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Aruna D. Narayankar vs The State Of Maharashtra And Ors on 12 October, 2018

Sherla V.

apl.992.2018_901.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.992 OF 2018

Ms.Aruna D. Narayankar … Appellant
Vs.
The State of Maharashtra Ors. … Respondents

Mr.R.Sathyanarayana I/b T.R. Vispute for the Appellant
Mr.S.R. Pasbola I/bBhavesh Thakur for Resp. No.3
Mr.A.R. Patil, APP, with Mr.A.A. Palkar, APP, for the Respondent –
State

CORAM: Mrs.MRIDULA BHATKAR, J.

DATED: OCTOBER 12, 2018

P.C.:

1. In this application, the order passed by the learned Additional

Sessions Judge, City Civil and Sessions Court, Greater Mumbai

dated 4.8.2018, below exhibit 146 in Sessions Case No.122 of

2013, is challenged. It is the case of the prosecutrix that the

respondent No.3 had committed rape on her, due to which she

conceived. The accused further committed an offence of causing

miscarriage of the fetus without her consent, which is an offence

punishable under section 313 of the Indian Penal Code. Before the

Sessions Court, the prosecution examined 11 witnesses and

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thereafter, the accused examined 7 witnesses in his defence. The

arguments of the learned Prosecutor are over and during the

course of the arguments of the learned defence Counsel,

especially on the point of DNA report, it was revealed that there is

one Histopathology Report (HPR) showing positive test affirming

the products of conception in the sample. At that stage, as the

prosecution did not move any application, the prosecutrix who is

an original complainant, submitted the application under section

311 of the CRPC, for summoning the material witnesses to bring

the said report on record.

2. After hearing the arguments of both the sides on the said

application (exhibit 146), the learned Additional Sessions Judge

rejected the said application mainly on the ground of discharge

summary (exh. 51) and relying on the DNA report, held that DNA

report is the scientific and most accurate test and when that report

is on record, no other report is required in respect of conception.

Hence, this application.

3. A copy of the report which is taken on record, is produced by

the prosecution before this Court as it is found necessary to decide

its importance and bearing on the issue. The said document i.e.,

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HPR dated 17.11.2012 is signed by three Doctors from the

Department of Pathology from Sir J.J. Group of hospitals. It shows

Pathology Slide number and the impression is “Production of

Conception”. The accused is charged under section 313 of the

Indian Penal Code and, therefore, the prosecution has to first

prove the fact of conception. In view of this, any report either

confirming or denying the fact of conception is undoubtedly a

material document for the Court.

4. The question raised is whether at the final stage of the

arguments, this document can be allowed to be produced on

record? While answering this question, one has to get assured

whether this document was in existence or it is manipulated. If it is

a doctored document, there is no question of allowing this

document on record. However, the document shows the date as

17.11.2012. Two incidents of rape as per the case of the

prosecution, have taken place – first on 12.5.2012 and the second

on 15.8.2012. Thereafter, various tests like Ultra Sonography,

PCOD test, etc. were carried out on various dates from 22.9.2012

onwards. Thus, this report is a document prepared at the relevant

time subject to very special evidence and circumstance being

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brought on record by the defence to rebut this assumption.

Another question raised is why the document was not a part of

chargesheet, which was filed in the Court on 16.1.2013?

5. Learned Prosecutor explained after taking instructions from

the concerned Investigating Officers, who are present in the Court,

that the sample of the fluid was not sent by the police for

histopathological test during the course of investigation. He relied

on the discharge summary which shows that the victim was

admitted in the J.J. hospital and on 31.10.2012 and she was

discharged on 3.11.2012. He pointed out that there is specific

mention that the products of conception like material evacuated,

sealed and sent to Kalina for DNA analysis. It was sent as per the

request made by the Investigating Officer. However, in the

discharge summary, under the caption of ‘COURSE IN THE

HOSPITAL AND DISCUSSION’, it is specifically mentioned that –

“PT ADMITTED WITH ? INCOMPLETE ABORTION FOR
SUCTION EVACUATION. RMO INFORMING DONE AND VALID
CONSENT OBTAINED
2/11/12 SUCTION EVACUATION DONE BY MVA SYRINGE.
PT WITHSTOOD THE PROCEDURE WELL. POCS SENT FOR
HPR AND FOR DNA ANALYSIS

3/11/12 – REVIEW USG DONE – MINIMAL ENDOMETRIAL
COLELCTION.

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PT WANTS DISCHARGE AGAINST MEDICAL ADVISE SEIORS
INFORMED. DISCHARGE GIVEN AGAINST MEDICAL ADVISE.”

(emphasis added)

6. Thus, the learned Prosecutor has on the basis of this

discharge summary, explained that this is a course of treatment or

analysis which is internally conducted by the hospital itself. So,

the hospital sent POCS i.e., the Product Of Conception Sample,

for HPR through Department of Pathology and after examination,

this report was prepared, which is the disputed document. Thus, it

appears that this report was in existence. This is not a

manipulated document and the police were unaware of the

existence of this document till the arguments were advanced and

the point was raised by the defence. Hence, the explanation given

by the Prosecutor is accepted.

7. Mr.Pasbola while opposing this application and supporting

the order passed by the learned Sessions Judge gave chronology

of the gynaecological / pathological investigations carried out by

the various Doctors in the J.J. Hospital on examination of the

prosecutrix during 28.9.2012 till 2.11.2012. Mr.Pasbola, the

learned Counsel appearing for Respondent No.3, submitted that

this document is allowed to be taken on record and the

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prosecution be directed to lead evidence accordingly as it is a

crucial document. The main submission of Mr.Pasbola is based

negative DNA report wherein it is mentioned that the sample is

found not suitable for DNA. He submitted that the DNA test is an

authentic test to arrive at a finding in respect of pregnancy. Once

the DNA report is on record, no other document can be given more

importance. Secondly, the learned Counsel submitted that

allowing this document will mean reopening of the trial and as this

document was not in the chargesheet, it will cause prejudice to the

defence taken by the accused.

8. The submissions of Mr.Pasbola that this document was not a

part and parcel of the chargesheet and if it is taken on record,

then, it will cause prejudice to the defence is correct; however, this

prejudice can be done away by allowing to examine / cross-

examine the witnesses. Additionally, the defence can make

application specifically stating as to whom it wants to recall and

conduct further cross-examination of the earlier witnesses. If such

application is placed, then, further cross-examination of the earlier

witnesses is to be allowed and it is the duty of the prosecution to

produce those witnesses on the scheduled dates. The document

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will not go on record as it is but it is necessary for the prosecution

to examine proper witness and tender a correct evidence of the

authorship of the said document. The defence will be given a fair

opportunity to cross-examine the witnesses, who are going to be

examined by the prosecution in order to prove the impugned

document. Whether the DNA report is more authentic than HPR

on the point of conception is a matter of arguments and that is left

to the trial Court after assessing the entire medical evidence, the

Court will give its verdict on this point.

9. Lastly, it is necessary to mention that for understanding the

pathological report, one needs sound medical knowledge and

therefore, if such evidence is brought on record, especially on the

background of the special circumstances in this case, then, I am of

the opinion that it is to be allowed in this case, even at this late

stage.

10. I am informed that the trial has commenced in 2014 and is

still going on and therefore, it is necessary for the trial Court to

conclude the trial on or before 30.11.2018. The trial Court shall

accordingly commence its trial on 22.10.2018. The parties to

appear before the trial Court on 22.10.2018 at 11am and

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thereafter, the trial Court to go with the trial on a day to day basis

at least in one sitting a day with some exceptions, however should

conclude the trial on or before 30.11.2018.

11. With the above direction, the application is disposed of.

(MRIDULA BHATKAR, J.)

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