Karnataka High Court
Imamhusain @ Ajaykumar @ Noorahmed ... vs The State Of Karnataka on 20 December, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS 20TH DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MS.JUSTICE J.M. KHAZI
CRIMINAL APPEAL NO.100233/2019
BETWEEN
IMAMHUSAIN @ AJAYKUMAR @ NOORAHMED CHIKMATH,
AGE: 40 YEARS, OCC: PRIVATE WORK,
R/O: BASAVESHWARNAGAR, HAVERI,
TQ AND DIST: HAVERI.
...APPELLANT
(BY SRI. R.H.ANGADI, AMICUS CURIAE)
AND
THE STATE OF KARNATAKA,
THROUGH HAVERI TOWN POLICE STATION,
REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, BENCH DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO ALLOW THIS CRIMINAL APPEAL BY
SETTING ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 20.12.2017 AND ORDER OF SENTENCE DATED
22.12.2017 PASSED BY THE PRL. DIST. & SESSIONS JUDGE &
SPL. JUDGE, HAVERI IN SPL. S.C.NO.19/2014 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 506, 376(2)(I)(F) OF
IPC AND UNDER SECTIONS 4 & 6 OF THE POCSO ACT.
2
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 04.12.2021 COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C." for short), appellant has challenged his conviction and sentence for the offences punishable under Sections 376(2)(i)(f), 506 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC" for short) and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act" for short).
2. For the sake of convenience, the parties are referred to by their rank before the Trial Court.
3. It is the case of the prosecution that complainant Yashodha was given in marriage to one Basavannyya and their marriage took place on 24.04.2001. She led married life with the said Basavannayya for a period of one and half years. Thereafter, she left the house and at that time she was 3 pregnant. Subsequently, she fell in love with accused and started living with him at Byadgi along with her five year old daughter, who is examined as PW.7 (hereinafter referred to as "prosecutrix" for short). Thereafter, they shifted to Basaveshwarnagar of Haveri and were staying in a rented house. At that time, her daughter was studying in Rotary School.
4. It is further case of the prosecution that subsequently the husband of complainant died. After his death, she filed a suit seeking partition of the share of her husband. For the purpose of attending the Court proceedings, she used to go to Mundagod once in a week or fortnight. During that time, the prosecutrix was staying alone with the accused. The complainant got the accused converted to Lingayath caste and he was given name Ajaykumar @ Basayya Chikmath and he was doing vehicle business. The allegations against the accused are that taking advantage of the absence of the complainant, he repeatedly committed rape on the prosecutrix and gave threat to her that if she reveals the said fact to the complainant or anyone, he is going to kill the complainant 4 as well as the prosecutrix. As a result of the sexual assault made by the accused, the prosecutrix became pregnant and on 06.09.2014 she gave a birth to a male child and it died on the next day and thereby the accused has committed the offences punishable under Sections 376(2)(i)(f), 506 of IPC and Sections 4 and 6 of POCSO Act.
5. Charge is framed against the accused for the offences punishable under Sections 376(2)(i)(f), 506 of IPC read with Sections 4 and 6 of POCSO Act.
6. Accused has pleaded not guilty and claimed to be tried.
7. In support of the prosecution case, 22 witnesses are examined as PWs.1 to 22, Exs.P1 to 41 and MOs.1 to 10 are marked.
8. During the course of his statement under Section 313 of Cr.P.C., accused has denied the incriminating material arising out of the evidence led on 5 behalf of the prosecution. He has not led any defence evidence on his behalf.
9. After hearing arguments of both sides, the learned Special Judge has convicted the accused for the offences punishable under Sections 376(2)(i)(f), 506 of IPC read with Sections 4 and 6 of POCSO Act and sentenced him as under:
"For the offence punishable under Section 6 of POCSO Act read with Section 376(2)(i)(f) of IPC accused shall undergo life imprisonment and to pay fine of Rs.25,000/-, in default to undergo rigorous imprisonment for three years.
For the offence under Section 506 of IPC accused shall undergo simple imprisonment for two years and to pay fine of Rs.25,000/-, in default to undergo simple imprisonment for six months.
For the offence punishable under Section 4 of POCSO Act, there is no need to award separate sentence.
The aforesaid substantive sentences shall run concurrently."
6
10. The learned counsel representing the accused submits that the impugned judgment and order of conviction is contrary to law, facts and material placed on record and as such, it is liable to be set aside. Except the interested witnesses, rest of the prosecution witnesses have turned hostile and not supported the prosecution case. The Police have not collected the blood sample from the body of the child for DNA test in the presence of the independent witness. The Trial Court has not appreciated the evidence of the prosecutrix and PW.1, who is the complainant and mother of the prosecutrix, in right perspective. Complainant is a woman of loose character and the prosecutrix has also fell in the same line. Complainant had illicit relationship with several persons and this fact is not appreciated by the Trial Court. The prosecutrix while attending the School used to travel in the autorickshaw of one Sikhandar and she had gone to Jog and Vijayapura with the said Sikhandar and the pregnancy carried by her belong to the said Sikhandar. The accused has nothing to do with the same and this fact is not appreciated by the Trial Court.
7
11. The learned counsel would further submit that the testimony of the prosecutrix consists of several omissions and contradictions which goes to the root of the prosecution case. There is no clear and clinching evidence regarding the allegations made against the accused. Accused is a resident of Devagiri and for some time complainant resided at Devagiri. During this period, she had collected money from several women who were the members of Mahila Sangha and misappropriated the same. At that time, accused supported those women who had lost the money. On account of it, complainant has developed enmity against the accused. Similarly, accused was not in good terms with the Investigating Officer i.e., PW.20 Pavar, while he was working as CPI of Haveri Town Police Station. Both complainant and PW.20 have joined together to file a false complaint against the accused and prays to allow the appeal.
12. On the other hand, the learned Additional State Public Prosecutor supports the impugned judgment and order and submits that while the accused and complainant were living together as husband and wife, 8 with the prosecutrix, during the absence of complainant, accused has committed repeated rape on the prosecutrix who was aged 12 years. As a result of which she became pregnant. After coming to know about the pregnancy of the prosecutrix, she filed a complaint against the accused. Subsequently, prosecutrix gave birth to a male child which died on the next day.
13. The learned Additional State Public Prosecutor would further submit that the DNA test of the dead child of the prosecutrix reveal that accused is its biological father. The said medical evidence corroborates with the testimony of complainant and the prosecutrix. Appreciating the oral and documentary evidence placed on record, the learned Special Judge has rightly convicted the accused and sentenced him to undergo imprisonment for life for the offence punishable under Section 376(2)(i)(f) of IPC, which means during the entire remander of his natural life. He would further submit that absolutely there are no justifiable grounds to interfere with the impugned judgment and order and prays to dismiss the appeal. 9
14. We have heard elaborate arguments above sides and perused the records.
15. It is the definite case of the prosecution that complainant i.e., PW.1 Yashodha married one Basavannayya Chikkmath on 24.04.2001 and when she was pregnant with the prosecutrix, she went to her sister's house for delivery. Since her husband was suffering from fits, she did not go back to her matrimonial home. Subsequently, she started living with the accused as wife and husband along with the prosecutrix. After the death of her husband, she filed a suit in Mundagod Court seeking partition of her husband's property and on the date of hearing, she used to attend the Court at Mundagod. It is further case of the prosecution that on 26.07.2014 when the prosecutrix complained of stomach ache, complainant took her to District Hospital, Haveri and through PW.12 Dr.Netravati, she came to know that prosecutrix is pregnant and at that point of time, prosecutrix revealed that when she had gone to Mundagod to attend the Court proceedings, accused committed rape on her and 10 accordingly she filed the complaint setting the law into motion.
16. Accused has denied and disputed that he and complainant were living as husband and wife along with the prosecutrix and during the absence of complainant, he has committed rape on the prosecutrix resulting in her pregnancy. Apart from alleging that complainant was a woman of loose character, he has made allegations that prosecutrix was moving with an auto driver by name Sikhandar and had gone with him to Jog and Bijapur and the child which the prosecutrix was carrying belong to the said Sikhandar and he has been falsely implicated in collusion with the Investigating Officer against whom he had given a complaint to the Superintendent of Police.
17. It is pertinent to note that after the death of the child given birth by the prosecutrix, at the instance of the Investigating Officer, the Medical Officer, who conducted its postmortem examination has collected its body parts and they were sent to FSL for DNA profiling. Similarly, the blood sample of accused was also collected 11 in the presence of the Judicial Magistrate and its DNA profiling was also made. According to the prosecution, the DNA profile of the accused and the dead child match and the forensic expert has given the report that the accused is the biological father of the dead child. In the light of the said report, it is to be examined whether the defence of the accused that one Sikhandar is the father of the child is tenable.
18. PW.13 Dr.Basavaraj Olekar is the medical officer who has examined the accused and given report at Ex.P-28 to the effect that there is nothing to suggest that he is incapable of performing sexual intercourse. He has identified the accused who was produced through video conference before the Court. After examining the FSL Report he has given final opinion as per Ex.P-29. The testimony of this witness is not seriously disputed except suggesting that in Ex.P-28 some of the columns are struck out, for which he has replied that those columns which are not applicable are struck out.
12
19. During the course of their evidence, complainant i.e., PW.1 and the prosecutrix in clear and unequivocal terms have deposed that accused was living with them in their house at Haveri. PW.1 has stated that before shifting to Haveri, they i.e., herself, prosecutrix and the accused were staying together at Byadgi and at that time, prosecutrix was aged five years. During her cross- examination though PW.1 has deposed that from Byadgi they shifted to Motebennuru and from there they shifted to Haveri, she has denied the suggestion that she lived at Bankapura for two years, also at Devagiri and Sirsi. When the incident in question has taken place at Haveri, the cross-examination of PW.1 as to the previous places she stayed does not assume importance.
20. To prove that accused was living with the PW.1 and the prosecutrix, in addition to their evidence, the prosecution has relied upon the testimony of PWs.5 and 6, who are their neighbours living in the opposite house. According to PW.1 and the prosecutrix on 26.07.2014, when they went to the Hospital, PWs.5 and 6 also accompanied them. PWs.5 and 6 have deposed that at 13 Haveri they were living in the house opposite the house of PW.1 and the prosecutrix and on 26.07.2014, they had also gone to the District Hospital, Haveri with PW.1 and the prosecutrix. However, they have not identified the accused. In this regard, PWs.5 and 6 have stated that they have not seen the accused in the house of complainant. During her cross-examination by the prosecution, when suggested that accused was also living in the house of PW.1 and the prosecutrix, she has not denied the said suggestion, but expressed ignorance. However, during his cross-examination by the prosecution, PW.6 has denied that accused was living with PW.1 and the prosecutrix. They have also denied that after the examination of the prosecutrix by the Medical Officer at District Hospital, Haveri, they came to know that she was pregnant and the accused was responsible for her pregnancy.
21. During her cross-examination by the defence, PW.5 has deposed that one Gurubasayya Chapparadahalli was visiting the house of PW.1 and the prosecutrix. On this aspect, PW.6 has expressed ignorance. From the manner in which these two witnesses have given evidence, it is 14 clear that they are won over by the accused. When PW.5 is able to speak regarding the occasional visit of Gurubasayya Chapparadahalli to the house of complainant, their evidence that they have not seen the accused staying with PW.1 and the prosecutrix, is not reliable especially when she was living in the house opposite to the house of PW.1 and the prosecutrix. We have no hesitation to hold that only to help the accused, PWs.5 and 6 have deposed that they have not seen the accused living in the house of PW.1 and the prosecutrix.
22. In order to establish that accused and PW.1 were living as husband and wife and sometimes accused used to go to school to take the prosecutrix with him in his capacity as her father, the prosecution has relied upon the evidence of PW.9 Ashok Bidanurmath and PW.10 Channabasappa Dalavayi, who were working as Teacher and Headmaster in the Rotary School where the prosecutrix was studying. Though they have deposed regarding the fact of prosecutrix studying in their School, when suggested that some time accused used to come to take the prosecutrix with him, they have expressed 15 ignorance by stating that they do not remember as several people come to the School. Therefore, the evidence of PWs.9 and 10 is not of much help to the case of the prosecution to establish that accused was living with the complainant and prosecutrix in their house.
23. PW.14 Chennabasavva Prabhayanamath is the sister of PW.1 and maternal aunt of the prosecutrix. Her evidence establish the fact that initially PW.1 was married to one Basavannayya Chikmath and prosecutrix was born to him and as the said Basavannayya Chikmath was suffering from fits, after PW.1 came to her parental home for her delivery, she did not return to her matrimonial home and subsequently, Basavannayya Chikmath died. She has deposed that at Haveri, PW.1 was living with the accused and the prosecutrix and in respect to the suit filed by her, PW.1 used to go to Mundagod. She has also deposed regarding the prosecutrix giving birth to a baby boy and it died while in the hospital.
24. Except making general denials, accused has not placed any material on record to show that at the 16 relevant point of time, he was living elsewhere. Inspite of PWs.5 and 6 turning hostile with regard to accused living with PW.1 and prosecutrix in their house and PWs.9 and 10 turning hostile with regard to accused some times coming to the School and taking back the prosecutrix on one or the other pretext in his capacity as her parent, the evidence of PW.1 as well as the prosecutrix coupled with the testimony of PW.14, prove the fact that after the death of husband of PW.1, accused and PW.1 lived together as husband and wife at Byadagi and Haveri with the prosecutrix. Their testimony with regard to accused living with PW.1 and prosecutrix is cogent, consistent and admissible. We find no reason to disbelieve the same.
25. Coming to the allegations that accused committed rape on the prosecutrix about 4-5 times while PW.1 had gone to Mundagod to attend the Court proceedings. During the course of her evidence, prosecutrix who was aged 14 years at the time of her evidence has deposed in unequivocal terms, the fact of accused committing rape on her during the absence of PW.1, her mother. She has specifically stated that first 17 time accused raped her when she did not go to School on account of her ill health. She has also stated that during January 2014 and February 2014 accused came to her School and brought her back to home from the School by falsely saying that her mother had returned and committed rape on her. She has also deposed that on the fourth occasion i.e., on 17.07.2014, after dropping PW.1 to the bus stop, accused returned and made a call to her falsely stating that prosecutrix is not well and therefore, he is taking her to the hospital, he once again committed rape on her.
26. During the course of her evidence, the prosecutrix has specifically deposed regarding the threat given by the accused not to reveal the fact of he having committed rape on her or else he would kill her mother. She has also deposed about the accused frequently assaulting her mother for one reason or the other, especially after he committed rape on the prosecutrix with a view to prevent her from revealing the said fact to PW.1. 18
27. It is pertinent to note that PW.1 has come to know about the accused having raped the prosecutrix only when she went to PW.12 Dr.Netravati. During the course of her evidence, prosecutrix has deposed that during February 2014, her mother along with accused took her to Dr.Kalal. On examination, Dr.Kalal told that she is suffering from typhoid and anemia prescribed some tonic. On this aspect, PW.1 has deposed that when prosecutrix missed her menstrual cycle for four months, she showed her to few Doctors, but they said that due to anemia, she is not having menstrual cycle and she would be alright. Other than this, there is no evidence to show that PW.1 was aware of the pregnancy of the prosecutrix. Accused has made suggestions to PW.1 that she made several attempts to get the child of the prosecutrix aborted and on 26.07.2014 also she had gone to District Hospital, Haveri to get the fits aborted and PW.12 Dr.Netravati became angry and reprimanded her. Of course PW.1 has denied these suggestions. We have carefully examined the testimony of prosecutrix with regard to the accused having committed rape on her. We find no reason to disbelieve 19 her evidence especially when PW.1 and the prosecutrix have no ill-will or motive to falsely implicate the accused.
28. Accused has made a futile attempt to bring in motive against PW.1 to falsely implicate him by suggesting that at Devagiri and Nagendranamatti she had collected money from members of the Mahila Sangha and misappropriated the same and at that time, he stood by those women and also gave a complaint against her and therefore, she had motive to falsely implicate him. However, except making bald suggestions, accused has not placed any evidence on record to prove these allegations. Atleast he could have produced the complaint which he had allegedly lodged against PW.1 at Haveri City Police Station. In the absence of any corroborating evidence, the accused has failed to prove that he has been falsely implicated.
29. Giving the reasons for taking the prosecutrix for medical examination, PW.1 has deposed that after prosecutrix reaching puberty, she had regular menstrual cycle for three months and thereafter she did not have her 20 menstrual cycle and therefore on 26.07.2014 she took the prosecutrix to PW.12 Dr.Netravati.
30. PW.12 Dr.Netravati is the lady Medical Officer, working at District Government Hospital, Haveri. On 26.07.2014, she has examined the prosecutrix and found that she is pregnant. During the course of her evidence, PW.12 has deposed to this effect and stated that the prosecutrix was brought before her with the history that she did not have her menstrual cycle since four months and on thorough examination she found that she was pregnant of 18 to 20 weeks and she was suffering from depression. On enquiry, the prosecutrix reveal that her step father i.e., accused had committed rape on her 4-5 times during the absence of her mother i.e., when she had gone to attend the Court proceedings and 17.07.2014 was the last time he committed rape on her.
31. PW.12 has also deposed that she called the so called father of the prosecutrix i.e., accused to the Hospital and made enquiry. Though initially he denied, later on he admitted the fact of having raped the prosecutrix. PW.12 21 has specifically stated that at the time of her examination, prosecutrix was aged about 12 years and prima facie her enquiry revealed an offence under the POCSO Act and therefore, she prepared a preliminary report as per Ex.P23 and informed the jurisdictional Police and submitted it. The testimony of PW.12 regarding accused admitting his guilt is an extra judicial confession and it is admissible.
32. At this stage, it is necessary to refer to the provisions of Sections 19, 21 and 22 of POCSO Act. Section 19 of POCSO Act enjoins a duty on any person who apprehend that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, to provide such information to the Special Juvenile Police Unit or local Police.
33. Section 20 of POCSO Act makes failure to report or record the case an offence. It provides that any person who fails to report the commission of an offence under sub Section (1) of Section 19 or Section 20 or who fails to record such offence under sub Section (2) of Section 19 shall be punished with imprisonment of either 22 description which may extend to six months or with fine or with both. At the same time, Section 22 makes false complaint or false information punishable.
34. This explains as to why PW.12 choose to call the accused and enquire him about the allegations made by PW.1 and the prosecutrix and after making herself sure about the allegations, she has prepared the report at Ex.P23 and handed it over to the Police.During the course of her evidence, PW.12 has deposed that in her report, she has noted that there are signs of sexual intercourse in the form of lacerated and torn hymen. Her evidence reveals that after the complaint was filed, the prosecutrix was not given to the custody of her mother i.e., PW.1 and from the Children's Home (¨Á®ªÀÄA¢gÀ) Haveri she was shifted to Davanagere Government Hospital and on 06.09.2014 prosecutrix gave premature birth to a baby boy and it died while undergoing treatment and subsequently the DNA profile of the child reveal that it is the biological child of the accused.
23
35. On this aspect, PW.12 has deposed that after giving birth to the child and discharged from Davanagere Government Hospital, the prosecutrix was admitted to Government Hospital, Haveri and for a period of three months she was given treatment and during this period, she got the feed back about the case. Based on this information, she has deposed to the above facts. While giving evidence she has brought the copy of case file of Davanagere Hospital which was forwarded to the Government Hospital, Haveri. It is marked as Ex.P26. The Copy of DNA report is marked as Ex.P26(a). The first instance when this witness examined the prosecutrix on 26.07.2014 she got her examined through the dentist and the dental report at Ex.P26(b) determines her age as 12 to 14 years. PW.12 has also identified the accused as the person whom she enquired on 26.07.2014 and who admitted of having raped the prosecutrix.
36. During her cross-examination, PW.12 has admitted that the out patients coming to the Hospital are required to get OPD Slip. PW.12 is questioned as to whether she is having any document to show that on 24 26.07.2014 she examined the prosecutrix. It appears on that day OPD slip was not prepared. In this regard, PW.1 has clearly deposed that on that day as it was 07:00 p.m., the concerned worker writing the OPD slip had already gone and as such they did not get the OPD slip as the OPD hours were over. PW.12 has clearly stated that during 2014 there was no facility of CCTV camera in the hospital. At para 8 of her cross-examination, PW.12 has deposed that along with the report at Ex.P25, she handed over the accused to the Police. For reasons best known to him the Investigating Officer has not shown that along with the report at Ex.P25 they have taken the custody of the accused. On the other hand, as per PW.22, he has arrested the accused on 26.07.2014 i.e., on the same day complaint was filed. However, he has not given any report. We find no reason to disbelieve the testimony of PW.12 that she enquired the accused about the allegation and he confessed and along with the report at Ex.P25, the concerned Police took the accused with them. Thus the oral testimony of PW.1, prosecutrix as well as that of 25 PW.12 prove the fact that accused committed rape on the prosecutrix resulting in her pregnancy.
37. The case of the prosecution that accused is the biological father of the male child delivered by the prosecutrix is substantiated by the DNA report. As already discussed, on 06.09.2014 prosecutrix gave birth to a male child and on 07.09.2014 it died. PW 21 Ganapathi Konganoli, P.S.I. has conducted inquest on the dead body of the child as per Ex.P-7. Ex.P-8 is the Photograph captured at the time of inquest. He has deposed that PW.4 Tejappa Lamani and PW.8 Puttayya Magodu were the panchas for the inquest. PW.4 Tejappa Lamani has deposed regarding the inquest. However PW.8 Puttayya Magodu has claimed that he signed the inquest mahazar at Ex.P-7 at the Police Station. The testimony of PW.21 supported by the evidence of PW.4 prove the inquest mahazar at Ex.P-7.
38. PW.17 Dr. Mamata Patil has conducted the Postmortem examination on the dead body of the child. Her evidence proves the same. On the directions of the 26 investigation officer she has also harvested the skin of the head, Femur, Humorous, Intestine, Liver and Heart for the purpose of DNA testing. She has deposed that the cause of death was due to acute respiratory failure as a result of prematurity. The Postmortem report is at Ex.P 30. The evidence of this witness is not disputed by the defence, except suggesting that the dead child was not that of the prosecutrix. Since the prosecution is relying upon the DNA of the child given birth by the prosecutrix to connect the accused to the rape committed on her, this suggestion is absurd.
39. It is pertinent to note that after harvesting the body parts of the deceased child, the investigation officer has sent them to the FSL, Bangaluru for DNA profiling. PW.18 L.Purushotham, Scientific Officer, DNA Centre, FSL, Bangaluru has conducted the DNA test and prepared the DNA Profile as per Ex.P-32. He has specifically stated that on 08.09.2014 he received the body parts in a sealed condition and the seal as well as those organs were in proper condition and therefore he gave registration No.DNA-274/2014 and after following the required 27 procedure, he prepared the DNA Profile of the dead child. Since the blood sample of either or both parents of the dead child were not sent, he has reported to the investigating officer that without the blood sample of the parents of the child, the maternity and paternity of the child could not be find out.
40. Consequently the investigating officer has requested the trial Court to permit him to take the blood sample of the accused. Vide order dated 25.09.2014 the learned Special Judge has permitted taking of blood sample of the accused. He has observed that the same shall be done in the presence of a Magistrate in order to have an impartial collection of blood sample. Consequently he has directed the accused to be produced before the Prl. Civil Judge (Jr Dn) and JMFC, Haveri between 2:30 to 2:45 p.m on the same day. He also directed the investigating officer to procure a doctor to collect the blood samples in the presence of the learned Magistrate from the body of the accused and preserve the same and send it across for the purpose of DNA examination. In the order sheet it is noted that after the said exercise the accused was 28 produced back before the Special Judge and he was further remanded to judicial custody. It is further observed that a Doctor by name Dr. L.N.Rathod was present before the Court and submitted that as per the instructions of the District Surgeon and the request of the Investigating Officer he has drawn blood samples from the body of the accused and he has collected the same in a proper container, sealed the same and protected it for the purpose of sending to DNA profiling. The Special Judge has permitted the investigating officer to send the blood sample for DNA profiling to FSL under proper and due care through the official superior.
41. The evidence of PW.18 further establish that he received blood sample of accused in refrigerated box and from the documents enclosed with the same he ascertained that the blood sample was collected on 25.09.2014 at 2:45 p.m. in the presence of the judicial Magistrate. He also came to know that since the mother of the dead child was not well and was under going treatment at Davanagere Hospital, her blood sample was not collected and sent. Having found that the sample was in a 29 proper condition, he gave registration No.DNA-292/2014 and after following the prescribed procedure, he prepared the DNA Profile of the accused as per Ex.P-33. On comparison of DNA Profile of the deceased child and accused it was found that deceased child is the Biological of spring of the accused as it had inherited 50% of the Gene/ Alili from the accused. Therefore he came to the conclusion that accused is the Biological father of the deceased child. Though PW.18 has been cross examined at length, the defence has failed to indicate any reason to disbelieve his evidence.
42. Since after determining the DNA Profile of the dead child, he has forwarded the same with an observation that in order to establish the paternity of the child, blood sample of father and mother is required, PW.18 has been cross examined suggesting that in order to establish the paternity of the child the blood sample of the mother is not required. He has admitted the same and explained that at the time of giving the preliminary report he was not aware as to in respect of the mother or father the report is required to be given and therefore he requested for the 30 blood sample of father and mother. He has denied that at the instance of the investigating officer he had given a false report.
43. Thus the testimony of PW.18 coupled with the DNA reports at Ex.P-32 and 33 prove that accused is the Biological father of the deceased child and there by the prosecution has proved that prosecutrix conceived the child of the accused as a result of rape committed by him. This also falsify the defence of the accused that the child conceived by the prosecutrix belong to one Sikandar. We have no hesitation to hold that only for the sake of defence accused has taken such a false plea. So also accused has failed to establish that on account of he supporting women whose money PW.1 has allegedly misappropriated and also on the ground that due to ill-will between him and the Investigating Officer, he has been falsely implicated.
44. Much is made out about the fact that accused is called Imamhusain @ Noorahmed @ Ajaykumar Chikmath. It appears that accused is a Muslim and his name is Imamsab @ Noorahmed. During the course of her 31 evidence PW.1 the mother of the prosecutrix has deposed that after the death of her husband she came in contact with the accused and started living with him. She has also stated that she converted him to Lingayat community and named him as Ajaykumar @ Basayya Chikamath. Therefore in the complainant as well as subsequent documents he has been described as Imamhusain @ Noorahmed @ Bassayya Chikmath. In the charge as well as in the judgment he has been described as Imamhusain @ Ajaykumar @ Noorahmed Chikmath.
45. Thus from the above discussion we hold that the charges leveled against the accused are proved beyond reasonable doubt. Taking into consideration the oral and documentary evidence placed on record, the trial Court has rightly convicted and sentenced the accused. We find no reasons to interfere with the same and accordingly we proceed to pass the following:
32
ORDER The appeal filed by the appellants fails and accordingly it is dismissed.
We place on record our appreciations to the able assistance rendered by Sri.R.H.Angadi, learned Amicus Curiae.
Sri.R.H.Angadi, learned Amicus Curiae submits that he has represented the appellant/accused pro bono and there is no need to order for grant of any remuneration. We appreciate his gesture.
Sd/-
JUDGE Sd/-
JUDGE RSH / PJ