Himachal Pradesh High Court
Arun Kumar vs State Of H.P on 22 July, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
2024:HHC:5575 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. No. 232 of 2020 a/w .
Cr.A. No. 640 of 2019
Reserved on: 16.07.2024
Date of decision: 22.072024
Cr.A. No. 232 of 2020
Arun Kumar ...Appellant
Versus
State of H.P. ...Respondent
Cr.A. No. 640 of 2019
Meenakshi Devi @ Meenu ...Appellant
r Versus
State of H.P. ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting? No. For the Appellant(s) : Mr. N. S. Chandel, Sr. Advocate with Mr. Kshitij Thakur, Advocate, for the appellant in Cr. Appeal No. 232 of 2020.
Mr. Bhupinder Singh Ahuja Advocate, for the appellant in Cr. A. No. 640 of 2019.
For the Respondent: Mr. Navlesh Verma, Ms. Sharmila Patial, Addl. A.Gs. with Mr. J. S. Guleria, Dy.
A.G. Tarlok Singh Chauhan, Judge The appellant(s) being aggrieved by the judgment of conviction and sentence passed by the learned Special Judge, ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 2 Bilaspur, H.P. have filed the instant appeal(s), whereby appellant-convict Arun Kumar was sentenced to undergo:-
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(i) rigorous imprisonment for a period of ten years and to pay a fine of Rs. 5,000/- for offence punishable under Section 4 of the Protection of Children from Sexual Offences, Act, 2012 (for short "POCSO Act") and in default of payment of fine, he was directed to further undergo imprisonment for six months;
(ii) he was further sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 2,000/- for offence punishable under Section 363 IPC and in default of payment of fine, he was directed to further undergo imprisonment for three months.
(iii) he was further sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 250/- for offence punishable under Section 342 IPC and in default of payment of fine he was further directed to undergo imprisonment for fifteen days.
And the appellant-convict Meenakshi Devi was sentenced to undergo:-
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 3(i) Rigorous imprisonment for a period of seven years and to pay fine of Rs.3000/- for offence punishable .
under Section 17 of the POCSO Act for abatement of offence under Section 3 of the POCSO Act and in default of payment of fine, she was further directed to undergo imprisonment for four months;
(ii) she was further sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.1000/- for offence punishable under Section 363 IPC read with Section 109 IPC and in default of payment of fine she was further directed to undergo imprisonment for two months;
(iii) she was further sentenced to undergo rigorous imprisonment for a period of three months and to a pay fine of Rs. 100/- for offence punishable under Section 342 IPC read with Section 109 IPC and in default of payment of fine she was further sentenced to undergo imprisonment for seven days.
2. Since both these appeals arise out of same judgment, therefore, they were taken up together for hearing and are being disposed of by a common judgment.
3. Brief facts of the case are that on 29.07.2017 Smt. Maya Devi resident of village Tihari along with her husband and ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 4 daughter lodged an FIR at police station Talai and told to the police that she is housewife having two children, a son and a .
daughter. Her daughter is studying in B.Com. Ist year at Govt.
College Jhandutta. On 29.07.2017, at about 8.00 a.m., the prosecutrix went to college with her friend Madhu. In the evening when she returned after cutting grass/fodder at about 4.00 p.m., then she found prosecutrix sleeping in her room. She woke up her daughter and found that she was weeping. Her daughter told her that when they were standing at Berthin to catch bus to Jhandutta, then a person known to Madhu came there with his car. That person asked them to board the car and offered them to drop at Jhandutta. One female with baby was also sitting in the car. The car driver drop Madhu near Jhandutta college, but he restrained the prosecutrix to get down from the car and took her to village Kasaru. She further told to the police that her daughter followed the female upto her house on her request and in the meantime the driver of the car also came there. The prosecutrix asked the driver of the car to take her to college as she was getting late. The female went to the kitchen and came with tea. The driver started taking tea, but prosecutrix refused to take tea. The female exchanged signal to the car driver by eyes and after smiling she moved out from the room. When her daughter tried to come out from the room, then that man caught ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 5 hold of her from her arm and bolted the room. The appellant Arun Kumar started the deck (audio system) loudly and .
thereafter committed rape with her daughter. The appellant-Arun Kumar also dropped her at Berthin from where her daughter returned home on foot. When the husband of the complainant returned to home, she disclosed all the facts to him and also to the ward panch Smt. Kaushalya Devi. Later on, she came to know about the name of the driver as Arun Kumar.
4. On the basis of this information, FIR was registered and investigation started. The prosecutrix was taken to CHC Berthin for medical examination and the Medical Officer opined that there is possibility of sexual intercourse. The appellant Arun Kumar was arrested on the intervening night of 29/30.07.2017, at 2.30 a.m. The information regarding his arrest was given to his wife Smt. Kiran Kumari. The police came to know that appellant Arun Kumar was plumber by profession and also employed as conductor on Rao Private Bus Service. The victim used to travel in the same bus. The appellant-Arun Kumar was also having Nano car bearing registration No. HP-xx-xxxx.
5. The statement of the prosecutrix was recorded under Section 164 Cr.P.C. alongwith the statements of the complainant and the friend of the prosecutrix. The Nano car was also taken into possession. The police also took into possession the condom ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 6 used by the appellant Arun Kumar while committing rape with the prosecutrix at the instance of the appellant Meenakshi Devi.
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The preserves of victim and appellant Arun Kumar were sent to RFSL, Mandi. The Medical Officer gave her final opinion after going through the report of RFSL, that recent sexual intercourse has taken place. The FTA card etc. of appellant-Arun Kumar were sent to SFSL, Junga for DNA profiling.
6. After completion of investigation, the police found sufficient evidence against both the appellants for the offence punishable under Sections 363, 342,109 and 376 of Indian Penal Code (IPC) and Sections 4 and 17 of the POCSO Act and accordingly the challan was presented in the Court.
7. On consideration of the police report and material annexed therewith, it was opined by the Court that there were sufficient grounds to presume that the appellant Arun Kumar had committed the offences punishable under Section 363, 342, 376 of the IPC and Section 4 of the POCSO Act and appellant Meenakshi Devi alias Meenu had committed the offences punishable under Sections 363, 342 of the IPC read with Section 109 of the IPC and Section 17 of the POCSO Act. Appellants vide order dated 28.12.2017 were accordingly charged for the aforesaid offences to which they pleaded not guilty and claimed trial.
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 78. The prosecution in order to prove its case examined as many as 24 witnesses in all.
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9. PW-1 Dr. Deepika Sharma, Medical Officer at C.H.C. Berthin on 29.07.2017 examined the prosecutrix on the application of the police Ext. PW-1/A with the alleged history of sexual assault. According to the prosecutrix, she was sexually abused by some one on 29.07.2017 at about 10.00 a.m. The victim also disclosed that she had not taken bath or changed her clothes. After examining the victim, she was advised for gynecology opinion for pelvic examination, hymen condition and other infections. She preserved vaginal smear, vaginal swab and pubic hair sample. She also took into possession shirt, salwar, dupatta and bra of the prosecutrix. Blood sample on FTA card was also taken and all these samples were sealed and handed over to police. She also issued MLC Ext. PW-1/B and gave her opinion that the possibility of sexual intercourse cannot be ruled out. On 29.09.2017, after perusing gynecologist report Ext. PW-
1/C and RFSL report Ext. PW-1/D and while considering unmarried status, torn hymen and well healed tag of hymen alongwith presence of seminal stain on vaginal slide, she opined that recent sexual intercourse has taken place. She duly identified the parcel Ext. P-1, shirt Ext. P-2, salwar/slacks, Ext. P-
3, dupatta Ext. P-4 and bra Ext. P-5. She also identified parcel ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 8 Ext. P-6 having plastic jar Ext. P-7 which contained pubic hair Ext. P-8. She also identified parcel Ext. P-9 containing blood .
sample of prosecutrix Ext. P-10 and urine pregnancy test strip Ext. P-11. The doctor was re-examined when she identified parcel Ext. PA having one vaginal swab tube Ext. PA-1 and two vials Ext. PA-2 and Ext. PA-3. She also identified parcel Ext. PA-4, having one FTA card Ext. PA-5. The doctor also identified parcel Ext. PA-6 having vaginal smears slides Ext. PA-7. She also filled up identification form of the victim Ext. PA-8. She preserved all above exhibits at the time of examination of victim.
10. During her cross-examination by the learned counsel for the appellants, PW-1 stated that she recorded the history as per the disclosure of prosecutrix in which she did not disclose the name of person responsible for the sexual assault. She found no external or internal injury on the person of victim. The healing of hymen starts within 48 hours and completes by 7-10 days. She has admitted that if a condom is used for sexual act and it remains intact, there is no possibility of presence of semen on the vaginal swab. The parcels of preserves and sample were handed over to the police on the same day. She denied that the vaginal smears and vaginal slides were prepared by the staff.
11. PW-2 Prosecutrix stated that in the year 2017, she was student of B. Com. Ist year in Govt. College Jhandutta. She ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 9 daily used to go to college from her home. On 29.07.2017, Madhu met her at Berthin at about 8.00 a.m. and they were .
waiting for the bus for college. Appellant Arun Kumar reached there in Nano car and talked with Madhu. Appellant Arun Kumar offered lift upto college. Appellant Meenakshi was also sitting in the car with one baby. Madhu got down from the car and when she was about to get down, the appellant Arun Kumar locked the car and took the vehicle to village Kasaru. The appellant Arun Kumar drove the car to the house of appellant Meenakshi. The appellant Meenakshi provided tea to appellant Arun Kumar, but she refused to take tea. Appellant Meenakshi made a signal with the eyes, also smiled and left the room. When she tried to leave the room, appellant Arun Kumar caught hold her arm and bolted the door from inside. Appellant Arun Kumar put her on the bed and tied her hands with her dupatta. When she cried then appellant Arun Kumar played the music on the deck and committed rape with her. Appellant Arun Kumar dropped her at Berthin. The appellant Arun Kumar used condom and threw the same while returning from the spot to drop her. She reached home and narrated the incident to her mother. Her mother informed the ward member of the Panchayat. Her father returned home by 4.30 p.m. She alongwith her parents and ward member visited Police Station Talai and lodged FIR there. She ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 10 was subjected to medical examination at Berthin as well as at R.H. Bilaspur. Her clothes were taken into possession by the .
Medical Officer and her blood sample was also preserved. She identified the place where appellant Arun Kumar committed rape with her.
12. The police took into possession one bed sheet and towel from that room vide memo Ext. PW-2/A. The police also clicked the photographs of the spot. Her statements Ext. PW-2/B and Ext. PW-2/C under Section 164 Cr.P.C. were also recorded.
Her date of birth is 24.05.2000. On her re-examination, she stated that the Medical Officer preserved her clothes and also preserved blood on FTA card for the purpose of DNA profiling.
She identified parcel Ext. P-1 having shirt Ext. P-2, salwar/slacks, Ext. P-3. dupatta Ext. P-4 and bra Ext. P-5. She also identified parcel Ext. P-15 having bed sheet Ext. P-16 and towel is Ext. P-17
13. During her cross-examination by the learned counsel for appellant Arun Kumar, she stated that she passed 10+2 class from co-educational Govt. Senior Secondary School Berthin.
Shubham, Rajat and Vikas were her class fellows and Lucky was also student of that school, but in different stream. Madhu called appellant Arun Kumar as her 'Chachu'. She denied that she was deposing falsely that appellant Arun Kumar took her to the room and committed rape with her on 29.07.2017. She has admitted ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 11 that there are shops near to the gate of the college, but voluntarily stated that appellant Arun Kumar chose the path .
where there were no shops. She also admitted that there are number of houses and shops on the way from Jhandutta to village Kasaru. She also admitted that one has to walk for a distance about 800 meters to reach the village Kasaru from the main road. She has also admitted that there are number of houses around the house of appellant Meenakshi at village Kasaru. She denied that Lucky was her boyfriend and she had relations with him. PW-2 denied that she foisted a false case against appellant Arun Kumar as he saw her with Lucky and told her that he will inform her parents about her activities. She also denied that she was also seen with Lucky in objectionable position by appellant Arun Kumar at Berthin/ Dharoti. She stated that she remained outside the Police Station when FIR was lodged by her mother. She denied that her age was above 19 years at the time of commission of alleged offence. She changed her clothes in the presence of doctor and her mother. Her mother asked some one on mobile to bring her clothes to the hospital.
14. During her cross-examination by the learned counsel for appellant Meenakshi Devi, she admitted that from her village she reached first of all at Berthin with Madhu and thereafter upto ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 12 Jhandutta by crossing Berthin Bazar, Sunhanı Bazar and Jhandutta Bazar. She reached at Jhandutta at about 9.30 a.m. .
From Berthin, they reached Kasaru at about 11.00 a.m via Mohin village, which is a longer route than the other route. Appellant Arun Kumar dropped her at Berthin. She stayed at Kasaru for about 45 minutes and she reached at her home at about 2.00 p.m. She changed her seat after getting down from the car on the way after crossing Berthin. The appellant Meenakshi was not personally known to her. She did not disclose the name of appellant Meenakshi to police. She mentioned the fact regarding smile of appellant Meenakshi at the time of recording her statement before Magistrate but when she was confronted with her statement Ext. PW-2/B wherein it is not so recorded. She admitted that no sexual intercourse was committed by appellant Arun Kumar with her in the room of appellant Meenakshi on 29.07.2017, but again stated that appellant Arun Kumar had committed sexual intercourse with her. Her both hands were tied by appellant Arun Kumar above her head and she suffered injuries when she tried to rescue herself from appellant Arun Kumar. There was no other person in the house of appellant Meenakshi except appellant Arun Kumar and Meenakshi. The place from where towel and bed sheet were taken into possession was 100-200 meters from the motorable road.
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 13Appellant Meenakshi and her husband were present in the house at that time.
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15. PW-3 Smt. Maya Devi the mother of prosecutrix has stated that the date of birth of prosecutrix is 24.05.2000. On 29.07.2017, at about 8.00 a.m., the prosecutrix left home for college with her friend Madhu. When she returned at about 4.00 p.m. after bringing grass from fields, then she found prosecutrix sleeping in the room. She called her twice or thrice and when prosecutrix woke up, she saw her weeping and disclosed that when she and Madhu were waiting for bus to Jhandutta at Berthin, then 'Chachu' of Madhu came there in car and asked them to board the car and told them that he will drop them at Jhandutta. One female with baby was also sitting in the said car.
The man dropped Madhu near Jhandutta college and when her daughter tried to get down from the car, appellant Arun Kumar locked the car and took her to village Kasaru. The female sitting in the car requested her daughter to accompany her upto her house. Appellants Meenakshi and Arun Kumar exchanged signals by smiling and thereafter appellant Meenakshi moved out from the room. When her daughter tried to leave the room, Arun Kumar stopped her and bolted the room from inside. Arun Kumar tied her hands with dupatta and committed rape with her.
Appellant Arun Kumar then dropped her daughter near Berthin ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 14 Bazar. She informed ward member Smt. Kaushalya first and thereafter informed her husband about the incident. She .
alongwith her husband, prosecutrix and ward member went to Police Station Talai and lodged the FIR. The medical examination of the prosecutrix was conducted in her presence and she identified her signatures on MLC Ext. PW-1/B. Madhu disclosed the name of appellant Arun Kumar as well as the registration number of the car. The police took into possession one bed sheet and towel from the house of accused Meenakshi Devi vide memo Ext. PW-2/A. The police clicked photographs of the spot and her statement was also recorded before Judicial Magistrate at Ghumarwin vide Ext. PW-3/A and Ext. PW-3/B.
16. During her cross-examination by the learned counsel for appellant Arun Kumar, she stated that the prosecutrix was admitted in Primary School in first standard in village Tihari. She denied that prosecutrix usually remained ill during her childhood.
She denied that the prosecutrix was admitted in first standard in the school at the age of 6-7 years. She denied that date of birth of prosecutrix was informed to the Panchayat after about one and half year. They reached at the police station at about 6.30 p.m. on 29.07.2017. She denied that they all made consultation with police for about 3-4 hours, but voluntarily stated that she reported the matter to the police as told to her by the ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 15 prosecutrix. She denied that appellant Arun Kumar saw the objectionable activities of the prosecutrix and when he warned .
her, she planted false case against the appellants. She denied that appellant Arun Kumar did not take the prosecutrix to the house of appellant Meenakshi in a car.
17. During her cross-examination by the learned counsel for appellant Meenakshi Devi, she stated that neither she nor her daughter was having mobile phone. She admitted that she did not disclose the name of appellant Meenakshi in her both statements. The prosecutrix used to travel with Madhu in a bus.
She left home on 29.07.2017 at about 12.30 p.m. to cut grass and came back at about 4.15 p.m
18. PW-4 L.C. Mamta Sharma No. 506 stated that on 29.07.2017, she took prosecutrix for medical examination to C.H.C. Berthin The Medical Officer after medical examination of the victim handed over the preserves and MLC Ext. PW-1/B to her. She deposited the preserves with MHC and handed over the MLC to the I.O. She also recorded the statement of victim under Section 161 Cr.P.C. On 30.07.2017, she alongwith I.O., victim and her parents visited the spot and took into possession one towel and bed sheet vide memo Ext. PW-2/A. She also accompanied the victim, her mother and Madhu to the Court of ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 16 learned JMIC(2) Ghumarwin for recording their statements under Section 164 Cr.P.C.
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19. During her cross-examination by the learned counsel for the appellants, she failed to tell the distance between village Tihari and Shah-talai. After 6.00 p.m., she went to the police station at about 9.00 - 9.30 p.m. and left police station at about 10.30 p.m. with the victim to CHC Berthin. She admitted that the prosecutrix did not tell the name of person involved in the alleged occurrence, but voluntarily stated that she was saying that the name of the person was known to her friend Madhu. She reached C.H.C. Berthin at 11.50 p.m. and remained there for three hours. She denied that when they pressurized the victim to make statement against Arun Kumar, she named some other persons. The house of appellant Meenakshi is about 1 K.M. from motorable road on foot. There are number of houses around the house of Meenakshi. There were some houses on the both sides of pedestrian path. She denied that the house of appellant Meeankshi was identified by the S.H.O. She failed to tell that there were 4-5 villagers at the spot, when they reached there.
20. During her cross-examination by the learned counsel for appellant Meenakshi Devi, she denied that there were 6-7 houses adjoining to the house of appellant Meenakshi. They went ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 17 to the spot during the day time and remained at the spot for about 1-2 hours.
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21. PW-5 Madhu, the friend of the prosecutrix, stated that in the month of July, 2017, she and prosecutrix got admission in B Com. Ist year in Govt. College Jhandutta. They used to leave their houses at 8.00 a.m. daily for college. On 29.07.2017, when they were waiting for bus at Berthin chowk, the appellant Arun Kumar came in his Nano car and told them that he was also going towards Jhandutta. One female with child was also sitting in the car. They boarded the car of appellant Arun Kumar and went towards Jhandutta. Appellant Meenakshi on the way to Jhandutta asked the prosecutrix to come on the front seat with driver. She got down near Jhandutta college, but the appellant Arun Kumar drove the car without dropping the prosecutrix. She was under the impression that the appellant Meenakshi might be relative of prosecutrix and the prosecutrix may return after some time. When she reached her home in the evening, she received a call from the mother of prosecutrix, who asked about the particulars of the Nano car and its driver from her. She disclosed the name and full particulars of appellant Arun Kumar. Her statement was recorded by the police and then also before learned JMIC(2) Ghumarwin which is Ext. PW-5/A. ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 18
22. During her cross-examination by the learned counsel for appellant Arun Kumar, she stated that her village and village .
Tihari are adjacent to each other and separated by a nullah. It takes about 15 to 20 minutes on foot from her village to the house of prosecutrix. Kotlu bus stop is at a walking distance of 10 to 15 minutes from her house. It takes about 20 to 25 minutes on foot from her home to Berthin bus stop. She has admitted that on the way to Jhandutta from Berthin one petrol pump, Sunhani Bazar, Ser Bazar and Jhandutta Bazar are situated. It is 15-20 minutes walking distance from Jhandutta Bazar upto Jhandutta College. The prosecutrix was having no mobile phone. She has no knowledge that prosecutrix used to visit the hotel situated near petrol pump. She denied that she alongwith prosecutrix visited Mata Vaishno Devi Temple, Sunhnai, Helipad with one Lucky. She denied that she was deposing falsely regarding the relationship of Lucky and prosecutrix. Her statement before police was recorded on 31.07.2017. The prosecutrix made no contact with her between 29.07.2017 to 31.07.2017. She did not disclose to the mother of prosecutrix or any other person that prosecutrix was forcibly taken in the car by appellant Arun Kumar. She denied that she was deposing falsely at the instance of mother of prosecutrix.
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 1923. During her cross-examination by the learned counsel for appellant Meenakshi Devi, PW-5 Madhu stated that she went .
to college with prosecutrix second time on 29.07.2017. She admitted that she has no knowledge about name of the village of accused Meenakshi.
24. PW-6 Sh. Anil Kumar, taxi driver engaged by the police to visit the spot, stated that he stopped his taxi on the main road and from there, the police party and appellant Arun Kumar started walking towards upper side. They brought one condom and put the same into a match box and after sealing, the same was taken into possession vide memo Ext. PW-6/A. This witness turned hostile, so during his cross-examination by the learned P.P., he denied that memo Ext. PW-6/B bears his signatures. He also failed to remember that appellant Arun Kumar handed over his mobile phone and documents of his car to the police in his presence. During his cross-examination by the learned counsel for appellant Arun Kumar, he stated that no recovery was effected in his presence and his signatures were obtained on the memos at the police station.
25. PW-7 Sh. Rajinder Kumar was posted as Secretary, Gram Panchayat Berthin and stated that on 07.08.2017, he handed over the date of birth certificate Ext. PW-7/B and copy of abstract of birth register Ext. PW-7/C of the prosecutrix to the ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 20 police. The date of birth of victim is recorded as 24.05.2000 at Sr. No. 20 on 28.05.2000. He also handed over copy of pariwar .
register of the family of victim Ext. PW-7/D to the police. During his cross-examination by the learned counsel for appellants, he has stated that the entries with respect to the date of birth of victim in the birth register are not in his hand. He has admitted that there are cuttings in columns No. 8 and 9 against serial number No. 20. He has further admitted that the cuttings/over writings have not been attested by anyone in the register.
26. PW-8 L.C. Aruna Kumari No. 319 stated that on 14.08.2017 she along with S.H.O. Police Station Talai, visited the house of appellant Meenakshi at village Kasaru and took into possession one deck Ext. P-12 black in colour of make INTEX along with one speaker Ext. P-13 of black colour from her room vide memo Ext. PW-8/A. During cross-examination by the learned counsel for appellant Arun Kumar, she stated that she was not associated in the investigation of the present case prior to 14.08.2017. There are some houses in the village Kasaru. The house of appellant Meenakshi is alone. There were 3-4 rooms in that house and it was the first room.
27. During her cross-examination by the learned counsel for appellant Meenakshi Devi, she failed to tell whether any videography of the proceedings was conducted on the spot or ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 21 not. There were some articles in the room, but she failed to tell the exact details. She was also unaware of the fact that how .
many times the police visited the spot earlier. They left police station at about 3.00 - 4.00 p.m. for spot and reached the house of Meenakshi from Talai within one and half hour. The distance between two places is about 28 K.M. No villagers were associated in the investigation at the spot.
28. PW-9 C. Sanjeev Kumar No. 422 stated that on 02.08.2017, he along with S.I. Karam Chand and other police officials went to village Kasaru by hiring a taxi of Sh. Anil Kumar with appellant Arun Kumar. The appellant led the police party to a place near Primary School Kasaru. The police took into possession one used condom with wrapper vide seizure memo Ext. PW-6/A. Appellant Arun Kumar also handed over one mobile phone of make "MAK" Ext. P-14, Nano car bearing registration No. HP-69-3742 alongwith documents to the I.O. and the same were taken in possession vide memo Ext. PW-6/B.
29. During his cross-examination by the learned counsel for appellant Arun Kumar, he stated that the police party started from Talai in the evening and reached at the spot within 50 minutes. They walked upto 50-100 meters from the motor-able road, but no witness was associated from the houses near to the ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 22 spot. The car was parked at a distance of 3-4 K.M. from the house of appellant Arun Kumar, within 50 minutes.
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30. PW-10 MHC Ramesh Kumar No. 12 stated that on 30.07.2017, he received one parcel stated to be containing clothes of victim through L.C. Mamta alongwith sealed parcels stated to be containing vaginal swab, vaginal slide and pubic hair samples of victim. He also received another sealed parcel stated to be containing blood sample and U.P.T. kit of victim, one sealed cloth parcel stated to be containing blood sample of victim on FTA card, two sealed envelopes, one addressed to Director RFSL, Mandi and other addressed to Director SFSL, Junga alongwith specimen of seals. He made entries at Sr. No. 74/17/328 and safely deposited them in malkhana. He has duly proved extract of malkhana register Ext. PW-10/A. On the same day, at 9.56 p.m., S.I./S.H.O. Karam Singh deposited one sealed parcel stated to be containing one double bed sheet and towel with him in the malkhana. He made entries at Sr. No. 77/17. On 31.07.2017, C. Rajinder Kumar deposited one sealed cloth parcel stated to be containing underwear of appellant, one sealed vial stated to be containing pubic hair sample of appellant, one sealed vial stated to be containing smegma of appellant, one sealed vial stated to be containing nails of appellant, one sealed vial stated to be containing blood sample of the appellant, one sealed vial stated ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 23 to be containing semen sample of appellant, one sealed envelope stated to be containing blood sample of appellant Arun .
Kumar on FTA card, two sealed envelopes one addressed to Director RFSL, Mandi and other addressed to Director SFSL, Junga alongwith specimen of seal. He made entries at Sr. No. 78/17/332. On 02.08.2017, S.I./S.H.O. Karam Singh had deposited one sealed cloth parcel stated to be containing one used condom, one mobile phone of make MAK alongwith battery and SIM and Nano car bearing registration No. HP-xx-xxxx with him in the malkhana. He made entries at Sr. No. 80/17/334. On 14.08.2017, S.I. Karam Singh deposited one cloth bag containing one black colour deck and one speaker both of INTEX make with him in the malkhana. He made entries at Sr. No. 84/17/338 and duly proved the copies of extract of malkhana register Ext. PW-
10/B and Ext. PW-10/C. On 06.10.2017, he sent the case property for DNA profiling alongwith result of RFSL, Mandi to Director, SFSL, Junga through HHC Amar Singh vide R.C. No. 130/21 Ext. PW-10/D. During his cross-examination by the learned counsel for appellants, he stated that the result from RFSL, Mandi was received in September, 2017. All entries had been made in D.D.Rs. on respective dates.
31. PW-11 H.C. Sanjeev Chandel No. 22 stated that he was officiating as MHC, since the regular MHC was on leave on ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 24 12.10.2017 and he sent the case property mentioned at Sr. No. 74/17, 77/17 and 78/17 of malkhana register except the case .
property meant for DNA profiling to RFSL, Mandi through C. Sandeep Kumar No. 509 vide R.C. No. 108/21 Ext. PW-11/A. On 12.10.2017, he sent the copy of FIR No. 72/17, result of RFSL, Mandi, copy of recovery memo, specimen of seal-V, docket and sealed parcel stated to be containing used condom to RFSL, Mandi vide R.C. No. 138/17 Ext. PW-11/B, through HHC Ravi Kumar. During his cross-examination by the learned counsel for appellants, he stated that the specific details of parcels received from RFSL, Mandi alongwith result are not made in the malkhana register, only the word case property is written there.
32. PW-12 C. Sandeep Kumar No. 509 stated that on 02.08.2017 he received the case property mentioned at Sr. No. 74/17, 77/17 and 78/17 of malkhana register except the case property meant for DNA profiling to RFSL, Mandi for chemical analysis vide R.C. No. 108/21 from MHC Sanjeev Chandel. He safely deposited the case property at RFSL, Junga. During his cross-examination by the learned counsel for appellants he has stated that the specimen of seals on pieces of cloth were not sealed in any envelope.
33. PW-13 HHC Amar Singh No. 380 on 6.10.2017 stated that he received the case property containing 14 sealed ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 25 parcels and two sealed envelopes alongwith specimen of seals vide R.C. No. 130/21 from MHC Ramesh Kumar and deposited .
the same at SFSL, Junga. During his cross-examination by the learned counsel for appellants, he denied that neither he took the case property to SFSL, Junga nor he deposited the same safely.
34. PW-14 HHC Ravi Kumar No. 393 stated that on 12.10.2017, he received the copy of FIR No. 72/17, result of RFSL, Mandi, copy of recovery memo, specimen of seal-V, docket and sealed parcel vide R.C. No. 138/17 from MHC Sanjeev Chandel. He safely deposited them at RFSL, Mandi. During his cross-examination by the learned counsel for appellants, he has denied that he neither took the case property to RFSL, Mandi nor deposited them safely.
35. PW-15 Smt. Ram Kali stated that she was posted as Head Teacher in Govt. Primary School Tihari in the year 2017. On 24.10.2017, she provided the date of birth certificate in respect of victim Ext. PW-15/C and copy of admission and withdrawal register Ext. PW-15/B on receiving an application Ext. PW-15/A from police. As per records, victim was admitted in the school on 01.06.2005 and her date of birth was recorded as 24.05.2000.
During her cross-examination by the learned counsel for appellants, PW-15 stated that she did not bring the ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 26 original application record of admission, on the basis of which the entries were made in the admission and withdrawal register.
.
36. PW-16 C. Vivek Kumar No. 306 stated that he was posted as CCTNS operator in Police Station Talai in the year 2015. On 29.07.2017, he entered the contents of the FIR Ext.
PW-16/A in the computer system as per the directions of S.I./S.H.O. Karam Singh. He also issued certificate Ext. PW-16/B regarding FIR .He also entered the report No. 28 on 29.07.2017 Ext. PW-16/C in the computer system, duly supported with certificate Ext. PW-16/D. During his cross-examination by the learned counsel for appellants, he admitted that the copy of certificate supplied to the appellant was without signatures.
37. PW-17 Sh. Ajay Kumar stated that he is a photographer by profession and developed photographs Ext. A-1 to Ext. A-6 from the digital camera of the police.
38. PW-18 HHC Reeta Devi No. 219 stated that on 13.10.2017, she on the instructions of S.I./S.H.O. Shyam Parshad, recorded the supplementary statement of victim under Section 161 Cr.P.C. as per her version. During her cross- examination by the learned counsel for the appellants, PW-18 stated that she recorded the statement of victim at her residence in village Tihari. Her departure was entered in the D.D.R. She denied that ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 27 neither she went to village Tihari nor recorded the statement of the victim.
.
39. PW-19 Dr. Anurag Thakur, Medical Officer, C.H. Ghumarwin, stated that on 30.07.2017, on the basis of application Ext. PW- 19/A, he conducted the medical examination of appellant Arun Kumar and issued MLC Ext. PW-19/B. He also preserved the samples of pubic hair, smegma, nails scrapping, blood sample and semen sample and sealed them with the seal of C.H. Ghumarwin. He also preserved the blood sample of Arun Kumar on FTA card for DNA profiling. The underwear of black colour of appellantwas also preserved. On 20.09.2017, the police produced report of RFSL, Mandi Ext. PW-1/D and after the perusal of the same, his opinion remained the same. He also preserved the samples of pubic hair, smegma, nails scrapping, blood sample and semen sample and obtained the blood sample of Arun Kumar on FTA card for DNA profiling. He has duly identified sealed vial Ext. PB containing pubic hair of appellant Ext. PB-1, sealed vial Ext. PB-2 to Ext. PB-5, sealed envelope Ext. PB-6 containing FTA card Ext. PB-7 and identification form Ext. PB-8. He has also identified sealed parcel Ext. PB-9 containing one black colour underwear Ext.
PB-10.
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 2840. During his cross-examination by the learned counsel for appellant Arun Kumar, he denied that he never examined the .
appellant Arun Kumar and issued the MLC in the presence of the I.O. He has further denied that the sample of pubic hair, smegma, nail, semen sample and blood sample on FTA card for DNA profiling were not of the appellant Arun Kumar.
41. PW-20 Sh. Kushal Kumar, father of the prosecutrix, stated that her daughter was born on 24.05.2000 and he got her date of birth registered at Gram Panchayat Berthin on 28.05.2000. On 29.07.2017 when he returned to his home in the evening at about 4.00 - 4.15 p.m. then he noticed the prosecutrix, his wife and one Smt. Kaushalya Devi of their village talking something serious. On his inquiry his wife told him that one person, owner of the car bearing registration No. HP-xx-xxxx took the prosecutrix to Kasaru and committed sexual assault on her. His wife inquired from Madhu friend of his daughter about the driver of that car and she disclosed his name as Arun Kumar.
Appellant Arun Kumar took the prosecutrix to the house of appellant Meenakshi. He alongwith prosecutrix went to Police Station and lodged FIR. The prosecutrix was taken to hospital for medical examination. On the next day, her statement under Section 164 Cr.P.C. was recorded before the Court at Ghumarwin. The prosecutrix identified the house and room of ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 29 Meenakshi, where appellant Arun Kumar committed sexual assault on her. The prosecutrix also identified the bed sheet on .
which she was sexually assaulted. She also identified one towel with which appellant cleaned his private part after committing sexual assault. The sample seal was also taken on a separate piece of cloth Ext. PW-20/A and seal after use was handed over to him and he duly identified parcel Ext. P-15, bed sheet Ext. P-
16 and towel Ext. P-17.
42. During cross-examination by the learned counsel for appellant Arun Kumar, this witness stated that his marriage was solemnized in the year 1994. He has two children.
His daughter is younger to his son. He denied that his daughter was 19 years old at the time of alleged incident. He denied that one Lucky was classmate of his daughter at Berthin. He denied that they came to know about immoral activities of his daughter from the public. His daughter disclosed the name of the appellant Arun Kumar to her mother for the first time. They talked with police officials for 3-4 hours. He denied that they had long discussion with the police only due to the fact that his daughter was naming different persons. He denied that the appellant saw his daughter in the company of Lucky that is why she intentionally told to the police about his name. On the next day, the police called them to Berthin and from there they ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 30 went to the Court at Ghumarwin. The appellant was arrested by the police on the same day. They went to the house of appellant .
Meenakshi Devi from the Court. They walked about 1 K.M. from road ahead to the house of appellant Meenakshi Devi. There were 3-4 houses near the house of appellant Meenakshi Devi.
He denied that his daughter was having relationship with Lucky.
He admitted that appellant Meenakshi Devi is married and having children.
43. During his cross-examination by the counsel for the appellants, he stated that the house of appellant Arun Kumar is at village Doon, whereas, he is resident of village Tihari. His daughter used to go to college at Jhandutta by bus.
Jhandutta is about 18 K.M. from Berthin, whereas Kasaru village is about 20 K.M. from Jhandutta.
44. PW-21 S.I. Karam Singh stated that he was posted as S.H.O. at Police Station Talai in the year 2017. On 29.07.2017, the complainant Smt. Maya Devi came to police station alongwith prosecutrix, her husband Sh. Kushal Kumar and ward member Smt. Kaushalya Devi and lodged FIR Ext. PW-16/A. He sent the prosecutrix for medical examination through L.C. Mamta to CHC Berthin. He stated about various codal formalities conducted by him during the course of investigation. Appellant Arun Kumar was arrested vide memo Ext. PW-21/D. ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 31 On 02.08.2017, appellant Arun Kumar identified the place of occurrence and got effected the recovery of one .
used condom from a path leading to Kasaru.
45. During his cross-examination by the learned counsel for appellant Arun Kumar, he stated that complainant party reached at police station at about 10.00 p.m. He denied that mother and victim came to police station at 5.00 p.m. He denied that the victim was narrating different stories and also naming other persons. He admitted that accused was arrested at 2.30 a.m. on the intervening night of 29th/30th July, 2017. There are number of shops and locality on Jhandutta Kasaru road and Jhandutta Berthin road. Appellant Arun Kumar made disclosure statement to police on 02.08.2017. There were no injuries on the person of victim when she came to police station alongwith her mother.
46. During his cross-examination by the learned counsel for appellant Meenakshi Devi, he stated that the name of second appellant was disclosed by the victim on 29.08.2017.
There was only one entry to the house of appellant Meenakshi.
The alleged room was on the back side of the first room after the main entry. There was only one door and one window towards the lawn.
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 3247. PW-22 S.I. Shyam Parshad stated that he took charge as S.H.O. Police Staton Talai on 24.09.2019 and on 25.09.2017, .
he moved an application Ext. PW15/A to Head Master, Govt.
Primary School, Tihari and obtained birth certificate Ext. PW-
15/C and copy of register Ext. PW-15/B. He received result of RFSL, Mandi Ext. PW-1/D and thereafter, he prepared charge sheet and presented the same before the Court. He also sent FTA card and identification card vide R.C. Ext. PW-22/X to SFSL, Junga through HHC Amar Singh for DNA profiling. He received report from SFSL, Junga Ext. PW-22/Y through HHC Baldev and made entry within red circle-Z on Ext. PW-23/A in malkhana register. He also presented supplementary challan in the Court.
48. During his cross-examination by the learned counsel for appellant Arun Kumar, he shown his ignorance to the fact that the date of birth of the victim was manipulated by the parents at the time of admission in the school. He also denied that no FTA card was sent to SFSL, Junga.
49. PW-23 M.H.C. Rajesh Kumar stated that on 30.10.2018, he received case property from HHC Baldev No. 205 and he made entry Ext. PW-23/A in the register No. 19. During his cross-examination by the learned counsel for appellant Arun ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 33 Kumar, he denied that Baldev was not authorized to bring the case property.
.
50. PW-24 HHC Baldev Raj No. 205 stated that on 30.10.2018 he brought the result of this case alongwith five parcels from SFSL, Junga. He handed over the same to MHC Rajesh Kumar No.40. During his cross-examination by the learned counsel for the appellants, he stated that he was not deputed specially to bring the case property pertaining to the case.
The prosecution closed their evidence on 01.08.2019.
51. Thereafter statements of the appellants were recorded under Section 313 Cr.P.C. wherein appellant Arun Kumar denied the story of the prosecution in toto but admitted that his medical examination had been conducted. He also stated that he was innocent and implicated in a false case. He had solemnized inter- caste marriage and right from the day of his marriage, the local inhabitants of that area developed ill-will towards him, his family and friends.
52. Appellant Meenakshi also denied the story of the prosecution in toto. She specifically stated that she was innocent and was implicated in a false case. Her husband was the friend of appellant Arun Kumar and that is why she was roped in a false ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 34 case. The complainant wanted to implicate her husband, but he was not at village Kasaru on the alleged date, so the complainant .
party in connivance with police had fabricated a false case. She also stated that she resides in a joint family at Kasaru i.e. with her father-in-law, mother-in-law and other members.
53. The learned Court below after concluding that the prosecutrix was below the age of 18 years and had been enticed away, therefore, it hold that the offences under POCSO Act under Section 363 IPC were established beyond reasonable doubt. As regards the offence under Section 376 IPC, all the contention raised by the appellants herein were rejected by the learned Court below thereby leading to the conviction of the appellants and aggrieved thereby both the appellants have filed the instant appeals.
54. It is vehemently argued by Mr. N. S. Chandel, learned Senior Counsel assisted by Mr. Kshitij Thakur, learned Advocate that the findings accorded by the learned Court below are totally perverse and deserve to be set aside.
55. On the other hand, Mr. Navlesh Verma, learned Additional Advocate General, would vehemently argue that since the appellants have committed a serious and heinous offence that too against a minor, therefore, such findings being based on oral and documentary evidence warrant no interference.
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 35We have heard learned counsel for the parties and have gone through the material placed on record.
.
56. It needs to be observed that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of a sterling quality. The 'sterling witness' should be of a very high quality and calibre whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it on its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused(s). There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 36 persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other .
supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and on the basis of which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attending materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged (See: Rai Sandeep @ Deepu vs. State of NCT 2012 (8) SCC
21).
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 3757. As per the case of the prosecution, when the prosecutrix alongwith her friend PW5 Madhu reached near the .
college at Jhandutta, her friend got down from the car and when she was trying to get down, appellant Arun Kumar locked the car. No hue and cry was made by the prosecutrix nor her friend PW5 Madhu raised any alarm with respect to taking away of the prosecutrix by the appellants. It is the admitted position that both the appellants were strangers to the prosecutirx, but she accompanied them and did not resist. In such circumstances, the conduct of PW5 Madhu in this entire episode appears to be highly improbable when she had not raised an alarm and informed anybody despite her being possessed of mobile phone.
What creates a further doubt is that she maintained silence till the night of 29.07.2017.
58. Similar contentions were raised before the learned Court below but a strange reasoning has been given by the learned Court below to reject such contention by observing that PW5 Madhu did not inform any one as she was under an impression that appellant Meenakshi might be the relative of the prosecutirx and would therefore, return after some time. Still further, the learned Court below had gone to the extent of holding that there was misconception on the part of both PW5 and prosecutrix that appellant Meenakshi might be her relative.
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 38These findings can simply be termed to be perverse as this was neither the case of the prosecution nor so stated even either by .
PW2 or for that matter by PW5.
59. All the aforesaid assumes importance because as per the version of the witnesses one has to cover 8 kms. to reach the place of incident i.e. the house of appellant Meenakshi. It is absolutely unbelievable that the prosecutrix would accompany the strangers for 8 kms and would not complain.
60. Another aspect which makes the statement of the prosecutrix suspicious is that when she for the first time in the Court claimed that her both hands were tied by appellant Arun Kumar and her mouth was closed, such statement was not made at the initial stage either under Sections 154 Cr.PC. or 164 Cr.P.C. and above all no such injury was found on her wrist by the doctor.
61. Further, the prosecutrix nowhere in her statement states that her clothes on the lower part of the body were opened, removed, torn etc. by appellant Arun Kumar, nor does she even say that appellant Arun Kumar had removed the clothes. This aspect cannot be simply ignored as it completely shakes the credibility of the prosecutrix. As per the prosecutirx, appellant Arun Kumar had used condom while committing forcible sexual intercourse with her. If that be so, the prosecutrix ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 39 had ample amount of time when she could have fled away from the spot or resisted his approach given the fact that appellant .
Arun Kumar, even as per the prosecution was not armed with any kind of weapon etc. After all, by the time, appellant Arun Kumar could have put on the condom on his private part, she could have conveniently run away given the fact that it has specifically come in the evidence of PW21 SI Karam Singh that the proseuctirx was hale, hearty and fit when she came to the police station.
62. Further what creates a serious doubt regarding the testimony of the prosecutrix is that if she had specifically stated that she did not possess any mobile phone, but as per the Investigating Officer PW-22, the mobile phone of the prosecutirx Ext. PW6/B was recovered from the car of appellant Arun Kumar though she denied the ownership of the phone. Its altogether a different matter that the prosecutrix denied the ownership of the phone, but the fact remains that as per the prosecution the said phone belonged to the prosecutirx.
63. What further creates a serious doubt that the version of the prosecutrix makes it suspicious is that when she returned from the house of appellant Meenakshi and walked for 800 meters, she did not raise any alarm and obediently accompanied ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 40 appellant Arun Kumar, which is highly improbable and above all cannot under any circumstance termed to be natural.
.
64. Apart from the above, the specific case of the prosecutrix is that appellant Arun Kumar firstly caught hold the prosecutrix from her arm and bolted the door from inside. He then made her lie on the bed and tied her hands with dupatta and when she raised hue and cry, the appellant played the music on deck and thereafter committed rape with her.
65. Surprising enough, the prosecution have though produced in evidence the deck of INTEX make (Ext.P-12) alongwith one speaker (Ext. P-13) but have not placed on record any CD, Cassette and USB drive which may prove that music in the deck as alleged by the prosecutrix was being played.
66. Even though it is vehemently argued by learned counsel for appellant-Arun Kumar that there has been delay in lodging FIR. However, we really find no merit in this contention.
Taking into consideration the nature of the offence, obviously there is bound to be some delay and even otherwise delay in lodging of report may not be itself fatal to the case of the prosecution and has to be considered in the background of facts and circumstances of each case and is a matter of appreciation of evidence by the Court.
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 4167. Here, as per the case of the prosecution, PW3 mother of the prosecutrix alongwith prosecutrix reached the .
police station at 7:00 p.m. and FIR was registered at 10:45 p.m.
68. The Court has to be conscious of the fact that there may be disinclination to inform the family or report the matter to the police due to the apprehension and attitude of the society towards the victim. Therefore, delay in lodging FIR in the instant case is not fatal to the case of the prosecution.
69. As noticed above, there was no injury on the person of the prosecutrix but that is not a sine qua non for deciding whether rape has been committed as this question has to be decided on factual matrix of each case. It is here then the Court would have to consider the medical evidence/DNA.
70. As per PW1 Dr. Deepika Sharma, two vaginal swabs and two vaginal smears were taken, however, the doctor does not state that the blood sample and FTA card were sealed and obviously does not mention the nature of the seal. However, when the samples were examined at FSL, Mandi what is found there is three vaginal swabs and one slide, but as per the doctor only two swabs had been sent and in any case no slide was sent.
71. We further noticed that appellant Arun Kumar was examined and his blood and semen were taken by the doctor alongwith FTA card. However, we find it rather not in tune that ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 42 when the FTA card was taken, then where was the necessity of taking semen and blood sample by the doctor that too on the .
request of the police. Obviously, in such circumstances, the possibility of the semen and blood sample of appellant Arun Kumar being misused by the prosecution cannot be ruled out.
Why we observe so because the conduct of the prosecuting agency has not been above board. As per the case of the prosecution, appellant Arun Kumar had used condom while performing sexual act and once that be so obviously no sperm could have been there in the vaginal swab as admitted by PW1 doctor, especially when it is not the case of the prosecution that there was a tear in the condom. Further, what makes the conduct of the prosecution suspicious is that despite having sent the condom to the laboratory, it did not choose to produce the report on record. It was this evidence alone which could have established the offence beyond reasonable doubt. It is the case of the prosecution that there was blood found on the vaginal swab and if that be so, the same could have been verified from the used condom as that would also have contained the semen of appellant Arun Kumar.
72. Further there are contradictions regarding the place of incident that is the house of appellant Meenakshi. PW2 in her cross-examination has admitted that one has to walk a distance ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 43 of 800 meters to reach the village Kasaru from the main road.
The prosecutrix further on being cross-examined by the learned .
counsel for appellant Meekankshi, herself categorically stated that "the place from where towel and bed sheet were taken into possession was 100-200 meters from the motorable road". She further admitted that there were about 2-3 houses near to the house from where the towel and bedsheet were recovered. PW4 LC Mamata Sharma stated that the house of the appellant Meenakshi was about 1 km from the motorable road on foot.
PW20, the father of the prosecutrix stated that the house of appellant Meenakshi was about 1 km away from the road side.
PW21 also stated that the house of appellant Meenakshi was about 1 km away from the motorable road.
73. Mr. Navlesh Verma, learned Additional Advocate General states that all these points have become irrelevant as the guilt of appellant Arun Kumar stands established through DNA. We find no merit in this contention for the simple reason that the prosecution has failed to prove on record the identification form and only thereafter credence, if any, could have been led to the FTA card and not otherwise. This issue has been considered by this Court in detail in Cr. A. No. 332 of 2019, titled as State of H.P. vs. Pratap Singh, wherein it was observed as under:-
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 44(iv) FTA Card loses its significance for want of identification form.
43. Even the FTA Card, on the basis of which the .
convict has been convicted and sentenced, for want of identification form is of no avail to the prosecution. After- all, it was for the prosecution to have proved on record the identification form and only thereafter credence, if any, could have been led to the FTA Card. In absence of identification form, FTA Card alone had no value whatsoever much less could have been made basis of convicting the convict.
(v) Guidelines of DNA not followed.
44. As regards DNA guidelines, there is nothing on record to prove that these infact have been scrupulously followed by the prosecution and further the issue whether conviction can be based on DNA report alone has been elaborately discussed by the Division Bench of this Court of which one of us (Justice Tarlok Singh Chauhan) was a member in Criminal Appeal No. 321 of 2021 titled Mukesh Kumar vs. State of H.P., decided on 27.12.2022, wherein it was observed as under:
"50.The legislature, in its wisdom, has inserted Section 53A and Section 164A of the Cr.P.C by the Act 25 of 2005 w.e.f. 23.06.2006. Sections 53A and Section 164A of the Cr.P.C are reproduced as under:-
"[53A. Examination of a person accused of rape by medical practitioner.- (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 45 committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in .
good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely;-
(i) the name and address of the accused and
of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the
accused,
(iv) the description of material taken from the
person of the accused for DNA profiling, and".
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted in the report.
(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause
(a) of Sub-Section (5) of that section.]"
"[164A. Medical examination of the victim of rape.-(1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 46 woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted .
by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty- four hours from the time of receiving the information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely:-
(i) r the name and address of the woman and of the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman;
and
(vi) other material particulars in reasonable detail, (3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The report shall specifically record that the consent of the woman or of the person competent, to give such consent on her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the examination shall also be noted in the report.
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 47(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 lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf."
51. Apart from collecting the other physical evidence, as referred above, the police, during the investigation had also collected the blood samples for DNA profiling. The DNA report is Ext. P-Y.
52. r The scope of DNA test has elaborately been discussed by the Hon'ble Apex Court in case titled as Anil alias Anthony Arikswamy Joseph vs. State of Maharashtra (2014) 4 SCC 69. The relevant paragraph 18 of the same is reproduced as under:-
"18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory.
(self emphasis supplied)
53. The procedure, which is to be adopted for collecting the samples as well as the precautions, which are to be taken for conducting the DNA test has elaborately been discussed by the Hon'ble Apex Court in case titled as ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 48 Mukesh and another vs. State (NCT of Delhi) and others, (2017) 6 SCC 1. The relevant paragraphs No. 211 to 228 of .
the same are reproduced as under:-
"211. DNA is the abbreviation of Deoxyribo Nucleic Acid. It is the basic genetic material in all human body cells. It is not contained in red blood corpuscles. It is, however, present in white corpuscles. It carries the genetic code. DNA structure determines human character, behaviour and body characteristics. DNA profiles are encrypted sets of numbers that reflect a person's DNA makeup which, in forensics, is used to identify human beings. DNA is a complex molecule. It has a double helix structure which can be compared with a twisted rope 'ladder'.
212. The nature and characteristics of DNA had been succinctly explained by Lord Justice Phillips in Regina v. Alan James Doheny & Gary Adams[83]. In the above case, the accused were convicted relying on results obtained by comparing DNA profiles obtained from a stain left at the scene of the crime with DNA profiles obtained from a sample of blood provided by the appellant. In the above context, with regard to DNA, the following was stated by Lord Justice Phillips:
"Deoxyribonucleic acid, or DNA, consists of long ribbon-like molecules, the chromosomes, 46 of which lie tightly coiled in nearly every cell of the body. These chromosomes - 23 provided from the mother and 23 from the father at conception, form the genetic blueprint of the body. Different sections of DNA have different identifiable and discrete characteristics. When a criminal leaves a stain of blood or semen at the scene of the crime it may prove possible to extract from that crime stain sufficient sections of DNA to enable a comparison to be made with the same sections extracted from a sample of blood provided by the suspect. This process is complex and we could not hope to describe it more clearly or succinctly than did Lord Taylor C.J. in the case of Deen (transcript: December 21, 1993), so we shall gratefully adopt his description.
"The process of DNA profiling starts with DNA being extracted from the crime stain and also from ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 49 a sample taken from the 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 placing the fragments in a gel and drawing them electromagnetically along a track through the gel. The fragments with smaller molecular weight travel further than the heavier ones. The pattern thus created is transferred from the gel onto a membrane. Radioactive DNA probes, taken from elsewhere, which bind with the sequences of most interest in the sample DNA are then applied. After the excess of the DNA probe is washed off, an X-ray film is placed over the membrane to record the band pattern. This produces an auto radiograph which can be photographed. When the crime stain DNA and the sample DNA from the suspect have been run in r separate tracks through the gel, the resultant auto-radiographs can be compared. The two DNA profiles can then be said either to match or not.""
213. In the United States, in an early case Frye v. United States[84], it was laid down that scientific evidence is admissible only if the principle on which it is based is substantially established to have general acceptance in the field to which it belonged. The US Supreme Court reversed the above formulation in Daubert v. Merrell Dow Pharmaceuticals, Inc.[85] stating thus:
"Although the Frye decision itself focused exclusively on "novel" scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence. Of course, well- established propositions are less likely to be challenged than those that are novel, and they are more handily defended. Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Fed.Rule Evid. 201.
This is not to say that judicial interpretation, as opposed to adjudicative fact finding, does not share basic characteristics of the scientific ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 50 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 and a constant retention of whatever is pure and sound and fine."
B.Cardozo, The nature of the Judicial Process 178, 179 (1921)."
214. The principle was summarized by Blackmun, J., as follows: "To summarize: "general acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence--especially Rule 702--do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.
The inquiries of the District Court and the Court of Appeals focused almost exclusively on "general acceptance," as gauged by publication and the decisions of other courts. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion."
After the above judgment, the DNA Test has been frequently applied in the United States of America.
215. In District Attorney's Office for the Third Judicial District et al. v. William G. Osborne[86], Chief Justice Roberts of the Supreme Court of United States, while referring to the DNA Test, stated as follows:
"DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices. The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure- usually but not always through legislation.::: Downloaded on - 22/07/2024 20:34:06 :::CIS 51
Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-
.
1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue."
216. DNA technology as a part of Forensic Science and scientific discipline not only provides guidance to investigation but also supplies the Court accrued information about the tending features of identification of criminals. The recent advancement in modern biological research has regularized Forensic Science resulting in radical help in the administration of justice. In our country also like several other developed and developing countries, DNA evidence is being increasingly relied upon by courts. After the amendment in the Criminal Procedure Code by the insertion of Section 53A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme. Section 53A relates to the examination of a person accused of rape by a medical practitioner.
217. Similarly, under Section 164A inserted by Act 25 of 2005, for medical examination of the victim of rape, the description of material taken from the person of the woman for DNA profiling is must. Section 53A sub- section (2) as well as Section 164(A) sub-section (2) are to the following effect:
"Section 53A. Examination of person accused of rape by Medical Practitioner.-(1) ... ... ...
(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-
(i) the name and address of the accused and of the person by whom he was brought, ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 52
(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.
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 rher 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 - 22/07/2024 20:34:06 :::CIS 53 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 decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using r this genetic fingerprinting, identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred per cent precise, experts opine." There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high molecular weight DNA, complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See article of Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA profiling and its applications.) But in this case there is nothing to show that such precautions were not taken.
42. Indisputably, the evidence of the experts is admissible in evidence in terms of Section 45 of the Evidence Act, 1872. In cross-examination, PW 46 had stated as under:
"If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population."::: Downloaded on - 22/07/2024 20:34:06 :::CIS 54
220. In Santosh Kumar Singh v. State Through CBI[89], which was a case of a young girl who was raped and murdered, the DNA reports were relied upon by the .
High Court which were approved by this Court and it was held thus:
"71. We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out against the two experts who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Devi v. Poshi Ram (supra). In arriving at its conclusions the trial court was also influenced by the fact that the semen swabs and slides and the blood samples of the appellant had not been kept in proper custody and had been tampered with, as already indicated above. r We are of the opinion that the trial court was in error on this score. We, accordingly, endorse the conclusions of the High Court on Circumstance
9."
221. In Inspector of Police, Tamil Nadu v. John David[90], a young boy studying in MBBS Course was brutally murdered by his senior. The torso and head were recovered from different places which were identified by the father of the deceased. For confirming the said facts, the blood samples of the father and mother of the deceased were taken which were subject to DNA test. From the DNA, the identification of the deceased was proved. Paragraph 60 of the decision is reproduced below:
"60. ... The said fact was also proved from the DNA test conducted by PW 77. PW 77 had compared the tissues taken from the severed head, torso and limbs and on scientific analysis he has found that the same gene found in the blood of PW1 and Baby Ponnusamy was found in the recovered parts of the body and that therefore they should belong to the only missing son of PW1."
222. In Krishan Kumar Malik v. State of Haryana[91], in a gang rape case when the prosecution did not conduct DNA test or analysis and matching of semen of the ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 55 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 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 r with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences."
223. In Surendra Koli v. State of Uttar Pradesh and others[92], the appellant, a serial killer, was awarded death sentence which was confirmed by the High Court. While confirming the death sentence, this Court relied on the result of the DNA test conducted on the part of the body of the deceased girl. Para 12 is reproduced below:-
"12. The DNA test of Rimpa by CDFD, a pioneer institute in Hyderabad matched with that of blood of her parents and brother. The doctors at AIIMS have put the parts of the deceased girls which have been recovered by the doctors of AIIMS together. These bodies have been recovered in the presence of the doctors of AIIMS at the pointing out by the accused Surendra Koli. Thus, recovery is admissible under Section 27 of the Evidence Act."
224. In Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State of Maharashtra[93], the accused was awarded death sentence on charges of killing large number of innocent persons on 26th November, 2008 at Bombay. The accused with others ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 56 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:
"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 r matched the DNA profile from a sweat stain detected on one of the jackets. A chart showing the matching of the DNA of the different accused with DNA profiles from stains on different articles found and recovered from the Kuber is annexed at the end of the judgment as Schedule III."
225. In Sandeep v. State of Uttar Pradesh[94], the facts related to the murder of pregnant paramour/girlfriend and unborn child of the accused. The DNA report confirmed that the appellant was the father of the unborn child. The Court, relying on the DNA report, stated as follows:
"67. In the light of the said expert evidence of the Junior Scientific Officer it is too late in the day for the appellant Sandeep to contend that improper preservation of the foetus would have resulted in a wrong report to the effect that the accused Sandeep was found to be the biological father of the foetus received from the deceased Jyoti. As the said submission is not supported by any relevant material on record and as the appellant was not able to substantiate the said argument with any other supporting material, we do not find any substance in the said submission. The circumstance, namely, the report of DNA in having concluded that accused Sandeep was the biological father of the ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 57 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 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 r mentioned that the deceased prosecutrix was about 16 years of age. So far as the analysis report of the material sent and the DNA report is concerned, it revealed that semen of the appellant was found on the vaginal swab of the deceased. The clothes of the deceased were also found having appellant's semen spots. The hair which were found near the place of occurrence were found to be that of the appellant."
227. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another[96], the appellant, father of the child born to his wife, questioned the paternity of the child on the ground that she did not stay with him for the last two years. The Court directed for DNA test. The DNA result opined that the appellant was not the biological father of the child. The Court also had the occasion to consider Section 112 of the Evidence Act which raises a presumption that birth during marriage is conclusive proof of legitimacy. The Court relied on the DNA test holding the DNA test to be scientifically accurate. The pertinent observations are extracted below:
"19. The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 58 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.
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 r the conclusiveness of Section 112 of the Act."
The judgment has to be understood in the factual scenario of the said case. The said judgment has not held that DNA test is to be ignored. In fact, this Court has taken note of the fact that DNA test is scientifically accurate. We hasten to add that in none of the cases referred to above, this Court confronted with a situation in which a DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act. In view of what we have observed above, these judgments in no way advance the case of the respondents."
228. From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non- acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted."
(self emphasis supplied)
54. The Hon'ble Apex Court, in a recent decision in case titled as Pattu Rajan vs. State of Tamilnadu (2019) 4 SCC 771 has again discussed the evidentiary value of the DNA report, in the light of the provisions of Section 45 of the ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 59 Evidence Act. The relevant paragraphs No. 49 to 52 of the same are reproduced as under:-
.
"49. One cannot lose sight of the fact that DNA evidence is also in the nature of opinion evidence as envisaged in Section 45 of the Indian Evidence Act. Undoubtedly, an expert giving evidence before the Court plays a crucial role, especially since the entire purpose and object of opinion evidence is to aid the Court in forming its opinion on questions concerning foreign law, science, art, etc., on which the Court might not have the technical expertise to form an opinion on its own. In criminal cases, such questions may pertain to aspects such as ballistics, fingerprint matching, handwriting comparison, and even DNA testing or superimposition techniques, as seen in the instant case.
50. The role of an expert witness rendering opinion evidence before the Court may be explained by referring to the following observations of this Court in Ramesh Chandra Agrawal v. Regency Hospital Limited & Ors:
"16. The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of an expert cannot be disputed..."
(emphasis supplied)
51. Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 60 conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts. (See The .
State (Delhi Adminstration) v. Pali Ram, (1979) 2 SCC 158; State of H.P. v. Jai Lal & Ors., (1999) 7 SCC 280; Baso Prasad & Ors. v. State of Bihar, (2006) 13 SCC 65; Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors. (supra); Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors., (2010) 2 SCC (Cri) 299).
52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party."
(self emphasis supplied)
55. The Hon'ble Apex Court in a recent decision in a case titled as Manoj and others vs. State of Madhya Pradesh 2022(9) scale has elaborately discussed the evidentiary value of the DNA report and the procedure for collecting the samples. The relevant paragraphs No. 134 to 141 of the same are reproduced as under:-
134. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata40 was relied upon. The relevant extracts of the article are reproduced below:
"Deoxyribonucleic acid (DNA} is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with Intercalated proteins.::: Downloaded on - 22/07/2024 20:34:06 :::CIS 61
Twenty- three pairs of chromosomes present In each nucleated cells and an individual Inherits 23 chromosomes from mother and 23 from father .
transmitted through the ova and sperm respectively. At the time of each cell division, chromosomes replicate and one set goes to each daughter cell. All Information about Internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases: Adenine (A), Guanine (G}, Thymine (T} and Cytosine (C) along with sugar- phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have exactly same DNA but it varies from individual to Individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA} found in large number of copies in the mitochondria is circular, double stranded, 16,569 base pair in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also being in large number of copies than nuclear DNA, it can be used in the analysis of degraded samples.
Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures. Only 0.1 % of DNA (about 3 million bases} differs from one person to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples.
................................................
DNA Profiling Methodology DNA profile is generated from the body fluids, stains, and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be established. DNA Profiling Is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed Genetic Markers. The current genetic markers of choice for forensic purposes are Short ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 62 Tandem Repeats (STRs). Analysis of a set of 15 STRs employing Automated DNA Sequencer gives a DNA Profile unique to an Individual (except .
monozygotic twin). Similarly, STRs present on Y chromosome (Y- STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of azoo11permic or vasectomized" male. Cases In which DNA had undergone 40 DNA profiling in Justice Delivery System, Central Forensic Science Laboratory, Directorate of Forensic Science, Kolkata (2007).
environmental stress and biochemical degradation, min lSTRs can be used for over routine STR because of shorter amplicon size.
DNA Profiling is a complicated process and each sequential step involved in generating a profile can vary depending on the facilities available In the laboratory. The analysis principles, however, remain similar, which include:
1. isolation, purification & quantitation of DNA
2. amplification of selected genetic markers
3. visualising the fragments and genotyping
4. statistical analysis & interpretation.
In mt DNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples:....
Statistical Analysis Atypical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison:
1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched.::: Downloaded on - 22/07/2024 20:34:06 :::CIS 63
2) Exclusion: If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources.
.
3) Inconclusive: The data does not support a conclusion Of the three possible outcomes, only the "match" between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA profile in a population.
In case of paternity/maternity testing, exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci possible mutations should be taken Into consideration while reporting a r match. Paternity of Maternity Indices and Likelihood Ratios are calculated further to support the match.
Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, It will not meet the legal and scientific requirements for admissibility in. a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be Identified, preserved, packed and sent for DNA Profiling." (self emphasis supplied)
135. In an earlier judgment, R v Dohoney & Adams41 the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials: (1) the scientist should adduce the evidence of the DNA 41 1997 (1) Crl App Rep 369 comparisons ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 64 together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence .
details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.
136. The Law Commission of India in its report42, observed as follows:
"DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not 'match', then this will prove a lack of identity r between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 100,000: This is described as the 'random occurrence ratio' (Phipson 1999).
Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law."
137. In Dharam Deo Yadav v. State of UP43 this court discussed the reliability of DNA evidence in a criminal trial, and held as follows:
"The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made-up of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines.....DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 65 infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of .
crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory." 42 185th Report, on Review of the Indian Evidence Act, 2003 43 (2015) 5 SCC 509.
138. The US Supreme Court, in District Attorney's Office for the Third Judicial District v. Osborne, 44 dealt with a post-conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that "Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others."
139. Several decisions of this court - Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh45, Santosh Kumar Singh v. State Through CBI 46, Inspector of Police, Tamil Nadu v. John David 47, Krishan Kumar Malik v. State of Haryana48, Surendra Koli v. State of Uttar Pradesh & Ors 49, and Sandeep v. State of Uttar Pradesh50, Rajkumar v. State of Madhya Pradesh51 and Mukesh & Ors. v. State for NCT of Delhi & Ors. 52 have dealt with the increasing importance of DNA evidence. This court has also emphasized the need for assuring quality control, about the samples, as well as the technique for testing- in Anil v. State of Maharashtra53 ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 66 "7. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living .
organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, 44 557 U.S. 52 (2009) 45 (2009) 14 SCC 607 46 (2010) 9 SCC 747 47 (2011) 5 SCC 509 48 (2011) 7 SCC 130 49 (2011) 4 SCC 80 50 (2012) 6 SCC 107 51 (2014) 5 SCC 353 52 (2017) 6 SCC 1 53 (2014) 4 SCC 69 but variance in a particular result depends on the quality control and quality r procedure in the laboratory."
140. This court, in one of its recent decisions - Pattu Rajan v. The State of Tamil Nadu54, considered the value and weight to be attached to a DNA report:
"33. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party."
141. This court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance, was to corroborate. This court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 67 value of such evidence has to vary from case to case." (Self emphasis supplied).
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56. It is the basic principle of criminal jurisprudence that the accused is presumed to be innocent until and unless his guilt is proved by the prosecution by leading the cogent and convincing evidence. The prosecution is duty bound to prove the guilt of the accused beyond any shadow of doubt. In other words, it can be said that the onus to prove the guilt of the accused beyond any shadow of doubt is always upon the prosecution.
58. The prosecution, in the present case, has to prove the guilt of the accused by leading oral as well as scientific evidence. The learned trial Court has convicted the accused on the basis of the DNA report as well as the on the basis of presumption under Section 29 of the POCSO. The report of DNA Ext. P-Y has simply been tendered in evidence. It has been held by the Hon'ble Apex Court in Pattu Rajan's case supra (para 49) that the DNA evidence, is in the nature of opinion evidence as per Section 45 of the Indian Evidence Act. This view has again been reiterated in the Manoj's case cited supra, wherein, it has been held that the evidence in the shape of DNA report is "an opinion" and also held that the probative value of such evidence has to vary from case to case. The science of DNA is at a developing stage, as such, it will be risky to solely rely upon the DNA report Ext. P-Y in the absence of any substantive piece of evidence. The positive evidence regarding the fact that all the precautions have been taken by the doctors as well as by the police officials regarding the preservations of the DNA samples."
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 6874. Judging in light of the aforesaid exposition of law, it would be noticed that PW19 Dr. Anurag Thakur, who examined .
the appellant Arun Kumar has not stated anything regarding the FTA card number and the FTA card being kept in safe condition right from the obtaining of blood sample till the same has been submitted to the authorities for DNA profiling. Rather, a specific evidence has come on record in the statement of PW10 MHC Ramesh Kumar that all these FTA cards of the victim as well as appellant Arun Kumar had been deposited in the malkhana and in such circumstances no reliance can be placed on the DNA report.
75. As regards appellant Meenakshi, we really wonder how the learned Court below could have convicted her under Section 17 of the POCSO Act and under Sections 342, 363 read with Section 109 IPC given the fact that there is not even a shred of evidence against appellant Meenakshi.
76. In order to hold a person guilty for the offence punishable under Section 363 of IPC, it must be proved that the accused/appellant played an active part in taking away a female out of keeping of her guardian without the consent of the guardian either prior to or at the time of taking away out of a guardianship either directly or using force or threat against the female or injecting into a mind some irresistible allurement or ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 69 temptation which may impel her to leave the custody of her guardian.
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77. As already observed above, there is virtually no material on record to substantiate the case of the prosecution as regards the prosecutrix having been forcibly taken away by either or both of the appellants from the lawful custody of the guardian. If that would have been so, then obviously PW5 Madhu who claimed that when the prosecutrix "was about to get down from the car, the accused Meenakshi started talking to her and accused Arun Kumar drove the car without dropping the prosecutrix", she would have made hue or cry or at least would have informed the parents and other relatives of the prosecutrix.
The further story concocted by the prosecution that she was under impression that Meenakshi might be the relative of the prosecutrix and may return after sometime, it is nothing but a cock and bull story. After all, relatives meet in a different fashion and are normally introduced at least to the friends.
78. That apart, all the allegations levelled by the prosecution against appellant Meenakshi are not only demeaning but are totally unsubstantiated, when they claim that she is a abettor to the offence.
79. Section 107 of IPC defines 'abetment' of things which reads as under :-
::: Downloaded on - 22/07/2024 20:34:06 :::CIS 70"S. 107. A person abets the doing of a thing, who First.- Instigates any person to do that thing; or .
Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aid, by any act or illegal omission, the doing of that thing.
Explanation 1.- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
As noted, this Section contains the definition of 'abetment' having three clauses, and if an act of a person falls within the meaning of any of them, it would amount to 'abetment'. A person abets the doing of a thing who intentionally aids, by any act or illegal omission the doing of that thing. The scope of the word 'aids' has been defined in Explanation-2. It only explains what is meant by aiding simplicitor. This means that an act which merely amounts to aiding the commission of offence is not 'abetment'. The aiding must snow-ball into "intentionally aiding" the doing of a thing. The commission of the act must be the dominant intention of the person who aids it. Then only it can be said that he "intentionally' aided it. If there is community of interest between the aiding persons and the one who commits the ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 71 offence, there is possibility to draw the inference that the dominant intention was to aid the doing of that particular act. If the person only knows or has only the reason to .
believe that his act would facilitate the commission of offence, it cannot be said that his dominant intention was there. Abetment by aiding or instigating necessarily means some active suggestion or support or stimulation to the commission of the offence itself. If the offence had already been complete before anything was done by the alleged abettor, any subsequent action of his which might, in any way, help the main offender, will not be abetment within Section 107, being an accessory after the fact which is no offence under the Indian law.
80. An inference regarding common intention has to be drawn from the acts or conducts of the accused alongwith other relevant circumstances and only when such inference having been drawn with certain degree of assurance, the question of culpable liability would arise, common intention has to be distinguished from same or similar intention.
81. Here, there is not even an iota of evidence to point out the role played by appellant Meenakshi, if any. It is rather shocking that the learned Court has concluded that there is sufficient evidence on record that appellant Meenakshi firstly forces the prosecutrix to sit on the front seat with appellant Arun Kumar, which is not even a case of the prosecution. The further finding that "accused Arun Kumar also came to the house of the accused Meenakshi when she offered him tea and left ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 72 prosecutrix and Arun Kumar alone in the room' which in itself cannot be a ground to implead appellant Meenakshi as accused.
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82. The next circumstance is that appellant Meenakshi did not come alongwith appellant Arun Kumar when he dropped prosecutrix at Berthin which means that appellant Meenakshi deceitfully took the prosecutrix to her house is also perverse given the fact that it is the specific case of the prosecutirx herself in her statement that while she was leaving the house alongwith appellant Arun Kumar, Meenakshi was cutting grass outside. The prosecutrix did not choose to complain to appellant Meenakshi as natural conduct would call, rather she calmly walked and chose not to complain and walked more than 1 km to rach Berthin Bazar.
83. No woman that too in the village would intentionally aid a person, who is simply a friend of her husband in taking the prosecutrix and omitting to stop the accused from doing the illegal act. As repeatedly observed above, such findings are absolutely perverse and there is no material whatsoever led by the prosecution to substantiate such findings. The Court cannot be unmindful and ignorant of the fact that the same standards to evaluate the evidence have to be applied for both the accused as well as victim as the prosecutrix is a girl so is appellant Meenakshi a woman having a young child and it is impossible to ::: Downloaded on - 22/07/2024 20:34:06 :::CIS 73 believe or even comprehend that she would aid and abet or even be a privy to the acts as attributed to appellant Arun Kumar.
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84. In view of the aforesaid discussion and for the reasons stated above, we find merit in both the appeals and the same are accordingly allowed. The judgment of conviction and sentence as passed by the learned Special Judge, Bilaspur, District Bilaspur in Sessions Trial No. 30/7 of 2017, titled as State of H.P. vs. Arun Kumar & Anr. is accordingly set aside. Appellants Arun Kumar and Meenakshi Devi alias Meenu are ordered to be set free forthwith, if not required in any other case.
85. The Registry is directed to prepare release warrants of the appellants. In view of the provisions of Section 437A Cr.P.C., each of the appellants is directed to furnish personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned trial court, which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant of the leave, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
22nd July, 2024 Judge
(Sanjeev)
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