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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