Bombay High Court
Bhanudas S/O. Gangaram Bhise vs The State Of Maharashtra on 20 October, 2020
Author: V.K. Jadhav
Bench: V.K. Jadhav
1 BA 230.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
8 BAIL APPLICATION NO.230 OF 2020
BHANUDAS S/O. GANGARAM BHISE
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. R R Karpe
APP for Respondent : Mr. V S Badakh
...
CORAM : V.K. JADHAV, J.
Dated: October 20, 2020
...
PER COURT :-
1. The applicant is seeking regular bail in
connection with Crime No.244 of 2019 (SC 141of 2019)
registered with Belwandi Police Station, Tq. Shrigonda,
District Ahmednagar for the offences punishable under
sections 376 (2)(n), 376 (3), 506 of IPC and under
section 3 and 4 of the POCSO Act. His application below
Exh.8 in Sessions Case No.141 of 2019 with similar
prayer came to be rejected by the learned Additional
Sessions Judge, Shrigonda vide order dated 4.2.2019.
2. Learned counsel for the applicant submits
that there is inordinate delay in lodging the complaint,
which is not explained in the FIR. Learned counsel
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submits that even though sonography was conducted
some ffteen days prior to the complaint and pregnancy
was detected in the said sonography test, however, till
then, there is a delay of 15 days in lodging the
complaint, which is also not explained. Learned counsel
submits that sonography was conducted on 30.7.2019
and doctor found that victim was carrying fve months
pregnancy. Learned counsel submits that as per the
allegations made by the victim in her statement
recorded under section 164 of the Cr.P.C., it appears
that she was subjected to forcible intercourse under
threats by the applicant in the month of February.
Learned counsel submits that period of pregnancy as
detected on 30.7.2019 and the allegations about
commission of forcible intercourse under threats does
not match. Learned counsel submits that further DNA
report has come in the negative and the present
applicant is excluded to be biological father of baby and
co-accused Namdev Adagale is concluded to be
biological father of the baby. Learned counsel submits
that there is no criminal history. The applicant is
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having a fxed place of residence. The applicant is ready
to abide the conditions, if imposed by this Honourable
Court. The applicant may be released on bail.
3. Learned A.P.P. has strongly resisted the
application on the ground that statements of the mother
of the victim so also the victim are consistent. Victim
has consistently made allegations against the applicant
for having committed sexual intercourse against her will
under threats. Learned APP submits that there are
allegations that co-accused Namdev has also performed
forcible sexual intercourse with the victim during that
period. Learned APP submits that, prima facie, there is
strong case against the applicant. The victim is 14 years
of age on the date of incident. The applicant may not be
released on bail.
4. So far as the report of DNA test is concerned,
which has now come in negative, in a case of Mukesh
Vs. State for NCT of Delhi reported in (2017) AIR SC
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2161, the Supreme Court in para No.216 has made the
following observations:-
"216. In Pantangi Balarama Venkata Ganesh Vs.
State of Andhra Pradesh, (2009) 14 SCC 607 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 this
genetic fngerprinting, identifcation of an
individual is done like in the traditional method of
identifying fngerprints of offenders. The
identifcation 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 profling 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 fngerprint of a person matches
with that of a sample, it means that the sample
has come from that person only. The probability
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of two persons except identical twins having the
same dna fngerprint is around 1 in 30 billion
world population."
5. It thus appears that the Supreme court has
upheld the scientifc accuracy of the DNA report. In the
case of Premjibhai Bachubhai Khasiya vs. State of
Gujarat and Anr, reported in 2009 CRI.L.J. 2888, the
Gujarat High Court has observed the positive DNA
report can be of great signifcance, where there is
supporting evidence, depending of course on the
strength and quality of that evidence, even if it is
positive, it cannot conclusively fx the identity of the
miscreant, but, if the report is negative, it would
conclusively exonerate the accused from the involvement
of charge.
6. In a case of Sunil Vs. State of Madhya Pradesh
reported in (2017) 4 Supreme Court Cases, 393 in
paragraph No.4, the Supreme Court has made the
following observations :-
"4. From the provisions of Section 53-A of the
Code and the decision of this Court in Krishan
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Kumar it does not follow that failure to conduct
the DNA test of the samples taken from the
accused or prove the report of DNA profling as in
the present case would necessarily result in the
failure of the prosecution case. As held in Krishan
Kumar (para 44), Section 53-A really "facilitates
the prosecution to prove its case". A positive
result of the DNA test would constitute clinching
evidence against the accused if, however, the
result of the test is in the negative i.e. favouring
the accused or if DNA profling had not been done
in a given case, the weight of the other materials
and evidence on record will still have to be
considered. It is to the other materials brought on
record by the prosecution that we may now turn
to."
7. As per the observations made by the
Supreme Court, a positive result of the DNA test would
constitute clinching evidence against the accused if,
however, the result of the test is in the negative i.e.
favouring the accused or if a DNA profling had not been
done in a given case, the weight of the other materials
and evidence on record will still have to be considered.
8. In view of these observations, even if other
material including the statement of the victim and the
mother is to be considered, it is for the trial court to
consider the same on its own merits with reference to
the negative DNA report during the trial. However, at
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present, the case is made out to grant bail to the
applicant.
9. In the instant case, the learned counsel for
the applicant has rightly pointed out that in the
sonography test when for the frst time pregnancy was
detected and found that victim was carrying fve months
of pregnancy at that time, however, said result of the
sonography test does not match with the allegations
made by the victim for having committed sexual
intercourse by the applicant with her. Apart from this,
DNA report has come in the negative and present
applicant has been excluded as biological father of the
baby. Thus, considering the entire aspect of the case,
and since there is no criminal history, I am inclined to
release the applicant on bail. Hence, following order.
ORDER
I. Application is hereby allowed.
II. Applicant BHANUDAS S/O.GANGARAM BHISE in connection with Crime No.244 of 2019 (SC 141 of 2019) registered with Belwandi Police aaa/-
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a] The applicant shall not tamper with the prosecution evidence in any manner.
III. Bail application is accordingly disposed off.
( V.K. JADHAV, J. ) ...
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