Gauhati High Court
Nantu Nath vs The State Of Assam on 19 June, 2024
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010097392020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/54/2020
NANTU NATH
S/O. LT. TULON NATH, VILL. BHUMURAGURI LALUNG GAON, P.S.
BATRADAVA, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR. N K BARUAH, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 19.06.2024 [M. Choudhury, J] This criminal appeal from Jail is preferred to assail a Judgment dated 17.09.2019 and an Order on sentence dated 18.09.2019 passed by the Court of learned Special Judge, Nagaon ['the Special Court', for short] in Special [POCSO] Case no. 49/2018. In the trial of Special [POCSO] Case no 49/2018, charges Page No.# 2/18 were framed against thee accused persons including the accused-appellant herein. Against the accused-appellant, charge under Section 6 of the Protection of Children from Sexual Offences [POCSO] Act, 2012 was framed whereas against the other two accused persons, charge was framed under Section 4 of the POCSO Act, 2012. By the Judgment dated 17.09.2019, the learned Special Court has convicted only the accused-appellant while acquitting the other two accused persons from the charge under Section 4 of the POCSO Act, 2012. Finding the accused-appellant guilty of the offence under Section 6 of the POCSO Act, 2012, the accused-appellant has been sentenced to undergo rigorous imprisonment for 15 [fifteen] years and to pay a fine of Rs. 5,000/-, in default of payment of fine, to undergo rigorous imprisonment for another 3 [three] months. The learned Special Court in the Judgment dated 17.09.2019, has recommended the District Legal Services Authority, Nagaon to pay compensation to the victim after due enquiry.
2. The investigation was commenced on institution of a First Information Report [FIR] lodged by the Probation Officer - cum - District Child Protection Officer [DCPO], Nagaon before the Officer In-Charge, Batadrava Police Station, District
- Nagaon on 11.12.2017. By lodging the FIR, the informant i.e. the Probation Officer-cum-DCPO, Nagaon brought to the notice of the Officer In-Charge, Batadrava Police Station an incident of alleged sexual assault on a minor girl [hereinafter referred to as 'the prosecutrix', withholding the name]. In the said FIR, the informant had inter alia stated that the prosecutrix, aged about 13 years, was sexually abused by the accused-appellant and also by the other accused, who were residents of the same village as that of the prosecutrix. It was informed that as a result of the sexual abuse, the prosecutrix got pregnant Page No.# 3/18 and on 04.12.2017, the prosecutrix gave birth to a girl child in the B.P. Civil Hospital, Nagaon. It was further informed that the District Child Protection Unit, Nagaon and M/s Child-Line, Nagaon were taking initiatives in the case and had produced the prosecutrix and the new born baby before the Child Welfare Committee, Nagaon on 08.12.2017. By lodging the FIR, stated to have been lodged at the instruction of the Child Welfare Committee, Nagaon, the Officer In-Charge, Batadrava Police Station was requested to take necessary action against the three accused persons including the accused-appellant, named therein. On receipt of the said FIR, the Officer In-Charge, Batadrava Police Station registered the same as Batadrava Police Station Case no. 244/2017 for offences under Section 376, Indian Penal Code read with Section 4 of the POCSO Act. One Sub-Inspector of Police, Maheshwar Saikia [P.W.9] was entrusted to carry out the investigation.
3. As part of the investigation, the I.O. [P.W.9] visited the office of the District Child Protection Officer [DCPO], Nagaon and examined the informant [P.W.7]. The I.O. seized a number of documents in connection with the case, on being produced by the Project Officer, Institutional Care from the Institutional Child Protection Officer, O/o the DCPO, Nagaon vide Seizure List [Ext.-1]. As the prosecutrix and the new born baby were in the Nagaon State Home, the I.O. [P.W.9] visited the Nagaon State Home and met the prosecutrix in presence of other official witnesses. The medical examination of the prosecutrix was conducted in the B.P. Civil Hospital, Nagaon on 18.12.2017. The accused- appellant was also produced before the Judicial Magistrate, First Class, Nagaon on 18.12.2017 for recording his confessional statement under Section 164, CrPC in connection with Batadrava Police Station Case no. 244/2017. On appearance Page No.# 4/18 of the accused-appellant before the Court on 18.12.2017, the accused-appellant was forwarded to the Central Jail for the purpose of giving reflection time with a further direction to the Jail authority that the accused-appellant should be kept away from the influence of other co-inmates. Thereafter, the accused-appellant was produced before the learned Judicial Magistrate, First Class, Nagaon on 19.12.2017 and on that day, the statement of the accused-appellant was recorded under Section 164, CrPC by the Judicial Magistrate, First Class, Nagaon. Apart from recording the statements of witnesses under Section 161, CrPC, the I.O. [P.W.9] got the statement of the prosecutrix recorded under Section 164, CrPC before the Judicial Magistrate, First Class, Nagaon on 19.12.2017. In the course of investigation, the I.O. [P.W.9] also made a prayer before the learned Special Court, Nagaon on 20.01.2018 for collection of blood samples from [i] the prosecutrix; [ii] the new born baby, who were then at the State Home, Nagaon; and [iii] three accused persons including the accused- appellant, who were then in Jail custody, for their DNA profiling. On the prayer being allowed, the blood samples were collected and forwarded to the Directorate of Forensic Science, Assam for DNA profiling. The Directorate of Forensic Science, Assam on receipt of the samples for DNA profiling, carried out the tests of DNA profiling and submitted a Report on 09.05.2018 to the Superintendent of Police, Nagaon. The I.O. [P.W.9] after completing investigation into the case, Batadrava Police Station Case no. 244/2017 [corresponding G.R. Case no. 7016/2017], submitted a charge sheet under Section 173[2], CrPC vide Charge Sheet no. 78/2018 on 31.05.2018 finding a prima facie case for the offence under Section 4 of the POCSO Act, 2012 well established against the accused-appellant and the other two accused persons, named in the FIR.
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4. On receipt of the Charge-Sheet, the learned Special Court after appearance of the three accused persons including the accused-appellant, and after hearing the learned Special Public Prosecutor and the learned defence counsel, framed a charge under Section 6 of the POCSO Act, 2012 against the accused-appellant. The learned Special Court also framed a charge under Section 4 of the POCSO Act, 2012 against the other two accused persons, who were charge sheeted along with the accused-appellant. When the charges were explained and read over to all the three accused persons, they abjured guilt and claimed to be tried.
5. During the course of the trial, the prosecution side examined eleven nos. of prosecution witnesses and exhibited a number of documents to bring home the charges against the three accused persons including the accused-appellant. One witness was examined as court witness, C.W.1. After closure of prosecution evidence, the accused persons were examined under Section 313, CrPC by putting before them the incriminating materials emerging from the evidence led by the prosecution. The accused person did not adduce any defence evidence. After hearing the learned counsel for the parties and after appreciation of the entire evidence/materials on record, the learned Special Court rendered the Judgment on 17.09.2019 whereby the accused-appellant has been convicted for the offence under Section 6 of the POCSO Act, 2012, while acquitting the other two accused persons from the charge framed against them. After the Judgment dated 17.09.2019, the accused-appellant was heard under Section 235[2], CrPC on the point of sentence and thereafter, the accused-appellant has been sentenced in the manner, mentioned above.
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6. We have heard Mr. N.K. Baruah, learned Amicus Curiae for the accused- appellant and Mr. K.K. Das, learned Additional Public Prosecutor for the respondent State.
7. Mr. Baruah, learned Amicus Curiae appearing for the accused-appellant has submitted that in so far as the determination of age of the victim is concerned, the learned Special Court has placed undue reliance in the testimony of the court witness, C.W.1 and the documents he had exhibited as School Admission Register [Ext.-9]. It is the contention of Mr. Baruah that a document of such kind does not come within the purview of Section 94[2] of the Juvenile Justice [Care and Protection of Children] Act, 2015 ['Juvenile Justice Act', for short]. Referring to the Medical Examination Report [Ext.-14] of the prosecutrix, he has submitted that the manner of determination of age is not in conformity with the procedure prescribed in Section 94[2][iii] of the Juvenile Justice Act. He has further contended that the confessional statement [Ext.-13] of the accused- appellant recorded under Section 164, CrPC cannot be relied upon by the prosecution as such confession was a retracted one. Mr. Baruah has pointed out that when the accused-appellant was examined under Section 313, CrPC and was asked about the confessional statement, the accused-appellant had clearly stated that he did not make any confessional statement. It is his further submission that the statement of the accused-appellant recorded by the Child Welfare Committee cannot be made a basis for finding him guilty. Mr. Baruah has contended that as the purported School Admission Register [Ext.-9] does not have any probative value there is clear ambiguity as regards the actual age of the prosecutrix at the time of commission of the offence and in such fact situation, the benefit should go to the accused-appellant. It is strenuously Page No.# 7/18 contended by the learned Amicus Curiae that the report on the DNA profiling did not establish that the accused-appellant had fathered the baby and the same has clearly created the situation for acquittal of the accused-appellant from all the allegations and the charge under Section 6, POCSO Act.
8. Appearing for the State, Mr. Das, learned Additional Public Prosecutor has contended that under the POCSO Act, 2012, a person below the age of eighteen years is a child. In the Medical Examination Report [Ext.-14], the Doctor [P.W.10] after due examination and on the basis of X-Ray Report [Ext.-15] had in clear terms reported that the age of the prosecutrix was between 16 years and 17 years on the date of the examination, that is, on 18.12.2017. Meaning thereby, the prosecutrix was below 18 years of age when the accused-appellant had committed sexual assault on her. He has, thus, contended that the offence committed by the accused-appellant falls within the scope and ambit of Section 5[j][ii] of the POCSO Act, 2012 since as a result of the penetrative sexual assault, the prosecutrix got impregnated and delivered a baby on 04.12.2017. On the aspect of probative value of the School Admission Register, Mr. Das has referred to the decision in Criminal Appeal no. 2276 of 2014 [Manak Chand @ Mani vs. The State of Haryana] , decided on 30.10.2023. He has further contended that it is evident from the Report of DNA profiling [Ext.-19], the accused-appellant is the father of the baby, given birth by the prosecutrix on 04.12.2017.
9. During the course of hearing, apart from the above submissions, Mr. Das, learned Additional Public Prosecutor has, however, fairly submitted that in order to appreciate the Result of the DNA Fingerprinting Analysis given vide Ext.-18, Page No.# 8/18 the learned Special Public Prosecutor conducting the trial before the learned Special Court ought to have called the expert, that is, the Scientific Officer, DNA Typing Unit, Directorate of Forensic Science, Assam to prove the contents of the DNA Fingerprinting Analysis Report [Ext.-19] and the exact meaning of the contents therein. He has further submitted as the Result of the DNA Fingerprinting Analysis is highly scientific in nature containing some complex scientific terms, the presence of the expert was of utmost necessity to explain the Result of DNA Fingerprinting Analysis properly and correctly and to also enable the Court, the prosecution and the person prosecuted to appreciate such result properly and correctly so that interests of none of the parties suffer in the process and the same would, in turn, enable both the prosecution and the defence to understand the contents properly and correctly as the offence is serious in nature.
9.1. The learned Additional Public Prosecutor has submitted that non- examination of the expert on the part of the learned Special Public Prosecutor was merely an irregularity and in such view of the matter, additional evidence in the form of testimony of the expert is necessary. It is his submission that examination of the expert will serve the causes of both the sides.
10. The learned Amicus Curiae for the appellant on the aspect of the Result of the DNA Fingerprinting Analysis, has also expressed a similar view, as that of the learned Additional Public Prosecutor.
11. To appreciate the submissions advanced by the learned Additional Public Prosecutor, we have perused the Report given by the Directorate of Forensic Page No.# 9/18 Science, Assam vide Report no. DFS 1610/18/1967/DNA-403 dated 09.05.2018, which was exhibited during the course of the trial as Exhibit-19 [Ext.-1]. Ext.-19 is purportedly a Report on DNA profiling of the baby, the prosecutrix and three accused persons including the accused-appellant, who faced the trial.
12. For the purpose of ready reference, the contents of 'the Description of Articles' mentioned in the Report bearing no. DFS 1610/18/1967/DNA-403 dated 09.05.2018 [Ext.-19] are reproduced herein below :-
DESCRIPTION OF ARTICLES 1 One sealed EDTA vial contains 2ml [approx.] Marked as Exhibit liquid blood of Baby of 'X' collected by No. DNA doctors of B.P. Civil Hospital, Nagaon with 1496[A]/18 blood donar authentication card.
2 One sealed EDTA vial contains 2ml [approx.] Marked as Exhibit
liquid blood of 'X' collected by doctors of No. DNA
B.P. Civil Hospital, Nagaon with blood donar 1496[B]/18 authentication card 3 One sealed EDTA vial contains 2ml [approx.] Marked as Exhibit liquid blood of 'A' collected by doctors of No. DNA 1497/18 B.P. Civil Hospital, Nagaon with blood donar authentication card 4 One sealed EDTA vial contains 2ml [approx.] Marked as Exhibit liquid blood of 'B' collected by doctors of No. DNA 1498/18 B.P. Civil Hospital, Nagaon with blood donar authentication card 5 One sealed EDTA vial contains 2ml [approx.] Marked as Exhibit liquid blood of 'C' collected by doctors of No. DNA 1499/18 B.P. Civil Hospital, Nagaon with blood donar authentication card In the Table above, the actual names are withheld, and they are referred as Page No.# 10/18 under :-
X - the prosecutrix;
A - the accused-appellant;
B - the accused no. 2, who stood acquitted; and C - the accused no. 3, who stood acquitted.
13. Ext.-19 has further reported 'the Result of DNA Fingerprinting Analysis' as under :-
RESULTS OF DNA FINGERPRINTING ANALYSIS DNA from the sources of the above exhibits were isolated by organic extraction method and subjected to multiplex PCR reaction using AmpFLSTR Identifiler Plus Kit. The amplified products along with controls were run on Automated DNA Sequencer and analysis was carried out using Genemapper ID v3.7 software with respect to standard ladder. The resultant allele distribution in different loci in the different exhibits were studied and it was observed :
That one of the maternal allele of the amplified loci of Exhibit No DNA 1496[A]/18 [as marked] matches with one of the respective allele in the DNA profile of Exhibit No. DNA 1496[B]/18 [as marked]. The non-maternal allele of Exhibit No. DNA 1496[B]/18 [as marked] is matching with the DNA profile of Exhibit No. DNA 1497/18 [as marked] whereas it is not matching with the DNA profile of Exhibit No. DNA 1498/18 [as marked] and Exhibit No. DNA 1499/18 [as marked].
14. On perusal of the 'the Description of the Articles' and 'the Result of the DNA Fingerprinting Analysis' contained in the Report bearing no. DFS 1610/18/1967/DNA-403 dated 09.05.2018, exhibited as Ext.-19, during the trial, we are not in the position to arrive at any definite conclusion as Page No.# 11/18 regards matching of DNA profile of the baby of 'X' with the DNA profile of 'A', that is, the accused-appellant.
15. In a trial to be a fair trial, both the prosecution side and the defence side should be fairly dealt with. It is trite to say that denial of a fair trial would result in injustice either to the victim or to the accused and to the society as a whole. It has been observed that fair trial means a trial in which bias or prejudice for or against the accused, the victim, the witnesses, or the cause which is being tried should be absent. It is too well settled that the object of a trial, that is to say, of a fair trial is to render justice and to convict the guilty and to protect the innocent. The ultimate object of a trial is to search for the truth and on the standard of beyond reasonable doubt, to punish the guilt. Failure to accord fair hearing either to the prosecution or to the defence would be a failure of the concept of due process of law.
16. At this stage, it is apt to refer to the provisions contained in Section 53-A of the Code. Section 53A, CrPC has prescribed for examination of person accused of rape by medical practitioner. As per sub-section [1] of Section 53A, when a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed, by any other registered medical practitioner acting at the request of a police officer not below the rank of a sub-inspector, Page No.# 12/18 and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. The definition of 'examination' is provided in Explanation [a] to Section 53 of the Code. As per Explanation [a], 'examination' shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case. Section 164A, CrPC has provided for the procedure for medical examination of the victim of rape and such medical examination can consist of a report for DNA profiling.
17. It is noticed that during the course of investigation of Batadrava Police Station Case no. 244/2017 wherefrom the trial of Special [POCSO] Case no. 49/2018 had emanated, the investigating authority had resorted to the process of DNA profiling, by collecting blood samples from the new-born baby, the prosecutrix and the accused-appellant. The Result of the DNA Fingerprinting Analysis contained in Report no. DFS 1610/18/1967/DNA-403 dated 09.05.2018 [Ext.-19], quoted above, was the outcome of the said process.
18. In Krishan Kumar Malik vs. State of Haryana, [2011] 7 SCC 130 , it has been observed to the effect that after incorporation of Section 53A in the Code w.e.f. 23.06.2006, it has become necessary for the prosecution to go in for DNA test in cases of alleged rape, facilitating the prosecution to prove its case against the accused. Following Krishan Kumar Malik [supra], the Hon'ble Supreme Court in Sunil vs. State of Madhya Pradesh, [2017] 4 SCC 393, has Page No.# 13/18 observed in the following manner :-
4. From the provisions of Section 53-A of the Code and the decision of this Court in Krishan Kumar, [2011] 7 SCC 130, it does not follow that failure to conduct the DNA test of the samples taken from the accused or prove the report of DNA profiling as in the present case would necessarily result in the failure of the prosecution case. As held in Krishan Kumar [para 44], Section 53-A really 'facilitates the prosecution to prove its case'. A positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favouring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered.......
19. In this connection, a reference to the provisions contained in Section 391 of the Code appears necessary. Section 391, CrPC reads as under :-
391. Appellate Court may take further evidence or direct it to be taken.--
[1] In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
[2] When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.
[3] The accused or his pleader shall have the right to be present when Page No.# 14/18 the additional evidence is taken.
[4] The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.
20. In what kinds of situations the appellate court should exercise the power under Section 391, CrPC have been exposited by the Hon'ble Supreme Court of India in the case of Zahira Habibulla H. Sheikh and another vs. State of Gujarat and others, reported in [2004] 4 SCC 158. For ready reference, the relevant excerpts from the said decision are quoted herein below :-
47. Section 391 of the Code is another salutary provision which clothes the courts with the power to effectively decide an appeal.
Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the court can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate court considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate court to call for further evidence before the appeal is disposed of. The appellate court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, especially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the Page No.# 15/18 accused. The primary object of Section 391 is the prevention of a guilty man's escape through some careless or ignorant proceedings before a court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable.
48. The legislative intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct and proper finding, it would be justified in taking action under Section 391.
49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the section are only to be invoked when formal proof for the prosecution is necessary. If the appellate court thinks that it is necessary in the interest of justice to take additional evidence, it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of discretion of the appellate court. As reiterated supra, the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the court in the discharge of its judicial functions.
21. After going through the contents of the Result of the DNA Fingerprinting Analysis [Ext.-19], extracted above, we are of the considered view that there appears to be an ambiguity and indefiniteness as it appears to have not Page No.# 16/18 reflected the result about matching of Exhibit no. DNA 1496[A]/18 and Exhibit no. DNA 1497/18, which appears to be the prime purpose for carrying out the DNA Fingerprinting Analysis. Conspicuously, the Report no. DFS 1610/18/1967/DNA-403 dated 09.05.2018 [Ext.-19] of the Directorate of Forensic Science, Assam was exhibited through the Investigating Officer of the case, P.W.9 during the trial and not by the Scientific Officer, DNA Typing Unit, Directorate of Forensic Science, Assam, who authored the Report. As a result of non-examination of the Scientific Officer, DNA Typing Unit, Directorate of Forensic Science, Assam, the ambiguity and indefiniteness as regards matching of Exhibit no. DNA 1496[A]/18 and Exhibit no. DNA 1497/18 had remained not only till the conclusion of the trial but it has continued in the appellate stage, the point which the learned Additional Public Prosecutor has harped on and which the learned Amicus Curiae has also endorsed. In order to clear the cloud of such ambiguity and indefiniteness as regards matching of Exhibit no. DNA 1496[A]/18 and Exhibit no. DNA 1497/18, we are of the considered view that the present one is a fit case to exercise the power provided in Section 391 of the Code by appellate court for ends of justice. We are of the further view that for removal of such ambiguity and indefiniteness, it is of utmost necessity to examine the expert who had carried out the DNA Fingerprinting Analysis, that is, Scientific Officer, DNA Typing Unit, Directorate of Forensic Science, Assam, who is the author of the Report no. DFS 1610/18/1967/DNA-403 dated 09.05.2018 [Ext.-19], by the learned trial court as such examination would facilitate in fulfilling the concept of fair trial.
22. It is not in doubt that DNA profiling is considered and treated to be an accurate way to compare a suspect's DNA with the victim's DNA. In this Page No.# 17/18 connection, we take note of the following observation made by the Hon'ble Supreme Court of India, in Selvi and others vs. State of Karnataka, reported in [2010] 7 SCC 263],:-
220. ...... we must stress that the DNA profiling technique has been expressly included among the various forms of medical examination in the amended Explanation to Section 53, CrPC. It must also be clarified that a 'DNA profile' is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DNA samples made available to the forensic experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of law-enforcement agencies. The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts.
23. In the light of the forgoing discussion and for the reasons assigned therein, we are of the considered view that in the case in hand, additional evidence in the afore-mentioned manner is required to be recorded in terms of Section 391 of the Code. Consequently, we direct under Section 391 of the Code to the learned trial court to take additional evidence by summoning the expert who had carried out the DNA Fingerprinting Analysis, that is, the Scientific Officer, DNA Typing Unit, Directorate of Forensic Science, Assam as a witness and to record the testimony of the expert on Report no. DFS 1610/18/1967/DNA-403 dated 09.05.2018, exhibited already as Ext.-19 in the trial, also on the basis of data preserved in the Directorate of Forensic Science Laboratory, Assam, if any, in that connection and to record the opinion of the witness on the Result on DNA Fingerprinting Analysis recorded therein, so as to clear the ambiguity and Page No.# 18/18 indefinitement found to be present as regards matching of Exhibit no. DNA 1496[A]/18 and Exhibit no. 1497/18. It is needless to mention that the appellant herein, that is, the accused in the trial will have the right as laid down in Section 391, CrPC and as observed in Zahira Habibulla H. Sheikh [supra], quoted hereinabove.
24. It is further observed that the learned trial court, that is, learned Special Judge, Nagaon after recording the additional evidence, shall transmit the record of such evidence with certification, to this court for facilitating the disposal of the appeal. The entire exercise should be conducted and concluded with utmost expedition, preferably within a period of two months from the date of receipt of a copy of this order.
25. The office is to send back the case records to the trial court forthwith, for re-transmission with certification, as mentioned above.
26. As and when the case records are transmitted by the trial court after carrying out the above exercise, the present appeal is to be listed thereafter.
JUDGE JUDGE Comparing Assistant