Karnataka High Court
Sri Paramesha vs State Of Karnataka on 11 December, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2020
R
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.1959 OF 2019
Between:
Sri Paramesha
S/o Siddaiah
Aged about 29 years
R/at Babbagalale Village
Arakalgud Taluk
Hassan District-34. ...Appellant
(By Sri Pratheep K.C, Advocate)
And:
State of Karnataka
By Circle Inspector of Police
Arakalgud Circle
Hassan District
Rep. by its State Public Prosecutor
High Court of Karnataka
Bangalore-01. ... Respondent
(By Sri R.D.Renukaradhya, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to set aside the judgment dated 23.10.2019
and sentence dated 24.10.2019 passed by the Additional
District and Sessions and Special Judge, Hassan in
Spl.C.No.146/2014, convicting the appellant/accused for the
offence punishable under Sections 448, 376 of IPC and
Section 6 of POCSO Act and etc.,
This Criminal Appeal coming on for Orders this day,
the Court delivered the following:
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JUDGMENT
The present appeal has been preferred by the appellant-accused challenging the judgment of conviction and order of sentence passed by the Additional Sessions and Special Judge, Hassan in Special Case No.146/2014 dated 23/24.10.2019.
2. I have heard Sri Pradeep K.C, the learned counsel for the appellant-accused and Sri Renukaradhya, the learned High Court Government Pleader for the respondent-State.
3. The case of the prosecution in brief is that eight months prior to 15.11.2014 at about 2.00 p.m. when the victim alone was there in her residence, the accused came knowing well that the victim is minor by enticing her sexually assaulted her and subsequently, he has threatened her with dire consequences if she discloses the said incident to anybody. It is further alleged that in the month of March 2014 again accused -3- approached and had sexually assaulted the victim and as a result of the same, the victim conceived and when she has been taken to the hospital, the same has been confirmed and on 15.11.2014 the victim delivered a female child. On the basis of the said complaint, a case has been registered. After the investigation, the charge sheet has been filed. The Special Court took the cognizance after serving the copies of the charge sheet and after hearing the learned Public Prosecutor and the learned counsel for the accused, the charge was read over and explained to the accused. The accused pleaded not guilty. He claimed to be tried and as such, the trail was fixed.
4. In order to prove its case, the prosecution has got examined eight witnesses and got marked 17 documents. After closure of the evidence of the prosecution the accused was examined under Section 313 of Cr.P.C. by putting incriminating material as against him. The accused denied the same and he has -4- not chosen to lead any evidence on his behalf. Subsequently, an application came to be filed under Section 216 of Cr.P.C. for amendment of charge and after hearing both side, the charge was altered and the prosecution has not led further evidence and relied on the evidence which has been already lead and after hearing the learned Public Prosecutor and the learned counsel for the accused, the trial Court convicted the accused for the offences punishable under Sections 448 and 376 of IPC and also under Section 6 of the Protection of Children from Sexual Offences Act (herein after referred to as 'Act' for short). Challenging the legality and correctness of the said judgment of conviction and order of sentence, the appellant-accused is before this Court.
5. The main grounds urged by the learned counsel for the appellant-accused are that though all the material witnesses have not supported the case of the prosecution, the trial Court only by relying upon the -5- DNA test report marked as Ex.P14 and on the basis of the evidence of the Investigating Officer has erroneously convicted the accused. It is his further submission that the author of the DNA test report has not been examined though the said aspect has been clearly denied during the course of trial by the accused.
6. It is his further submission that the trial Court before relying upon the DNA test report, it has to put the incriminating material as against the accused under Section 313 of Cr.P.C. while questioning the accused. Without questioning the accused the Court cannot rely upon the said aspect and pass the order of conviction on such document. In order to substantiate his argument he has relied upon the decision in the case of Ajay Singh Vs. State of Maharashtra reported in (2007)12 SCC 341. It is his further submission that while collecting the blood sample of the female child and the appellant-accused the procedure as contemplated has not been followed. -6- The Investigating Officer neither obtained any orders from the Court nor the blood sample has been collected in the presence of Court before any independent witnesses. In the absence of such material the test report produced by the prosecution is not reliable. It is his further submission that if the said method has not been adopted by the Investigating Officer then there will be ample chance of manipulation of such evidence by the Investigating Officer. It is his further submission that if the Scientific Officer has not been examined before the Court and the document is not supporting the evidence of the Scientific Officer, then under such circumstances it will be without there being any corrobotation and the DNA test report cannot be taken into consideration for the purpose of conviction of the accused without corroboration. In that light, he has relied upon the decision of this Court in the case of Nagappa V/s State of Karnataka reported in 2020(3) KCCR 1704.
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7. It is his further submission that mere marking of the said document is not sufficient and it does not become a part of the Court record on mere production. If the prosecution relies on the report of the expert not only the report is to be produced but also the author of the report is to be examined before the Court on oath and an opportunity should be given to the accused to cross-examine the said expert on the correctness or otherwise of the said report. Otherwise the said report is not acceptable. In that light, he has relied upon the decision in the case of Parappa and others Vs. Bhimappa and another reported in ILR 2008 KAR 1840.
8. It is his further submission that as per Section 293 of Cr.P.C. any documents or reports produced by the scientific experts in the course of any proceedings, then the same are admissible without examination of the witnesses. But as per Section 294(3) -8- of Cr.P.C where the genuineness of the document is disputed, then under such circumstances the formal proof of production of the document is not sufficient and the expert has to be examined before the Court. It is his further submission that the cross-examination of the Investigating Officer clearly goes to show that the genuineness of the DNA test Ex.P14 has been denied. Under such circumstances non-examination of the Scientific Officer who has given the report as per Ex.P14 is not trustworthy and reliable and the trial Court mainly based upon such evidence has come to the conclusion that the prosecution has proved the guilt is not sustainable and the same is liable to be set aside and the accused is liable to be acquitted of all the charges leveled against him. On these grounds, he prays to allow the appeal and to set aside the judgment of conviction and order of sentence.
9. Per Contra, it is the submission of the learned High Court Government Pleader that though the -9- material witnesses have not supported the case of the prosecution, there is evidence of the doctor who has examined the victim about the conformation of the pregnancy and subsequently, the victim has delivered a female baby and at the time of delivery, the blood sample has been taken and subsequently, the accused has also been called and the blood sample has been taken and report has been obtained as per Ex.P14 and on the basis of the report it indicates that the appellant accused is the biological father of the female child and the DNA test supports that the accused is the biological father of the female child. Taking into consideration the said facts and circumstances, the trial Court has rightly come to the right conclusion and has convicted the accused. On these grounds, he prays to dismiss the petition.
10. I have carefully and cautiously gone through the submissions made by the leaned counsel appearing for the parties and perused the records.
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11. In order to prove the case of the prosecution, the prosecution got examined eight witnesses. PW.1 is the victim and she has not supported the case of the prosecution and she has been treated as hostile. Even during the course of cross-examination nothing has been elicited so as to substantiate the case of the prosecution.
12. PW.2 is none other than the mother of the victim. She has also not supported the case of the prosecution and she has been treated as hostile.
13. PW.3 is the doctor working as a Gynecologist. She has deposed that the victim has been brought to the hospital on 15.01.2014 with labour pain by PW.2 and she has been got admitted to general ward and on the same day, she delivered a female baby. The delivery was normal delivery. After two days she has been discharged from the hospital and she has issued the certificate as per Ex.P7. During the course of cross-
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examination nothing has been elicited so as to discard the evidence of this witness.
14. PW.4 is another doctor who is also working as a Gynecologist and she has deposed that the victim has been brought with the history of sexual assault and a requisition was also given by the Investigating Officer for medical examination of the victim and after examination of the victim she has come to the conclusion that she is about eight months pregnant and she has subjected her to scanning as well as blood and urine test and advised her by giving the medicine and she has issued certificate as per Ex.P8. During the course of cross-examination nothing has been elicited.
15. PW5 is the PSI who has registered the case on the basis of the written complaint as per Ex.P1 and has issued the first information report as per Ex.P9.
16. PW.6 is another doctor who has also examined the victim who has come with the history of
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sexual assault and she has deposed that no external injuries were found over the person and her hymen found not intact and she was pregnant of about eight months and she has been referred to HIMS Hassan for getting further medical examination and she has issued the certificate as per Ex.P10.
17. PW.7 is the Investigating Officer who has deposed with regard to the Investigation done by him. In his evidence he has deposed that after apprehending the accused he has sent the accused for the purpose of examination and collecting the blood for DNA test. He has further deposed that the victim has delivered a female baby in the hospital, he reported the authority to collect the sample of the blood of the child and the mother so as do send it to the DNA test. During the course of cross-examination the learned counsel for the accused has denied about taking of the blood samples and other aspects and the said witness has denied the same.
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18. PW.8 is anther doctor who has examined the accused and has issued the certificate as per Ex.P5 and he has further deposed that at the request of Investigating Officer he has collected the blood sample of the accused and the same has been forwarded to Investigating Officer. He has further deposed that while drawing the blood sample of the accused he has followed the required formalities by obtaining the signature of the accused in the DNA information form and also took the signature of the Investigating Officer and has issued the certificate as per Ex.P13. During the course of cross-examination he has admitted that the DNA form Ex.P13 was brought by the Investigating Officer and he has also admitted that the hand writing contents of Ex.P13 were written by the Police. He has further admitted that while drawing the blood sample of the accused, the witnesses were not present. He has further admitted that in connection with a drawing of the blood sample of persons who were in the purpose of
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DNA at that time the blood was drawn in the presence of witnesses and other suggestions have been denied.
19. On perusal of the evidence which has been produced before the Court, the victim and the mother of victim have not supported the case of the prosecution and the only evidence which has been remained before the Court is that the production of Ex.P14, the DNA test. It is the specific contention of the learned counsel for the appellant that the report produced at Ex.P14 is not proved and formal proof will not help the case of prosecution when the same has been denied and challenged, then under such circumstances, the author of the said document has to be examined before the Court. For the purpose of brevity, I quote Sections 293 and 294 of Cr.P.C which read as under;
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,
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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;
(b) the Chief Inspector of- Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, Deputy Director or Assistant Director] of a Central Forensic
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Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.
(g) any other Government scientific expert specified by notification, by the Central Government for this purpose.
294. No formal proof of certain documents.
(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
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PROVIDED that the Court may, in its discretion, require such signature to be proved.
20. On close reading of Section 294(3) it indicates that where the genuineness of any document is not disputed, then under such circumstances, no formal proof of the document is necessary. But as could be seen from the evidence of PW.8 who has taken the blood sample of accused in his cross-examination he has admitted that Ex.P13 form for the DNA test has been brought by the Investigating Officer and it has been filled up by the Police and no witnesses were also present and he has sent it through the Police. In a criminal case when the prosecution relies on the experts evidence to prove the charges mere production of the report in the Court is not sufficient. If prosecution relies on the report of the expert not only the report is to be produced, but the author of the report is also to be examined before the Court on oath and an opportunity should be given to the accused to cross-examine the
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said expert on the correctness or otherwise of the said report. In the instant case, admittedly the expert has not been examined. This proposition of law has been laid down by this Court in the case of Parappa and others (quoted supra) at paragraph No.20 that it has been observed as under;
20. This Provision should not be confused with the general law governing the admissibility of an expert's evidence. In a criminal case when the prosecution relies on the expert's evidence to prove the charges against the accused mere production of the said expert's report into Court is not sufficient. It does not become a part of the Court record on mere production. If the prosecution relies on a report of the expert, not only the report is to be produced, the author of the report is also to be examined in the Court on oath and an opportunity should be given to the accused to cross-examine the said expert on the correctness of the report. It is only then the said evidence becomes admissible and not otherwise. In such a criminal prosecution, the Court has not
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appointed the expert. It is the prosecution, to prove its case, needs report and they have to examine such an expert to prove their case. In a criminal trial, expert is a witness for the prosecution. He is not a Commissioner appointed by the Court in the proceedings.
21. I am conscious of the fact that the DNA test is an impact of the modern scientific and technological revolution. No doubt this new technology can be used as an effective tool in crime detection. To prove the case of the prosecution, the DNA technology as is a latest tool of modern genetic science. Many courts not only in India, but even in United State have relied upon and accepted it as a admissible evidence. However by close reading of the material, the scientific result is going to be taken, the entire process of procuring the DNA evidence is controlled by human agencies i.e., Investigating Officer and the forensic scientist. There is ample chance of manipulation or tampering of such evidence by the Corrupt Officers or Scientist which
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needless to say highly prejudice the accused persons. Even preservation method adopted are not properly brought on record. Under such circumstances the prosecution has to establish the corroboration of such evidence and its truth. This proposition of law has been laid down by this Court in case of Nagappa (quoted supra) at paragraph Nos.14 to 17 it has been observed as under;
14. No doubt Article 20(3) on the Constitution of India, if it is contended that the accused is not bound to give the blood test, however, in order to have an investigation, the Investigating Officer or the Court can direct him to give the blood for DNA sample. Merely because he has given the consent for taking the blood, then under such circumstances, the report which has been given cannot be accepted as a gospel truth. When there is ample chance of tampering, then under such circumstances it is going to be highly prejudice the accused person. The science may be infallible, but human action, which controls the result of the scientific
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forensic examination, is always fallible and there is probability of manipulation and tampering with the scientific evidence.
15. Keeping in view the above said facts, I am of the considered opinion that it is highly unsafe to rely upon the sole DNA test to convict the person on the basis of the said test. There must be a unique balance between scientific evidence and human evidence. Therefore, existing value based criminal justice system cannot be done away with and as such, a susceptible balance has to be struck between the modern system based on scientific and technological knowledge and our existing value based system. It should be remembered that the law directly deals with the basis complex human problems, which are not of mathematical precision and the fate of every case depends upon its own factual matrix.
16. It is observed in the decision of Shakthiman Vs. State of Maharashtra through Police Station Officer reported in 2019 SCC Online Bom 139 that the DNA report or the scientific method to determine the paternity or sexual assault is firmly
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established. The only challenge for it can be set up for there occurred tampering with the blood sample of the accused at any stage. If something is on record to show that there was a possibility of tampering of the blood sample of the accused, then only there could be some room for suspicion about DNA report. But it will have to be judged from the facts of each case on hand.
17. It has also been observed in one more decision of the Gujarat High Court in the case of State of Gujarat Vs. Jayantibhai Somabhai Khant reported in 2015 Crl.L.J.3209 that if the DNA report is the sole piece of evidence, even if it is positive, cannot conclusively fix the identity of the miscreant. Wherein it has been observed as under:
"We are not unmindful of a decision of this Court in the case of Premjibhai Bachubhai Khasiya Vs. State of Gujarat, 2009 Cri LJ 2888 wherein a Division Bench of this Court observed that if the DNA report is the sole piece of evidence, even if it is positive, cannot conclusively fix the identity of the miscreant, but if the report is negative, it would conclusively exonerate the accused
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from the involvement or charge. It was observed that science of DNA is at a developing stage and it would be risky to act solely on a positive DNA report. This decision was rendered more than four and a half years back. Science and Technology has made much advancement, and world over DNA analysis technology is being relied upon with greater confidence and assurance. We do not think that the Indian Courts need to view the technology with distrust. Of course, subject to the laboratory following the usual protocols, DNA result can be of immense value to the investigators, prosecutors as well as Courts in either including or excluding a person from involvement in a particular act. The said decision of this Court must be viewed in the background of the facts in which it was rendered. It was a case where the accused were charged with offence under Sections 363, 366, 376 read with Section 114 of the Penal Code, 1860. All important witnesses including the prosecutrix herself had turned hostile and did not support the prosecution. Despite which, the trial Court handed down conviction primarily on the
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basis of DNA report which opined that the DNA profiling of the foetus matched with that of the appellant original prime accused. It was in this background while reversing the conviction, the above noted observations were made. It can thus be seen that mere establishment of the identity of the father of the foetus in any case would not be sufficient to record conviction of the accused for rape and gang-rape under Sections 363, 366 and 376 of the Penal Code, 1860. The said decision, in our opinion, therefore, cannot be seen as either rejecting the reliability of the DNA technology or laying down any proposition that in every case the DNA result must be corroborated by independent evidence before the same could be relied upon."
22. Taking into consideration the decision quoted supra and on perusal of the evidence of the Investigating Officer it indicates that he has given reasons to PW.8 and PW.8 without following any information, has drawn the blood of the accused and
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has sent and even what is the method of preservation has also been not been followed as specifically deposed before the Court.
23. Be that as it may. Even PW.8-doctor who has drawn the blood sample has admitted during the course of cross-examination that no witnesses were present. If really the Investigating Officer was very much interested to get a DNA test, then he could have given a requisition to the Court for drawing the blood in accordance with law before the Court in the presence of witnesses and he could have drawn a mahazar for having drawn the blood sample and it has been done properly in accordance with law and scientifically it could have been preserved and then it ought to have been sent for DNA test. So also while drawing the blood of the female child of the victim and the victim the scientific method has not been adopted. Under such circumstances, I am of the considered opinion that there is every possibility of tampering of the sample and
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even Scientific Officer has also not been examined before the Court. Under such circumstances the mere production of the report as per Ex.P14 will not help to the case of the prosecution to prove its case beyond all reasonable doubt.
24. Be that as it may, even as could be seen from the records the statement of the accused has been recorded under Section 313 of Cr.P.C. and it is well settled proposition of law that, when accused has been examined under Section 313 of Cr.P.C. the incriminating material, on which the Court intends to convict the accused has to be put and it has to be elicited with specific answer. The same has not been put and on the basis of the same, the Court cannot convict the accused. Even as could be seen from the records the question put to the accused are general in nature. How the examination of the accused has to be done and an opportunity has to be given in this behalf to the accused has been discussed by the Hon'ble Apex Court in the
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case of Ajay Singh (quoted supra) at paragraph No.14 it has been observed as under;
"14. The word "generally" in sub- section(1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused
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should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give."
25. Taking into consideration the discussion held by me above, admittedly the victim and her mother-complainant have turned hostile and the prosecution has relied upon only the DNA test as per Ex.P14 and even the Scientific Officer who has given the report has also not been examined. As discussed above the examination of the Scientific expert is very much necessary to prove the documents. I am conscious of the fact that presumption is there insofar as the officer is concerned. But initial burden is always there on the prosecution to establish its case. Thereafter the burden shifts upon the accused and the accused has to rebut the same on preponderance of probabilities. But when initially the prosecution itself has failed to discharge its burden as contemplated under Section 294 of Cr.P.C,
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then the case of the prosecution has to fail and the accused has to be given the benefit.
26. Taking into consideration the above said factual matrix of the case on hand the appellant- accused has made out a case so as to allow the appeal. Accordingly, I pass the following:
ORDER The criminal appeal is allowed.
The impugned judgment of conviction and order of sentence passed by the Additional Sessions and Special Judge, Hassan in Special Case No.146/2014 dated 23/24.10.2019 is set aside and the accused-appellant herein is acquitted of all the charges levelled against him.
He is set at liberty forthwith, if he is not required in any other case.
The concerned Jail Authorities are hereby directed to release the accused-appellant herein forthwith, if he is not required in any other case.
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Registry is directed to intimate the concerned Jail Authorities by sending operative portion of this judgment to release the accused-appellant herein, namely Paramesh forthwith, if he is not required in any other case.
In view of the disposal of the main appeal, I.A.No.1/2020 & I.A.No.2/2020 do not survive for consideration. Accordingly, both IAs are disposed off.
Sd/-
JUDGE ssb