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32 Judgment in Cri. Appeal 1248-19

24. Pratik Jain (PW-9) is the person, who had examined accused No.4 Shaikh Ashfak. During examination, he also collected samples of accused No.4 and samples for DNA. According to him, he sealed these samples and sent to investigating officer Kalpana Rathod. The form Exhibits-120 & 121 indicate that examination of accused No.4 was conducted and samples were taken out with his consent. He also deposed that on 02/09/2015 API Kalpana Rathod forwarded the letter Exhibit-122 for collection of samples of accused in DNA kits and also provided four DNA kits to him. Accordingly, this witness filled identification form of all accused persons and collected blood samples of all accused persons in DNA kits and after sealing it handed over it to concerned constable. This witness has denied that DNA kit was expired. This witness had collected eight samples during the examination of accused No.4 Shaikh Ashafak and noticed one planter injury to him.

25. Thereafter, the prosecution has examined Dr. Shamalee Mistry (PW-10), who had examined the victim on 28/08/2015. According to her, she recorded history narrated by the victim, examined her and thereafter collected her samples. From her evidence, it transpires that she noticed signs of penetrative sexual assault on the victim and there was also possibility of oral 33 Judgment in Cri. Appeal 1248-19 intercourse with the victim. She examined the victim with her consent and prepared the medical report Exhibit-132. She has admitted that Exhibit-130 does not bear endorsement of G.M.C. Hospital. The entry recording arrival of the victim, was also not taken in the hospital record. She deposed that she had given counseling to the victim and also emergency contraception. She was unaware whether the victim had taken a bath before medical examination. Further, according to her, signature of examining doctor does not necessary on survivor's consent form. According to her the victim was habituated to sexual intercourse since four months and the last intercourse with the victim was one month before the incident which was with Maruti (PW-5). 26 Dr. Priya Salve (PW-14) had collected the samples of the victim for DNA purpose and according to her on 09/09/2015 she collected those samples with the consent of the victim and also admitted identification form to that effect at Exhibit-196. She collected the samples and then sealed and handed over to LPC Badge No.1242. According to her, she had conducted general examination of the victim on 09/09/2015. Though she stated that 2ml blood was to be collected for DNA purpose but the investigating officer did not provide the DNA kits. However, it appears that she 34 Judgment in Cri. Appeal 1248-19 had sealed the samples and same were handed over to police. She had also verified the identity of the victim and according to her, it was not necessary to mention the blood group in identification form at Exhibit-196. She has specifically denied that she deposed falsely at the instance of police. It is extremely important to note that though this witness admitted that DNA kit was not provided to her, but the letter Exhibit 172 clearly indicates that API Rathod had sent the victim to GMCH Aurangabad through LPC Rukhmini alongwith DNA kits for collection of DNA samples of the victim. Therefore, the aforesaid admission on the part of Dr. Priya Salve (PW-14) cannot be given any significance.