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Judgments of Supreme Court of India and High Courts

Kishan Chand vs State Of Himachal Pradesh on 16 March, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 620 of 2015
Reserved on: 01.03.2018
Decided on: 16.03.2018

.

_

Kishan Chand …..Appellant.

Versus
State of Himachal Pradesh ……Respondent.

_
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? Yes.

_
For the appellant: Mr. Rajnish K. Lal, Advocate, Legal
Aid Counsel.

For the respondent/State: Mr. Vinod Thakur and Mr. Sudhir

Bhatnagar, Additional Advocates
General, with Mr. Bhupinder
Thakur, Deputy Advocate General.

Chander Bhusan Barowalia, Judge.

The present appeal is maintained by the

appellant/accused/convict (hereinafter referred to as “the accused”),

laying challenge to judgment dated 04.08.2015, passed by learned

Special Judge, Mandi, District Mandi, H.P., in Sessions Trial No. 39

of 2013, whereby the accused was convicted for the commission of

offence punishable under Section 5(m) of The Protection of Children

from Sexual Offences (POCSO) Act, 2012, read with Section 376(2)(i)

of Indian Penal Code, 1860 (IPC).

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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2. The background facts which gave rise to the prosecution

of the accused can tersely be portrayed as under:

The complainant, mother of the prosecutrix (name

.

withheld), has three daughters and a son and the prosecutrix was

studying in 5th standard. On 20.07.2013, the complainant went

alongwith her husband to village Larda and they returned during

midnight. At that time grandmother of the prosecutrix was sleeping

in a room and the children were watching TV in another room. On

the subsequent morning the complainant went to Gram Panchayat

for attending a meeting and returned around 04:30 p.m. It was told

to the complainant by her elder daughter that prosecutrix is having

Rs. 82/- and on being asked, the prosecutrix started crying and

divulged that during the last night the accused committed sexual

intercourse with her and he gave money to her. The prosecutrix also

complained pain in her private part and the complainant found

redness around her private part. The matter was reported to the

police and statement of the complainant formed basis for registration

of FIR. The prosecutrix was got medically examined and her medico

legal certificate opined that she was subjected to sexual intercourse.

Scientific samples were also preserved for forensic analysis. Human

semen was found on shirt and slacks (pyjami) of the prosecutrix,

thus the clothes were preserved in a sealed cover for scientific

analysis. Police investigation ensued and recoveries of shawl,

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currency notes and bed sheet were made. The accused was arrested,

medically examined and was found capable of performing sexual

intercourse. Blood sample of the accused was also obtained.

.

Statement of the prosecutrix was recorded before the concerned

Magistrate under Section 164 Cr.P.C. The prosecutrix was produced

before Dr. Ritu Sharma, who filled the identification form and

obtained her blood sample for DNA profiling. Record qua date of

birth of the prosecutrix was also obtained. After conclusion of

investigation, challan was presented in the Court.

3. The prosecution, in order to prove its case, examined as

many as twenty witnesses. Statement of the accused was recorded

under Section 313 Cr.P.C., wherein he pleaded not guilty. The

accused did not lead any evidence in his defence.

4. The learned Trial Court, vide impugned judgment dated

04.08.2015, convicted the accused for the offence punishable under

Section 5(m) of POCSO Act read with Section 376(2)(i) IPC and

ordered him to undergo rigorous imprisonment for ten years and to

pay fine of `10,000/- and in default of payment of fine he was

further ordered to undergo simple imprisonment for six months,

hence the present appeal preferred by the accused.

5. The learned Legal Aid Counsel for the appellant has

argued that the medical report nowhere suggests that sexual

intercourse took place. He has further argued that the presence of

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grandmother and siblings of the prosecutrix in the home also

suggests that no sexual assault took place. He has argued that as

per the mother of the prosecutrix, the prosecutrix was wearing

.

‘salwar’, but the police recovered pyjami/slacks and this creates a

serious doubt in the prosecution story. He has further argued that

the prosecutrix, her mother (complainant) and grandmother have

gone hostile, thus in these circumstances there is no case against

the appellant and he be acquitted. Conversely, the learned

Additional Advocate General has argued that the prosecution has

proved the guilt of the accused beyond the shadow of reasonable

doubt. He has argued that the prosecutrix, her mother

(complainant) and grandmother had been won over by the accused,

so their statements cannot be made basis for acquitting the

appellant. The scientific evidence clearly proves the guilt of the

accused beyond the shadow of reasonable doubt, so the appeal be

dismissed.

6. In rebuttal, the learned Legal Aid Counsel for the

appellant has argued that where two views are possible, the view

favouring the accused must be adopted and the benefit of doubt be

given to the accused. He has argued that the present is a fit case

where the accused is required to be acquitted.

7. In order to appreciate the rival contentions of the parties

we have gone through the record carefully.

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8. Indisputably, in the present case, the key prosecution

witnesses have resiled from their previous statements given to the

police, even the prosecutrix also did not support the prosecution

.

case. However, in the wake of facts and circumstances of the case,

it would be apt to firstly discuss the medical and forensic evidence.

9. PW-2, Dr. Sarla Chand, deposed that on application, Ex.

PW-2/A, the police brought the prosecutrix before her and on

examination she issued medico legal certificate, Ex. PW-2/B. This

witness had also handed over sample of vaginal swab, vaginal slide,

and clothes in a sealed cover to the police alongwith sample seal.

She has opined as under:

“P/S: The hymen was torned. Tages were
present at 2, 6 and 10 O’clock position,
swollen, tender and bleeding was present on
touch, foul smell was present.

P/V: Little finger inserted with pain.

Vaginal swabs wee taken and preserved.

Vaginal slides were also prepared. The

victim had not taken bath and not changed
her clothes. The clothes were preserved and
handed over to the police. As per my opinion

the victim was exposed sexually and time
was between 36 to 48 hours. After perusal
of the reports of the R.F.S.L. Mandi, Ex. PW-

2/C and Ex. PW-2/D, I give my final opinion
human semen was found on the shirt and
slacks of victim…….”

This witness, in her cross-examination, has deposed that hymen can

be ruptured in cycling, running and due to other reasons as well.

10. PW-5, Dr. Suneesh Sharma, on 26.07.2013 took blood

sample of the accused on F.T.A and handed over the same to the

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police. On 29.07.2013 the prosecutrix was produced before PW-14,

Dr. Ritu Sharma. PW-14 filled the identification form, Ex. PW-11/F,

and also obtained blood sample of the prosecutrix. The blood

.

sample was sealed in a vial and handed over to the police. PW-20,

Dr. Mahender Singh Rana, medically examined the accused and

issued medico legal certificate, Ex. PW-20/A. In his opinion the

accused was found capable to perform sexual act.

11. Now, the scientific evidence, which is in the form of

forensic analysis reports, needs to be discussed. The result of

forensic analysis conducted in RFSL, Mandi, report whereof is Ex.

PW-2/C, is as under:

“Exhibits/cuttings were subjected to
biological and serological analyses in the
laboratory. ‘Benzidine test’ was performed
to detect the presence of blood. Species of

origin was determined by ‘geldiffusion
technique’. ‘Acid phosphatese test’ and
‘microscopic examination’ were carried out
for detection of semen. On the basis of

aforesaid examinations, results were as
under:

1. Blood and semen could not be detected on
exhibit-1 (vaginal swab of the prosecutrix),

exhibit-2 (vaginal slide of the prosecutrix),
exhibit-5 (pubic hair of the accused), exhibit-
6a (pants of the accused), exhibit-6b
*underwear of the accused) and exhibit-7
(shawl).

2. Blood could not be detected on exhibit-3a
(shirt of the prosecutrix) and exhibit-3b
(slacks of the prosecutrix), but human semen
was detected on these exhibits.

3. Human blood was detected on exhibit-4
(blood sample of the accused).”

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The result of forensic analysis conducted in SFSL, Junga, report

whereof is Ex. PW-2/D, is as under:

.

“Amplification Kit. The amplified products

along with controls were run on automated
DNA sequencer (ABI 3130). DNA profiles were
prepared and analysis was carried out using
Gene Mapper ID Software v 3.2.

OBSERVATIONS:

i) Exhibit-1 (blood sample of the accused on
FTA card) and Exhibit-2 (blood sample of the
victim on FTA card) yielded good quality

DNA and it was possible to amplify all the
fifteen autosomal STR loci and amelogenin
with AmpF/STR Identifiler Plus ® PCR
Amplification Kit.

ii)

Exhibit-3a (shirt of the victim) yielded highly
degraded DNA which did not show

amplification with AmpF/STR Identifiler
Plus ® PCR Amplification Kit.

iii) Exhibit-3b (slacks of the victim), yielded
slightly degraded DNA, however it was

possible to amplify all the fifteen autosomal
STR loci and amelogenin with AmpF/STR
Identifiler Plus ® PCR Amplification Kit.

iv) The DNA profile obtained from exhibit-3b
(slacks of the victim) matches completely
with the DNA profile obtained from exhibit-1

(blood sample of the accused on FTA card)

CONCLUSIONS:

On the basis of the above analysis performed
on the aforesaid exhibits, it is concluded
that:-

i) Exhibit-3a (shirt of the victim) yielded highly
degraded DNA which did not show
amplification with AmpF/STR Identifiler
Plus ® PCR Amplification kit, hence no DNA
profile was obtained.

ii) The DNA profile obtained from Exhibit-3b
(slacks of the victim) matches completely

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with the DNA profile obtained from exhibit-1
(blood sample of the accused on FTA card).”

So, the conclusion (ii), as extracted hereinabove, clearly shows that

.

the semen of the accused was found on the slacks of the prosecutrix.

PW-2, Dr. Sarla Chand, categorically deposed that she has taken the

clothes of the prosecutrix and handed over the same to the police.

She has identified these clothes in the Court.

12. Now, the statements of complainant (PW-3), grand

mother of the prosecutrix (PW-4) and the prosecutrix (PW-6) need to

be looked into. The mother of the prosecutrix, who is also the

complainant, was examined as PW-3. She has deposed that nothing

had happened to her daughter (prosecutrix). This witness was

declared hostile and was subjected to exhaustive cross-examination.

She, in her cross-examination, has deposed that statement, Ex. PW-

3/A, bears her signature, which is encircled in red. She has also

deposed that MLC, Ex. PW-2/B, also bears her signature, which is

encircled in red. She has deposed that on 23.07.2013 she alongwith

the prosecutrix and her husband appeared before the learned

Judicial Magistrate 1st Class, Gohar. PW-4, Smt. Tulsi Devi,

grandmother of the prosecutrix, has also deposed that nothing has

happened to her grand daughter. This witness was also declared

hostile, as she has resiled from her previous statement made to the

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police.

13. The prosecutrix was examined as PW-6. Being a minor

witness, her awareness was verified by the learned Trial Court by

.

putting questions of different nature and after satisfaction oath was

administered to her. The prosecutrix deposed that on 20.07.2013

the accused did not come to their house. She was also declared

hostile and subjected to exhaustive cross-examination. The

prosecutrix, in her cross-examination, has deposed that she was

medically examined by a doctor. She also admitted that she was

produced before the learned Judicial Magistrate 1st Class, Gohar.

She has deposed that when she was taken to the doctor and to the

Magistrate, her parents accompanied her.

14. As discussed above, the key prosecution witnesses,

including the prosecutrix turned hostile and their statements are not

valuable for the prosecution case. Now the statements of the official

prosecution witnesses need discussion. PW-1, LC Dayawanti,

remained associated in the investigation of the case. On 25.07.2013,

PW-3, Smt. Uma Devi, produced a bed sheet of cream colour having

flowers pattern and currency notes and coins of Rs. 82/-. The bed

sheet was put in a parcel and the same was sealed with seal

impression ‘N’ at nine places and the currency notes alongwith the

coins were also sealed in a parcel having seal impression ‘N’ at five

places. As per this witness, seal after its use was handed over to

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Tule Ram and the specimen of seal impression ‘N’ was taken on a

separate piece of cloth, which is Ex.PW-1/B. PW-7, Constable

Suresh Kumar, deposed that on 28.07.2013, vide RC, Ex. PW-7/A,

.

MHC, Police Station, Gohar, gave him seven parcels in a sealed cover

and a seal. He has deposited the same in RFSL Gutkar, Mandi. This

witness on his re-examination has deposed that on 24.10.2013, vide

RC No. 119/13, Ex. PW-7/B, some articles, details whereof were

mentioned in the road certificate, were given to him by MHC and he

safely deposited the same in SFSL, Junga and on return, receipt was

handed over by him to the MHC.

15. PW-8, HC Vijay Kumar, deposed that on 22.07.2013 LC

Geeta Devi deposited with him three parcels, a sample seal and a

letter to RFSL, Mandi. He made entry in the malkhana register at Sr.

No. 449. He has further deposed that on 23.07.2013 HHC Bihari Lal

deposited with him three parcels alongwith sample seal and a letter

to RFSL, Mandi and he made entry in the malkhana register at Sr.

No. 450. On 25.07.2013 SI/SHO Naveen Jhalta deposited with him

two parcels, qua which he made entry at Sr. No. 452. On

26.07.2013 Rajinder Kumar deposited a parcel alongwith letter to

RFSL, Gutkar, qua which entry at Sr. No. 453 was made in

malkhana register. The abstract of malkhana register is Ex. PW-8/A.

He has further deposed that on 29.07.2013 the case property was

sent, vide RC Ex. PW-7/A, through Constable Suresh Kumar, to

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RFSL, Gutkar. On 07.10.2013 LC Savitri Devi deposited with him a

parcel and a sample seal, qua which he made entry at Sr. No. 490.

On 24.10.2013, vide RC No. 19 of 2013, he sent three samples to

.

FSL, Junga, through Constable Suresh Kumar. PW-9, Shri Chaman

Lal, Panchayat Secretary, deposed that he was associated in the

investigation by the police. He issued date of birth certificate of the

prosecutrix, which is Ex. PW-9/A. As per his records, the date of

birth of the prosecutrix is 15.06.2004. This witness, in his cross-

examination, has deposed that there is overwriting in the year

mentioned against the entry and the entry was made in the register

on the oral information of adult member of the family. PW-10, Smt.

Kamla Devi (Retired Inspector), deposed that under the directions of

Superintendent of Police, Mandi, she visited Zonal Hospital, Mandi,

and recorded the statement of the complainant (mother of the

prosecutrix), which is Ex. PW-3/A. As per this witness, after

recording her statement the same was explained to her and the

complainant put her signatures thereon. HHC Balbir Singh took

rukka to the police station for registration of FIR and FIR, Ex. PW-

10/A, was registered. She also recorded the statement of the

prosecutrix under Section 161 Cr.P.C. She has further deposed that

she also recorded the statement of Shri Tula Ram (father of the

prosecutrix), which is Ex. PW-10/C. On 23.07.2013, the

prosecutrix, when she was accompanied by her parents, produced

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before the learned Judicial Magistrate 1st Class, Gohar, and her

statement under Section 164 Cr.P.C. was recorded.

16. PW-11, Inspector Naveen Jhalta, deposed that upon

.

receipt of rukka, FIR, Ex. PW-10/A, was registered and endorsement

on the rukka was made. He prepared the spot map, Ex.PW-11/A

and took into possession bed sheet, Ex P-2, and currency notes, Ex.

P-4, vide seizure memo, Ex.PW-1/A, and were sealed in separate

parcels and sample seal, Ex. PW-1/B, was drawn. As per this

witness, the case property was subsequently deposited with MHC.

He recorded the statements of the witnesses, including the

prosecutrix, Ex. PW-11/B, Smt. Tulsi Devi (PW-4), Ex. PW-11/C,

Smt. Uma Devi (PW-3), Ex. PW-11/D, and Shri Tule Ram (father of

the prosecutrix), Ex. PW-11/E. He has further deposed that he

procured the date of birth certificate of the prosecutrix, Ex. PW-9/A.

The accused was medically examined and his blood sample on FTA

card was obtained. As per this witness, identification form, Ex. PW-

5/A, bears his signatures. After filling identification form, Ex. PW-

11/F, blood sample of the prosecutrix was obtained. He, after

completion of the investigation, prepared the challan and presented

the same in the Court. This witness, in his cross-examination, has

deposed that medical examination of the accused was done on

different date and his blood sample was taken on different date, as

he forgot to obtain blood sample of the accused, when the accused

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was being examined by the doctor.

17. PW-12, HC Balbir Singh, deposed that on 22.07.2013

Inspector Kamla Devi gave him rukka, which he submitted in Police

.

Station, Gohar, which formed basis for the FIR. PW-13, Constable

Ajit Singh, only brought the summoned record, which are rapats No.

26, 46, 16, 7 and 30, Ex. PW-13/A to Ex. PW-13/E, respectively.

PW-15, LC Geeta Devi, deposed that she produced the prosecutrix

before the doctor for medical examination and the doctor gave her

MLC, three parcels, which were duly sealed, and a sample seal. She

has deposited the same with MHC. As per this witness, the doctor,

in her presence, obtained clothes of the prosecutrix. PW-16, Shri

Ram Krishan, deposed that he wrote application, Ex. PW-2/A, on

22.07.2013, for production of the prosecutrix before the doctor for

her medical examination. PW-17, HHC Bihari Lal, deposed that he

produced the accused for medical examination before the doctor and

after examination, the doctor handed over to him a cloth parcel,

which contained pants and underwear of the accused. As per this

witness, a vial containing pubic hair of the accused and another vial

containing blood sample of the accused were also handed over to

him. He has further deposed that he safely deposited all the articles

with MHC. PW-18, Shri Mohit Bansal, Judicial Magistrate 1st Class,

deposed that on 23.07.2013, when he was posted at Gohar,

prosecutrix was produced before him and he, after asking searching

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questions, recorded her statement, which is Ex. PW-18/A. PW-19,

HC Rajesh Kumar, deposed that he recorded the statements of MHC

Vijay Kumar, Constable Suresh Kumar and Constable Balbir Singh.

.

18. The prosecutrix (PW-6), her mother (PW-3) and grand

mother (PW-4) were won over, as is clear from their statements.

However, they did not deny their signatures on exhibits and recovery

memos in the police record. As per these witnesses, their signatures

were taken on a blank paper, but this is unbelievable. The only

conclusion is that they are deposing falsely in the Court, as they are

won over by the accused.

19. It has come on record that PW-4, Smt. Tulsi Devi (grand

mother of the prosecutrix) is hard of hearing, as she herself has

admitted that she was sleeping and hard of hearing. Moreover, a

suggestion had also come from the defence that she was hard of

hearing. Thus, in the wake of established fact that PW-4 was

sleeping and hard of hearing, it can be safely presumed that she did

not hear anything. Another fact which needs to be looked closely is

that the prosecutrix was minor and paid money by the accused,

therefore, she did not object and raise alarm. As per the statement

of PW-2, Dr. Sarla Chand, hymen was torn and tenderness and

bleeding was found on the private part of the prosecutrix, this also

proves that the prosecutrix was sexually assaulted. It was ruled out

by PW-2 that in every case of sexual assault injuries are found on

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the private part of the victim. Thus, non-existence of injuries on the

private part of the prosecutrix is not helpful to the accused and he,

in the facts and circumstances of the case, cannot reap the benefit of

.

the same.

20. PW-2, Dr. Sarla Chand, categorically deposed that she

has sealed the clothes of the prosecutrix in a cloth parcel and the

same were handed over to the police. PW-15, LC Geeta Devi,

testified the testimony of PW-2 and deposed that aforesaid

articles/documents were handed over to her by the doctor and she

safely deposited the same with MHC. PW-8, HC Vijay Kumar (MHC),

through his statement, fortified the statement of PW-8. PW-7,

Constable Suresh Kumar, proved that he took these articles safely to

Forensic Science Laboratory. Lastly, report of forensic science

laboratory stands corroborated with the statements of PW-7 and PW-

8 that these articles were safely deposited in the Forensic Science

Laboratory.

21. After scrutiny of Forensic Report, Ex. PW-2/C, it is

revealed that human semen was found on shirt and slacks (pyjami)

of the prosecutrix. In DNA profiling report, Ex. PW-2/D, human

semen, which was there on the slacks (pyjami) of the prosecutrix,

completely matched with the DNA profile of the accused. The

accused did not give any explanation, while his statement under

Section 313 Cr.P.C. was being recorded. Firstly, DNA report, Ex.

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PW-2/D, proves the presence of semen on the slacks (pyjami) of the

prosecutrix and secondly the accused failed to give any explanation

qua the presence of his semen on the slacks of the prosecutrix. This

.

is a strong circumstance and in any case this Court cannot overlook

or ignore the same. In fact, statement of PW-3, Smt. Uma Devi

(mother of the prosecutrix), if read in totality and the statement of

the prosecutrix given to the police fully corroborate with the

scientific evidence. PW-18, the learned Magistrate proves that

statement of prosecutrix, Ex. PW-18/A, was recorded by him.

Certainly, the conviction of the accused cannot be solely based upon

the statement of the prosecutrix, but the same has corroborative

value. As discussed hereinabove, the statement of the prosecutrix,

Ex. PW-18/A, and also the statement of her mother fully corroborate

with the scientific evidence. Thus, the scientific evidence, which is to

be read alongwith the statements of the prosecutrix and her mother,

clearly establishes the guilt of the accused beyond all reasonable

doubts.

22. Now, as we are of the opinion that scientific evidence

clearly and without any doubt proves the guilt of the accused and

the same stands fortified with the statements of the complainant and

statement of the prosecutrix, recorded under Section 164 Cr.P.C.

The grand mother deposed that she is hard of hearing, so she could

not hear what had happened that night. Thus, the statements of

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these witnesses clearly portray the incident and this portrayal

completely matches with the DNA report. Therefore, it cannot be

said that DNA report lacks other positive support.

.

23. The learned counsel for the accused has mainly tried to

create doubt on the DNA report, which clearly establishes presence

of semen on the slacks of the prosecutrix. In order to fortify his

arguments, he has placed reliance on the following judicial

pronouncements:

1. State of Haryana vs. Bhagirath
others, (1999) 5 SCC 96;

2. Krishnan another vs. State

Represented by Inspector of Police,
(2003) 7 SCC 56;

3. T. Subramanian vs. State of T.N.,
(2006) 1 SCC 401;

4. Premjibhai Bachubai Khasiya v. State
of Gujarat another, 2009 Criminal

Law Journal, 2888.

24. The Hon’ble Supreme Court in State of Haryana vs.

Bhagirath others, (1999) 5 SCC 96, has held as under:

“15. The opinion given by a medical witness need
not be the last word on the subject. Such
opinion shall be tested by the Court. If the

opinion is bereft of logic or objectivity, Court
is not obliged to go by that opinion. After all
opinion is what is formed in the mind of a
person regarding a fact situation. If one
doctor forms one opinion and another doctor
forms a different opinion on the same facts
it is open to the judge to adopt the view
which is more objective or probable.
Similarly if the opinion given by one doctor
is not consistent with probability the Court
has no liability to go by that opinion merely
because it is said by the doctor. Of course,

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due weight must be given to opinions given
by persons who are experts in the particular
subject.”

The medical evidence cannot be made sole basis for convicting the

.

accused, especially where divergent medical opinions emerge from

different medical experts and also in cases where medical evidence

lack lateral support from statements of witnesses. In the case in

hand, DNA report conclusively proves the presence of semen on the

slacks of the prosecutrix and there is no evidence that slacks, which

was sent for DNA analysis, was tampered with. Lastly, the

statements of the prosecutrix (PW-6), her mother, Smt. Uma Devi

(PW-3) and grandmother, Smt. Tulsi Devi (PW-4), if read completely,

corroborate with the medical evidence. Therefore, the medical

evidence cannot be said to be the sole basis for convicting the

accused and there is only one medical opinion, so the judgment

(supra) is not applicable to the facts of the present case.

25. The learned counsel for the accused has placed reliance

on another judgment of Hon’ble Supreme Court rendered in

Krishnan another vs. State Represented by Inspector of

Police, (2003) 7 SCC 56, wherein it has been held as under:

“18. The evidence of Dr. Muthuswamy (P.W. 7)
and Dr. Abbas Ali (P.W.8) do not in any way
run contrary to the ocular evidence. In any
event, the ocular evidence being cogent,
credible and trustworthy, minor variance, if
any, with the medical evidence are not of
any consequence.

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… … … … … … …

20. Coming to the plea that the medical
evidence is at variance with ocular evidence,
it has to be noted that it would be erroneous
to accord undue primacy to the hypothetical
answers of medical witnesses to exclude the

.

eye-witnesses’ account which had to be

tested independently and not treated as the
“variable” keeping the medical evidence as
the “constant.”

21. It is trite that where the eye-witnesses’
account is found credible and trustworthy,
medical opinion pointing to alternative
possibilities is not accepted as conclusive.
Witnesses, as Bentham said, are the eyes
and ears of justice. Hence, the importance

and primacy of the quality of the trial
process. Eye-witnesses’ account would
require a careful independent assessment
and evaluation for their credibility which
should not be adversely prejudged making

any other evidence, including medical
evidence, as the sole touchstone for the test

of such credibility. The evidence must be
tested for its inherent consistency and the
inherent probability of the story; consistency
with the account of other witnesses held to
be credit-worthy; consistency with the

undisputed facts the ‘credit’ of the
witnesses; their performance in the witness-
box; their power of observation etc. Then the
probative value of such evidence becomes

eligible to be put into the scales for a
cumulative evaluation.”

In the case in hand, statements of PW-3, PW-4 and PW-6, completely

corroborate the medical evidence (DNA analysis report) and these

witnesses have, no doubt, turned hostile, however, their statements,

if read in totality, they completely fortify the medical evidence. Thus,

the judgment (supra) is also not applicable to the facts of the present

case.

26. The learned counsel for the accused has also placed

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20

reliance on a judgment of Hon’ble Supreme Court rendered in T.

Subramanian vs. State of T.N., (2006) 1 SCC 401, wherein it has

been held as under:

.

“17. The evidence throws out a clear alternative

that the accused was falsely implicated at
the instance of PWs 1, 2 and 6. If two views
were possible from the very same evidence, it
cannot be said that the prosecution had

proved beyond reasonable doubt that the
appellant had received the sum of Rs 200 as
illegal gratification. We are, therefore, of
the considered view that the trial court was
right in holding that the charge against the
appellant was not proved and the High

Court was not justified in interfering with
the same.”

In the case in hand, after elaborately discussing the prosecution

evidence, it cannot be said that two views are possible. Certainly,

where two views are possible, view favouring the accused must be

adhered to, but here the medical evidence, if conjunctively read with

the statements of PW-3, PW-4 and PW-6, the same corroborates with

each other. Therefore, in the case in hand, two views are not

possible. The judgment (supra) is not applicable to the facts of the

present case.

27. The learned counsel for the accused has relied upon

another judgment of Hon’ble High Court of Gujarat rendered in

Premjibhai Bachubhai Khasiya vs. State of Gujarat another,

2009 Criminal Law Journal 2888, it has been held as under:

“14. It is thus clear that positive DNA report can
be of great significance, where there is

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21

supporting evidence, depending of course on
the strength and quality of that evidence. If
the DNA report is the sole piece of evidence,
even if it is positive, it cannot conclusively
fix the identity of the miscreant, but if the
report if negative, it would conclusively
exonerate the accused from the involvement

.

or charge.

15. The science of DNA is at a developing stage
and when the Random Occurrence Ratio is
not available for Indian Society, it would be

risky to act solely on a positive DNA report,
because only if the DNA profile of the
accused matches with the foetus, it cannot
be considered as a conclusive proof of
paternity. Contrarily, if it is solitary piece of
evidence with negative result, it would

conclusively exclude the possibility of
involvement of the accused in the offence.

… r … … … … … …

16.1 But, when it is found that the DNA profiles
are not consistent or do not match they

conclusively rule out the possibility of
involvement of the accused and can be used
for recording an acquittal in a criminal
case.

17. In the case on hand, considering the
peculiar facts and circumstances and
evidence on record, the positive DNA Report
should not have been accepted by the trial

Court in isolation, i.e. as sole piece of
evidence to record the conviction.

18. The appeal is allowed. Conviction recorded
by the Additional Sessions judge, Fast Track
Court No. 6, Bhavnagar in Sessions Case No.
123 of 2007 dated 15-11-2007 for the

offences punishable under Sections 363,
366, 376, 506(2) read with Section 144 of
the Indian Penal Code is set-aside.
Appellant-accused person is set at liberty
forthwith, if not required in any other case.”

In the present case, conclusion No. (ii) of DNA report, Ex. PW-2/D,

says that “the DNA profile obtained from Exhibit-3b (slacks of …..

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22

(prosecutrix)) matches completely with the DNA profile obtained from

Exhibit-1 (blood sample of accused Kishan Chand on FTA card)”.

Moreover, this abovementioned conclusion stands corroborated by

.

the statement of PW-3, Smt. Uma Devi (mother of the prosecutrix)

PW-4, Smt. Tulsi Devi (grand mother of the prosecutrix) and PW-6

(prosecutrix) and official witnesses. In this case, the positive DNA

report stands corroborated with other circumstances, so the DNA

report and other corroborative circumstances are sufficient to

convict the accused. Thus, the judgment (supra) is not applicable to

the facts of the present case.

28.

After discussing the evidence and the law, as cited by the

learned counsel for the accused, it would be apt to deal with the

arguments advanced by the learned counsel for the accused. One of

the arguments is that the accused did not run away and if he had

done something then he would have definitely fled away from the

spot, but it has come on record that he gave money to the

prosecutrix and there is also a probability that he might be expecting

that prosecutrix will not tell anyone with regard to the occurrence.

In all cases, it gives no presumption in favour of the accused that he

was innocent, as he remained in the house after committing the

offence. As far as age of the prosecutrix is concerned, even though

ossification test was not conducted, but from the evidence on record

it is definitely in between 10-12 years and by no stretch of

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23

imagination the age can be extended beyond 12 years, as the record

shows that she was studying in 5th class and 10 years of age.

29. In view of what has been discussed hereinabove, the only

.

conclusion is that the learned Trial Court has rightly appreciated the

evidence to its true and correct perspective and has rightly convicted

the accused. This Court finds no reason to reverse the findings

rendered by the learned Trial Court. The appeal, which sans merits,

deserves dismissal and is accordingly dismissed.

30. In view of the above, the appeal, so also pending

application(s), if any, stand(s) disposed of.

(Tarlok Singh Chauhan)
Judge

(Chander Bhusan Barowalia)

Judge
16th March, 2018

(virender)

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