alleles of the amplified loci of the genetic profile of exhibit-E (source: vaginal swab (external) of deceased, exhibit F (source: vaginal swab (external) of deceased, exhibit-G (source: cervical swab (external) of deceased and exhibit-H (source: cervical swab (internal) of deceased.
k) the alleles of the amplified loci of genetic profile generated from the seminal stain of exhibit-E (source: vaginal swab (external) of deceased, exhibit-F (source : vaginal swab ( internal) of deceased exhibit-G (source: cervical swab (external) of deceased and exhibit-H (source :
cervical wab (internal) of deceased) are matches with the alleles of the amplified loci of genetic profile generated from exhibit-Z-7(source:
sample blood of Sri Rashida Tripura in sterile gauze piece).
Conclusion:-
On the basis of the above observations it can be concluded that:-
i) The contributor of blood stain at place of occurrence exhibit-A (source: a gauze piece bearing light brown stain said to be the blood stain collected from place of occurrence) and exhibit-C (source: one blue, violet, red and yellow color pachra said to be the wearing apparel of deceased collected from place of occurrence) are originate from single source exhibit-J (source: sample blood of deceased)
ii) The contributor of semen stain in the exhibit marked-D (source: a blue color panty said to be the wearing apparel of deceased collected from place of occurrence) originate from two different sources exhibit-Z-6 (source: Sample blood of Sri Jhani Tripura @ Jane Tripura is sterile Gauze Piece) and exhibit -Z-7 (source: Sample blood of Sri Rashida Tripura is sterile gauze piece).
iii) The contributor of semen stain in the exhibit marked-E (source:
vaginal swab (external) do deceased, exhibit marked-F (source-vaginal swab (internal) of deceased), exhibit marked-G (source cervical swab (external) of deceased and exhibit marked-H (source: cervical swab (internal) of deceased originate from single source exhibit marked Z-7 (source: sample blood of Sri Rashida Tripura in sterile gauze piece).
34. It is noticed in the examination report that DNA extracted from different samples under respective Exhibits Page 62 of 66 were subjected to multiplex PCR reaction for co-amplification of the 15 STR loci & Amelogenin using AmpF/STR Identifiler Plus PCR amplification kit. The amplified products along with controls were run on the Automated DNA Sequencer. The sizing of the fragments was carried out using Gene Mapper ID software V3.2 with respect to Gene Scan 500 Liz size standard.
As such, we have no reason to be sceptic to arrive at a conclusion that DNA samples collected from the deceased were subjected to DNA analysis under the recognized modern technique for such analysis accepted by world-known forensic and scientific laboratories.
35. On examination of the samples so collected from both the victim and the accused persons including the appellant show that the sperms taken out from the appellant and his associate Jani Tripura were found present in the vaginal swabs (both external and internal) and DNA of sperms matched with the DNA of the Rashida Tripura, the appellant herein as well as his associate Jani Tripua. DNA test so held conclusively establishes the guilt of the appellant for the offences under Sections 302 and 376 of the IPC. Page 63 of 66
36. We find the report was countersigned and confirmed by Dr. H.K. Pratihari, Director-cum-Chemical Examiner to the Government of Tripura whose signature was identified by P.W.14 as he was well acquainted with his handwriting and signature (Exbt-26/1).
37. The detection of sperms of both the appellant in the vaginal swab of the victim girl as well as in the wearing apparels, particularly, in the blue panty (Exbt-D) of the deceased and matching of blood samples with the blood- stained earth (Exbt-A) collected from the place of occurrence distinctly indicates and connects that none but the appellant and possibly Jani Tripura had murdered the victim-daughter of P.W.3 after committing rape upon her.
38. In sequel, the circumstance that the deceased was "last seen alive" in the company of the appellant constitutes an additional chain to the immediate and subsequent circumstance when the recovery of the dead body of the daughter of P.W.3 was made from the jungle who was found to be raped by the accused-persons as confirmed by scientific evidence. The post-mortem was conducted on 09.02.2014 at about 11.50 a.m. by Dr. Page 64 of 66 Subhashish De and Dr. Tamal Sarkar, P.W.14 and P.W.15 respectively, accompanied by Dr. Abhijit Pal. P.W.14 and P.W.15 opined that the cause of death was due to violent asphyxia due to constriction of neck, resulting in occlusion of carotid arteries and this is mostly due to manual strangulation. The time of death was between 36 to 42 hours approx. from the time of conducting post-mortem which appears to be consistent with the time when the deceased was last seen in the company of the appellant.
39. We are in agreement with the submission of LD. Counsel for the appellant and the finding of the Learned Special Judge in respect of the circumstances of recording of disclosure statements followed by the visit of the investigating agency in presence of other local people to the scene of occurrence led by the accused persons and subsequent scripting of pointing out memorandums would have no evidentiary value as contemplated under Section 27 of the Evidence Act because the facts to be discovered on the basis disclosure statements were already discovered when the police recovered the dead body of the victim in front of the local persons prior to recording of such disclosure statements. Section 27 can make such disclosure statement Page 65 of 66 of the accused in custody admissible which leads to discovery of a material fact but by the time if such material fact is found to be self evident to the police, the disclosure statement of the accused of such material fact or object becomes inadmissible. However, this finding of us would not have any impact to our firm conclusion as emerged here- in-above that there were none but only the appellant and his associate had committed rape and killed the victim-daughter of PW-3, the complainant.
40. In the entirety of the facts and circumstances of the case and for the reasons afore-discussed, according to us, the guilt of the appellant has been established beyond reasonable doubt. Therefore, finding of conviction and sentence as recorded by learned Special Judge against the appellant is not interfered with. The appeal, accordingly, stands dismissed.
41. We have examined the entire case and assessed the evidence on record in the context of this appeal filed by the accused-Rashida Tripura. Since his co-accused Jani Tripura who was also convicted has, if seems not filed appeal, we have consciously not discussed evidence against Page 66 of 66 him. Our conclusions in this judgment are therefore confined to the involvement of the present appellant alone.
We are not sure why accused Jani Tripura has not filed appeal against his conviction. We would request the High Court Legal Services Authority to verify if this convict Jani Tripura was given legal aid assistance and was made aware of his right to file appeal. If he has voluntarily and consciously decided not to file appeal, matter may rest there. If non-filing of appeal is due to ignorance or lack of resources, Legal Aid may be provided to him. Such appeal, if any, shall be considered independently. For this purpose, a copy of this judgment may be sent to the Secretary, High Court Legal Services Committee forthwith.
Send down the LCRs.
(ARINDAM LODH,J) (AKIL KURESHI,CJ) suhanjit