Himachal Pradesh High Court
Cr. A. No. 615/2019 vs Of on 26 September, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 615/2019 a/w Cr.A. No. 589/2019 Reserved on: 22.9.2023 Decided on : 26.9.2023 .
1. Cr. A. No. 615/2019 Raman Kumar .....Appellant Versus of State of Himachal Pradesh ....Respondent
2. Cr. A. No. 589/2019 Parveen Kumar rt .....Appellant Versus State of Himachal Pradesh ....Respondent Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1 No For the Appellant(s): Mr. N. S. Chandel, Sr. Advocate with Mr. Pranav Sharma, Advocate.
For the Respondent: Mr. Anup Rattan, A. G. with Mr. I.
N. Mehta, Mr. Yashwardhan
Chauhan Sr. Addl. A.Gs., Ms.
Sharmila Patial, Addl. A.G and Mr.
J. S. Guleria, Dy.A.G.
____________________________________________________________________ 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 26/09/2023 20:35:36 :::CIS 2
Justice Tarlok Singh Chauhan, Judge .
Since both these appeals arise out of common judgment of conviction and sentence passed by the learned Special Judge, Kangra at Dharamshala, therefore, they were taken up together for consideration and are being disposed of by a common judgment.
of 2 The appellant, Raman Kumar, in Cr. A. No. 615/2019 (hereinafter referred to as appellant No.1) and rt appellant, Parveen Kumar in Cr. A. No. 589/2019 (hereinafter referred to as appellant No.2) have been convicted and sentenced to undergo rigorous imprisonment - for 10 years each with fine of Rs.50,000/- and in default of payment of fine simple imprisonment for 6 months under Section 4 of POCSO Act; for 2 years with a fine of Rs.5000/- and in default of payment of fine simple imprisonment for 3 months under Section 363 IPC; and for 4 year with a fine of Rs. 5000/- and in default of payment of fine simple imprisonment for 3 months, under Section 366 IPC. All the aforesaid sentences have been ordered to run concurrently.
3 The prosecution story, in a brief, is that the prosecutrix being minor at the relevant time was student of 10th standard. Appellant No.1 was known to prosecutrix. On ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 3 29.3.2014, when the prosecutrix was sleeping in a room alongwith her brother adjoining to room of her parents appellant No. 1 telephoned from his mobile number 98052- .
28049, on the mobile phone of her father being number 98162- 10642, which, at that time, was with the prosecutrix and called her outside her house. He requested the prosecutrix to accompany him and on her refusal, he threatened and gagged of her mouth and thereafter put her inside the vehicle, which was driven by appellant No.2. The prosecutrix was taken to the rt house of appellant No.2, but his mother did not allow them and thereafter they took her to the house of aunt of appellant No.1, where appellant No.1 committed forcible sexual intercourse with prosecutrix thrice. Thereafter, appellant No.1 left the prosecutrix at Ranital Railway Station in the same vehicle, driven by appellant No.2, where one Shungar, friend of her father met her and dropped the prosecutrix at her house.
4 The prosecutrix narrated the entire incident to her father and aunt (Tayi) and thereafter the parents and prosecutrix alongwith her aunt visited house of Pradhan and thereafter reported the matter to the police.
5 The police visited the spot and on the identification of the prosecutrix, the site plan was prepared and statements of witnesses as well as prosecutrix were recorded. The medical ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 4 examination of the prosecutrix was got done by the police. The photographs of the spot were clicked and videography of the spot was conducted. The clothes worn by the prosecutrix were .
handed over to the police. During investigation the vehicle bearing No. HP-40(T) 0474 alongwith its documents was taken into possession, which was later on released to the original owner of the vehicle.
of 6 Both the appellants were arrested and the clothes of appellant No.1, which were worn by him at the time of incident, rt were taken into possession by the police. The birth certificate of the prosecutrix was procured from Panchayat Thakurdwara and as per birth certificate, her date birth was found to be 19.2.1999. The medical examination of appellant No.1 was got done by the police from the doctor.
7 During investigation, the CDR of appellant No.1 was obtained and statement of prosecutrix under section 164 Cr.P.C. was recorded before learned ACJM, Kangra, and the clothes of the minor prosecutrix and appellant No.1 were sent for chemical examination and thereafter the reports of Regional Forensic Science Laboratory (RFSL) and State Forensic Science Laboratory (SFSL) were obtained by the police.
8 After completion of the investigation and on submission of final report, the appellants were charged with ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 5 aforesaid offences, to which they pleaded not guilty and claimed trial.
9 In order to prove its case, the prosecution examined .
as many as 20 witnesses. Thereafter, statements of the appellants were recorded under Section 313 Cr.P.C., wherein they claimed themselves to be innocent, but did not lead any evidence in defence.
of 10 The learned Special Judge, after evaluating the documentary as well as oral evidence, convicted and sentenced rt the appellants, as aforesaid.
11 It has been vehemently argued by Mr. N. S. Chandel, learned Senior Advocate assisted by Mr. Pranav Sharma, Advocate, that the findings recorded by the learned Special Judge are totally perverse, whereby innocent young men have been sent to gallows.
12 On the other hand, Mr. I. N. Mehta, learned Senior Additional Advocate General, assisted by Ms. Sharmila Patial, learned Additional Advocate General, would argue that no leniency could have been shown to the appellants as they were not only accused of, but had been proved to have committed the offences charged against them, thus have rightly been convicted and sentenced by the learned Special Judge.
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 613 At the outset, it needs to be observed that rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the .
victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an of accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher rt pedestal than an injured witness.
14 Rape is the most hated crime, which tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
Gang rape is all the more a serious and heinous offence.
15 The committal of rape is a beastly act and takes out the life from the life of victim. The scars of rape always remain engraved in her mind and she cannot overcome throughout her life. Rape leaves physical as well as mental scars on the victim.
Physical wounds may heal up, but the mental scars, though less visible are more difficult to treat.
16 Rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 7 atmosphere. "Rape" not only lowers the dignity of a woman but also mars her reputation. The plight of the woman and shock suffered by the victim can be well visualized. The victim of rape .
grows with traumatic experience and an unforgettable shame haunted by the memory of the disaster forcing her to a state of terrifying melancholia. The torment on the victim has the potentiality to corrode the poise and equanimity of any civilized of society. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and rt defiles the soul of a helpless female. The offence of "Rape" is grave by its nature, which warrants a strong deterrent by judicial hand.
17 In State of Punjab vs. Ramdev Singh, AIR 2004 SC 1290, the Hon'ble Supreme Court held as under:-
This Court dealt with the issue and held that rape is violative of victim's fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 8 an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the .
Constitution."
18 In Jugendra Singh Vs. State of UP, (2012) 6 SCC 297, the Hon'ble Supreme Court has held:-
"Rape or an attempt to rape is a crime not against an of individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an rt offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law."
19 In Shyam Narian Vs. The State of NCT Delhi , (2013) 7 SCC 77, the Hon'ble Supreme Court has elaborately dealt with the issue as discussed in Madan Gopal Kaakar Vs. Naval Dubey and Anr., (1992) 3 SCC 204, State of Andhra ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 9 Pradesh Vs. Bodem Sundra Rao, AIR 1996 SC 530 and State of Karnataka Vs. Krishnappa, (2000) 4 SCC 75 and has held that :
.
"It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been of committed."
20 Equally settled is the proposition of law that rt conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence.
The statement of the victim is more reliable than any other witness. Where the testimony of victim of sexual assault instills the confidence in court, the same can be relied upon for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the victim is not a requirement of law but a guidance to prudence under the given circumstances.
21 In Vijay @ Chinee vs. State of Madhya Pradesh, (2010) 8 SCC 191, the Hon'ble Supreme Court has dealt with the issue and held that :
"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 10 of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix."
22 There are catena of judgments passed by the .
Hon'ble Supreme Court wherein it has been held that only the deposition of the prosecutrix by itself is also sufficient to record conviction for the offence of rape if that testimony inspires confidence and has complete link of truth.
of 23 In Md. Ali Vs. State of UP, 2015 (3) SCALE 274, the Hon'ble Supreme Court has held that "Be it noted, there rt can be no iota of doubt that on the basis of the sole testimony of the victim, if it is unimpeachable and beyond reproach, a conviction can be based and in Mohd. Iqbal v. State of Jharkhand reported in (2013) 14 SCC 481, the Hon'ble Supreme Court has held that "There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the victim and the law does not require that her statement be corroborated by the statements of other witnesses.
24 Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A victim complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 11 probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the victim on its face value, it .
may search for evidence, direct or substantial, which may lend assurance to her testimony.
25 Now, coming to material witnesses of the prosecution, the prosecutrix appeared in the witness-box as of PW1 and stated that on 29.3.2014, at around 11 p.m., appellant No.1 had telephoned through his mobile No. 98052- rt 28049 on the mobile phone her father bearing number 98162- 10642, which was with her at that time, when she was sleeping with her brother in a separate room adjoining to the room of her parents. On receiving the call, she went outside her house and appellant No.1 requested her to accompany her, but, she refused, being night and on this, he threatened her and gagged her mouth and then put her inside the vehicle, bearing No. HP-
40T-0474, which was driven by appellant No.2. She further deposed that the appellants had taken her to the house of appellant No.2 at Ghalian, but his mother did not allow them and thereafter she was taken to the house of aunt of appellant No.1 where he had committed penetrative sexual assault with her three times forcibly. Thereafter appellants left her at Ranital Railway Station, in the same vehicle at 5 a.m. She further ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 12 deposed that friend of her father, Shunghar, met her, who left her at her house. She narrated the whole incident to her parents and Tayi and thereafter, they went to Pardhan of .
Panchayat and reported the matter to the police vide statement of prosecutrix Ex.PW1/A. She was got medically examined from doctor and identified the place to police vide memo Ex.PW1/B, from where the appellants had kidnapped her and appellant of No.1 had committed penetrative sexual assault with her. She had produced her clothes before the police, being Salwar Ex.
rt P1, Shirt Ex. P2 and Duptta Ex. P3, which were sealed in a parcel Ex. P4 vide seizure memo Ex. PW1/C. She stated her date of birth to be 19.2.1999 and her statement Ex.PA was recorded by the Magistrate.
26 In her cross-examination, she deposed that on 1.4.2014, she alongwith her parents and Tayi had gone to police station, and she disclosed this fact to the police in her statement, but was confronted with regard to the word Tayi, which was not mentioned in her statement Ex. PW1/A. She admitted that she had not sustained any injury when appellant No.1 gagged her mouth or on her body, when he had put her inside the vehicle. She denied that on 29.3.2014 she had not received any phone call from appellant No.1. She admitted that at the time of recording statement Ex. PW1/A, she had not ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 13 disclosed the name of taxi driver and volunteered, that she did not know name of that person at that time. She admitted that she had not disclosed the vehicle number in which appellant .
No.1 had dropped her at her house. She denied that she had given particular statement to the police on the instructions of her parents. She stated that earlier she had refused to get herself medically examined from the doctor, but, she agreed for of her medical examination on the asking of her parents and grandmother and Tayi.
27rt PW2 Barjinder Pal is father of the prosecutrix. He deposed that when he got up to attend the call of nature, then his wife Ritu told him that prosecutrix was not in the room and when she did not come for a considerable time, then they searched for the prosecutrix and made telephone calls in order to contact her. He stated that he had inquired about his daughter from his friend Shungar Ram driver, who brought her back. He further stated that his daughter had narrated the occurrence to her mother that she had been taken by the appellants and appellant No.1 had committed penetrative sexual assault with her forcibly. He had reported the matter to the Pardhan and thereafter to the police of P.S. Kangra. He stated that his daughter had been taken by the appellants from his house, without his consent and knowledge. 28 In ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 14 cross-examination, he admitted that from 29.3.2014 till 3.03.2014, he had not lodged missing report of his daughter either in police post Ranital or in Police Station, Kangra, though .
volunteered that he had searched for his daughter in his relations.
29 Ritu Devi is mother of the prosecutrix, who appeared as PW3 and deposed on the same lines as stated by of PW2, her husband.
30 PW9 Kanta Devi is so-called aunt of the appellant rt No.1, who deposed that on 29.3.2014, she alongwith her husband had taken food and was about to sleep at about 9 p.m. and nobody came to their house on the said day. She was declared hostile by the learned Public Prosecutor and when cross examined, nothing fruitful could be elicited.
31 As regards medical evidence, PW8 Dr. Paramjeet Bawa deposed that police had moved an application Ex.PW8/A on 1.4.2014 at 4.30 p.m. for medical examination of the prosecutrix, but she refused to get herself medically examined as per her writing on MLC EX.PW8/B. He further deposed that on the same day at 6.10 p.m., police had again moved another application Ex.PW8/C for medical examination of the prosecutrix on the ground that earlier the prosecutrix was frightened. He medically examined the prosecutrix vide MLC ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 15 Ex.PW8/D. He prepared vaginal smears, collected pubic hair sealed them and handed over to the police and had also taken into possession the clothes and after sealing them, handed over .
to the police. The blood sample of prosecutrix was collected and handed over to the police. On 5.4.2014 the prosecutrix and appellant No.1 were also brought by the police for taking blood sample on FTA Card for DNA sampling and accordingly sample of was taken and FTA card was sealed and thereafter handed over to the police. He further deposed that on 16.5.2014 an rt application Ex.PWB/F was moved along with FSL report Ex.PW8/F and as per doctor's opinion, the possibility of penetrative sexual assault could not be ruled out.
32 PW18 Dr. Arvind Kumar, deposed that on 3.4.2014, the police had moved an application Ex.PW19/A, before him for medical examination of appellant No.1. He accordingly medically examined appellant No.1 and issued MLC Ex.PW18/D. As per his opinion, appellant No.1 was capable of doing sexual intercourse.
33 PW11 Dr. Ajay Sehgal, Scientific Officer deposed that he had conducted the examination of the exhibits sent for biological examination through Constable Gulshan No. 231 and the said parcels were duly sealed and seals were found intact and tallied with the specimen seal sent with docket. After ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 16 analysis, human semen was detected in exhibit 2a Pajami, Exhibit 2c, Salwar of prosecutrix, Exhibit 3b underwear of appellant No.1. He issued the report Ex.PW8/F. .
34 Thereafter the above exhibits i.e. Pajami and Salwar of the prosecutrix were sent to SFSL, Junga, for DNA profiling, alongwith blood sample of the prosecutrix and appellant No.1 taken on the FTA Cards. The same were examined at SFSL, of Junga, by PW19 Dr. Vivek Sahajpal, Assistant Director, DNA Division, SFSL, Junga, vide his report Ex. PW19/A and it was rt opined that the semen found on the Pajami and Salwar of the prosecutrix, matched with the DNA profile obtained from blood sample on FTA card of appellant No.1 35 Now, coming to formal evidence available on record, PW4 Smt. Sumna Devi is Pardhan who deposed that during investigation on 2.4.2014, prosecutrix handed over her clothes to the police, in presence of one Sahani Devi, vide seizure memo Ex.PW1/C. 36 PW5 HHC Rajinder Pathania, deposed that on 4.4.2014, appellant No.1 had taken the police to the house of Prittam Chand, where he had committed sexual intercourse with the prosecutrix thrice and he had also got prepared the spot map Ex.PW5/A. He deposed that in his presence appellant No.1 had produced his pants Ex.P5 which was sealed in a cloth ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 17 parcel with seal impression T and taken into possession vide memo Ex.PW5/B. 37 PW6 Ajeet Kumar is Panchayat Secretary who had .
issued the birth certificate of the prosecutrix Ex. PW6/A mentioning her date of birth to be 19.2.1999. He stated that he had also supplied copies of abstract entries, Ex. PW6/B and Ex.
PW6/C, which were taken into possession by the police vide of memo Ex. PW6/D. 38 PW7 Vijay Singh is the witness, in whose presence rt the car bearing No. HP-40T-0474 was taken into possession vide seizure memo Ex. PW7/A. 39 PW10 Rachpal Singh has not supported the case of the prosecution and was declared hostile.
40 PW12 Sanjay Kumar is photographer, who on 4.4.2014, on the asking of the police, had taken the photographs Ex.PW12/A-1 to EX.PW12/A-9, and had also done videography of the identified places vide CD, Ex.PW12/A. 41 PW14 C. Gulshan Kumar deposed that on 9.4.2014 MHC Sampuran Singh had handed over four sealed parcels alongwith envelop, and specimen seal CH vide RC No. 80/14 which he carried and deposited at RFSL, Dharamshala in intact condition and handed over the RC to MHC for record.
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 1842 PW15 HHC Arjun Singh deposed that on 23.4.2014 MHC Sampuran Singh had handed over four sealed parcels seald with seal 'T' alongwith two envelopes, and specimen seal .
vide RC No. 8/14 which he had carried and deposited at SFSL Junga intact.
43 PW16 H.C. Sampuran Singh the then MHC P.S. Kangra deposed that I.O./Inspector Mahinder Singh had of deposited one sealed parcel sealed with four seal of T, which he had entered at Sr. No. 71 of the Malkhana register and the rt entry abstract of Malkhana is Ex. PW16/A. He further stated that on 5.5.2014 Inspector Mahinder Singh had deposited four sealed parcels with him and the entry of the same was made in the Malkhana Register vide Ex. PW16/B. He deposed that on 9.4.2014 he had sent the case property detailed in entry Nos.
67, 68 and 69 and 71, vide RC Ex.PW16/C to RFSL, Dharamshala through Constable Gulshan Kumar, who, after depositing the same there, had returned the RC to him for record. He further stated that the case property entered at Sr. No. 68 and 69, earlier sent to RFSL, Dharamshala was returned to the police station alongwith RFSL report and thereafter on 23.4.2014, he had sent the case property detailed in entry No. 68, 69 and 72 vide RC Ex. PW16/D to FSL Junga through HHC ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 19 Arjun Singh. He had issued CIPA certificate Ex. PW16/E, which bears his signatures.
44 PW20 Davinder Verma is Nodal Officer from Bharti .
Airtel. He deposed that on the requests of the police Ex.
PW17/N and Ex. PW20/A, through S.P. Kangra, for obtaining the call details of mobile phone Nos. 98052-28049 and 98162- 10642 he had supplied the details of these mobile phones, of which is Ex. PW20/B. He stated that these two mobile phone numbers were in contact with each other, as highlighted in rt leave No.5. He further stated that mobile phone No. 98052- 28049 was in the name of Surjeet Singh S/o Uttam Singh 582/2 Mohal Haripur, as reflected in Ex. PW20/C. In his cross-
examination he deposed that the name of owner of mobile phone number 98162-10642 had not been supplied by the department with the aforesaid call detail. He deposed that in the end of call details Ex.PW20/B, the certificate which was required to be attached under Section 65B of Indian Evidence Act, had not been attached.
45 As regards investigation of the case, ASI Charan Singh, appeared in the witness box as PW13 and deposed that he had moved an application Ex. PW6/A for taking birth record of the prosecutrix from the Panchayat Secretary and procured ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 20 the birth certificate Ex.PW6/B. He further deposed that as per record the age of prosecutrix was 19.2.1999.
46 PW17 Inspector/Investigating Officer Mohinder .
Singh, deposed that on 1.4.2014, the prosecutrix came to police station alongwith her parents and vice President of their Panchayat. He had recorded the statement of prosecutrix Ex.PW1/A, on which the FIR EX.PW17/A came to be registered.
of Medical examination of the prosecutrix was got done and MLC EX.PW8/D was procured. He had visited the spot and rt prosecutrix had produced Shirt Ex.P7, Salwar Ex.P8 and Pajami Ex. P9 which were sealed in a cloth parcel Ex. P10 and taken into possession vide seizure memo Ex. PW1/B. He had prepared the site plan Ex. PW17/C. On 3.4.2014 he arrested appellant No.1 and medically examined him from the medical officer. On 4.4.2014, spot map Ex. PW17/E was prepared. Form Ex. PW17/F and Ex. PW17/G were filled at the time of taking blood sample of prosecutrix for DNA profiling and the forms of appellant No.1, Ex. PW17/G and Ex. PW17/H were filed for taking his blood sample for DNA profiling. He had moved an application Ex.PW17/3 before learned ACJM, Kangra for recording statement of prosecutrix Ex.PW17/K under section 164 Cr. P.C. He had prepared spot map Ex.PW17/K, from where the appellants had kidnapped the prosecutrix.
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 21Statements of Rachpal Ex. PW17/L, Kanta Devi Ex.PW17/M were recorded. He had also applied for call details through E-
mail Ex.PW17/N to Airtel Authority and obtained the call .
details from the said company.
47 In his cross-examination, he admitted that at the time of recording the FIR, the number of the vehicle and name of driver of the vehicle had not been disclosed by the of prosecutrix. He volunteered that the same were disclosed by her in her supplementary statement.
48rt PW19 Inspector Bahadur Singh, deposed that on 4.10.2015, on receipt of DNA profiling report Ex. PW19/A, he had prepared the supplementary challan and presented the same in the court.
49 Now, adverting to the facts of the case, it would be noticed that the precise case of the prosecution is that on 29.3.2014 when the prosecutrix (PW1) was in her room along with her younger brother, appellant No.1 called her on the mobile phone of her father asking her to come outside her house and when she did come out, then appellant No.1 took her forcibly in the car which was being driven by appellant No.2. It is further case of the prosecution that thereafter appellant No.1 took her to the house of appellant No.2, however his mother refused to allow them in the house. Thereafter, appellant No.1 ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 22 took the prosecutrix to his aunt's house, where he committed forcible sexual intercourse with her three times. In the morning, appellants left the prosecutrix at Ranital, from where she was .
brought back to her house by one Shungar Ram, friend of her father. On 30.3.3014 Pradhan was contacted and on 1.4.2014, an FIR was registered against the appellants.
50 According to the learned senior counsel for the of appellants, the prosecution has not been able to establish its case inasmuch as - (i) chain of circumstances to link the rt appellants is missing; (ii) version of the prosecutrix does not inspire confidence; (iii) conduct of father of the prosecutrix makes the entire case of the prosecution to be suspicious; (iv) medical evidence does not support case of the prosecution; (v) no credence can be lent to DNA test; (vi) delay in lodging the FIR (vii) appellant No.2 is absolutely innocent; and (viiii) Call details are not admissible being hit by Section 65B of Indian Evidence Act.
(i) Chain of circumstances to link the appellants is missing 51 It would be noticed that the case of the prosecution is that appellant No.1 called the prosecutrix on 29.3.2014 from mobile number 98052-28049 on mobile number 98162-10642 of her father. In order to prove this fact, Davinder Verma, ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 23 Nodal Officer, Bharti Airtel, was examined as PW20, who stated that mobile number 98052-28049 belonged to one Surjeet Singh, son of Uttam Singh, r/o 582/2 Mohal Haripur, Tehsil .
Dehra, District Kangra, whereas ownership of mobile number 98162-10642 had not been placed or established on record, which clearly goes to indicate that the prosecution has not been able to establish the fact that it was appellant No.1, who had of called the prosecutrix at the relevant time and date and thereafter abducted her.
(ii) rt Version of the prosecutrix does not inspire confidence 52 Further case of the prosecution is that appellant No.1 had taken the prosecutrix to the house of appellant No.2, but his mother did not allow the appellants or the prosecutrix to enter the house and thereafter appellant No.1 took her to his aunt's house, where he committed penetrative sexual assault with her three times.
53 In order to prove this fact, the prosecution examined PW9 Kanta Devi, who was alleged to be owner of the house, where the incident took place, however, she did not support the prosecution case and was declared hostile.
54 As per further case of the prosecution, the prosecutrix was dropped at Ranital Railway Station in the morning and thereafter one Shungar Ram on asking of her ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 24 father, dropped her at her residence. (This aspect of the case shall be dealt with later on).
55 It is further case of the prosecution that FIR was .
not lodged promptly as the prosecutrix and her parents wanted to inform the Pradhan Sumna Devi and it was after discussing the matter with Pradhan that the FIR came to be lodged.
However, when the Pradhan appeared as PW4, she feigned of complete ignorance on this aspect and stated that she was not available in the station from 29.3.2014 to 4.4.2014 and later rt corrected herself by saying that she came back on 1.4.2014.
56 All the aforesaid circumstances cast a serious doubt regarding prosecution's case.
57 We are fully conscious of the settled principle of law that conviction can be based on the sole testimony of the prosecutrix, however such testimony has to pass the test of trustworthiness and credibility. However, from the testimony of the prosecutrix, we, prima facie at this stage do not find her testimony to have passed the test of trustworthiness so as to term it credible enough to convict the appellants on the basis of her testimony and would therefore have to look for other corroborative material on record.
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 2558 However, before doing so, we would also set out some of other circumstances, which cast a serious doubt regarding the prosecutrix testimony being trustworthy.
.
59 As per the prosecutrix, appellant No.1 contacted her on the mobile phone of her father. The prosecutrix while appearing in the witness box as PW1 admitted that she did not have her own mobile phone and, therefore, had received the call of on her father's mobile phone, however she specifically stated that mobile phone of her father remained with him.
60rt As regards her father, who appeared as PW2, he would initially claim that the mobile phone was with the prosecutrix, however later on he stated that mobile phone on the relevant date and time was with him and during night time, he kept the mobile phone in the Almirah.
61 As already discussed above, it has not been established on record that the phone, from which the alleged call was made to the prosecutrix, was in possession of appellant No.1, more particularly, when it has been specifically proved on record that the phone was not registered in his name or his father's name or in any way connected with him. The call details otherwise did not connect appellant No.1 with the prosecutrix.
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 2662 What is still worse is that neither phone of the prosecutrix nor that of appellant No.1 was taken into custody to prove the possession thereof.
.
63 The specific case of the prosecution was that after calling the prosecutrix, appellant No.1 had taken the prosecutrix to appellant No.2 mother's house, who refused to allow them to enter the house, but then mother has not been of examined.
64 No doubt, the prosecution has putforth its case that rt mother of appellant No.2, if examined, would not have supported the case of the prosecution, but then, even if that being the position, the prosecution would have at least established version of the prosecutrix by cross-examining her.
Necessity to examine the mother of the appellant No.2 was to establish the link in chain of circumstances.
65 As regards further story of the prosecution that appellant No.1 took the prosecutrix to the house of his aunt (PW9), that aspect of the matter has already been discussed above.
66 However, we need to observe here that the specific case of the prosecution was that PW9 had not only permitted the prosecutrix and appellant No.1 in her house, but PW9 along with her husband had gone to other room leaving ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 27 appellant No.1 and the prosecutrix there in room, where appellant No.1 is alleged to have committed penetrative sexual intercourse with her three times.
.
67 We find this to be totally unpalatable as no sane person would permit even his near relations to sleep together in a room knowing fully well that the prosecutrix was a minor and even if, she was not minor, the fact remains that those were of not married couples.
68 If this was not enough, spot map prepared by the rt Investigating Officer pertaining to the house of PW9 suggests that she had only one room and kitchen, whereas prosecutrix had deposed that "the aunt had asked me to sleep in the one room and she herself went to sleep in other room." Even spot map so prepared by the investigating agency at the instance of the appellant No.1, which may not be admissible, suggests that alleged act was committed in the kitchen. This circumstance clearly demolishes the entire case of the prosecution and falsifies version of the prosecutrix that she was taken by appellant No.1 to house of his aunt. Even otherwise, no scientific evidence has been found in the said house.
69 As per the case of the prosecution, the prosecutrix was left at Ranital Railway station where she claimed to have remain all alone upto 5:00 P.M., but then there is no missing ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 28 report lodged by the parents of the prosecutrix and if she was indeed out there, then we see no reasons why she would have not made an endeavour to contact her father or any of the .
family members and waited till the evening; and could have come herself to home as it has specifically come on record that there was adequate transport facility available at the spot.
70 What further shrouds version of the prosecutrix and of makes case of the prosecution to be untrustworthy is that the prosecutrix in her statement has nowhere stated she had taken rt her mobile phone when she had gone with appellant No.1, whereas her father would state so.
71 Non examination of brother of the prosecutrix, who is alleged to have been sleeping with her in the same room does also go to indicate that probably version putforth by the prosecutrix is not correct. After all brother of the prosecutrix himself was about 14 years of age and studying in 9th standard at the time of incident.
72 Lastly, we take note of important fact, which emerges from the record that on 1.4.2014 at about 4.30 P.M. when the prosecutrix was taken for her medical examination, she refused for the same and it was later only at 6.10 P.M. she was again taken for medical examination, where she consented on the asking of her parents.
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 29(iii) Conduct of father of the prosecutrix 73 As per testimonies of father and mother of the prosecutrix being PW2 and PW3 respectively, they found the .
prosecutrix missing from the house in the morning and waited for some time assuming that she had gone to answer call of nature, however when she did not return, they took no further action.
of 74 Normally, in such circumstances, the parents would have lodged missing report with the police or contacted the rt office bearers of the Gram Panchayat or any other official(s) or for that matter even contacted near relations, but there is no evidence led to this effect, which makes the entire case of the prosecution highly improbable and untrustworthy.
75 After all, if a girl of barely 15 years and one month is found missing from the house, then the parents would have certainly cared to inform anybody, which is not the fact obtaining situation in the instant case.
(iv) Medical Evidence
76 According to the learned senior counsel for the
appellant, PW8 Dr. Parampreet Bawa had medically examined the prosecutrix and not found any injuries on her person and, therefore, it is established that the prosecutrix had not been sexually assaulted.
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 3077 However, we find no merit in this contention inasmuch as it is more than settled that injury is not a sine qua non whether rape has been committed, but this question has to .
be decided on the factual matrix of each case, where allegation of rape is levelled and no injury is noticed, certainly it is an important factor and if the victim version is credible, then no corroboration is necessary, but if the victim version is not of credible, then there would be need for corroboration. (Refer: Cr.
A. No. 217/2018, titled a State of H.P. vs. Ved Prakash & rt ors., decided on 1.9.2023)
(v) DNA Test 78 As per the prosecution, when the prosecutrix was medically examined , then shirt, Ext. P1, Salwar, Ext.P2 and Duppta, Ext. P3 were taken into possession by PW8 Dr. Parampreet Bawa. It is also admitted case that nothing incriminating was found in the same as the prosecutrix had changed her clothes. As per prosecution case, on 2.4.2014, she had handed over the clothes worn by her at the time of incident i.e. salwary, kameez and pajami, which were taken into possession in the presence of PW4 Sumna Devi.
79 As per DNA profiling, semen was found in pajami and salwar of the prosecutrix as stated by PW11 Dr. Ajay Sehgal, but surprisingly enough, those clothes were never ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 31 shown to either the prosecutrix or PW4 Sumna Devi at the time of their examination in the court so as to ascertain and establish the fact that these clothes as a matter of fact belonged .
to the prosecutrix.
80 As per instructions issued by the government, blood sampling is to be done on FTA card and FTA card is to be accompanied by identification form duly filled-in by the doctor of taking the sample. In the identification form, FTA card number is required to be reflected and the FTA card pertaining to the rt prosecutrix is to be signed by her guardian and accused is to sign the same, if not minor. After taking the samples, FTA card is to be sealed and the Medical Officer is to append his seal and signature on the identification form and is normally required to be preserved in an ice box.
81 This Court in Cr. A. No. 321/2021, titled as Mukesh Kumar vs. State of H.P., decided on 27.12.2022 has dealt with the subject of DNA in detail and observed as under:-
50. The legislature, in its wisdom, has inserted Section 53A and Section 164A of the Cr.P.C by the Act 25 of 2005 w.e.f. 23.06.2006. Sections 53A and Section 164A of the Cr.P.C are reproduced as under:-
"[53A. Examination of a person accused of rape by medical practitioner.- (1) When a person is arrested on ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 32 a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be .
lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not of 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 rt use such force as is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely;-
(i) the name and address of the accused and of the person
by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and".
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted in the report. (5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 33 as part of the documents referred to in clause (a) of Sub- Section (5) of that section.]"
"[164A. Medical examination of the victim of rape.-
(1) Where, during the stage when an offence of committing .
rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government of or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent rt to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence. (2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely:-
(i) the name and address of the woman and of the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail, (3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The report shall specifically record that the consent of the woman or of the person competent, to give such ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 34 consent on her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the examination shall also be noted in the report.
.
(6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub- Section (5) of that section.
(7) Nothing in this section shall be construed as rendering of lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf."
rt
51. Apart from collecting the other physical evidence, as referred above, the police during the investigation had also collected the blood samples for DNA profiling. The DNA report is Ex. P-Y.
52. The scope of DNA test has elaborately been discussed by the Hon'ble Apex Court in case titled as Anil alias Anthony Arikswamy Joseph vs. State of Maharashtra (2014) 4 SCC 69. The relevant paragraph 18 of the same is reproduced as under:-
"18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, but variance ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 35 in a particular result depends on the quality control and quality procedure in the laboratory.
(self emphasis supplied) .
53. The procedure, which is to be adopted for collecting the samples as well as the precautions, which are to be taken for conducting the DNA test has elaborately been discussed by the Hon'ble Apex Court in case titled as Mukesh and another vs. State (NCT of Delhi) and others, (2017) 6 SCC 1. The relevant paragraphs No. 211 to 228 of of the same are reproduced as under:-
"211. DNA is the abbreviation of Deoxyribo Nucleic Acid. It is rt the basic genetic material in all human body cells. It is not contained in red blood corpuscles. It is, however, present in white corpuscles. It carries the genetic code. DNA structure determines human character, behaviour and body characteristics. DNA profiles are encrypted sets of numbers that reflect a person's DNA makeup which, in forensics, is used to identify human beings. DNA is a complex molecule. It has a double helix structure which can be compared with a twisted rope 'ladder'.
212. The nature and characteristics of DNA had been succinctly explained by Lord Justice Phillips in Regina v. Alan James Doheny & Gary Adams[83]. In the above case, the accused were convicted relying on results obtained by comparing DNA profiles obtained from a stain left at the scene of the crime with DNA profiles obtained from a sample of blood provided by the appellant. In the above context, with regard to DNA, the following was stated by Lord Justice Phillips: "Deoxyribonucleic acid, or DNA, consists of long ribbon-like molecules, the chromosomes, 46 of which lie tightly coiled in nearly every cell of the body. These chromosomes - 23 provided from the mother and 23 from the father at conception, form the genetic blueprint of the body. Different sections of ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 36 DNA have different identifiable and discrete characteristics. When a criminal leaves a stain of blood or semen at the scene of the crime it may prove possible to extract from that crime stain sufficient sections of DNA to enable a comparison to be .
made with the same sections extracted from a sample of blood provided by the suspect. This process is complex and we could not hope to describe it more clearly or succintly than did Lord Taylor C.J. in the case of Deen (transcript: December 21, 1993), so we shall gratefully adopt his description.
"The process of DNA profiling starts with DNA being extracted from the crime stain and also from a sample taken from the of suspect. In each case the DNA is cut into smaller lengths by specific enzymes. The fragments produced are sorted according to size by a process of electrophoresis. This involves rt placing the fragments in a gel electromagnetically along a track through the gel. The and drawing them fragments with smaller molecular weight travel further than the heavier ones. The pattern thus created is transferred from the gel onto a membrane. Radioactive DNA probes, taken from elsewhere, which bind with the sequences of most interest in the sample DNA are then applied. After the excess of the DNA probe is washed off, an X-ray film is placed over the membrane to record the band pattern. This produces an auto radiograph which can be photographed. When the crime stain DNA and the sample DNA from the suspect have been run in separate tracks through the gel, the resultant auto- radiographs can be compared. The two DNA profiles can then be said either to match or not.""
213. In the United States, in an early case Frye v. United States[84], it was laid down that scientific evidence is admissible only if the principle on which it is based is substantially established to have general acceptance in the field to which it belonged. The US Supreme Court reversed the above formulation in Daubert v. Merrell Dow Pharmaceuticals, Inc.[85] stating thus:
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 37"Although the Frye decision itself focused exclusively on "novel" scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence. Of course, well- established propositions are less .
likely to be challenged than those that are novel, and they are more handily defended. Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Fed.Rule Evid. 201. This is not to say that judicial interpretation, as opposed to adjudicative fact finding, does not share basic characteristics of of the scientific endeavor: "The work of a judge is in one sense enduring and in another ephemeral... In the endless process of testing and retesting, there is a constant rejection of the dross rt and a constant retention of whatever is pure and sound and fine." B.Cardozo, The nature of the Judicial Process 178, 179 (1921)."
214. The principle was summarized by Blackmun, J., as follows: "To summarize: "general acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence--especially Rule 702--do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.
The inquiries of the District Court and the Court of Appeals focused almost exclusively on "general acceptance," as gauged by publication and the decisions of other courts. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion."
After the above judgment, the DNA Test has been frequently applied in the United States of America.
215. In District Attorney's Office for the Third Judicial District et al. v. William G. Osborne[86], Chief Justice Roberts of the ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 38 Supreme Court of United States, while referring to the DNA Test, stated as follows:
"DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the .
potential to significantly improve both the criminal justice system and police investigative practices. The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure-usually but not always through legislation. Modern DNA testing can provide powerful new evidence unlike of anything known before. Since its first use in criminal investigations in the mid- 1980s, there have been several major advances in DNA technology, culminating in STR rt technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue."
216. DNA technology as a part of Forensic Science and scientific discipline not only provides guidance to investigation but also supplies the Court accrued information about the tending features of identification of criminals. The recent advancement in modern biological research has regularized Forensic Science resulting in radical help in the administration of justice. In our country also like several other developed and developing countries, DNA evidence is being increasingly relied upon by courts. After the amendment in the Criminal Procedure Code by the insertion of Section 53A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme. Section 53A relates to the examination of a person accused of rape by a medical practitioner.
217. Similarly, under Section 164A inserted by Act 25 of 2005, for medical examination of the victim of rape, the description of material taken from the person of the woman for DNA profiling ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 39 is must. Section 53A sub-section (2) as well as Section 164(A) sub-section (2) are to the following effect:
"Section 53A. Examination of person accused of rape by Medical Practitioner.-(1) ... ... ... ...
.
(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused, of
(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) rt other material particulars in reasonable detail.
Section 164A. Medical Examination of the victim of rape.-
(1) ... ... ... ...
(2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely:-
(i) the name and address of the woman and of the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the
woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail."
218. This Court had the occasion to consider various aspects of DNA profiling and DNA reports. K.T. Thomas, J. in Kamti Devi (Smt.) and another v. Poshi Ram[87], observed:
"10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 40 ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. ..."
219. In Pantangi Balarama Venkata Ganesh v. State of .
Andhra Pradesh[88], a two-Judge Bench had explained as to what is DNA in the following manner:
"41. Submission of Mr Sachar that the report of DNA should not be relied upon, cannot be accepted. What is DNA? It means:
"Deoxyribonucleic acid, which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA of 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 rt traditional method of identifying fingerprints of offenders. The identification is hundred per cent precise, experts opine."
There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high molecular weight DNA, complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See article of Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA profiling and its applications.) But in this case there is nothing to show that such precautions were not taken.
42. Indisputably, the evidence of the experts is admissible in evidence in terms of Section 45 of the Evidence Act, 1872. In cross-examination, PW 46 had stated as under:
"If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population."
220. In Santosh Kumar Singh v. State Through CBI[89], which was a case of a young girl who was raped and murdered, the ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 41 DNA reports were relied upon by the High Court which were approved by this Court and it was held thus:
"71. We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out .
against the two experts who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Devi v. Poshi Ram (supra). In arriving at its conclusions the trial court was also influenced by the fact that the semen swabs and slides and the blood samples of the appellant had not been kept in proper custody and had been tampered with, of as already indicated above. We are of the opinion that the trial court was in error on this score. We, accordingly, endorse the conclusions of the High Court on Circumstance 9."
rt
221. In Inspector of Police, Tamil Nadu v. John David[90], a young boy studying in MBBS Course was brutally murdered by his senior. The torso and head were recovered from different places which were identified by the father of the deceased. For confirming the said facts, the blood samples of the father and mother of the deceased were taken which were subject to DNA test. From the DNA, the identification of the deceased was proved. Paragraph 60 of the decision is reproduced below:
"60. ... The said fact was also proved from the DNA test conducted by PW 77. PW 77 had compared the tissues taken from the severed head, torso and limbs and on scientific analysis he has found that the same gene found in the blood of PW1 and Baby Ponnusamy was found in the recovered parts of the body and that therefore they should belong to the only missing son of PW1."
222. In Krishan Kumar Malik v. State of Haryana[91], in a gang rape case when the prosecution did not conduct DNA test or analysis and matching of semen of the appellant-accused with that found on the undergarments of the prosecutrix, this Court held that after the incorporation of Section 53- A in CrPC, it has become necessary for the prosecution to go in for DNA ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 42 test in such type of cases. The relevant paragraph is reproduced below:
"44. Now, after the incorporation of Section 53-A in the Cr.P.C w.e.f 23.06.2006, brought to our notice by the .
learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in CrPC the prosecution could have still restored to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the of undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences."
223. In Surendra Koli v. State of Uttar Pradesh and others[92], rt the appellant, a serial killer, was awarded death sentence which was confirmed by the High Court. While confirming the death sentence, this Court relied on the result of the DNA test conducted on the part of the body of the deceased girl. Para 12 is reproduced below:-
"12. The DNA test of Rimpa by CDFD, a pioneer institute in Hyderabad matched with that of blood of her parents and brother. The doctors at AIIMS have put the parts of the deceased girls which have been recovered by the doctors of AIIMS together. These bodies have been recovered in the presence of the doctors of AIIMS at the pointing out by the accused Surendra Koli. Thus, recovery is admissible under Section 27 of the Evidence Act."
224. In Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State of Maharashtra[93], the accused was awarded death sentence on charges of killing large number of innocent persons on 26th November, 2008 at Bombay. The accused with others had come from Pakistan using a boat 'Kuber' and several articles were recovered from 'Kuber'. The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA test and the DNA test matched with several accused. The Court observed:
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 43"333. It is seen above that among the articles recovered from Kuber were a number of blankets, shawls and many other items of clothing. The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA profiling .
and, excepting Imran Babar (deceased Accused 2), Abdul Rahman Bada (deceased Accused 5), Fahadullah (deceased Accused 7) and Shoaib (deceased Accused 9), the rest of six accused were connected with various articles found and recovered from the Kuber. The appellant's DNA matched the DNA profile from a sweat stain detected on one of the jackets. A chart showing the matching of the DNA of the different of accused with DNA profiles from stains on different articles found and recovered from the Kuber is annexed at the end of the judgment as Schedule III."
rt
225. In Sandeep v. State of Uttar Pradesh[94], the facts related to the murder of pregnant paramour/girlfriend and unborn child of the accused. The DNA report confirmed that the appellant was the father of the unborn child. The Court, relying on the DNA report, stated as follows:
"67. In the light of the said expert evidence of the Junior Scientific Officer it is too late in the day for the appellant Sandeep to contend that improper preservation of the foetus would have resulted in a wrong report to the effect that the accused Sandeep was found to be the biological father of the foetus received from the deceased Jyoti. As the said submission is not supported by any relevant material on record and as the appellant was not able to substantiate the said argument with any other supporting material, we do not find any substance in the said submission. The circumstance, namely, the report of DNA in having concluded that accused Sandeep was the biological father of the recovered foetus of Jyoti was one other relevant circumstance to prove the guilt of the said accused."
226. In Rajkumar v. State of Madhya Pradesh[95], the Court was dealing with a case of rape and murder of a 14 year old girl. The DNA report established the presence of semen of the ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 44 appellant in the vaginal swab of the prosecutrix. The conviction was recorded relying on the DNA report. In the said context, the following was stated:
"8. The deceased was 14 years of age and a student in VIth .
standard which was proved from the school register and the statement of her father Iknis Jojo (PW1). Her age has also been mentioned in the FIR as 14 years. So far as medical evidence is concerned, it was mentioned that the deceased prosecutrix was about 16 years of age. So far as the analysis report of the material sent and the DNA report is concerned, it revealed that semen of the appellant was found on the vaginal of swab of the deceased. The clothes of the deceased were also found having appellant's semen spots. The hair which were found near the place of occurrence were found to be that of the rt appellant."
227. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another[96], the appellant, father of the child born to his wife, questioned the paternity of the child on the ground that she did not stay with him for the last two years. The Court directed for DNA test. The DNA result opined that the appellant was not the biological father of the child. The Court also had the occasion to consider Section 112 of the Evidence Act which raises a presumption that birth during marriage is conclusive proof of legitimacy. The Court relied on the DNA test holding the DNA test to be scientifically accurate. The pertinent observations are extracted below:
"19. The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardised as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice.::: Downloaded on - 26/09/2023 20:35:36 :::CIS 45
20. As regards the authority of this Court in Kamti Devi, this Court on appreciation of evidence came to the conclusion that the husband had no opportunity whatsoever to have liaison with the wife. There was no DNA test held in the case. In the .
said background i.e. non-access of the husband to the wife, this Court held that the result of DNA test "is not enough to escape from the conclusiveness of Section 112 of the Act." The judgment has to be understood in the factual scenario of the said case. The said judgment has not held that DNA test is to be ignored. In fact, this Court has taken note of the fact that DNA test is scientifically accurate. We hasten to add that in of none of the cases referred to above, this Court confronted with a situation in which a DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of rt legitimacy of the child under Section 112 of the Evidence Act. In view of what we have observed above, these judgments in no way advance the case of the respondents."
228. From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non- acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted."
(self emphasis supplied)
54. The Hon'ble Apex Court in a recent decision in case titled as Pattu Rajan vs. State of Tamilnadu (2019) 4 SCC 771 has again discussed the evidentiary value of the DNA report in the light of the provisions of Section 45 of the Evidence Act. The relevant paragraphs No. 49 to 52 of the same are reproduced as under:-
"49. One cannot lose sight of the fact that DNA evidence is also in the nature of opinion evidence as envisaged in Section 45 of the Indian Evidence Act. Undoubtedly, an expert giving evidence before the Court plays a crucial role, especially since the entire purpose and object of opinion evidence is to aid the ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 46 Court in forming its opinion on questions concerning foreign law, science, art, etc., on which the Court might not have the technical expertise to form an opinion on its own. In criminal cases, such questions may pertain to aspects such as .
ballistics, fingerprint matching, handwriting comparison, and even DNA testing or superimposition techniques, as seen in the instant case.
50. The role of an expert witness rendering opinion evidence before the Court may be explained by referring to the following observations of this Court in Ramesh Chandra Agrawal v. Regency Hospital Limited & Ors:
of "16. The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an rt expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of an expert cannot be disputed..."
(emphasis supplied)
51. Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts. (See The State (Delhi Adminstration) v. Pali Ram, (1979) 2 SCC 158; State of H.P. v. Jai Lal & Ors., (1999) 7 SCC 280; Baso Prasad & Ors. v. State of Bihar, (2006) 13 SCC 65; Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors.
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 47(supra); Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors., (2010) 2 SCC (Cri) 299).
52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, .
depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may of be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and rt reliable evidence on record in favour of such party."
(self emphasis supplied)
55. The Hon'ble Apex Court in a recent decision in a case titled as Manoj and others vs. State of Madhya Pradesh 2022(9) scale has elaborately discussed the evidentiary value of the DNA report and the procedure for collecting the samples. The relevant paragraphs No. 134 to 141 of the same are reproduced as under:-
134. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata40 was relied upon. The relevant extracts of the article are reproduced below:
"Deoxyribonucleic acid (DNA} is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with Intercalated proteins. Twenty- three pairs of chromosomes present In each nucleated cells and an individual Inherits 23 chromosomes from mother and 23 from father transmitted through the ova and sperm respectively. At the time of each cell division, chromosomes replicate and one ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 48 set goes to each daughter cell. All Information about Internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases:
.
Adenine (A), Guanine (G}, Thymine (T} and Cytosine (C) along with sugar- phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have exactly same DNA but it varies from individual to Individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA} found in large number of copies in the mitochondria is circular, double stranded, 16,569 base pair in length and shows of maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also being in large number of copies than nuclear DNA, it can be used in the rt analysis of degraded samples. Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures. Only 0.1 % of DNA (about 3 million bases} differs from one person to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples.
................................................
DNA Profiling Methodology DNA profile is generated from the body fluids, stains, and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be established. DNA Profiling Is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed Genetic Markers. The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs). Analysis of a set of 15 STRs employing Automated DNA Sequencer gives a DNA Profile unique to an Individual (except monozygotic twin). Similarly, STRs present on Y chromosome ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 49 (Y- STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y- STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of .
azoo11permic or vasectomized" male. Cases In which DNA had undergone 40 DNA profiling in Justice Delivery System, Central Forensic Science Laboratory, Directorate of Forensic Science, Kolkata (2007). environmental stress and biochemical degradation, min lSTRs can be used for over routine STR because of shorter amplicon size.
DNA Profiling is a complicated process and each sequential of step involved in generating a profile can vary depending on the facilities available In the laboratory. The analysis principles, however, remain similar, which include:
1.
2. rt isolation, purification & quantitation of DNA amplification of selected genetic markers
3. visualising the fragments and genotyping
4. statistical analysis & interpretation. In mt DNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples:....
Statistical Analysis Atypical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison:
1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched.
2) Exclusion: If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources.
3) Inconclusive: The data does not support a conclusion Of the three possible outcomes, only the "match" between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 50 Probability (RMP) or in other words, the frequency of the particular DNA profile in a population.
In case of paternity/maternity testing, exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci .
possible mutations should be taken Into consideration while reporting a match. Paternity of Maternity Indices and Likelihood Ratios are calculated further to support the match. Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, It will not meet the legal and scientific requirements for admissibility in. a court of law.
of Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA rt evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be Identified, preserved, packed and sent for DNA Profiling."
135. In an earlier judgment, R v Dohoney & Adams41 the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials: (1) the scientist should adduce the evidence of the DNA 41 1997 (1) Crl App Rep 369 comparisons together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.
136. The Law Commission of India in its report42, observed as follows:
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 51"DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not 'match', then this will prove a lack of identity .
between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 100,000: This of is described as the 'random occurrence ratio' (Phipson 1999). Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of rt law."
137. In Dharam Deo Yadav v. State of UP43 this court discussed the reliability of DNA evidence in a criminal trial, and held as follows:
"The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made-up of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines.....DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 52 and quality assurance procedures in the laboratory." 42 185th Report, on Review of the Indian Evidence Act, 2003 43 (2015) 5 SCC 509.
138. The US Supreme Court, in District Attorney's Office for the .
Third Judicial District v. Osborne, 44 dealt with a post-
conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that "Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major of advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many rt criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others."
139. Several decisions of this court - Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh45, Santosh Kumar Singh v. State Through CBI 46, Inspector of Police, Tamil Nadu v. John David 47, Krishan Kumar Malik v. State of Haryana48, Surendra Koli v. State of Uttar Pradesh & Ors 49, and Sandeep v. State of Uttar Pradesh50, Rajkumar v. State of Madhya Pradesh51 and Mukesh & Ors. v. State for NCT of Delhi & Ors. 52 have dealt with the increasing importance of DNA evidence. This court has also emphasized the need for assuring quality control, about the samples, as well as the technique for testing- in Anil v. State of Maharashtra53 "7. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 53 at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, 44 557 U.S. 52 (2009) 45 (2009) 14 SCC 607 46 (2010) 9 SCC 747 47 .
(2011) 5 SCC 509 48 (2011) 7 SCC 130 49 (2011) 4 SCC 80 50 (2012) 6 SCC 107 51 (2014) 5 SCC 353 52 (2017) 6 SCC 1 53 (2014) 4 SCC 69 but variance in a particular result depends on the quality control and quality procedure in the laboratory."
140. This court, in one of its recent decisions - Pattu Rajan v. The State of Tamil Nadu54, considered the value and weight to be attached to a DNA report:
of "33. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight rt accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party."
141. This court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance, was to corroborate. This court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case."
82 Adverting to the facts of the instant case, it is case of the prosecution that PW8 had taken blood samples of ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 54 appellant No.1 and the prosecutrix on FTA cards, however, PW8 nowhere stated that identification memos were filled up by her at the time of taking blood samples.
.
83 Strangely enough, FTA cards were not even shown to PW8 nor were identification memos shown to her so as to prove that she had taken the samples and filled in identification memos that were claimed to be signed by her.
of 84 Even otherwise, father of the prosecutrix, who appeared as PW2, has not been confronted with his signatures rt on the identification from the prosecutrix. This exercise was absolutely necessary as this would have proved that PW8 took samples and filled in identification forms.
85 In absence of proving the fact that blood samples were taken on FTA cards and the identification forms were filled in, which is mandatory, it cannot be said that DNA found on pajami and salwar were of the prosecutrix and appellant No.1.
86 This assumes importance because each FTA card has its unique number, which unfortunately does not find mention in the identification form.
87 What is still worse for the prosecution is that PW17, Mohinder Minhas, Investigating Officer, who was posted as SHO at the relevant time, stated that he was the one, who filled in forms, which casts a serious doubt on the prosecution case ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 55 because PW17 has nowhere stated that samples (FTA cards and identification forms) so taken by the Doctor were deposited in the malkhana.
.
88 The malkhana Incharge HC Sampuran Singh appeared as PW16 and stated that on 5.5.2014 four parcels were deposited by SHO PW17 and the malkhana register also reflects that FTA card was packed in a parcel whereas PW15 of HHC Arjun Singh states that two envelopes were handed over to him. Even the report of FSL states that sealed parcels were rt received by him. Apart from above, as per the case of the prosecution, FTA card was packed in a plastic pouch.
89 As per the guidelines of Central Forensic Laboratory, the FTA card is to be firstly packed in desiccant packet into multi barrier pouch and then the same is to be put in mailing envelope. The purpose of the said guidelines is to keep the FTA card dry, whereas per the SFSL, they found the FTA card in polythene pouch, which obviously was bound to attract moisture.
90 As already discussed above, clothes of the prosecutrix were firstly examined by PW11 Dr. Ajay Sehgal at RFSL Dharamshala, who submitted his report, Ext.PW8/F. As per his report, semen was found in pajami Ext. 2a, salwar Ext.
2c of the prosecutrix and underwear of the appellant No.1 Ext.
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 563b. After ascertaining the presence of semen, the samples, which had the semen, i.e. Ext.2a and Ext.2c were sent to State Forensic Science Laboratory (SFSL) on 23.4.2014 by PW16 .
MHC along with parcel of FTA cards. When the samples were received by the SFSL, pink colour Pajami was marked as Ext.1a, which had cut patches in the crotch region and salwar, Ext.1c having 8 cut patches in the crotch region. The pieces of of crotch region, on which semen was detected, were separately packed in parcel No.2 and this is so mentioned in the report of rt RFSL, Ext. PW8/F, but then as per report of SFSL, parcel No.2 was never opened and rather, following note appeared against parcel No.2:
"not opened; as examination was not required as per findings of Biological and Serological examination by Biology and Serology Division, RFSL, Dharamshala.
91 Yet, SFSL came to the conclusion that DNA profile of the appellant No.1 matched, but how such conclusion was arrived at remains a mystery as admittedly parcel No.2, which contained semen as per RFSL repot, was never opened.
(vi) Delay in lodging the FIR
92 It is next argued that there is a delay in lodging of
FIR, which is fatal to the case of the prosecution. However, we ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 57 find no merit in such contention. After all, delay has to be considered in the background of facts of each case and is a matter of appreciation of evidence.
.
93 Delay in lodging an FIR cannot itself be a ground to doubt the case of the prosecution. What the Courts are required to examine is the evidence of the prosecution with scrutiny and in doing so, contents of the FIR should also be scrutinized more of carefully. If the court finds that there is no indication of fabrication or it has not been concocted or engineered to rt implicate innocent persons, then even if there is a delay in lodging the FIR, the case of the prosecution cannot be dismissed merely on that ground.
94 The Court has to be conscious of the fact that there can be disinclination to inform the family or report the matter to the police might be due to apprehension and attitude of the society towards the victim. Therefore, delay in lodging the FIR in the instant case does not necessarily indicate that version of the prosecutrix was in any way false.
(vii) Appellant No.2 is absolutely innocent 95 As regards appellant No.2, we find that when the prosecutrix lodged the FIR, no number of car was disclosed by her. As per her version, it was alleged that appellant No.1 took her to house of appellant No.2 in the car, where his mother ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 58 refused to take them inside the house and thereafter, appellant No.1 took her to his aunt's house in the car. She did not even disclose name of appellant No.2 or describe his physical .
features or clothes worn by him.
96 This assumes importance as it has come on record that appellant No.2 was totally stranger to the prosecutrix and it is for this precise reason, she could not disclose his name to of the police at the time of recording FIR.
97 In the given facts and circumstances of the case, it was rt incumbent upon the investigating agency to have conducted test identification parade before arraigning appellant No.2 as a co-accused.
(viii) Call details are not admissible being hit by Section 65B of Indian Evidence Act.
98 The call details placed on record by the prosecution and exhibited as Ext. PW20/B in the statement of PW20, Nodal Officer, are of no assistance to the prosecution as no certificate under Section 65B of the Indian Evidence Act has been placed on record by the said officer.
99 Even though this contention was argued before the learned Special Judge, however same was negated by relying upon decision rendered in Shafi Mohd. Vs. State of H.P., 2018(2) Shim. LC 801. But, this judgment is no longer a good law in view of the decision rendered by Three-Judge Bench of ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 59 the Hon'ble Supreme Court in Arun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal, 2020 (7) SCC 1, wherein certificate under Section 65B of the Indian Evidence Act was .
held to be mandatory for exhibiting CDR on record. It shall be apt to reproduce paras 52 to 56 of the judgment, which read as under:-
52. We may hasten to add that Section 65B does not of speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V. (supra), this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence.
rt We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the Cr.P.C.
::: Downloaded on - 26/09/2023 20:35:36 :::CIS 6053. In a recent judgment, a Division Bench of this Court in State of Karnataka v. M.R. Hiremath (2019) 7 SCC 515, after referring to Anvar P.V. (supra) held:
"16. The same view has been reiterated by a two- Judge Bench .
of this Court in Union of India v. Ravindra V. Desai [(2018) 16 SCC 273]. The Court emphasised that non-production of a certificate under Section 65-B on an earlier occasion is a curable defect. The Court relied upon the earlier decision in Sonu v. State of Haryana [(2017) 8 SCC 570], in which it was held:
"32. ... The crucial test, as affirmed by this Court, is whether of the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the rt court could have given the prosecution an opportunity to rectify the deficiency."
17. Having regard to the above principle of law, the High Court erred in coming to the conclusion that the failure to produce a certificate under Section 65-B(4) of the Evidence Act at the stage when the charge-sheet was filed was fatal to the prosecution. The need for production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage that the necessity of the production of the certificate would arise."
54. It is pertinent to recollect that the stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet. When a criminal court summons the accused to stand trial, copies of all documents which are entered in the charge-sheet/final report have to be given to the accused. Section 207 of the CrPC, which reads as follows, is mandatory. Therefore, the electronic evidence, i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the accused a fair chance to prepare and defend the charges levelled against him during the trial. The general ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 61 principle in criminal proceedings therefore, is to supply to the accused all documents that the prosecution seeks to rely upon before the commencement of the trial. The requirement of such full disclosure is an extremely .
valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement.
55. In a criminal trial, it is assumed that the investigation is completed and the prosecution has, as such, concretized its case against an accused before of commencement of the trial. It is further settled law that the prosecution ought not to be allowed to fill up any lacunae during a trial.As recognised by this Court in rt Central Bureau of Investigation v. R.S.Pai (2002) 5 SCC 82, the only exception to this general rule is if the prosecution had 'mistakenly' not filed a document, the said document can be allowed to be placed on record. The Court held as follows:
"7. From the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet.
At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court."
56. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 62 in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 of the Cr.P.C or Section 165 of the Evidence Act. Depending on the facts of each case, .
and the Court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the Court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the of case - discretion to be exercised by the Court in accordance with law.
100 From rt the aforesaid discussions, we find the testimony of the prosecutrix to be not trustworthy or credible so as to be considerd as sterling witness. The sterling witness has to be of a very high quality and caliber, whose version should be unassailable and such statement ought to have been accepted on its face value without any hesitation. The witness has to be truthful and there would have been no reason for the victim to have come up with a false version as in the instant case.
101 After all, the Court cannot overlook where the victim or a girl is subjected to sexual assault. She is not accomplice to the crime, but is victim of another lust. It is precisely for this reason that we tried to find some corroboration and also fall back to DNA report, which as per recent judgment of Hon'ble Supreme Court in Prakash Nishad vs. State of ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 63 Maharashtra, AIR 2023 SC 2938 is not conclusive, more particularly for the reasons already stated above coupled with the fact that the procedure for collecting DNA samples has not .
been scrupulously followed.
102 Integrity of exhibits and control samples had to be safeguarded from the moment of seizure upto the completion of examination in the laboratory. This could have been ensured of only by immediately packing, sealing and labeling to prove the continuity of the integrity of the samples.
103rt Even though, in the instant case, though DNA evidence was present, yet its reliability is not infallible, especially not so in light of the fact that the uncompromised nature of such evidence was not established and other evidence that was led was totally unreliable.
104 The prosecution has failed to bring home guilt of the appellants as there are yawning gaps in the chain of circumstances rendering it far from being established- pointing to the guilt of the appellants.
105 In view of the aforesaid discussions, impugned judgment and order of conviction and sentence passed by the learned Special Judge, which suffer from patent illegality and being legally un-sustainable, are set aside. Consequently, the ::: Downloaded on - 26/09/2023 20:35:36 :::CIS 64 appellants, in the instant case, are ordered to be released immediately, if not required in any other case.
106 The Registry is directed to prepare release warrant of .
the appellants. In view of the provisions of Section 437A Cr.P.C., each of the appellants is directed to furnish a personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of of this Court, which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against rt this judgment or on grant of the leave, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
107 The instant appeals are allowed in the aforesaid terms. Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) 26.9.2023 Judge (pankaj) ::: Downloaded on - 26/09/2023 20:35:36 :::CIS