IN THE HIGH COURT OF BOMBAY
Criminal Appeal No. 518 of 2018
Decided On: 21.02.2019
The State of Maharashtra
Hon’ble Judges/Coram: V.M. Deshpande
1. The present appeal questions correctness or otherwise of judgment and order of conviction dated 19.7.2018 passed by learned Sessions Judge, Gadchiroli in Special (POCSO) Case No. 21/2016.
2. By the impugned judgment and order of conviction, appellant-Nagesh s/o Samayya Made (hereinafter referred to as, “the accused”) is convicted for offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, “the POCSO Act”) and is directed to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1000/- and in default of payment of the fine amount to suffer further rigorous imprisonment for 3 months.
The accused is also convicted for offence under Section 506 Part-I of the Indian Penal Code and is directed to suffer rigorous imprisonment for 1 year and to pay a fine of Rs. 500/- and in default of payment of the fine amount to suffer further rigorous imprisonment for 3 months.
Learned Judge of the Court below directed that all the sentences of the accused shall run concurrently and also set-off is given to him since he was in jail.
3. Wheel of the criminal justice was set into motion by Chinnaka Bapu Durgam (PW2), the mother of victim girl (PW3). On 29.4.2016, she approached to Sironcha Police Station, District Gadchiroli and lodged her oral report (Exhibit 29). As per the said oral report, she stays at village Viyampalli, Taluka Sironcha, District Gadchiroli along with her husband, two sons, and a daughter (victim) and at the time of lodging of the report her husband had been to Andhra Pradesh in search of work. On 29.4.2016, her two sons went to attend their schools and she and the victim were present in the house. Between 2:00 p.m. and 2:30 p.m., she was required to leave her house for fetching back her cattle, keeping the victim alone in the house. As per the report, when she came back along with cattle, she noticed that Nagesh, the accused, was sitting on a cot inside her house and the victim was also sitting beside him. Nagesh disclosed to her that since he kept his cellphone for charging, he is there and after 10-15 minutes, he took his cellphone and left the house. After Nagesh left the house, according to the oral report, the victim started weeping. On enquiry, the victim disclosed to her that when she was alone, after putting the cellphone on charging, Nagesh, the accused, removed his clothes and also removed her clothes and inserted his male organ inside her vagina and, therefore, she shouted, however her mouth was gagged. After some time, he stood up from her person and extended threats that she should not disclose the incident to anybody and also gave a coin of two rupee to her. On getting the said disclosure from the victim, the first informant found that there were blood stains on her private part and also on her clothes. Therefore, she immediately came to the police station and lodged the report.
4. Police Sub Inspector Bapu Ganpat Khatpe (PW5), after registration of Crime No. 24/2016, conducted investigation. He recorded statements of the victim and witnesses. He also sent the victim (PW3) for her medical examination to Rural Hospital at Sironcha giving a requisition letter (Exhibit 44) to medical officer. After her medical examination, he seized clothes of the victim in the hospital under seizure panchnama (Exhibit 24). Thereafter, he sent the victim for her further medical examination to the Government Hospital at Gadchiroli through a lady police constable by issuing duty pass (Exhibit 46). He also issued requisition letter (Exhibit 37) to medical officer to examine the victim.
5. On 29.4.2016, Police Sub Inspector Khatpe (PW5) arrested the accused under arrest form (Exhibit 48). He sent the accused for his medical examination to the Rural Hospital at Sironcha by giving necessary requisition (Exhibit 49). He also seized clothes of the accused at the said hospital under seizure memo (Exhibit 21) in presence of panch witness Anandrao Ramayya Buddawar (PW1). On the next day, i.e. on 30.4.2016, he went to the spot of the incident and prepared spot panchnama. The said panchnama is at Exhibit 22. He also prepared Crime Details Form (Exhibit 51). He seized one nylon mat, two rupee coin and nylon button from the spot and prepared seizure panchnama under seizure memo (Exhibit 23). He also took other steps for collecting scientific evidence during the course of the investigation. In the meanwhile, he was transferred and further investigation was conducted by Police Inspector Lukde who filed chargesheet.
6. Learned Additional Sessions Judge, Gadchiroli in Special POCSO Case No. 21/2016 framed charge against the accused for offences under Section 375(6) punishable under Section 376 of the Indian Penal Code and under Section 4 of the POCSO Act. Also, learned Judge below framed charge against the accused under Section 506 of the Indian Penal Code. The accused abjured his guilt and claimed for his Trial.
7. In order to prove the guilt of the accused, the prosecution examined in all 6 witnesses and also relied upon various documents including Chemical Analyzer’s Reports and D.N.A. Report.
The accused was examined by learned Judge of the Court below under Section 313 of the Code of Criminal Procedure and he also examined one Shankar Ilayya Durgam (DW1) as his defence witness. Defence of the accused, as it could be seen from line of cross-examination of various witnesses and his statement under Section 313 of the Code of Criminal Procedure and from version of defence witness, is that he is falsely implicated in the crime in view of earlier incident of verbal altercation between him and the first informant and, therefore, in order to take revenge, he is being falsely implicated with the help of brother of the first informant working as police constable in Sironcha Police Station itself by the first informant though injuries as noticed on the private part of the victim (PW3) are not due to him.
8. Learned Judge of the Court below, after appreciating the prosecution case, relied on versions of the victim (PW3) and her mother and on scientific evidence i.e. D.N.A. Report (Exhibit 75) and found that the accused has committed offence under Section 6 of the POCSO Act and also under Section 506 Part-1 of the Indian Penal Code, under the impugned judgment.
Hence, this appeal.
9. I have heard learned counsel Shri R.M. Daga for the appellant and learned Additional Public Prosecutor Shri N.S. Rao for the respondent/State.
10. Learned counsel for the appellant strenuously urged before me that DNA Report (Exhibit 75) cannot be made the base for his conviction in view of various lacunae which he pointed out during the course of submissions in the prosecution case. He also submitted that evidence of Dr. Deepchand Krushnajee Soyam (PW4) if is read in its correct perspective, the appellant cannot be held responsible for any injuries on the private part of the victim (PW3). He also submitted that evidence, which according to learned Judge of the Court below was incriminating and was used for recording the conviction and sentence of 10 years, was not put to him when he was examined by learned Judge of the Court below under Section 313 of the Code of Criminal Procedure. He for that purpose relied on dictum of the Division Bench of this Court in the case of Pralhad s/o Gunwant Madhar and anr. vs. State of Maharashtra, reported at MANU/MH/4603/2017 : 2018 ALL Mr. (Cri.) 1838. He, therefore, submitted that the prosecution has not proved its case beyond reasonable doubt and, therefore, prayed for allowing this appeal and releasing the appellant as the appellant is in jail since 29.4.2016.
11. Per contra, learned Additional Public Prosecutor Shri N.S. Rao for the respondent/State submitted that evidence of the mother of the victim and first informant Chinnaka (PW2) and evidence of the victim (PW3) are sufficient to record a finding of guilt even on re-appreciation of the prosecution case. He submitted that D.N.A. Report (Exhibit 75) is a conclusive proof to show that the accused and the victim came in contact with each other. He relied on decision of the Apex Court in the case of Pantangi Balarama Venkata Ganesh vs. State of A.P., through C.B.I. reported at MANU/SC/1306/2009 : 2009 CRI. L.J. 4144 in order to meet the submissions of learned counsel for the appellant that D.N.A. Report was not put to the accused by pointing out that the prosecution case was examined by learned Judge of the Court below as a whole and only D.N.A. Report was not the basis for conviction. He, therefore, prayed that the appeal be dismissed.
12. The accused was charged for offence under Section 6 of the POCSO Act along with Section 506 Part-I of the Indian Penal Code.
13. The Division Bench of this Court laid down the law in the case of Ravi Anandrao Gurpude vs. State of Maharashtra, reported at MANU/MH/3160/2016 : 2017 ALL Mr. (Cri.) 1509 that the provisions of the Act are stringent in nature. Even there is a statutory presumption under Section 29 of the Act. Since the enactment is stringent in nature, the degree of proof is more strict.
(emphasis is supplied).
14. Before scrutinizing evidence of the prosecution case, I am reminded of observations of the Honourable Apex Court in the case of Paramjeet Singh alias Pamma vs. State of Uttarakhand, reported at MANU/SC/0762/2010 : (2010)10 SCC 439. The Honourable Apex Court in paragraph Nos. 10, 11, and 12 in the said case Ruled as under:
“10. A criminal trial is not a fairy tale wherein one is free to give flight to one’s imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that “human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions.” Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. “The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.” In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh vs. State of M.P.. State of Punjab vs. Jagir Singh, Shankarlal Gyarasilal Dixit vs. State of Maharashtra, Mousam Singha Roy vs. State of W.B., and Aloke Nath Dutta vs. State of W.B.).
11. In Sarwan Singh Rattan vs. State of Punjab this Court observed: (AIR p. 645, para 12)
“12. “considered as a whole the prosecution story may be true; but between ‘may be true’ and ‘must be true’ there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence [before an accused can be convicted].”
12. Thus, the law on the point may be summarized to the effect that in a criminal trial involving a serious offence of a brutal nature, the court should be wary of the fact that it is human instinct to react adversely to the commission of the offence and make an effort to see that such an instinctive reaction does not prejudice the accused in any way. In a case where the offence alleged to have been committed is a serious one, the prosecution must provide greater assurance to the court that its case has been proved beyond reasonable doubt.”
Keeping in mind the law laid down by the Honourable Apex Court in the aforesaid, in respect of standard of proof, it is expected from the courts to scrutinize evidence in the light of the same.
15. No doubt true that solitary version of the victim in rape cases is enough to record finding of guilt. The position of the victim in rape cases is much on higher footing than that of injured. There may be scientific evidence or even in its absence it can never be an impediment for the Courts to record finding of guilt. If the Court on scrutinizing the evidence of the victim is assured of that it inspires confidence and possibility of falsehood is eliminated, the Court may by way of caution, search of corroborative piece of evidence to reinforce strength in the victim’s version.
16. Exhibit 31 is birth certificate of the victim (PW3). The said is issued by competent authority obliging to discharge duties under the Registration of Births and Deaths Act, 1969. The said Exhibit 31 shows date of birth of the victim as 1.2.2008. The incident occurred on 29.4.2016. Therefore, there is no difficulty to record finding that the victim was a child within the meaning of clause (d) of Section 2 of the POCSO Act. Further, learned counsel for the appellant submitted that the age of the victim was never in question either before the Trial Court or he is having different submission on the said point.
17. According to the oral report (Exhibit 29), first informant Chinnaka (PW2) knows only Telgu language. She reported in her mother tongue and the said was narrated to lady police constable Priyanka Soyam in Telgu language which was translated in Marathi language. Even, during the course of the Trial, evidence of the victim (PW3) as well as her mother Chinnaka (PW2) was recorded through an interpreter since they were knowing only Telgu language. Their evidence shows that police constable Mahesh Akkulwar acted as an interpreter and oath was administered to these prosecution witnesses through him and, thereafter, their evidence is recorded.
18. Learned counsel for the appellant vehemently submitted that in absence of examination of Priyanka Soyam, the lady police constable, who translated Telgu version of first informant Chinnaka (PW2) into Marathi language and learned Judge of the Court below not administering the oath to police constable Mahesh Akkulwar independently and not examining him as a witness, the entire prosecution case must fail.
19. The above said particular submissions, in my view, were very ably countered by learned Additional Public Prosecutor for the State by inviting my attention to provisions of the Oaths Act, 1969. From the witness box, the mother of the victim and the first informant Chinnaka (PW2) stated on oath that her report was reduced into writing by Priyanka Soyam, the lady police constable, after translation. She further stated that after reducing into writing, the said report was read over to her in Telgu language by Priyanka Soyam and she found that version which she gave in Telgu language is found in the report. Thereafter, she put her thumb impression. The said particular important piece of evidence about the oral report (Exhibit 29) is not challenged by the accused when Chinnaka was available for her cross-examination. Though the submission of learned counsel for the appellant that the oath was not administered to interpreter police constable Mahesh Akkulwar and, therefore, proceedings stand vitiated, appears to be very attractive at the first blush. However, on closure scrutiny of provisions of Section 7 of the Oaths Act, 1969 and in view of the law laid down by the Division Bench of this Court (Coram: B.P. Dharmadhikari & S.B. Shukre, JJ.) in unreported case i.e. Criminal Appeal No. 56/2015 (Ashok s/o Ankalu Jangam vs. The State of Maharashtra) decided on 2.12.2016, I have no hesitation in my mind to reject the submission made by learned counsel for the appellant.
20. Section 4 of the Oaths Act, reads as under:
“4. Oaths or affirmations to be made by witnesses, interpreters and jurors.–
(1) Oaths or affirmations shall be made by the following persons, namely:–
(a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;
(b) interpreters of questions put to, and evidence given by, witnesses; and
Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.
(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.”
Plain reading of the said Section shows that it mandates to administer oaths to interpreters. However, Section 7 of the said Act shows that the proceedings and the evidence are not invalidated by omission of oath or irregularity. The said Section is reproduced herein below:
“7. Proceedings and evidence not invalidated by omission of oath or irregularity.-No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.”
In that context, learned Additional Public Prosecutor for the State rightly invited my attention to decision of the Honourable Apex Court in the case of Rameshwar vs. State of Rajasthan, reported at MANU/SC/0036/1951 : 1952 AIR(SC) 54 and more precisely to observations made in the said decision in paragraph Nos. 10 and 11 by Justice Vivian Bose. The observations are reproduced herein under:
“10. I do not think it will be useful to consider English authorities on the point because we are governed here by the terms of the various sections I have referred to. But a decision of the Judicial Committee of the Privy Council is in point. Their Lordships stated in Mohamed Sugal Esa vs. The King MANU/PR/0086/1945 : AIR(33) 1946 P.C. 3 at p. 5:
“Section 13, Oaths Act, is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occurs per incuriam. If that had been the intention of the Legislature, it would have been simple to insert words in the section to that effect……… It may be observed that this question can no longer arise in India because in 1939 the Legislature passed the Oaths (Amendment) Act (Act 39 of 1939) which settles the law in accordance with the Bengal and Oudh decisions referred to above.”
The decisions to which their Lordship refer are R.V. Sewa Bhogta, 14 Beng. L.R. 294 (F.B.) and Ram Samujh v. Emperor, 10 Oudh Cas. 337. The decisions there were that the section being unqualified in terms did apply to a case where the Court accepted the evidence of a child to whom the oath was not administered on the ground that the witness did not understand its nature. The principle of the decisions applies here because, as their Lordships observe, the section is unqualified in its terms.
11. I would add however that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the magistrate or judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate. In the present case, it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence. It is also an important fact that the accused, who was represented by counsel, did not object. Had he raised the point the Judge would doubtless have made good the omission. I am of opinion that Mt. Purni was a competent witness and that her evidence is admissible. In the Privy Council case which I have just cited, their Lordships said-
“It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness.”
The aforesaid case pertains to The Oaths Act, 1873. The Honourable Apex Court in paragraph No. 11 in the said case observed that at the thrash hold the accused should object for not administering oath.
21. In the present case, learned counsel for the appellant fairly stated that during the course of the Trial at no point of time any objection was recorded by the accused when evidence of the victim (PW3) and her mother Chinnaka (PW2) was interpreted from Telgu to Marathi language.
22. Here, I would like to observe that Exhibit 48 is arrest panchnama of the accused. The said shows that the accused was knowing Telgu as well as Marathi languages and, therefore, even when the victim (PW3) and her mother Chinnaka (PW2) deposed in Telgu language, he was knowing what they are deposing. Further, to a question that was put to the accused by the Court below, when he was examined under Section 313 of the Code of Criminal Procedure, as to whether he heard and understood evidence of the prosecution witnesses, he answered in affirmative.
23. Cumulative effect of the aforesaid, I have no hesitation in my mind not to reject the submission of learned counsel for the appellant that the entire prosecution case vitiates for not examining Priyanka Soyam, the lady police constable and not administering oath to interpreter police constable Mahesh Akkulwar.
24. Though Section 7 of the Oaths Act is always available not to throw the case of the prosecution for not administering oaths to interpreters, every Courts before whom evidence of witnesses is recorded and witnesses are not knowing language of the Court and evidence of such witnesses is required to be recorded through interpreters, the Courts should ensure that oaths should also be administered to the interpreters, in view of mandate of Section 4 of the Oaths Act.
25. In view of the version of the mother of the victim and the first informant Chinnaka (PW2) and her oral report (Exhibit 29), it is clear that she is not an eyewitness to the incident and her version in respect of commission of rape, as alleged by the prosecution at the hands of the accused, can be termed as hearsay evidence. As per the oral report, when Chinnaka (PW2) returned to home after taking cattle, she noticed presence of Nagesh, the accused, in a sitting posture on a cot. The oral report recites that Nagesh remained present in the house for 10-15 minutes. Though recitals of the First Information Report are never substantive piece of evidence, the evidence of Chinnaka and the evidence of victim (PW3) would show that definitely for some time the accused was present in the house after arrival of Chinnaka. According to the oral report and the evidence of Chinnaka, after Nagesh left their house, the victim disclosed atrocious on the part of the Nagesh. This particular important piece of version is not stated by the victim. Her evidence is blissfully silent as to when she told the incident to her mother. In any case, her evidence shows that she only disclosed the incident to her mother after Nagesh left the house meaning thereby she did not disclose the incident to her mother in presence of the Nagegh. This particular version, which is a very important piece of evidence for categorizing their evidence as truthful and having degree of inspiring confidence, has to be evaluated in the light of medical evidence. Though I would be discussing elaborately about the injuries found on the person of the victim in the later part of this judgment, presently it would be useful to see that Dr. Deepchand Soyam (PW4) on examination of the person of the victim noticed, urethral meatus & vestibule congested, labia majora normal, labia minora congested, fourchette and introitus torn of size 4 x 1 x 1/2 cm, hymen perineum torn of size 5, 9, 11 O’clock position, external urethral meatus congested. He found small wound introitus in inner region, there was lacerated wound of size 4 x 1 x 1/2 cm. This shows that the victim aged 8 years received high degree of injuries on her private part. The blood was oozing. It is really unnatural that when the mother was available and the perpetrator of the crime was also present, the girl will not disclose the act on the part of the accused.
In that view of the matter, I myself is unable to uphold the findings of guilt only on the basis of the version of the victim (PW3) and her mother Chinnaka (PW2). Necessarily, therefore, the Court will have to fall back on other available evidence in the nature of medical evidence and scientific evidence.
26. After registration of the crime and when Police Sub Inspector Bapu Khatpe (PW5) took the investigation to himself, he sent the victim (PW3) for her medical examination at Rural Hospital, Sironcha by issuing requisition letter (Exhibit 44).
27. On 29.4.2016, Dr. Ashish Suresh Doraskar (PW6) was discharging his duties as medical officer at Rural Hospital, Sironcha. He received the requisition (Exhibit 44) and accordingly he examined the victim (PW3) with reference to query made by police. For first query, as to whether there was sexual intercourse with the victim, his evidence shows that he suggested an expert opinion was required. For second query, regarding noticing injuries on the person of the victim on external examination of the victim, the doctor noticed tenderness over labia majora on palpation. Tear on lateral aspect of labia majora externally on right side in perennial region and found following injuries:
“(i) clotted blood was present on labia majora and labia minora, vertical tear in perennial region size 4×1 cm from perennial body to anal orifice.
(ii) tenderness and swelling over vaginal orifice and labia minora on palpation, vaginal tears were present.
(iii) there was mild vaginal tear and slight bleeding from internal vaginal orifice.”
He gave his report (Exhibit 63), as per queries made to him under requisition Exhibit 44. He, thereafter, referred the victim for further examination by Gynaecologist. Referral slip is at Exhibit 64. The said shows that it was addressed to Medical Officer at Aheri/Medical Officer at Gadchiroli and purpose was for gynaecological expert’s advice and vaginal examination.
28. Accordingly, from the available material with the prosecution, the victim (PW3) was taken to the General Hospital at Gadchiroli, the district headquarters. At the said hospital, Dr. Deepchand Soyam (PW4) was serving as gynaecologist. He examined the victim in view of requisition (Exhibit 37) given by Investigating Officer Bapu Khatpe (PW5) and in view of the referral slip (Exhibit 64). Medical certificate given by Dr. Deepchand Soyam is at Exhibit 38. As per the evidence of the doctor, on examination of the victim, he found, “urethral meatus & vestibule congested, labia majora normal, labia minora congested, fourchette and introitus torn of size 4 x 1 x 1/2 cm, hymen perineum torn of size 5, 9, 11 O’clock position, external urethral meatus congested. He found small wound introitus in inner region, there was lacerated wound of size 4 x 1 x 1/2 cm. The doctor’s evidence is silent that he found sexual intercourse with the victim. Whereas, in column No. 25 at Exhibit 38, he recorded a finding that, “possibility of attempt for forceful sexual assault”. Even, the said particular opinion was not stated by the doctor when he was under oath from the witness box.
29. In cross-examination, Dr. Deepchand Soyam (PW4) categorically admitted that penis is not a hard and blunt object. Since the doctor noticed lacerated wound of size 4 x 1 x 1/2 in introitus in inner region, to a question put to him by learned defence counsel, he replied that such wound can be caused by hard and blunt object. He also admitted that due to sudden leading of stick in vagina, torn of hymen is possible and due to such stick, there is possibility of injury to inner organ along with hymen.
The aforesaid piece of evidence of Dr. Deepchand Soyam who examined the victim (PW3) as gynaecologist assumes its importance since it is defence of the accused that when the victim was playing, she sustained injury on her private part and started crying and when the mother of the victim asked her, it was disclosed to her that while playing, she sustained injury by stick and blood was oozing. The said is the version of Shankar Durgam (DW1) if his evidence is examined who stated that on the day of the incident Chinnaka (PW2) was shouting that the victim (PW3) is bleeding and when he went to the house of Chinnaka, it was told to him that when the victim was playing, got a stick into her private part, and therefore, she was bleeding. Though the said defence witness was cited as prosecution witness, he was not examined by the prosecution. Merely because he was not examined by the prosecution, sanctity of his version cannot remain in doubt unless contrary is shown.
30. Shankar Durgam (DW1) is neighbour of mother of the victim and the first informant Chinnaka (PW2). Therefore, if he goes to the house of the victim (PW3) on hearing the shouts of Chinnaka, it does not sound unnatural.
31. In the light of the evidence of Dr. Deepchand Soyam (PW4), it is rather difficult for the Court that the medical evidence can be used as corroborative piece of evidence to the versions of the victim (PW3) and her mother Chinnaka (PW2) when their testimonies were not inspiring confidence.
SCIENTIFIC EVIDENCE IN THE NATURE OF D.N.A.
32. In this prosecution case, in addition to findings of Chemical Analyzer i.e. Chemical Analyzer’s Report (Exhibit 78), DNA Report is available on record at Exhibit 75.
What is meant by DNA, is found to be observed in the case of Pantangi Balarama Venkata Ganesh vs. State of A.P., through C.B.I. cited supra, which is reproduced herein under:
“(Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings is the blueprint of an individual DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred percent precise, experts opine.”
DNA a modern scientific technique is very useful and helpful not only for investigators but also for Courts to reach to the truth. DNA, in my view, conclusively shows finger of the guilt towards perpetrator of crime. The Honourable Apex Court in the said case cited supra recorded words of caution with observation that, “there cannot be any doubt whatsoever that there is a need of quality control.
Precautions are required to be taken to ensure preparation of high-molecular-weight DNA complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control (See Article of Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA Profiling and its applications).”
33. DNA can be extracted very well either from urine, saliva, skin, and also from blood of the victim as well as the accused. After obtaining DNA, when profile is done on the DNA extracted of the accused, it can be a conclusive proof of evidence against the accused. Therefore, highest degree of precaution is required to be taken right from extracting blood and urine etc. which ultimately becomes source for obtaining DNA from the same. There should not be any doubt in anyone’s mind that at any point of time anywhere there was slightest possibility of tampering with sample of the victim as well as the accused.
Keeping the aforesaid principle in mind, let us examine what weightage the Court should give to the DNA Report (Exhibit 75).
34. Exhibit 5 is an Examination Report which shows that no amplifiable DNA could be obtained from urine sample of the victim and the accused.
35. Exhibit 6 is a Chemical Analyzer’s Report which shows that blood samples of the victim and the accused are control samples.
Perusal of Exhibit 6 shows blood in vials having labelled the name of the victim and the accused.
36. In the present case, DNA of the victim (PW3) was obtained from blood detected on legging (Exhibit 2) of the victim and mixed DNA profile was obtained from blood mixed semen detected on underwear (Exhibit 5) of the accused and Assistant Chemical Analyzer, Regional Forensic Science Laboratory, State of Maharashtra, Nagpur gave his opinion that mixed DNA profile detected on Exhibit 5 underwear contains DNA profile of the victim.
37. It is submission of learned counsel for the appellant that findings recorded in Exhibit 75 cannot be accepted as conclusive proof in view of circumstances and evidence brought on record which create a serious doubt about obtaining of blood samples not only from the accused but also from the victim (PW3).
38. As per evidence of Dr. Deepchand Soyam (PW4), the victim (PW3) was indoor patient from 30.4.2016 to 3.5.2016 as it could be seen from Discharge Card (Exhibit 39). Thus, on 3.5.2016 the victim stands discharged from the General Hospital at Gadchiroli.
39. As per evidence of Investigating Officer Bapu Khatpe (PW5), on 1.5.2016 he issued a letter to Assistant Chemical Analyzer RFSL Nagpur for getting DNA Kit. The said requisition is at Exhibit 54. A glance at Exhibit 54 shows that by addressing the said requisition the Investigating Officer requested for providing Two DNA Kits and other material for obtaining blood sample of the victim (PW3) as well as the accused. Evidence of the Investigating Officer shows that the said requisition (Exhibit 54) was sent through NPC Jamir Sheikh, as it could be seen from duty pass (Exhibit 53) which shows that he shall go to Chemical Analyzer and report compliance. As per Investigating Officer Bapu Khatpe, said Jamir Sheikh brought the demanded kits and submitted his return report to the police station. The said report given by Jamir Sheikh is at Exhibit 55. Recitals of Exhibit 55 shows that Jamil Sheikh reported that on 3.5.2016 at 5:30 he left for Forensic Science Laboratory at Nagpur and brought DNA Kits on 4.5.2016 at 19:00 hours.
40. Thus, DNA Kits were available for obtaining blood samples of the victim as well as the accused to the Investigating Officer only after 19:00 hours of 4.5.2016. As per evidence of Investigating Officer (PW5), he gave requisition (Exhibit 56) to Medical Officer, Rural Hospital at Sironcha for taking blood samples of the victim (PW3) since it was to be sent for DNA profiling to Chemical Analyzer at Nagpur. The said sample, according to the Investigating Officer, was sent through WPC Manisha Munde. Similarly, he gave requisition letter to Medical Officer, Rural Hospital at Sironcha for taking blood samples of the accused in DNA Kit. The said requisition is at Exhibit 57. The said requisition was sent, according to the Investigating Officer, through Police Constable Shriniwas. Both these requisition letters are dated 5.5.2016.
41. From the aforesaid two requisition letters (Exhibits 56 and 57), it is clear that prior date 5.5.2016 blood samples of the victim as well as the accused were not obtained for DNA profile. Even otherwise, it could not have been available because the DNA Kits were received in the police station only at 19:00 hours of 4.5.2016.
42. Now, it was mandatory duty and obligation on the part of the prosecution to bring it on record that after 5.5.2016, the victim (PW3) and the accused were taken to Rural Hospital at Sironcha by WPC Manisha Munde and Police Constable Shriniwas respectively and their blood samples were obtained by the Medical Officer at Sironcha.
43. In the present case, neither WPC Manisha Munde nor Police Constable Shriniwas is examined by the prosecution to show that in view of requisition letters (Exhibits 56 and 57) they took the victim (PW3) and the accused with them to the Rural Hospital at Sironcha.
44. In this context, it would be useful to have a glance to evidence of the victim (PW3). As per evidence, the victim stated that after lodging of the report, the police took her to the Rural Hospital at Sironcha and from there she was taken to the General Hospital at Gadchiroli and doctor examined her. Her evidence does not show that after she was discharged from the General Hospital at Gadchiroli, she was again taken to the Rural Hospital at Sironcha and/or her blood samples were obtained. Similarly, the mother of the victim and first informant Chinnaka (PW2), who would have accompanied the victim looking to her age, also does not state on oath before the Court that she accompanied and/or she and the victim went to the Rural Hospital at Sironcha and blood samples of the victim were obtained in the DNA Kit.
45. The above said aspect could have been very well be explained by examining the doctor i.e. Medical Officer, Rural Hospital at Sironcha who was required to obtain the blood samples in view of requisition letters (Exhibits 56 and 57). The doctor who extracted blood would have been the best witness to show that compliance to Exhibit 56 and 57 was done and blood samples of the victim (PW3) and the accused were obtained and were sent to the Investigating Officer in a sealed condition. However, in this case, the prosecution did not examine that doctor who obtained blood samples of the victim and the accused and sent to the Investigating Officer in a sealed condition in the DNA Kit.
46. Interestingly, in the present case, Investigating Officer Bapu Khatpe (PW5), for the reasons best known to him, did not draw panchnama of seizure of blood samples of the victim (PW3) as well as the accused after they were brought from the Rural Hospital at Sironcha in the police station in the DNA Kit.
47. In the present case, the Chemical Analyzers are not examined by the prosecution though it is not mandatory in view of clause (a) of sub section (4) of Section 293 of the Code of Criminal Procedure. However, in my view, in the present case, their examination was more demanding in view of dates appearing in Exhibits 75 and 78.
Exhibit 75 is DNA Report. Whereas, Exhibit 78 is Chemical Analyzer’s Report.
48. Perusal of these two documents shows that authors of these two documents are different persons.
49. As per Exhibit 75, analysis was started on 20.8.2016 and the said was completed on 20.12.2016. Whereas, Exhibit 78 shows that analysis was started on 16.8.2016 and the said was completed on 6.1.2017. Mixed DNA Profile obtained from blood mixed semen detected on underwear (Exhibit 5) contains DNA Profile of the accused and the victim, is the observation of the DNA Report.
50. Thus, from 20.8.2016 to 20.12.2016, as appearing in Exhibit 75, underwear was with Assistant Chemical Analyzer, the author of Exhibit 75. Whereas, the underwear, which according to Exhibit 78, was having blood mixed semen stain of human. As per the said Exhibit 78, the analysis was started on 16.8.2016 and the said was completed on 6.1.2017 by different Assistant Chemical Analyzer. No evidence is brought on record by the prosecution by examining the authors of these two different documents to remove the said ambiguity.
51. On re-appreciation of the prosecution case, in this behalf, which shows that the prosecution has not proved by cogent and acceptable evidence that blood samples of the victim (PW3) and the accused were extracted in the DNA Kits and all precautions were taken by the doctor and in absence of examination of the doctor, it is really difficult to hold that all precautions were taken and the blood samples were sealed and in absence of seizure panchanama of those DNA Kits by the Investigating Officer, in my view, it is hazardous to place reliance on this piece of the evidence. In addition to that, though this piece of evidence, which was used by learned Judge of the Court below as an incriminating evidence, was not put and/or was not brought to the notice when the accused was examined under Section 313 of the Code of Criminal Procedure to seek his explanation. This also is one of lacunae in the prosecution case and may be that by itself is not fatal to the prosecution.
52. On re-appreciation of the entire prosecution case, there is no hesitation in my mind to record a finding that the prosecution has not proved its case beyond reasonable doubt against the accused and standard of proof requiring for convicting the accused is not adhered to by the prosecution during the Trial.
53. In view of the above, this Court passes following order:
(i) The criminal appeal is allowed.
(ii) The judgment and order of conviction dated 19.7.2018 passed by learned Sessions Judge, Gadchiroli in Special (POCSO) Case No. 21/2016 is hereby quashed and set aside.
iii) The appellant is acquitted of offences under Sections 6 of the Protection of Children from Sexual Offences Act, 2012 and under Section 506 Part-I of the Indian Penal Code.
(iv) The appellant who is in jail shall be released forthwith, if not required in any other case.