Ishwar S/O Mangaldas Tikapache … vs State Of Maharashtra, Thr. Pso Ps … on 4 October, 2017

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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.”

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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

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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

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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

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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

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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

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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

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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

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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

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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,

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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.

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(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.

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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

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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

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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

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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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