Himachal Pradesh High Court
Ramesh Chand vs State Of Himachal Pradesh on 30 October, 2018
Bench: Sanjay Karol, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 643 of 2017 Reserved on: 12.10.2018 Decided on: 30.10.2018 .
__________________________________________________________ Ramesh Chand .....Appellant.
Versus State of Himachal Pradesh ......Respondent.
__________________________________________________________ Coram The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
__________________________________________________________ For the appellant: Mr. Ashwani Dhiman, Advocate.
For the respondent/State: Mr. Vikas Rathore, Additional Advocate General with Mr. J.S. Guleria, Deputy Advocate General.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant/accused/convict (hereinafter referred to as "the accused"), laying challenge to judgment dated 05.07.2017, passed by learned Special Judge, Bilaspur, District Bilaspur, H.P., in Sessions Trial No. 1/7 of 2016, C No. 1 of 2016, whereby the accused was convicted and sentenced for the commission of offences punishable under Sections 376 and 506(ii) of Indian Penal Code, 1860 (for short "IPC") and Section 6 of the Protection of children from Sexual Offences Act, 2012 (hereinafter referred to as "POSCO Act").
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 30/10/2018 22:58:24 :::HCHP -2-2. The factual matrix of the prosecution case can tersely be summarized as under:
On 22.08.2015, in the morning hours, within the .
premises of District Government Hospital, Bilaspur, the accused, being in the management staff of the hospital committed rape on the prosecutrix, who was less than 18 years of age. The accused also intimidated the prosecutrix to eliminate her and her family members, in case she divulge the incident to anyone. On the anvil of the statement of the prosecutrix made to the police under Section 154 Cr.P.C. a case was registered against the accused and the investigation ensued. The prosecutrix, in her statement made under Section 154 Cr.P.C., stated that she is 13 years old and studying in 9th standard in Government High School, Bhager. On 22.08.2015, at the instance of her mother, who was ill, she went to Government Hospital, Bilaspur, for bringing medicines for her mother. The prosecutrix has further stated that she was acquainted with the accused, as she used to tie 'rakhi' to the son of the accused and he is resident of their village. As per the prosecutrix, the accused took her to a room in the hospital, where he committed rape on her and he threatened her to do away with her life in case she divulges the incident to anyone. The prosecutrix has further stated that on 12.08.2015 and 17.08.2015 one Kuldeep also assaulted her and the ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP -3- matter was reported to the police, but on that day, due to fear, she could not lodge report against the accused. Police got the accused medically examined and his medico legal certificate was obtained.
.
Police recorded the disclosure statement of the accused made under Section 27 of the Indian Evidence Act and the accused got identified the spot of occurrence in presence of Shri Sohan Lal and Shri Madan Gopal. The prosecutrix was also medically examined and her medico legal certificate was also obtained. Police prepared the spot maps and photographs of the spot were clicked. Records qua date of birth of the prosecutrix were obtained from Secretary, Gram Panchayat, Amarpur, and Headmaster, Government High School, Bhager. After receipt of the report of the forensic analysis of the samples and completing all other formalities, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as many as twenty two witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded not guilty.
The accused did not lead any evidence in his defence.
4. The learned Trial Court, vide impugned judgment dated 05.07.2017, convicted the accused for the offence punishable under Section 6 of POCSO Act and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.10,000/-. In default of payment of fine the accused was ordered ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP -4- to undergo imprisonment for six months. Under Section 376 IPC the accused was convicted and sentenced to rigorous imprisonment for a period of ten years and to pay fine of Rs.10,000/-. In default of .
payment of fine, he was ordered to undergo further imprisonment for six months. The accused was also convicted under Section 506(II) IPC and sentenced to undergo rigorous imprisonment for a period of six months and fine of Rs.5,000/-. In default of payment of fine he was ordered to undergo further imprisonment for three months, hence the present appeal maintained by the appellant (accused/convict).
5. Shri Ashwani Dhiman, learned Counsel for the appellant, has argued that the appellant has been falsely implicated in the case in hand and the judgment, as passed by the learned Trial Court, is without appreciating the evidence and the law to its true and correct perspective. He has further argued that the DNA profiling was not scientific and the prosecution has failed to prove the fact that the DNA was of the appellant and taken as per the procedure prescribed.
He has argued that in the present case, the prosecution has used the investigation made in another case, which is not permissible, so the appellant be acquitted, as the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. Shri Dhiman has further argued that there is no evidence on record to ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP -5- remotely show that the appellant was working in the hospital.
Conversely, the learned Additional Advocate General has argued that at the relevant time the appellant was working as ambulance driver .
and he lodged a false complaint with regard sexual offence on the prosecutrix against another person, but when the DNA profiling was done, it came to the notice that it was the appellant who committed rape on the prosecutrix. He has further argued that subsequently FIR was registered against the appellant and separate investigation was carried out and the prosecution successfully proved the guilt of the accused by leading cogent and reliable evidence. He has further argued that the prosecution has proved the guilt of the appellant (convict) conclusively and beyond the shadow of reasonable doubts, so the judgment, as passed by the learned Trial Court, needs no interference by this Court, so the appeal be dismissed.
6. In rebuttal, Shri Dhiman, the learned Counsel for the appellant, has argued that the investigation carried out by the prosecution is marred by infirmities, so the present appeal be allowed and the appellant be acquitted. He has further argued that the report of the expert is merely piece of corroborative evidence and not conclusive proof of fact. In order to draw lateral support to his arguments he has relied upon the following judicial pronouncements:
::: Downloaded on - 30/10/2018 22:58:24 :::HCHP -6-1. Mohd. Imran Kahan vs. State (Govt. of NCT of Delhi), 2011(4) Criminal Court Cases 398 (SC):
2. State of H.P. vs. Mehboon Khan and other connected matters, Latest HLJ 2014 (HP) (FB) 900; & .
3. Rajiv singh vs. State of Bihar & another, Criminal Appeal No. 1708 of 2015 (arising out of SLP (Crl.) No. 8111 of 2014.
7. In order to appreciate the rival contentions of the parties we have gone through the record carefully.
8. Avowedly, in sexual offences medical evidence is crucial aid to Courts to convict or acquit the accused, however, the same cannot at all be read in isolation without important ancillary material. In the case in hand, in the morning of 05.07.2017 the prosecutrix was allegedly raped by the accused in District Hospital, Bilaspur. As per the prosecution case, the prosecutrix went to the hospital for bringing medicines for her mother. So, the testimony of the prosecutrix, who was examined as PW-2, is very vital in the case in hand.
9. The prosecutrix was examined as PW-7. She deposed that she is studying in 9th class and her date of birth is 04.06.2002.
She has further deposed that in the morning of 22.08.2015 she went to R.H. Bilaspur, for bringing medicines to her mother. As per the version of the prosecutrix, the accused, who is her uncle, took her in a room in the upper storey of the hospital building and she handed ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP -7- over to him prescription slip and money for the medicines. The accused told her to sit in the room and that he will bring the medicines, but the accused bolted the door from inside, laid her on .
the bed and committed sexual assault on her. As per the prosecutrix, the accused also threatened her to kill her and her parents in case she discloses the incident to anyone. The accused also gagged her mouth. Subsequently, the prosecutrix came back to her home and earlier she could not report the matter owing to fear.
As per the testimony of the prosecutrix, police got her medically examined in R.H. Bilaspur and after couple of months police made inquires from her. Her statement, Ex. PW-1/A, was recorded by the police and she was taken by the police to the room of the hospital, where the accused committed rape on her. Police clicked photographs of the spot, which are Ex. PA-1 to Ex. PA-8, and she was medically examined. The prosecutrix, in her cross-examination, has admitted that on 22.08.2015 she went to Police Station, Ghumarwin, but did not divulge that the accused committed rape on her due to fear. She did not divulge even before the Magistrate that the accused committed rape on her while her statement under Section 164 Cr.P.C. was being recorded. The prosecutrix has deposed that another case was against Kuldeep Singh. She did not divulge the fact qua rape by the accused to anyone outside the ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP -8- hospital or in the bus. On 22.08.2015 she went to hospital and came back home alone.
10. PW-2, Dr. N.K. Sankhyan, medically examined the .
accused on 10.11.2015. He has preserved the blood of the accused in EDTA tube and also on FTA card for DNA profiling and other tests.
As per the opinion of this witness, there was nothing suggestive of the fact that the accused could not perform sexual intercourse. PW-
2 issued medico legal certificate of the accused, which is Ex. PW-
2/B. As per report of SFSL, Junga, Ex. PW-2/C, blood and semen were not detected on the underwear of the accused. This witness, in his cross-examination, has deposed that he handed over the blood sample in a sealed condition to the police.
11. PW-21, Dr. Bandana Gautam, deposed that on 22.08.2018 the prosecutrix, who was 13 years of age, was brought by the police before her for her medical examination with alleged history of sexual assault. She medically examined the prosecutrix and observed as under:
"1. There was no scar/injury/swelling noted on face, neck, breasts and around the vaginal region,
2. Secondary sexual organs well developed,
3. Hymen was not intact,
4. No undergarments were worn by the victim at the time of examination."
She preserved vaginal swab, slides, FTA card for DNA profiling, pubic ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP -9- hair and all the items were sealed with seal of C.H. Ghumarwin and handed over to Police for chemical analysis. This witness issued medico legal certificate, which is Ex. PW-21/B. On receipt of report, .
Ex. PW-21/C, from RFSL, Mandi, she opined that possibility of intercourse could not be ruled out. However, she reserved her final opinion till the final report of DNA profiling. She did not find any injury on the person of the prosecutrix when she medically examined her. The samples were preserved and handed over by her to lady Constable Sarita on the same day.
12. PW-17, Dr. Anupam Sharma, deposed that the prosecutrix was referred to her for determination of her age. She advised X-ray of right shoulder, elbow and wrist and X-ray pelvis AP view. As per this witness, after the forensic opinion, the age of the prosecutrix was found about thirteen years and half plus minus half year.
13. In the case in hand the police booked the accused only after receipt of DNA profiling report. DNA report is Ex. PW-19/A, which reveals as under:
"1. the DNA profile obtained from Exhibit-1 (vaginal swab, prosecutrix) matched completely with the DNA profile obtained from Exhibit-1b (blood sample of same victim, i.e., prosecutrix) recevied vide file No. 2136/SFSL/DNA(293)/15,docket No. 8856/5a dt 30.09.15 P.S. Ghumarwin.
2. The male DNA profile obtained from Exhibit-1a (vaginal swab, prosecutrix) ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP
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received vide file no.
2136/SFSL/DNA(293)/15, docket No.
8856/5a dt 30.09.15 P.S. Ghumarwin
matched completely with the DNA profile
obtained from Exhibit-4 (Blood sample,
Ramesh Chand)."
.
Thus, DNA profiling report, Ex. PW-19/A, clearly goes against the accused. Now, it is to be seen that the samples sent for carrying out DNA profiling were of the accused and that of the prosecutrix and the same were drawn by the medical expert and safely handed over to the police and lastly the police deposited the same in the laboratory without tampering the same.
14. PW-21, Dr. Bandana Gautam, categorically deposed that she preserved vaginal swab, slides, FTA card for DNA profiling, pubic hair and sealed the same with C.H. Ghurmarwin seal and handed over it to the police for chemical analysis. Another key witness in the present case is PW-16, HHC Kewal Kishore. He has specifically deposed that on 17.11.2015 he took two sealed parcels, which were sealed with seals of R.H. Bilaspur, two sealed envelopes, specimen of seals used vide R.C. No. 316/15, dated 16.11.2015, to SFSL, Junga.
On his return, he handed over the receipt to MHC. PW-4, HC Mohinder Singh, MHC Police Station, Ghumarwin, deposed that on 22.08.2015 LC Sarita Devi deposited with him a sealed envelope, which was with seals of C.H. Ghumarwin. He made entry to this effect in the malkhana register, copy of which is Ex.PW-4/A. This ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP
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witness has further deposed that on 26.09.2015 LC Sarita Devi brought RFSL report, Ex. PW-1/H, alongwith the case property and the same were deposited with him in the malkhana. On 30.09.2015 .
he sent a sealed envelope, which was sealed with two seals of seal of C.H. Ghumarwin and two seals of RFSL, Mandi, which were stated to have contained blood sample, vaginal swab, slide, pubic hair, FTA card of the victim, a sealed parcel sealed with seven seals of seal 'M' and a seal of RFSL, Mandi, parcels containing blood sample and nails of the accused for being deposited with SFSL, Junga, for DNA profiling. As per this witness, after deposit of the parcels at SFSL, Junga, Constable Sunil Kumar deposited the receipt with him, copy of RC is Ex. PW-1/G.
15. Now, it is to be seen whether the accused perpetrated the crime or not. The testimony of PW-10 is germane. PW-10, Shri Sohan Lal, Driver in the Health Department, deposed that accused, in his presence, showed the room where he committed rape on the prosecutrix. As per this witness, to this effect police prepared memo, Ex. PW-10/A, which bears his signatures and the signatures of witness Madan Gopal. As per this witness, accused was serving as Ambulance driver at Regional Hospital. Thus, it is clear from the deposition from PW-10 that the accused identified the spot of occurrence in his presence where he had committed sexual ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP
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intercourse with the prosecutrix, who was minor. The accused did not dispute the statement made by PW-10, so it is rather accepted by the accused that at the relevant time he was serving as Ambulance .
driver at R.H. Bilaspur.
16. Admittedly, one of the focal point in the case in hand is the age of the prosecutrix and as per the prosecution she was born on 04.06.2002, as such she was less than 18 years of age at the time of occurrence. The accused has mainly endeavored hard to dispute the age of the prosecutrix. As per the testimony of the prosecutrix her date of birth is 04.06.2002. The prosecutrix stepped into the witness-box on 02.09.2016 and she has categorically deposed that she is student of 9th class in Government Senior Secondary School, Amarpur. The accused has not specifically disputed the age of the prosecutrix while the prosecutrix was cross-examined. The prosecution, in order to strengthen its case examined PW-12, Shri Vivek Kumar, TGT, Government High School Chuwari, Tehsil Ghumarwin. As per this witness, police vide application, Ex. PW-
12/A, requested him for providing record qua date of birth of the prosecutrix. This witness has further deposed that as per the school record the date of birth of the prosecutrix is 04.06.2002. Now, the tentative age of the prosecutrix has been fortified by the medical evidence. PW-2, Dr. N.K. Sankhyan, Medical Officer, has deposed ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP
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that on 20.12.2012 he examined X-ray films, Ex. PW-2/D to Ex. PW-
2/F, of the prosecutrix and he found that acromion and corocoid appeared, but acromion not fused. He has further deposed that that .
head of humerous was not fused - 13 to 14 years. All epiphysis at elbow appeared and fused-more than 13 years. Epiphysis of radious and ulna at wrist not fused, pisiform was present - 12 TO 15 years.
Iliac crest started appearing. Head of femur and lessor trochonter not fused. Epiphysis of ishial tuberosity not appeared. Triratriate cartilage is almost fused - about 13 to 14 years. The cumulative effect of the deposition of PW-2, Dr. N.K. Sankhyan, is that in any case the age of the prosecutrix at the time of occurrence was about thirteen and half years plus minus half year. PW-2 has been cross-
examined at length and he has deposed that he considered all the conditions, i.e., fusion of epiphysis depends upon the environmental condition and nutrition and hereditary etc. at the time of giving opinion qua the age of the prosecutrix. Thus, in view of the statement of PW-2, Dr. N.K. Sankhyan, Medical Officer, P.G. Forensic Medicines and Toxicology, lucidly shows that in any case age of the prosecutrix at the time of the occurrence was less than 14 years after considering plus minus of half year. PW-17, Dr. Anupam Sharma, who conducted X-ray examination of the prosecutrix also opined that the prosecutrix was about thirteen years of age half plus ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP
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and minus half year.
17. As per the prosecution story, the accused made a disclosure statement and in order to prove this fact the prosecution .
has examined PW-9, Constable Chanchal Singh. He has deposed that on 12.11.2015 accused made a disclosure statement that he could identify the place where he had committed rape on the prosecutrix. The disclosure statement is Ex. PW-9/A, which is signed by him and by Constable Sandeep Kumar.
18. The prosecutrix (PW-7) deposed that the accused, who is known to her, as she used to tie rakhi to the son of the accused, took her to a room when she had gone to the hospital for bringing medicines to her mother. She has further deposed that the accused committed sexual intercourse with her and thereafter he threatened her to do away with her life in case she divulges the incident to anyone.
19. The blood of the accused was taken by PW-2, Dr. N.K. Sankhyan, and it was sealed by him and thereafter the same remained in safe custody, so there is nothing to doubt DNA profiling report, Ex. PW-19/A.
20. The versions of other prosecution witnesses, which are formal in natures, can be succinctly looked into. PW-1, Inspector Ashok Chauhan, deposed that he was investigating a matter which ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP
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was registered vide FIR No. 179 of 2015 wherein the prosecutrix herein alleged that one Kuldeep Singh inserted fingers in her private part/vagina. He has further deposed that after receipt of report from .
chemical examiner it was noticed that semen was found on the vaginal swab and slides of the prosecutrix, so the prosecutrix was interrogated on 10.11.2015 and her statement was recorded under Section 154 Cr.P.C., which is Ex. PW-1/A, in the presence of her mother in their house. On the anvil of this statement, FIR was registered.
21. PW-4, HC Mohinder Singh, the then MHC Police Station, Ghumarwin, deposed that on 22.08.2015, Lady Constable Sarita Devi deposited with him a sealed envelope, having seals of C.H. Ghumarwin. He incorporated entry to this effect in the malkhana registered, copy whereof is Ex. PW-4/A. This witness has further deposed that on 26.09.2015, Lady Constable Sarita Devi brought result (Ex. Pw-1/H) from RFSL, Mandi, alongwith the case property and deposited the same in the malkhana. As per the testimony of this witness, on 30.09.2015 he sent the sealed envelope and two seals of RFSL, Mandi, which stated to have contained blood sample, vaginal swab, slide of victim and pubic hair of victim and FTA card of victim, one sealed parcel sealed with seven seals of seal 'M' and a seal of RFSL, Mandi, which stated to have contained blood samples ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP
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and nails of the accused for being deposited in SFSL, Junga.
Constable Sunil Kumar handed over receipt to him. He has further deposed that copy of RC is Ex. PW-1/G. .
22. PW-6, Lady Constable Sarita Sharma, deposed that on 22.08.2015, she took the prosecutrix to C.H. Ghumarwin for her medical examination and after her medical examination, medico legal certificate of the prosecutrix was handed over to her. She has further deposed that the medical officer also handed over to her an envelope containing the samples preserved during examination, which she safely deposited with MHC, Police Station, Ghumarwin.
The prosecutrix also handed over to her white school uniform salwar, which was containing soil and the same was sealed in a parcel, which was sealed with seven seals of impression 'M' and taken into possession vide memo, Ex. PW-6/A. This witness, in her cross-examination, has deposed that on 22.08.2015 Dr. Bandana, Medical Officer, C.H. Ghumarwin, handed over to her the articles and Dr. Bandana herself prepared the parcels.
23. PW-15, HC Lalit Kumar, deposed that on 10.11.2015 ASI Rajinder deposited a sealed parcel, which was duly sealed with three seals of R.H. Bilaspur, stated to have contained blood sample of FTA card and underwear of the accused, one sealed envelope addressed to DNA section, SFSL, Junga alongwith specimen of seal used at ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP
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R.H. Bilaspur with him. He has further deposed that entry qua the deposit of the aforesaid case property is made at Sr. No. 140/15 in the malkhana register. As per the deposition of this witness, on .
16.11.2015 the above said parcels were sent to SFSL, Junga, through HHC Kewal Kishore, vide RC No. 316/15, and receipt, qua deposit of the same, was handed over to him by HHC Kewal Kishore on his return. The copy of malkhana register is Ex. PW-15/B and copy of RC is Ex. PW-15/A.
24. PW-20, SI Naresh Kumar, deposed that accused made disclosure statement, Ex. PW-9/A, and consequent thereto he got identified room No. 17 in the second floor of trauma centre, where he committed sexual assault on prosecutrix. As per this witness, to this effect he prepared spot map, Ex. PW-20/A, and memo, Ex. PW-10/A, was also prepared. He also clicked photographs, Ex. PA-1 to Ex. PA-
8 and recorded the statements of witnesses Madan Gopal and Sohan Lal.
25. From the above discussion it is clear that the prosecution has clearly proved that the blood sample of the accused was taken by PW-2, Dr. N.K. Sankhyan, and it remained in safe custody till the DNA profiling was done and the same matches with sperm profiling of the vaginal swab of the prosecutrix. This scientific evidence is completely corroborated by the testimonies of the ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP
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prosecution witnesses, as enumerated hereinabove and other circumstantial evidence, including the disclosure statement made by the accused and all other circumstances, which have come on .
record, are so well connected leaving any scope of doubt. The participation of the accused while getting a false case registered against one Kuldeep son of Mansa Ram and other material, which has come on record, the prosecution has clearly proved its case and the available material leads to only one conclusion that the accused had committed the offence. In the instant case, DNA profiling is accurate and conclusive proof, as the prosecution has proved that it was the DNA derived from the blood of the accused and from the vaginal swab of the prosecutrix which matches and the prosecution has also proved that sample of the blood of the accused was taken by PW-2, Dr. N.K. Sankhyan, and the sample remained intact. The prosecution has also successfully proved that the sample of blood of the accused was not tampered with till DNA profiling was done. So, the judgment rendered by Hon'ble Supreme Court in Rajiv Singh vs. State of Bihar & another, Criminal Appeal N o. 1708 of 2015 (arising out of SLP (Crl.) No. 8111 of 2014), whereupon the learned counsel for the appellant has placed reliance, is not applicable to the facts of the present case, as in the case supra the Hon'ble Supreme Court noticed shortcomings and deficiencies in the DNA sampling, ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP
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test etc. and thus the DNA report was not accepted. However, in the instant case, there is nothing to doubt the DNA report, as the testimonies of prosecution witnesses remain unshakable and inspire .
confidence qua drawing of samples, samples remaining intact till the DNA profiling was done and there is nothing to suspect the accuracy of DNA matching report, Ex. PW-19/A.
26. The learned counsel for the appellant has also placed reliance on a judgment of this High Court rendered in State of H.P. vs. Mehboon Khan (alongwith connected matters), Latest HLJ 2014 (HP) (FB) 900, wherein Hon'ble Full Bench has held that report of an expert is merely a piece of evidence and not conclusive proof of a fact. It has also been held that opinion of the expert is only of advisory in nature, which enables the Court to form its independent opinion. The judgment (supra) relates to Narcotic Drugs and Psychotropic Substances Act, 1985. Now, as far as the DNA profiling is concerned, it cannot be compared with the narcotic material analysis, as in the case of narcotics the analysis is not as accurate as the DNA profiling. Thus, the judgment (supra) is of no help to the appellant, when further other evidence also leads to only conclusion, i.e. guilt of the accused.
27. The learned counsel for the appellant has placed reliance on another judgment of Hon'ble Supreme Court rendered in Mohd.
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Imran Khan vs. State (Govt. of NCT of Delhi), 2011(4) Criminal Court Cases 398 (S.C.), wherein vide para 14 it has been held as under:
.
"AGE:
14. Both the courts below have laboured hard to find out the age of the prosecutrix for the reason that defence produced certificate from Safdarjung Hospital, New Delhi to create confusion and the I.O. in order to help the appellants had made a statement that the certificate on record did not belong to the prosecutrix. The medical report of the Radiologist issued by Ram Manohar Lohia Hospital, New Delhi revealed that age of the prosecutrix was between 16 and 17 years. The Birth Certificate issued under Section 17 of the Registration of Birth & Death Act, 1969 reveals that a female child was born on 2.9.1974 by the wedlock r of Prabhu Dass and Devki, residents of Sector 12/69, R.K. Puram, New Delhi and its registration number had been 4840. It also reveals that number of live children including this child had been two. However, this certificate has been duly proved by Vijay Kumar Harnal, Medical Record Officer, Safdarjung Hospital, New Delhi (PW.9), who explained that one female child was born in Safdarjung Hospital at 7.15 a.m. on 2.9.1974. Her mother's name was Devki, wife of Prabhu Dass and her address was R.K. Puram, New Delhi. He also explained that the other Birth Certificate produced by the defence according to which a female child was born on 12.9.1971 was of a different female child who was born to one Devi Rani, wife of Prabhu Dayal, residents of Kotla Mubarakpur and thus, it did not belong to Monika, prosecutrix. Similar evidence had been given by Dr. R.K. Sharma, C.M.O., N.D.M.C., Delhi (PW.7). According to him, the female child was born with Registration No.4840 on 2.9.1974 and he further explained that the name of the parents and address of another female child born on 27.9.1971 bearing different registration no.4502 had been totally different, i.e. Prabhu Dayal and Devi Rani, residents of Kotla Mubarakpur . The number of living ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP
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children with that family is also different from that of the prosecutrix. These documents have thoroughly been examined by the courts below and we do not see any cogent reason to examine the issue further.
The medical report and the deposition .
of the Radiologist cannot predict the exact date of birth, rather it gives an idea with a long margin of 1 to 2 years on either side. In Jaya Mala v. Home Secretary, Government of J & K & Ors., 1982 AIR(SC) 1297, this Court held:
"However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."
(See also: Ram Suresh Singh v.
Prabhat Singh @ Chhotu Singh & Anr., 2009 6 SCC 681; and State of Uttar Pradesh v.
Chhotey Lal, 2011 2 SCC 550) In view of the above as we have seen the original record produced before us, we are of the considered opinion that the prosecutrix was less than 16 years of age on the date of incident."
It is settled law that the medical report and the deposition of the Radiologist cannot with certainty predict the exact date of birth and it only gives an idea with a long margin of 1 to 2 years on either side.
However, in the case in hand there is not only medical evidence which establishes the tentative age of the prosecutrix at the relevant time to be 13 years, but the medical evidence is also supported by other material, i.e., record of the school, where the prosecutrix was studying and as per this record, she was born on 04.06.2002. Thus, in all cases the age of the prosecutrix was less than 14 years and ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP
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even if plus minus one to two years is made, the age of the prosecutrix will be less than 15 years. So, the judgment (supra) is also not applicable to the facts of the present case.
.
28. In view of what has been discussed hereinabove, the only conclusion is that the learned Trial Court has rightly appreciated the evidence to its true and correct perspective and rightly convicted the accused. We find no reason to reverse the findings rendered by the learned Trial Court. The appeal, which sans merits, deserves dismissal and is accordingly dismissed, as the prosecution has proved the guilt of the accused conclusively and beyond the shadow of reasonable doubt.
29. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of.
(Sanjay Karol) Judge (Chander Bhusan Barowalia) Judge 30th October, 2018 (virender) ::: Downloaded on - 30/10/2018 22:58:24 :::HCHP