Bombay High Court
Atul S/O Vishvanath Hatwar (In Jail) vs The State Of Maharashtra, Thr. P.S.O., ... on 4 October, 2017
Author: Manish Pitale
Bench: R.K. Deshpande, Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.200/2016
with
CRIMINAL APPEAL NO.205/2016
with
CRIMINAL APPEAL NO.206/2016
with
CRIMINAL APPEAL NO.363/2016
...
CRIMINAL APPEAL NO.200/2016
Jitendra s/o Suresh Gabhane,
Aged about 23 years,
Occupation: Labour,
R/o Chincholi, Tahsil Mohadi,
District Bhandara. .. APPELLANT
.. Versus ..
The State of Maharashtra,
Through P.S.O., P.S. Andhalgaon,
Tahsil Mohadi, District Bhandara. .. RESPONDENT
Mr. R.M. Daga, Advocate for Appellant.
Mr.N.R. Rode, Additional Public Prosecutor for Respondent.
....
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CRIMINAL APPEAL NO.205/2016
Ishwar Mangaldas Tikapache,
Aged 21 years,
Occupation: Labour,
R/o Chincholi, Tahsil Mohadi,
District Bhandara. .. APPELLANT
.. Versus ..
The State of Maharashtra,
Through P.S.O., P.S. Andhalgaon,
Tahsil Mohadi, District Bhandara. .. RESPONDENT
Mr. A.C. Jaltare, Advocate for Appellant.
Mr.N.R. Rode, Additional Public Prosecutor for Respondent.
....
CRIMINAL APPEAL NO.206/2016
Vijay s/o Shamu Nagfase,
Aged 21 years,
Occupation: Labour,
R/o Chincholi, Tahsil Mohadi,
District Bhandara. .. APPELLANT
.. Versus ..
The State of Maharashtra,
Through P.S.O., P.S. Andhalgaon,
Tahsil Mohadi, District Bhandara. .. RESPONDENT
Mr. A.C. Jaltare, Advocate for Appellant.
Mr.N.R. Rode, Additional Public Prosecutor for Respondent.
...
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CRIMINAL APPEAL NO.363/2016
Atul s/o Vishvanath Hatwar,
Aged 19 years,
Occupation: Labour,
R/o Chincholi, Tahsil Mohadi,
District Bhandara. .. APPELLANT
.. Versus ..
The State of Maharashtra,
Through P.S.O., P.S. Andhalgaon,
Tahsil Mohadi, District Bhandara. .. RESPONDENT
Mr. C.R. Thakur, Advocate for Appellant.
Mr.N.R. Rode, Additional Public Prosecutor for Respondent.
...
CORAM : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON : September 28,2017
PRONOUNCED ON : October 4,2017.
JUDGMENT (per Manish Pitale, J. )
By this common judgment, four appeals filed by four accused persons are being disposed of. All the four accused persons have been convicted by the impugned judgment and order passed by the Court of Additional Sessions Judge, Bhandara in Special Criminal (Child) Case No.14 of 2015 for offences under Section 363 read with 34 of the Indian Penal Code (IPC) and sentenced to suffer rigorous imprisonment for 3 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 4 Apeal200-16&Ors..odt years and to pay fine of Rs.500/- and under Section 376(D) read with Section 34 of the IPC, sentenced to suffer rigorous imprisonment for 20 years and to pay fine of Rs.1,000/-.
2. The prosecution case in brief is that on 16.02.2015, the complainant (hereinafter referred to as "the prosecutrix") had gone to see Hangama Dance Programme at about 8.30 p.m. in the village when her friend one Atul Meshram phoned her and asked her to meet him. The prosecutrix asked the said Atul Meshram to come behind her house. The said Atul Meshram came on motorcycle after about 10 minutes along with two friends but he did not stop where the prosecutrix was waiting and went ahead. Thereupon, the prosecutrix called him on phone and he asked her to come near the river side. The said Atul Meshram came alone at the said place to meet the prosecutrix, when the four boys came towards them. At this point, the said Atul Meshram ran away leaving the prosecutrix alone and she ran towards the river side on Dhusala road.
3. The said four boys i.e. the appellants herein (accused Nos. 1 to 4) intimidated the prosecutrix. Accused No.1 Atul Hatwar (appellant in Criminal Appeal No. 363 of 2016) lifted the ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 5 Apeal200-16&Ors..odt prosecutrix and closed her mouth with his hand and took her to the neighbouring field. Accused No.2 Jitendra Gabhane (appellant in Criminal Appeal No. 200 of 2016), accused no.3 Ishwar Tikapache (appellant in Criminal Appeal No.205 of 2016 and accused No.4 Vijay Nagfase (appellant in Criminal Appeal No.206 of 2016) accompanied the said accused No.1. Accused No.1 Atul Hatwar first committed forcible sexual intercourse with the prosecutrix and thereafter other three accused one by one committed the said act forcibly on the prosecutrix. Thereafter, accused no.1 Atul Hatwar brought the prosecutrix near the canal and left her there, asking her to meet him the next morning.
4. The prosecutrix returned home and narrated the incident to her sister Nilima Satpute (PW1). The sister and brother-in-law of the prosecutrix took her to the Police Station and on the basis of her oral report, first information report (FIR) was registered at 12.30 a.m. on 17.02.2015 at Police Station Andhalgaon against the aforesaid four accused persons under Sections 363 and 376(D) of the IPC, as also under Sections 3(1)
(xi), 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and further under Section 6 of the Protection of Children from ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 6 Apeal200-16&Ors..odt Sexual Offences Act.
5. Upon registration of the FIR, the investigating officer Anand Bhoite, the Sub Divisional Police Officer, as the investigating officer started the investigation. The prosecutrix was sent for medical examination on 17.02.2015 at 12.30 p.m. and she was examined by Dr. Chanchal Khobragade (PW11). In the medical examination report at Exh.85, the age of the prosecutrix was recorded as 16 years. It was recorded that there was absence of injury on the hymen and that no injuries were seen on the genitals. During the medical examination the blood sample, pubic hair, nail clippings and vaginal swab were collected by Dr. Yogesh Nakade (PW9).
6. These samples were forwarded to the Police Station Andhalgaon and they were seized along with the clothes of the prosecutrix on 17.02.2015 at 2.20 p.m. in the Police Station. The said samples and clothes were sent for chemical analysis to the Forensic Laboratory.
7. The investigating officer (PW12) arrested the four accused persons on 17.02.2015. The accused persons executed memorandum under Section 27 of the Evidence Act, ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 7 Apeal200-16&Ors..odt pursuant to which their clothes were seized by the investigating officer (PW12) by executing seizure panchanamas in the Police Station on 17.02.2015 itself. The clothes of the accused were also sent for chemical analysis to the Forensic Laboratory.
8. On 13.03.2015, test identification parades were conducted as part of the investigation, when the prosecutrix identified accused No.1 Atul Hatwar and accused No.3 Ishwar Tikapache, while she could not identify accused no.2 Jitendra Gabhane and accused No.4 Vijay Nagfase. It is relevant to mention here that accused No.4 Vijay Nagfase was not named in the FIR. The chemical analysis reports as also the DNA analysis reports were received from the Forensic Laboratory and on the basis of the material collected during investigation, charge sheet was submitted against the accused persons for commission of the aforesaid offences.
9. On 08.06.2015, charge was framed against the accused persons and the trial commenced. The prosecution examined 12 witnesses to prove its case and it heavily relied upon the medical evidence, particularly the DNA report, in order to prove its case against the accused persons. The ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 8 Apeal200-16&Ors..odt incriminating circumstances were put to the accused persons under Section 313 of the Cr.P.C. They claimed that the circumstances were false and also separately stated that they had been falsely implicated because they had an altercation with PW1 Nilima, sister of the prosecutrix as also the husband of PW1 i.e. Suraj Satpute. It is relevant to mention here that the prosecution did not examine the said Suraj Satpute and Atul Meshram, friend of the prosecutrix, who was with her when the four accused persons accosted her, was also not examined by the prosecution.
10. By the impugned judgment and order dated 06.05.2016, the Sessions Court held all the four accused persons guilty under Sections 363 and 376(D) read with 34 of the IPC, while acquitting them for offences under the SC and ST (Prevention of Atrocities) Act, 1989 and under Section 6 of the Protection of Children from Sexual Offences Act. These four appeals have been filed by the four accused persons challenging the said judgment and order of the Sessions Court.
11. Mr. R.M. Daga, learned counsel appearing for the appellant Jitendra Gabhane (accused No.2 in Criminal Appeal No. 200 of 2016) submitted that there were contradictions in ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 9 Apeal200-16&Ors..odt the evidence of PW1 (Nilima) and PW2 (prosecutrix). There were admissions in the evidence of PW2 prosecutrix showing that the appellant Jitendra Gabhane (accused No.2) was falsely implicated and that he was not even identified by the prosecutrix in the test identification parade. According to the learned counsel for the appellant, such evidence was not enough to convict the said appellant. Apart from this, the learned counsel for the appellant submitted that the mainstay of the impugned judgment and order of the Sessions Court for convicting the appellant was the DNA report (Exh.81) dated 03.12.2015, but, the said report was vitiated because of lack of evidence on record to show proper collection of blood samples and insufficient proof that the samples used for the DNA analysis were properly preserved and sent to the Forensic Laboratory. According to the learned counsel for the appellant, the procedure of collection of samples was vitiated in such a manner that the DNA report, although incriminating and against the appellant, could not be looked into by the Court. On this basis, the learned counsel for the appellant claimed that the appellant (accused No.2) was wrongly convicted by the impugned judgment and order.
12. Mr. A.C. Jaltare, learned counsel appearing for the ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 10 Apeal200-16&Ors..odt appellant Ishwar Tikapache (accused No.3 in Criminal Appeal No. 205 of 2016) and for appellant Vijay Nagfase (accused No.4 in Criminal Appeal No. 206 of 2016) adopted contentions raised on behalf of accused No.2. He further submitted that the name of accused No.4 Vijay Nagfase was not even stated in the FIR and that he was wrongly roped in later on. He further submitted that the said accused no.4 was not identified by the prosecutrix in the test identification parade, which further created doubt about his involvement. As regards accused No.3 Ishwar Tikapache, learned counsel submitted that his name was added in the FIR by the prosecutrix on the police telling her his name and that this factor also created a serious doubt about the involvement of the said accused. The DNA report was attacked on the same grounds by the learned counsel for accused Nos. 3 and 4, as was submitted on behalf of the accused No.2.
13. Mr. C.R. Thakur, learned counsel appearing for the appellant Atul Hatwar (accused No.1 in Criminal Appeal No. 363 of 2016) submitted that the entire story of the prosecutrix was false and that he was falsely implicated by her. The learned counsel submitted that in the absence of examination of Atul Meshram, friend of the prosecutrix, who was with her ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 11 Apeal200-16&Ors..odt when the accused persons were said to have seen the prosecutrix, the prosecution story was not at all proved. The DNA report was also found fault with by the learned counsel appearing for the appellant-accused No.1, on the same grounds as was submitted on behalf of other accused. It was submitted that the Sessions Court has committed grave error in convicting and sentencing the accused for serious offence, even when there was no evidence on record to prove the prosecution story.
14. Mr. N.R. Rode, learned Additional Public Prosecutor, appearing on behalf of the State supported the impugned judgment and order of the Sessions Court. It was submitted that the oral and documentary evidence on record was sufficient to prove the guilt of the accused and that the evidence of the prosecutrix along with that of her sister PW1 Nilima was enough to prove the case of the prosecution. It was submitted that the DNA report showing the presence of DNA of all the accused on the undergarment of the prosecutrix was a clinching piece of evidence and that the appeals filed by the accused deserved to be dismissed.
15. In the present case, a perusal of the depositions of ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 12 Apeal200-16&Ors..odt PW1 Nilima and PW2- the prosecutrix show that there are statements that raise doubts about the manner in which the incident has occurred. PW1 Nilima in her deposition states that the prosecutrix while narrating the incident to her had named only accused No.1 Atul Hatwar as having raped her. The prosecutrix (PW2) made the following statement in her cross- examination:
"It is true that police told me that he is Jitendra Gabhane. It is true that I was not knowing the name of Jitendra Gabhane at the time of filing the complaint. It is true that names Jitendra Gabhane and Ishwar Tikapache were told to me by the police and were written in the complaint by the police. It is true that I did not state the name of Jitendra Gabhane to the police in my complaint. It is not true to say that I did not identify accused No.2 Jitendra Gabhane in identification parade."
The aforesaid statement of the prosecutrix shows that she did not know the names of accused No.2 Jitendra Gabhane and accused no.3 Ishwar Tikapache and that the Police told her the names while the complaint was being written. In fact the prosecutrix clearly stated that she did not name accused No.2 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 13 Apeal200-16&Ors..odt Jitendra Gabhane to the Police in her complaint. The further statement that it was not true that she did not identify accused no.2 Jitendra Gabhane in the test identification parade, is obviously incorrect because record shows that she failed to identify him and this is also confirmed by the evidence of PW8, the Naib Tahsildar, who conducted the test identification parade. It is also evident from the record that accused No.4 Vijay Nagfase was not even named by her in the FIR and the prosecutrix also failed to identify him in the test identification parade.
16. The prosecutrix only identified accused no.1 Atul Hatwar and accused No.3 Ishwar Tikapache in the test identification parade. Therefore, to that extent her testimony and that of PW1 Nilima appears to be doubtful as against accused Nos. 2 and 4. The medical examination of the prosecutrix at Exh.85 shows that there are no injuries found on her body, there is absence of injury on the hymen and no injuries on the genitals. The case of the prosecutrix is that the four accused persons one after the other forcibly had sexual intercourse with her and yet there is no physical injury on her body or her genitals. This factor also raises some doubt about the story of the prosecution.
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17. Even if some doubts arise as aforesaid in the story of the prosecution due to inconsistencies in the oral evidence and the result of the medical examination, the strongest incriminating circumstance against the accused persons is the DNA report dated 03.12.2015 (Exhs. 80 and 81). In order to appreciate the report, it would be necessary to refer to the chemical analysis report of the clothes of the prosecutrix and the four accused persons dated 18.02.2015 sent by the Regional Forensic Science Laboratory, Nagpur. This report shows the numbers allotted to various articles, which are referred to in the DNA report and therefore, the same needs to be quoted:
"____________________________________________________________ Description of Parcel/s
- Five sealed parcels, seals intact and as per copy sent ______________________________________________________________ Description of Articles contained in Parcel/s
1. Full Sweater
2. Full T-shirt
3. Sando Banian wrapped in paper labelled- 3A(6).
4. Gamcha (torn)
5. Full Pant
6. Knicker ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 15 Apeal200-16&Ors..odt
7. Jerkin stated as sweater
8. Jeans full pant
9. Sandow banian wrapped in paper labelled -
10. Full shirt 3B(6).
11. Knicker
12. Full shirt
13. Sandow banian
14. Night full pant (lower) wrapped in paper labelled- 3C(6).
15. Knicker
16. Half shirt
17. Sleeveless banian
18. Jeans full pant wrapped in paper labelled 3D(6).
19. Knicker
20. Jeans full pant
21. Full T-Shirt
22. Slip wrapped in paper labelled- 3E(6).
23. Brassiere
24. Knicker _____________________________________________________________ Result of Analysis
- Exhibit (20) has one blood mix semen stain of about 5 cm in diameter on back middle portion.
- Exhibit (24) has three blood mix semen stains one of about 4 cm in diameter and two of about 5 cm in diameter on middle portion.
- Exhibit (11) has one semen stain of about 2 cm in diameter on front middle portion.
- Exhibit (15) has one semen stain of about 3 cm in diameter on front middle portion.::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 :::
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- No blood is detected on exhibits 1,2,3,4,5,6,7,8,9,10,11,12, 13,14,15,16,17,18,19,21,22 and 23.
- No semen is detected on exhibits 1,2,3,4,5,6,7,8,9,10,12,13, 14,16,17,18,19,21,22 and 23.
- Blood mix semen detected on exhibits 20 and 24 is human.
- Semen detected on exhibits 11 and 15 is human.
____________________________________________________________"
18. In this context, the DNA report assumes importance, particularly the interpretation portion forwarded by the Regional Forensic Science Laboratory, Nagpur. The portion of interpretation is reproduced hereinbelow:
"Interpretation
1) Mixed DNA profile obtained from semen detected on ex.11 Knicker in DNAa-324/15 contains DNA of Jitendra Suresh Gabhne and Ishwar Mangaldas Ticapache in DNAn-569/15 and Vijay Shamu Nagfase.
2) DNA profile obtained from semen detected on ex.15 knicker in DNAa-324/15 is of male origin and matched with DNA profile of Ishwar Mangaldas Ticapache in DNAn-569/15.
3) Mixed DNA profile obtained from blood
mixed semen detected on ex.20 Jeans Full
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Pant in DNAa-324/15 contains DNA of Roshni Nageshwar Sukhdeve, Jitendra Suresh Gabhne and Ishwar Mangaldas Tikapache in DNAn-
569/15.
4) Mixed DNA profile obtained from blood
mixed semen detected on ex.24 Knicker in
DNAa-324/15 contains DNA of Roshni
Nageshwar Sukhdeve, Jitendra Suresh Gabhne and Ishwar Mangaldas Tikapache in DNAn-
569/15 and Vijay Shamu Nagfase.
5) Mixed DNA profile obtained from ex.2 Pubic Hair in DNAa-324/15 contains DNA of Ishwar Mangaldas Ticapache in DNAn-569/15 and Vijay Shamu Nagfase.
6) Female DNA profile obtained from ex.4 Vaginal Swab in DNAa-324/15 matched with DNA profile of Roshni Nageshwar Sukhdeve in DNAn-569/15."
19. A perusal of the said chemical analysis report, as also the interpretation in the DNA analysis report, clearly shows that the DNA of the accused persons was found on the jeans full pant and the knicker of the prosecutrix. The presence of DNA of all the accused persons on the aforesaid clothes of the prosecutrix is a highly incriminating circumstance pointing ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 18 Apeal200-16&Ors..odt towards their guilt. The significance of the said DNA report is obvious when DNA analysis has been accepted as a reliable scientific method of investigation for proving involvement of the accused. It has been held by the Hon'ble Supreme Court in its judgment in the case of Mukesh and another .v. State (NCT of Delhi) and others - (2017) 6 Supreme Court Cases 1 as follows:
"228. From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted."
In the same judgment, the Hon'ble Supreme Court has further held as follows:-
"457. DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at the scene of crime or for identifying the source of blood found on any ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 :::
19 Apeal200-16&Ors..odt articles or clothes, etc. recovered from the accused or from the witnesses. DNA testing on samples such as saliva, skin, blood, hair or semen not only helps to convict the accused but also serves to exonerate. The sophisticated technology of DNA fingerprinting makes it possible to obtain conclusive results. Section 53-A CrPC is added by the Code of Criminal Procedure (Amendment) Act, 2005. It provides for a detailed medical examination of accused for an offence of rape or attempt to commit rape by the registered medical practitioners employed in a hospital run by the Government or by a local authority or in the absence of such a practitioner within the radius of 16 km from the place where the offence has been committed by any other registered medical practitioner."
20. Thus, the clinching nature of the evidence in the form of DNA analysis report is undeniable and it has to be accepted as a very strong proof of the involvement of the accused in the crime. But, as observed by the Hon'ble Supreme Court in the above mentioned judgment, if the DNA report is absolutely dented and it is established that there has been no quality control or quality assurance and if the sampling has been ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 20 Apeal200-16&Ors..odt improper and that there is evidence to show tampering of the samples, the DNA test report would be unsafe to be made a basis for convicting the accused.
21. In order to come to a conclusion as to whether the collection of blood samples was proper and that there was proper quality control ensuring that there was no tampering with the samples in the present case, it is necessary to analyse the evidence on record in the form of seizure panchanamas and the evidence of PW9 Dr. Yogesh Nakade, PW10 N.P. Bhale, Assistant Chemical Analyser, who gave the DNA report and PW11 Dr. Chanchal Khobragade who conducted the medical examination of the prosecutrix. The blood samples of the four accused persons along with semen samples and pubic hair were collected vide Exhs. 67 to 74, on 17.02.2015.
22. These samples were forwarded to the Regional Forensic Science Laboratory, Nagpur by the investigating officer (PW12) on 18.02.2015 vide Exh.109. In this connection, the seizure of clothes of the accused and the prosecutrix also assumes significance and such clothes were also forwarded on 18.02.2015 to the Regional Forensic Science Laboratory, Nagpur for chemical analysis. The chemical analysis reports of ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 21 Apeal200-16&Ors..odt the clothes and the blood samples of the accused persons and the prosecutrix were sent by the Regional Forensic Science Laboratory, Nagpur to the investigating officer as per Exhs. 117 to 122. A perusal of the said exhibits shows that the chemical analysis of the clothes of the accused persons and the prosecutrix started on 24.04.2015 and it was completed on 16.11.2015. The chemical analysis of the blood and other samples of the accused persons started on 18.02.2015 and it was completed on 16.11.2015. Similarly the chemical analysis of the blood, pubic hair and vaginal swab of the prosecutrix started on 18.02.2015 and it was completed on 16.11.2015. The aforesaid chemical analysis reports at Exhs. 117 to 122 were all sent by the Regional Forensic Science Laboratory, Nagpur to the investigating officer and the Medical Officer, General Hospital on 11.12.2015. These reports showed blood mixed semen on the jean pant and knicker of the prosecutrix, which was found to be human. The DNA profiling was separately done.
23. In this regard the evidence of PW10 Neha Bhale, Assistant Chemical Analyser, is relevant because she is the person who has proved the DNA report. Her evidence shows as to what was the manner in which blood samples were collected ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 22 Apeal200-16&Ors..odt for DNA analysis. The relevant portion of the deposition of PW10 Neha Bhale reads as follows:-
"All the above seven samples were taken for D.N.A. Extraction. S.T.R. , D.N.A. profiling was done. Four of above samples were found to have mixed D.N.A. profile. One sample was found to have male D.N.A. profile. One sample was found to have female D.N.A. profile. No amplyfiable D.N.A. Is obtained in one of the samples. On 05.02.2015, I sent letter to Andhalgaon police station for sending fresh blood of all the four accused and victim. I dispatched my report to the Andhalgaon police station on 01.09.2015. My report now shown to me is the same. It bears my signature. Its contents are true and correct. It is at Ex.79.
2. On 15.09.2015, I received blood samples of three accused, namely, Atul Hatwar, Ishwar Tikapache and Jitendra Gabhane, and the victim Roshani. All the four samples have taken for D.N.A. extraction.
S.T.R., D.N.A profiling was done. On 8.10.2015, I received the blood sample of accused Vijay Nagfase. The above sample was taken for D.N.A. extraction. S.T.R., D.N.A. profiling was done. All the D.N.A. profiles of four accused and victim were ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 :::
23 Apeal200-16&Ors..odt compared with the D.N.A. profiles obtained as per Ex.79. Semen stain cuttings from knicker labelled Bn-620/15/11 was found to contain the D.N.A. of Jitendra Gabhane, Ishwar Tikapache and Vijay Nagfase. Semen stain cuttings from knicker labelled Bn-620/15/15 was found to contain the D.N.A. of Ishwar Tikapache. Blood mixed semen stain cuttings from Jeans Full Pant labelled Bn-620/15/20 was found to contain the D.N.A. of Roshani Sukhdeve, Jitendra Gabhane and Ishwar Tikapache. Blood mixed semen stain cuttings from knicker labelled Bn-620/15/24 was found to contain the D.N.A. of Roshani Sukhdeve, Jitendra Gabhane, Ishwar Tikapache and Vijay Nagfase. Public Hair in a phial labelled Roshani Naneshwar Sukhdeve, also labelled Bn-625/15/2 was found to contain D.N.A. of Ishwar Tikapache and Vijay Nagfase. In Nail Clippings in a phial labelled Roshni Naneshwar Sukhdeve also labelled Bn-625/15/3 no D.N.A. profile was found. Vaginal Swab in a phial labelled Roshni Naneshwar Sukhdeve, also labelled Bn-625/15/4 was found to contain D.N.A. of Roshani Sukhdeve. I dispatched my reports to the police station Andhalgaon on 03.12.2015. My reports now shown to me are the same. It bears my signatures. Its contents are true and correct. It is at Exh.80 and 81." ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 :::
24 Apeal200-16&Ors..odt
24. It is evident from the portion of the deposition quoted above that the blood samples of accused persons collected on 17.02.2015 were not used for DNA profiling and report. Although it is stated by PW10 in the said portion of the deposition that on 05.02.2015 she sent a letter to the Police Station for sending fresh blood of all the four accused and victim, the said request letter is actually dated 05.06.2015, which is clear from perusal of the original record. In any case since the incident itself was of 16.02.2015, the date 05.02.2015 is clearly a typographical error. On the said letter dated 05.06.2015 sent by PW10 to the Police Station for collection of fresh blood sample, an application dated 06.07.2015 (Exh.10) was moved by the Assistant Public Prosecutor before the Sessions Court for permission to take blood samples of the accused. On 09.09.2015, the Sessions Court passed an order granting permission to the prosecution for collection of blood samples of the accused.
25. In the said deposition of PW10, it is clearly stated that she received blood samples of three accused i.e. accused No.1 Atul Hatwar, accused No.2 Jitendra Gabhane and accused No.3 Ishwar Tikapache on 15.09.2015 and further that she received fresh blood sample of accused No.4 Vijay Nagfase on ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 25 Apeal200-16&Ors..odt 08.10.2015. It is these samples that were used for DNA profiling and report by PW10. The DNA reports are at Exhs. 80 and 81 dated 03.12.2015 sent by PW10 to the investigating officer. These reports record that the analysis started on 15.09.2015 and it was completed on 30.11.2015. The relevant portion of interpretation given by the PW10, Assistant Chemical Analyser has been quoted above, in paragraph 18. This is the most incriminating evidence against all the four accused. Therefore, it is necessary to analyse whether collection of blood samples has been proper and there has been quality control and quality assurance in the process of collection of samples and their analysis.
26. It is clear from the material and evidence on record that PW10 did make a request on 05.06.2015 for fresh blood samples and that an order was passed by the Sessions Court on 09.09.2015 granting such permission. It is also stated by PW10 that she received the fresh blood samples of the three accused on 15.09.2015 and that of accused no. 4 on 08.10.2015. But, there is no evidence on record about when and where were the blood samples of the accused actually collected and by whom. There are no panch witnesses or even statement by the Doctor or medical staff who collected the ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 26 Apeal200-16&Ors..odt fresh blood samples of the accused. The investigating officer makes no mention of such fresh collection of blood samples of the accused. PW9 Dr. Yogesh Nakade merely states about seizure of blood samples of the accused persons on 17.02.2015, but, evidently the said blood samples were not used for DNA analysis. Thus, the DNA reports and interpretation at Exhs. 80 and 81 do not appear to be free from doubt. The high level of purity in the process of collection of blood samples expected for using the DNA report and its interpretation against the accused, has not been maintained in the present case.
27. In this context, the interpretation at Sr. No.1 given by PW10, quoted above in paragraph 18, is surprising. It records that DNA profiling obtained from semen detected on knicker at Exh.11 belonging to accused no.2 Jitendra Gabhane shows the DNA not only of accused no.2 Jitendra Gabhane but also that of accused no.3 Ishwar Tikapache and accused no.4 Vijay Nagfase. It can be understood that DNA of PW2 Jitendra Gabhane would be found on his knicker, but presence of DNA of accused No.3 Ishwar Tikapache and that of accused No.4 Vijay Nagfase is difficult to fathom. This indicates lack of quality control and quality assurance as also improper ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:51 ::: 27 Apeal200-16&Ors..odt sampling or tampering in the process of DNA analysis. This factor also dents the DNA report considerably.
28. The said DNA report at Sr. No.6 also records that the vaginal swab of the prosecutrix shows only her DNA profile. In her deposition PW11 Dr. Chanchal Khobragade states that in the clinical examination of the prosecutrix there was nothing to suggest that sexual assault had taken place. She also stated that in a case of gang rape by four persons, injuries on labia majora and minora must be found which were not found in the present case and further that no injury on any part of the body of the prosecutrix was found and that there was no bleeding injury. The medical examination conducted by PW11 on the prosecutrix also recorded that there was absence of any injury on the hymen. All this material on record in the form of medical evidence does not support the case of the prosecution. Although the DNA report and its interpretation at Exhs. 80 and 81 are incriminating on the face of it, but there is lack of evidence regarding proper sampling and quality control leading to the DNA report.
29. Another important aspect of quality control in the context of DNA report is the evidence pertaining to seizure of ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:52 ::: 28 Apeal200-16&Ors..odt clothes of the prosecutrix and whether they were kept in proper sealed condition throughout, upto the stage of the DNA analysis and report. The seizure panchanama of the clothes of the prosecutrix is at Exh.35 and PW3 Kundatai is the panch witness examined for proving the same. In her evidence the said panch witness does not state anything about sealing of the clothes in her presence. The seizure panchanama (Exh.35) records that clothes were received in sealed condition from Medical Officer but, they were opened in the Police Station and again sealed. The opening of the seal of the clothes in the Police Station and then again keeping them in sealed condition, does not rule out the possibility of tampering.
30. Apart from this, the record shows that although Exh.117 i.e. the letter of the Regional Forensic Science Laboratory, Nagpur records that the clothes of the four accused and the prosecutrix were received on 18.02.2015 in sealed parcels, at Exh.79, which is the examination report for DNA analysis shows that cuttings from knicker and jeans of the prosecutrix were used for the analysis. This document at Exh.79 does not record that the clothes were received in sealed condition or the date on which they were received and it is also not recorded when the cuttings from the knicker and ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:52 ::: 29 Apeal200-16&Ors..odt jeans of the prosecutrix were taken. It is these cuttings that are used for the ultimate DNA report analysis and interpretation at Exhs. 80 and 81. In the absence of clear evidence as to whether the sealed condition of the clothes of the prosecutrix was maintained and when and where the cuttings of knicker and jeans were made for proceeding with the analysis, the interpretation at Exh.80 is rendered seriously doubtful and unreliable.
31. This shows that the quality control expected in such a case where the DNA report becomes the most important evidence against the accused, has not been maintained upto the required standard and it renders the DNA report and analysis unreliable and doubtful.
32. The material on record, therefore, shows that there has been lack of quality control in maintaining the sealed condition of the clothes while sending them for chemical analysis and DNA report. There is also lack of evidence on collection of fresh blood samples of the accused. On the second aspect, a feeble attempt was made on behalf of the respondent-State by filing an application under Section 391 of the Cr.P.C. , placing on record certain documents, claiming that ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:52 ::: 30 Apeal200-16&Ors..odt such documents proved that the fresh blood samples of the four accused persons were indeed collected in the presence of witnesses on 14.09.2015, in pursuance of the order dated 09.09.2015 passed by the Sessions Court. It was submitted that this Court may allow the application for additional evidence in the interest of justice.
33. This application was opposed by the counsel for the appellants on the ground that it would amount to permitting the prosecution to fill in the lacunae in the evidence. The learned counsel for the respondent-State relied upon the judgment of the Hon'ble Supreme Court in the case of Ashok Bhutia .vs. State of Sikkim - (2011) 4 Supreme Court Cases 402 to claim that the prosecution was seeking to only cure irregularity in the evidence, as the documents pertaining to actual collection of fresh blood samples on 14.09.2015 were already available. It was submitted that the Hon'ble Supreme Court had held that the additional evidence can be taken at the appellate stage in exceptional circumstances to remove an irregularity, where the circumstances so warrant in public interest.
34. We are aware that the power under Section 391 of ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:52 ::: 31 Apeal200-16&Ors..odt the Cr.P.C. can be exercised for ascertaining the truth and for removing an irregularity in the evidence. But, in the facts of the present case we find that even if the said application is allowed and the prosecution is permitted to lead additional evidence to prove collection of fresh blood samples on 14.09.2015, it would still not help the prosecution beyond a certain point. Even if it is held that fresh blood samples were indeed collected on 14.09.2015 and those were the very samples received on 15.09.2015 by PW10, the Chemical Analyser, the DNA report and analysis cannot be held to be free from doubt. This is essentially because the evidence on seizure and proper sealing of the clothes of the prosecutrix is not on record. In fact, the evidence indicates that there was every possibility of tampering with the clothes of the prosecutrix because the seal put by the Medical Officer was opened in the Police Station as per Exh.35 seizure panchanama and there is no evidence on record to show when the cuttings of the knicker and jeans of the prosecutrix were made and when such cuttings were forwarded to the Chemical Analyser for DNA analysis. In the face of such material showing lack of evidence of proper sealing and sampling as also quality control in the clothes and cuttings of the clothes of the prosecutrix, even if the evidence regarding fresh samples sought to be ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:52 ::: 32 Apeal200-16&Ors..odt brought on record by the prosecution is accepted, the serious doubt about the DNA report and its interpretation is not taken away.
35. In this backdrop, the application filed by the respondent-State under Section 391 of the Cr.P.C. is rejected.
36. The following facts emerge from a consideration of the oral and documentary evidence on record:
(a) The prosecutrix claimed to be with her friend Atul Meshram at the time when the four accused persons accosted them, but, the prosecution did not examine the said Atul Meshram.
(b) The prosecution also did not examine Suraj Satpute, brother-in-law of the prosecutrix, although he had accompanied her to the Police Station and she claimed to have shown the accused persons to the said Suraj Satpute at the Hangama Programme.
(c) In the FIR, it is recorded that the prosecutrix came home and told her elder sister PW1 Nilima about the incident, ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:52 ::: 33 Apeal200-16&Ors..odt while in the deposition of PW1 Nilima, it is stated that the prosecutrix came at the place of Hangama Programme and narrated the incident to her.
(d) PW1 Nilima stated in her deposition that the prosecutrix told her that accused no.1 Atul Hatwar raped her, but in the FIR accused Nos. 2 and 3 were also named.
(e) Accused no.4 Vijay Nagfase was not named in the FIR.
(f) In her cross-examination, the prosecutrix (PW2) admitted that she did not know the names of accused No. 2 Jitendra Gabhane and accused No.3 Ishwar Tikapache. She further stated that their names were told by the Police and they were written in the complaint by the Police. She further stated that she did not state the name of accused Nos. 2 Jitendra Gabhane to the Police in her complaint.
(g) In the test identification parade, the prosecutrix identified only accused no.1 Atul Hatwar and accused No.3 Ishwar Tikapache, while she failed to identify accused No.2 Jitendra Gabhane and accused No.4 Vijay Nagfase. ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:52 :::
34 Apeal200-16&Ors..odt
(h) The incident took place at about 9.30 p.m. on 16.02.2015 and the FIR was registered at 12.30 a.m. on 17.02.2015, but the prosecutrix was medically examined at 12.30 p.m. on 17.02.2015 and she was in the same clothes, as the said clothes were shown to have been seized in the Police Station at 2.30 p.m. on 17.02.2015.
(i) The blood samples and other samples from the bodies of the accused persons were collected on 17.02.2015 and sent to the Regional Forensic Science Laboratory, Nagpur. These were used for chemical analysis and the reports were submitted on 11.12.2015, but the said blood samples were not used for DNA analysis.
(j) PW10 , Assistant Chemical Analyser states in her deposition that fresh blood samples of the accused persons were received on 15.09.2015 and 08.10.2015, on the basis of which the DNA reports and interpretation were prepared. But, there is no evidence on record as to when, where and by whom were the said fresh blood samples collected.
(k) The seizure panchanama Exh.35 and Exh.79 i.e. ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:52 ::: 35 Apeal200-16&Ors..odt examination report show that the clothes of the prosecutrix were not properly sealed throughout the process of seizure till the DNA analysis was made. The seal of the clothes was opened in the Police Station showing possibility of tampering. Exh.79 does not show when the cuttings from the knicker and jeans of the prosecutrix were taken and there is no date of receipt and the number of the parcels in Exh.79. This creates serious doubt about the manner in which DNA analysis was conducted and it seriously dents the DNA report and interpretation at Exhs. 80 and 81.
(l) The evidence of PW11 Dr. Chanchal Khobragade who conducted the medical examination of the prosecutrix read with Exh.85 (medical examination report) shows that there was no injury on the hymen and the genitals of the prosecutrix. There was no evidence of sexual assault as claimed by the prosecutrix , as there was not a single injury found on her body, despite the fact that the gang rape by four accused persons was said to have occurred in a field.
(m) The evidence of PW9 Dr. Yogesh Nakade shows that the medical examination of the accused persons demonstrated that smegma was found on the tip of the penis of all the four ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:52 ::: 36 Apeal200-16&Ors..odt accused persons and that presence of such smegma shows that there was no sexual intercourse committed by the accused.
(n) As stated above, presence of DNA of accused No. 3 Ishwar Tikapache and accused No.4 Vijay Nagfase on the knicker of accused no.2 Jitendra Gabhane creates doubt about the manner in which the clothes and semen as also blood samples were collected, stored and analysed. Possibility of tampering cannot be ruled out.
37. The aforesaid facts create doubt about the prosecution story. The Sessions Court has referred to some of these facts, but it has gone ahead to convict and sentence the four accused mainly on the basis of the DNA report. The circumstances brought on record showing doubts regarding the purity of sampling and quality control, have been brushed aside by the Sessions Court, as the interpretation in the DNA report appears to clearly point towards the involvement of the accused persons in the alleged crime.
38. But, in order to convict the accused persons on the basis of DNA analysis and report, it is an absolute necessity ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:52 ::: 37 Apeal200-16&Ors..odt that the collection of samples and quality control as regards testing is of the highest standard. This is because DNA evidence has been accepted as conclusive proof. Any material on record creating doubt about the sampling being proper and showing that there has not been adequate quality control and further that possibility of tampering of samples cannot be ruled out, creates serious doubt about the veracity of the DNA report and its analysis. In the instant case, the evidence of PW10, Assistant Chemical Analyser, read with other material evidence on record shows that quality control and proper sampling of the expected standard has not been maintained, thereby rendering the DNA report doubtful.
39. The entire oral, documentary, medical and expert evidence on record, when considered together, creates serious doubts about the prosecution story and the claims of the prosecutrix. Any doubt must necessarily enure to the benefit of the accused. As cogent and clinching evidence is not on record to prove the guilt of the accused, it would not be safe to uphold the conviction and sentence awarded by the Sessions Court.
40. In view of the above, the appeals filed by the four ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 01:59:52 ::: 38 Apeal200-16&Ors..odt accused persons are allowed. Accordingly, we set aside the judgment and order of the Sessions Court and we acquit the appellants- accused Nos. 1 to 4 of the charges framed against them. The appellants be released from custody forthwith, if not required in any other case. The amount of fine, if any paid, be refunded to the appellants.
(Manish Pitale, J. ) (R.K. Deshpande, J.) ...
halwai/p.s.
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