Bombay High Court
Pravin S/O. Suryabhanji Gube vs The State Of Maharashtra Thr. Police ... on 1 March, 2019
Author: V.M. Deshpande
Bench: V. M. Deshpande
1 APEAL670.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 670 OF 2018
APPELLANT : Pravin S/o Suryabhanji Gube,
Aged about 29 years, Occ. Agriculturist,
R/o Girola, Tah. Hingna, Dist. Nagpur
(In Jail)
VERSUS
RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Hingna,
Dist. Nagpur.
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Mr. R. M. Daga, Advocate for the appellant.
Mr. M. K. Pathan, A. P. P. for respondent /State
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CORAM : V. M. DESHPANDE, J.
DATE : MARCH 01, 2019.
ORAL JUDGMENT
1. The appellant is challenging the judgment and order of conviction passed by the learned Extra Joint Additional Sessions Judge, Nagpur dated 12.9.2018 in Special Child Protection Case No. 134/2016. The appellant is convicted for the offence under Section 5(m) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act" for short) and is directed to suffer rigorous imprisonment for ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 ::: 2 APEAL670.18.odt Ten years and to pay a fine of Rs.15,000/- and in default of payment fine to suffer rigorous imprisonment for Six months. Though, the appellant is also convicted for the offence punishable under Section 376 of the Indian Penal Code, no separate punishment is imposed for the same.
2. When Shubhangi Hemraj Dhavde (PW15), a lady Police Constable, was attached to Police Station, Hingna on 01.2.2016, the victim (PW4) and her mother Roshani (PW1) had been to the police station. Lady PC Shubhangi found that the victim was frightened. She recorded her report as per her version. The oral report is at Exh.89.
3. Oral report (Exh.89) states that the victim is admitted in a school situated at Dhangarpura, Hingna and at the time of lodging the report she was aged about six years studying in KG-II. Her father works in a company at Mangrul and she is having one younger brother by name Samar, aged about two years.
As per the report, at about 9.30 am on the date of the lodging the report, she went to school and at about 2.00 O'clock, she came back from the school. She took lunch provided by her mother. Thereafter, she, her younger brother Samar and cousin Manthan ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 ::: 3 APEAL670.18.odt were playing in the courtyard in front of the house. At about 4.00 to 4.30 pm, her neighbour Pravin @ Golu (appellant) came in the courtyard on his motorcycle. He took the victim, Samar and Manthan with him and they had a right on the motorcycle. He also gave chocolates to them. Thereafter, he asked Samar and Manthan to get down from the motorcycle, however, he took the victim on the motorcycle to a Ganpati temple, which is two kilometers away from the village and thereafter he took the victim in the bushes behind the temple. When the victim tried to raise shout, he asked her not to shout. Then, he parked his motorcycle and removed her undergarment and also opened the zip of his pant and inserted his private part in her private part. That time the victim shouted, however, the appellant asked not to shout as nothing will happen. After some time, he asked the victim to put on her undergarment and also closed the zip of his fullpant. It is also stated that thereafter he brought the victim to her house. That time one vendor was vending 'Samosa', a type of eatable. He purchased two Samosas and gave it to the victim. In the return journey, as per the first information report, the appellant asked the victim not to disclose the incidence. However, since, there was pain and burning sensation at her private part, she disclosed the incident to her parents. ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 :::
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4. On the basis of oral report (Exh.89), the first information report was registered at Police Station, Hingna vide Crime No. 19/2016.
5. After the report was lodged, the victim was taken to the Government Medical College and Hospital, Nagpur by PW7 Rajkamal Gadbail, Lady Police Constable. Along with the victim, she took medical examination form. The victim was accompanied with her mother when she was taken by lady PC Rajkamal (PW7) at Government Medical College and Hospital. The Medical Officer conducted medical examination of the victim. After medical examination, the Medical officer handed over six sealed bottles to LPC Rajkamal (PW7). Thereafter, she, victim and her mother along with six bottles came to police station and handed over those six bottles to the Investigating Officer API Santosh Khadke (PW14). Along with six bottles, the Medical Officer also handed over Form-B. API Khadke prepared seizure panchanama of those six bottles and the said seizure panchanama is at Exh.40.
6. PW14 API Santosh Khadke visited the spot of occurrence and prepared spot panchanama in presence of panch witness Uday Kohad (PW13), who proved the contents of the spot ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 ::: 5 APEAL670.18.odt panchanama. The spot panchanama is at Exh.78. The spot was shown by the victim herself.
The Investigating Officer also seized the clothes of the victim from her mother under seizure memo (Exh.22).
7. In the meanwhile, the accused was arrested by HC Bhandegavkar. The Investigating Officer seized the clothes of the accused under seizure memo (Exh.78). He also seized the motorcycle used in the crime, parked in front of the house of the accused, under seizure memo (Exh.80).
The Investigating Officer also took necessary steps for recording the statements of victim and her mother through the learned Magistrate. The seized property was sent to the Chemical Analyser by forwarding letter (Exh.59). After completion of the investigation, he presented the charge-sheet in the Court of law.
8. The learned Additional Sessions Judge, Nagpur on 07.9.2016 framed the Charge against the appellant in Special Child Protection Case No. 134/2016 for the offence punishable under Section 376 of the Indian Penal Code and under Section 5(m) punishable under Section 6 of the POCSO Act. The accused denied the charge and claimed for his trial. In order to bring home the guilt ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 ::: 6 APEAL670.18.odt of the appellant/accused, the prosecution has examined in all 15 witnesses and also relied upon various documents duly proved during the course of the trial and very heavily relied on DNA report (Exh.62) to show that the appellant is the perpetrator of the crime.
From the line of cross-examination and his additional statement recorded under Section 313 of the Code of Criminal Procedure, it is his defence that he is falsely implicated in the crime. It is his defence that due to political rivalry, he is implicated in the crime. So also, his another limb of defence is that on the date of the incident, at the instance of the victim, he took her for motorcycle ride and took at her instance at temple situated on the hill and while returning from there, his motorcycle slipped resulting into injuries on his face and hand. The blood oozed out from the said and stained his T-shirt. It is his further defence that when he dropped the victim at her house, the parents asked him as to why he took the girl with him and said that if the girl would have fallen on the ground she would have suffered the injuries. On that count, there was verbal altercation between them and therefore, he is falsely implicated in the crime.
9. The learned Court below, after appreciating the prosecution case, recorded a finding of guilt against the appellant ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 ::: 7 APEAL670.18.odt and imposed the jail sentence as stated in the opening paragraph of this judgment. Hence, this appeal.
10. I have heard Mr. R. M. Daga, the learned counsel for the appellant and Mr. M. K. Pathan, the learned Additional Public Prosecutor for the respondent State. With their able assistance, I have gone through the notes of evidence of the prosecution witnesses and also the proved documents.
11. Though, Mr. Daga, the learned counsel for the appellant has submitted that evidence of the victim (PW4) cannot be accepted because the possibility of tutoring to the victim is not ruled out, principally he challenged the conviction on the ground that reliance cannot be placed at all on the DNA report (Exh.62) and the medical evidence. He submitted that possibility of tampering of the blood samples of the victim as well as the appellant in the office of Chemical Analyser is not completely ruled out and therefore, benefit will have to be extended in favour of the appellant and the appellant, who is in jail from the date of his arrest i.e. 02.2.2016, is required to be set free.
12. Per contra, Mr. Pathan, the learned Additional Public ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 ::: 8 APEAL670.18.odt Prosecutor for the State would submit that the prosecution has proved its case by adducing cogent and consistent evidence to show that at the time of commission of the offence, the victim was in the custody of the appellant. He also submitted that due procedure was adopted by the doctors at the time of extracting the blood samples of the appellant and the victim and the said samples were properly reached in sealed condition in the laboratory of the Chemical Analyser. It is also his submission that there is nothing on record to show that at any point of time anybody could take slightest doubt that there was a possibility of tampering with the blood samples used for DNA. He also submitted that evidence of the victim is trustworthy and merely because she is a child, she cannot be branded as tutored witness. He, therefore, submitted that the appeal be dismissed.
13. According to the prosecution, at the time of the incident, the age of the victim was six years. PW1 Roshani, the mother of the victim states in her evidence that the date of birth of the victim is 04.7.2010. The prosecution has also examined Digambar Lohakare (PW11), a Rural Development Officer, Gram Panchayat, Digdoh, Tah. Hingana, District Nagpur. He had brought in the Court the Birth and Death Register maintained by the ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 ::: 9 APEAL670.18.odt authority. His evidence would show that information of birth of the victim was reported to the authority by Lata Mangeshkar Hospital, Digdoh. The birth report was sent under Serial No. 11416. Accordingly, Gram panchayat, Digdoh recorded the entry of the girl in its register. The birth entry of the victim is at Serial No.1040 in the Register and it shows the date of birth as 04.7.2010.
Evidence of mother of the victim about the date of birth is not challenged. Similarly, no serious challenge was set up to Exh.70, the birth certificate issued by the Competent Authority showing the date of birth as 27.7.2010. In addition to that, the age of the victim girl is also admitted by the appellant when he was examined under Section 313 of the Code of Criminal Procedure.
14. Be that as it may. Mr. Daga, the learned counsel for the appellant submitted before this Court that the appellant is not challenging the date of birth of the victim.
In view of the evidence brought on record, it is clear that the victim is "Child" within the meaning of Clause (d) of Section 2 of the POCSO Act and her age at the time of commission of the offence was not more than Six years.
15. According to the prosecution, on the date of the incident ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 ::: 10 APEAL670.18.odt i.e. on 01.2.2016, after the victim returned from her school, she took lunch and thereafter was playing in the courtyard with her brother and cousin. These recitals in the first information report (Exh.89) are also stated on oath by PW1 Roshni and PW4 victim. According to the prosecution, when the victim was playing along with her brother and cousin, the appellant came on motorcycle and take them for a ride and gave chocolate to them. This particular version of the prosecution case through PW1 Roshni and PW4 victim is supported to a very great extent by PW6 Krishna Jagtap. This prosecution witness runs a General Store at Girola. His evidence would show that he knows the appellant as he is resident of his village. His evidence would show that on 01.2.2016, when he was present in his shop, the appellant came with two sons of Prashant, uncle of the victim, and he purchased wafers and chocolates from his shop. However, this witness did not support the prosecution case in respect of the fact that at that particular point of time, the victim was in his company and therefore, this witness was declared as hostile. Merely because the witness is hostile, his entire evidence does not get erased and/or his evidence need not be discarded at its fullest. To the extent such witness supports the prosecution case, the evidence can be looked into and this position of law is well crystalised by the Hon'ble Apex Court in the case of Khujji @ ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 ::: 11 APEAL670.18.odt Surendra Tiwari .vs. State of Madhya Pradesh, reported in AIR 1991 (3)SCC 627 ; and in the case of Devraj .vs. State of Chhattisgarh, reported in 2016 (13) SCC 366.
From the evidence of PW6 Krishna Jagtap, it is clear that at the relevant time, the appellant was having motorcycle, he came to the courtyard, he took two male children with him, went to the shop of this witness and purchased chocolates. It is the specific version of the victim that chocolates were given to her by the appellant. This prosecution witness is not supporting regarding the company of the victim girl with the appellant for the obvious reason that the appellant and this prosecution witness are known to each other and therefore, obviously in order to save the skin of the appellant, he is not referring presence of the victim girl with him at his shop.
16. According to Roshani (PW1) and the victim (PW4), after the initial motorcycle ride by the appellant with Samar, Manthan and the victim, he came to the house of the victim and thereafter he dropped Samar and Manthan and took the victim alone on his motorcycle. The victim in her evidence has very elaborately stated this aspect. Her evidence would show that after alighting her two brothers, the appellant took her on motorcycle towards temple. ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 :::
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17. At the relevant time, the victim was in the company of the appellant is duly proved through the evidence of PW2 Kishor Daf and PW3 Prabhakar Jatlapure.
As per the evidence of PW3 Prabhakar when he was sitting at the house of uncle of the appellant by name Chandrabhan, at about 3.30 to 4.00 pm, the appellant came there. He had brought beans with him and distributed the same to all. His evidence shows that at that time, the victim was along with him and she was brought on the motorcycle. His evidence would show that he remained present in the house of his uncle up to 6.00 pm and thereafter, he took the victim on his motorcycle. Thus, the evidence of the victim that she was taken alone on motorcycle by the appellant to one house and gave beans for eating, is found due corroboration.
18. The fact that even after leaving the house of the uncle, the appellant was found in the company of the victim when he was proceeding towards temple, is duly proved by the prosecution by examining PW2 Kishor Daf. His evidence would show that when he was returning from market in between 5.30 to 6.00 p.m., he noticed the appellant and the victim going on motorcycle towards temple ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 ::: 13 APEAL670.18.odt situated out of the village. His evidence would show that since the appellant is resident of his own village, he knows him. His evidence that he noticed the victim in the company of the victim is not at all shaken. Though an omission about the time is tried to be brought on record, the said omission is not proved by the defence.
19. In view of the aforesaid nature of evidence, it is clear that initially the appellant came to the courtyard of the victim when she was playing along with her two brothers, he took them to a shop owned by PW6 Krishna, purchased wafers and chocolates, gave them and thereafter, he brought them back to the courtyard, he dropped the brothers of the victim there and took the victim initially to the house of his uncle, distributed beans not only to the victim but also to PW3 Prabhakar and others and stayed in that place upto 6.00 O'clock and thereafter, took the victim on motorcycle towards temple, which is situated outside the village and while going to that place, he was seen by PW2 Kishor Daf.
20. One cannot expect eye-witness at the time of commission of offence like rape. It is always committed at a secluded place, where presence of even passerby is a remote chance. ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:01 :::
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21. As per the prosecution case, the incident in question took place at a secluded place on a fellow land having trees. The spot panchanama is at Exh.78. The contents of the spot panchanama are duly proved by Uday Kohad, Extension Officer (Health) of Hingna Gram Panchayat, who acted as a panch in view of the intimation given by the Investigating Officer (Exh.77) to act as a panch. The recitals of Exh.78 shows that the spot is a secluded one and it is not surrounded by any houses. Along with the spot panchanama, there is a sketch map, which shows that the spot of the incident is much inside from the road and the temple.
22. According to the version of the victim, after the appellant and she left the house after eating beans, the appellant took her for darshan to a temple situated on hill. After having darshan, they came down and thereafter she was taken to an agricultural field, where sexual atrocities were committed on her.
23. Presence of the victim along with the appellant at temple is also proved by the prosecution by examining Laxminarayan Tiwari (PW9), priest of said temple, who states that prior to two years of recording of his evidence, one person brought one girl on shoulder, she prayed the God and touched his feet. ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 :::
15 APEAL670.18.odt Prasad was offered to her and thereafter, the said person again took the girl. This priest identified the appellant in the Court as that person. Identification of the accused by the witness in the Court hall is a substantive piece of evidence.
24. According to the victim girl, at the spot of the incident, her nicker was removed and after removing appellant's nicker, he inserted his male organ in her private part.
25. Dr. Neha Kishor Pande (PW5) was Assistant Professor in Government Medical College and Hospital. In the intervening night of 01.2.2016 and 02.2.2016, early in the morning at about 3.00 am, through the CMO, she received OPD card along with requisition received by CMO from Police Station, Hingna for medical examination of victim. The requisition is at Exh. 34. The OPD card is at Exh.35. Her evidence shows that PW7 Rajkamal, a lady Police Constable of Hingna Police Station brought the victim for medical examination. The doctor obtained consent of the victim (Exh.21). The doctor then talked with the victim about the incident and reduced it into writing in Form II-A (Exh.21). Perusal of the said contemporaneous document shows that the victim narrated sexual assault by a known person. On examination of the victim, Dr. Neha ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 ::: 16 APEAL670.18.odt Pande (PW5) found redness to Fourchette and introitus/vagina. She took vaginal swab and sealed the same for DNA and grouping. The samples were handed over to the lady Police Constable. She gave her professional opinion that evidence of sexual intercourse/assault cannot be ruled out. Hence, final opinion was kept pending till receipt of FSL reports. The medical certificate of the victim is duly proved by her and it is at Exh.36.
26. After perusal of the FSL report, she gave her opinion in the Court that sexual assault cannot be denied. The cross- examination of this doctor (PW5) is mainly devoted towards the procedural aspect. However, in the cross-examination, she stated that Fourchetta is a small space. Fourchetta was fully red. Introitus was red. Visible part of vagina was red. Dr. Pande is very firm in her evidence that extent of redness cannot be mentioned in the report since while examining small child, the doctor cannot examine whole vagina, but only inspect the visible part of it. To a question put to this witness by the learned cross-examiner that if a boy of 25 - 29 years old, attempts to commit a rape on a girl of about 6 years, then there would have been injury on entire private part of the girl on account of said act. To this particular question, Dr. Pande replied as under :
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17 APEAL670.18.odt "As per recent published data, majority of the victims of sexual assault in children may not necessarily show injury. When injury is present it may range from redness to full blown perennial laceration. I can bring recent public data for perusal of the Court."
After obtaining this admission, the learned cross-examiner has changed the line of cross-examination. Thus, merely because perennial laceration fully blown is not noticed, it cannot be said that sexual assault was not made, especially when redness was found.
27. In this case, the prosecution has brought on record DNA report (Exh.62) to show the finger of guilt towards the appellant.
What is meant by DNA, is found to be observed in the case of Pantangi Balarama Venkata Ganesh vs. State of A.P., through C.B.I. reported in 2009 Cri. L.J. 4144, which is reproduced herein under :
"(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 fingerprinting identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred percent precise, experts opine."
DNA a modern scientific technique is very useful and helpful not only for investigators but also for Courts to reach to the ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 ::: 18 APEAL670.18.odt truth. DNA, in my view, conclusively shows finger of the guilt towards perpetrator of crime. The Honourable Apex Court in Patangi Balarama's case case (cited supra) recorded words of caution with observation that, "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)."
28. DNA report is duly proved by Vaishali Mahajan (PW10). This witness is the Assistant Chemical Analyser. At the relevant time, she was discharging her duties at Chemical Analyser's office at Nagpur in the said capacity. Her evidence would show that on 03.2.2016, some clothes and samples from Police Station, Hingna along with letter (Exh.59) were received in the Chemical Analyser's office. The original forms and samples given by the Medical Officer were also sent to C.A. office, is her version. She brought with her those original forms, one regarding samples of the victim and another regarding the samples of the accused and they are at Exhs.60 and 61. Her evidence would show that this property was ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 ::: 19 APEAL670.18.odt deposited in Biological Division. They were given three numbers. The clothes were given No. BN420/16, the samples of the victim were given No. BN421/16 and samples of the accused were given No. BN422/16. BN420/16 shows Exh.1 - leggings (semen stain) and the said leggings is of victim, whereas BN420/16 is also inclusive of Exh.6 - half T-shirt (blood stain) of the appellant. BN421/16 consists of Ex.2 -swab from labia majora, Ex.3 - vaginal swab, Ex.4- swab from anus and Exh.5 prepared blood stain of victim. BN422/16 consists of Ex.3 nail clippings and Exh.4 - prepared blood stain of appellant.
29. Evidence of PW10 Vaishali Mahajan, Assistant Chemical Analyser would show that analysis was done by Shri Sonkamble, who was also Assistant Chemical Analyser at the relevant time. When he found semen stains on the clothes of the victim and blood stains on the clothes of the accused, he referred those cuttings to the DNA department with the samples on 16.12.2016. At DNA branch, Vaishali Mahajan extracted DNA from semen stain cutting, blood stain cuttings and other medical samples of the victim and the appellant/accused. She amplified the DNA using polymerized chain reaction technique. She got profiles from semen stain on leggings (Ex.1), blood stain on half T-short (Ex.6), swab from labia majora, ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 ::: 20 APEAL670.18.odt vaginal swab, swab from anus of the victim. She also got profile from blood stains of the victim, nail clippings of the accused and blood stains of the accused. Smt. Mahajan found that DNA profile obtained from semen on leggings and blood obtained on half T-shirt, nail clippings of the accused were identical from one and the same source of male origin and matched with DNA profile of the accused. She also found that DNA profiles obtained from swab labia majora, vaginal swab, swab from anus of the victim were found identical and from one and the same source of the female origin and matched with the DNA profile obtained from the blood of the victim. Accordingly, she gave report (Exh.62).
30. The DNA is a conclusive proof to show the finger of guilt to the perpetrator of the crime. However, while considering this scientific piece of evidence, the Court is required to examine as to whether at any point of time in view of the circumstances brought on record, it could be said that there was slightest chance of playing with the samples and/or tampering with it by anyone. After examination of the evidence in that behalf brought on record by the prosecution, if the Court is of the opinion that no doubt can be raised that there was even a possibility of tampering with the samples, in my view, the Court is bound to accept the DNA report as ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 ::: 21 APEAL670.18.odt a conclusive proof against the accused.
31. Here, I would like to mention that in addition to the DNA report (Exh.62), Chemical Analyser's report (Exh.75) is also there on record. It shows that Mr. Sonkamble, Assistant Chemical Analyser noticed blood stains on half T-shirt of the appellant and semen stains on the leggings of the victim, so also semen stains on the underwear of the appellant.
32. In the present case, vaginal swab of the victim was obtained by Dr. Pande (PW5) and her evidence would show that she sealed the samples and labeled it for subsequent examination of DNA grouping. The learned counsel for the appellant submitted that in absence of the requisition from the Investigating Officer that the samples should be sealed for DNA purpose, there was no occasion for Dr. Pande to collect the same for DNA.
I have no hesitation in my mind to reject the aforesaid submission of the learned counsel for the appellant. Exh.34 is the requisition letter given by the official from Hingna Police Station to the Chief Medical Officer, Government Medical College and Hospital, Nagpur for medical examination of the victim. It is dated 01.2.2016. In the said, the doctor was asked to obtain swab. ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 :::
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33. Further, Dr. Pande (PW5) done the act of obtaining samples for DNA dutifully. After examination of the victim, she found that there was redness on the Fourchette, vaginal part of the victim. At the time of examination, she could not give final opinion, but she reserved the same till the receipt of FSL report. Thus, merely because the Investigating Officer did not request for collection of swab for DNA purpose and if those were collected by the Medical Officer, suspicion cannot be raised as collection of samples for DNA purpose. In fact by collecting the sample for DNA and then "sealing" it properly, in my view, shows the professional approach on the part of Dr. Pande, who was sure at least prima facie, that some wrong is committed to the child. Therefore, she reserved her final opinion till receipt FSL Report. Further, "sealing aspect of the vaginal swab" right from the same was taken till it reached to the Chemical Analyser's office is found to be intact and there is no circumstance on record to show that doubt can be raised in respect of the said aspect.
34. According to Mr. Daga, the learned counsel for the appellant, there is no guarantee and/or mention as to when Mr. Sonkamble, Assistant Chemical Analyser referred semen stained clothes of the victim and blood stained clothes of the appellant from ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 ::: 23 APEAL670.18.odt his department to DNA department. He submitted that, therefore, the appellant is entitled for benefit of doubt.
35. Benefit of doubt is not to be extended by the Court just for asking or on feeble submissions in absence of any positive circumstance challenging the authenticity of the fact for claiming the benefit of doubt.
36. In the present case as per the evidence of Vaishali Mahajan (PW10), the property namely the clothes and samples was originally deposited in the Biology Division of C.A. office. The analysis was done by Shri Sonkamble, Assistant Chemical Analyser and when he found semen stains on the clothes of the victim and blood stains on the clothes of the accused, he referred those cuttings to the DNA department with the samples on 16.12.2016 under a sheet with description, which was brought in the Court by Vaishali Mahajan (PW10) in its original and at DNA branch, DNA was extracted. In the cross-examination also this prosecution witness very firmly states that all the samples were brought in C.A. office in sealed condition. A suggestion was given to her that in her department, the samples were tampered, however, those suggestions were denied by her. The suggestions can never be the evidence. ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 :::
24 APEAL670.18.odt Further, there is nothing on record to show that there was any reason for Vaishali Mahajan (PW10) to tamper with the samples. She was discharging her official duty. Therefore, unless and otherwise is shown, it has to be presumed that the official act by an official is done in accordance with the procedure. Needless to mention, she also denied the suggestion that DNA report was prepared falsely by her and Mr. Sonkamble. In order to clear all doubts, in her re-examination, she produced on record the description sheets of articles received from Shri Sonkamble under list (Exh.63).
37. In view of the aforesaid nature of evidence, there is no doubt in my mind that proper precaution was taken right from obtaining samples, its sealing, reaching the same to the office of Chemical Analyser in sealed condition and thereafter the exercise of extracting DNA and preparation of DNA report (Exh.62) was done, which clearly shows the finding of guilt against the appellant.
38. The appellant has taken a defence that he is falsely implicated in crime due to political rivalry. In the cross-examination of PW1 Roshani, it was suggested to her that the family of the victim and family of the appellant worked for Mr. Bang's Rashtrawadi Party ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 ::: 25 APEAL670.18.odt and cousin brother-in-law of Roshani (PW1) is working in the school of Mr. Bang. She, however, stoutly denied the suggestions that sister-in-law of the appellant by name Rakhi contested election against Chandrabhan from the family of victim and due to that there was political enmity in between these two families and therefore, on the say of the male members, false report is lodged against him.
Except suggestions, which were also denied, nothing is brought on record. Further, no family would put the future of a girl at stake for the type of rivalry as suggested during the course of the cross-examination.
39. It is also the defence of the appellant that while returning from the temple, his motorcycle slipped resulting into sufferance of injuries on his face and hand, oozing blood thereby staining his half T-shirt, which was found blood stained in view of C.A. report Exh.75.
Thus, he tried to give an explanation as to how blood stains were noticed on his half T-shirt. On examination of the entire prosecution case and record, I have no hesitation in my mind to record a finding that this explanation is nothing but a falsehood.
40. The record shows that the appellant was arrested on ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 ::: 26 APEAL670.18.odt 02.2.2016 under arrest panchanama (Exh.81). This contemporaneous document is totally silent that at the time of arrest of the appellant any type of injury was noticed on the person of the appellant, especially on his face and hand as claimed by him in his defence. After his arrest, the appellant was referred for his medical examination at Government Medical College and Hospital, Nagpur on 02.2.2016. There, he was examined by Dr. Rajesh Manwar (PW8). On his examination, Dr. Manwar could not notice any injury on his person. This particular evidence of Dr. Manwar is not at all challenged.
In that view of the matter, the theory of slipping the motorcycle resulting into injury, staining his half T-shirt with blood, is not only incorrect, but false one. Further, the victim has also denied the suggestion given to her during her cross-examination that while returning from the temple, the motorcycle slipped resulting into injuries to the appellant. Further, no explanation is offered about the noticing of semen stains on the leggings of the victim.
41. On re-appreciation of the entire prosecution case, as discussed in detail in preceding paragraphs, there cannot be any hesitation in anyone's mind about the culpability of the appellant in the crime, in which a tender age girl of six years was the subject for ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 ::: 27 APEAL670.18.odt the sexual atrocities at the hands of the appellant. That leads me to pass the following order :
ORDER The criminal appeal is dismissed.
V.M. Deshpande, J.
Diwale ::: Uploaded on - 05/03/2019 ::: Downloaded on - 12/03/2019 23:15:02 :::