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Judgments of Supreme Court of India and High Courts

Ramesh Chand vs State Of Himachal Pradesh on 30 October, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 643 of 2017
Reserved on: 12.10.2018
Decided on: 30.10.2018

.

_

Ramesh Chand …..Appellant.

Versus
State of Himachal Pradesh ……Respondent.

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

_
For the appellant: Mr. Ashwani Dhiman, Advocate.

For the respondent/State: Mr. Vikas Rathore, Additional
Advocate General with Mr. J.S.

Guleria, 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 05.07.2017, passed by learned

Special Judge, Bilaspur, District Bilaspur, H.P., in Sessions Trial No.

1/7 of 2016, C No. 1 of 2016, whereby the accused was convicted

and sentenced for the commission of offences punishable under

Sections 376 and 506(ii) of Indian Penal Code, 1860 (for short “IPC”)

and Section 6 of the Protection of children from Sexual Offences Act,

2012 (hereinafter referred to as “POSCO Act”).

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

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2. The factual matrix of the prosecution case can tersely be

summarized as under:

On 22.08.2015, in the morning hours, within the

.

premises of District Government Hospital, Bilaspur, the accused,

being in the management staff of the hospital committed rape on the

prosecutrix, who was less than 18 years of age. The accused also

intimidated the prosecutrix to eliminate her and her family members,

in case she divulge the incident to anyone. On the anvil of the

statement of the prosecutrix made to the police under Section 154

Cr.P.C. a case was registered against the accused and the

investigation ensued. The prosecutrix, in her statement made under

Section 154 Cr.P.C., stated that she is 13 years old and studying in

9th standard in Government High School, Bhager. On 22.08.2015, at

the instance of her mother, who was ill, she went to Government

Hospital, Bilaspur, for bringing medicines for her mother. The

prosecutrix has further stated that she was acquainted with the

accused, as she used to tie ‘rakhi’ to the son of the accused and he is

resident of their village. As per the prosecutrix, the accused took her

to a room in the hospital, where he committed rape on her and he

threatened her to do away with her life in case she divulges the

incident to anyone. The prosecutrix has further stated that on

12.08.2015 and 17.08.2015 one Kuldeep also assaulted her and the

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matter was reported to the police, but on that day, due to fear, she

could not lodge report against the accused. Police got the accused

medically examined and his medico legal certificate was obtained.

.

Police recorded the disclosure statement of the accused made under

Section 27 of the Indian Evidence Act and the accused got identified

the spot of occurrence in presence of Shri Sohan Lal and Shri Madan

Gopal. The prosecutrix was also medically examined and her medico

legal certificate was also obtained. Police prepared the spot maps

and photographs of the spot were clicked. Records qua date of birth

of the prosecutrix were obtained from Secretary, Gram Panchayat,

Amarpur, and Headmaster, Government High School, Bhager. After

receipt of the report of the forensic analysis of the samples and

completing all other formalities, challan was presented in the Court.

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

many as twenty two 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

05.07.2017, convicted the accused for the offence punishable under

Section 6 of POCSO Act and sentenced him to undergo rigorous

imprisonment for a period of ten years and to pay fine of

Rs.10,000/-. In default of payment of fine the accused was ordered

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to undergo imprisonment for six months. Under Section 376 IPC the

accused was convicted and sentenced to rigorous imprisonment for a

period of ten years and to pay fine of Rs.10,000/-. In default of

.

payment of fine, he was ordered to undergo further imprisonment for

six months. The accused was also convicted under Section 506(II)

IPC and sentenced to undergo rigorous imprisonment for a period of

six months and fine of Rs.5,000/-. In default of payment of fine he

was ordered to undergo further imprisonment for three months,

hence the present appeal maintained by the appellant

(accused/convict).

5. Shri Ashwani Dhiman, learned Counsel for the appellant,

has argued that the appellant has been falsely implicated in the case

in hand and the judgment, as passed by the learned Trial Court, is

without appreciating the evidence and the law to its true and correct

perspective. He has further argued that the DNA profiling was not

scientific and the prosecution has failed to prove the fact that the

DNA was of the appellant and taken as per the procedure prescribed.

He has argued that in the present case, the prosecution has used the

investigation made in another case, which is not permissible, so the

appellant be acquitted, as the prosecution has failed to prove the

guilt of the accused beyond the shadow of reasonable doubt. Shri

Dhiman has further argued that there is no evidence on record to

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remotely show that the appellant was working in the hospital.

Conversely, the learned Additional Advocate General has argued that

at the relevant time the appellant was working as ambulance driver

.

and he lodged a false complaint with regard sexual offence on the

prosecutrix against another person, but when the DNA profiling was

done, it came to the notice that it was the appellant who committed

rape on the prosecutrix. He has further argued that subsequently

FIR was registered against the appellant and separate investigation

was carried out and the prosecution successfully proved the guilt of

the accused by leading cogent and reliable evidence. He has further

argued that the prosecution has proved the guilt of the appellant

(convict) conclusively and beyond the shadow of reasonable doubts,

so the judgment, as passed by the learned Trial Court, needs no

interference by this Court, so the appeal be dismissed.

6. In rebuttal, Shri Dhiman, the learned Counsel for the

appellant, has argued that the investigation carried out by the

prosecution is marred by infirmities, so the present appeal be

allowed and the appellant be acquitted. He has further argued that

the report of the expert is merely piece of corroborative evidence and

not conclusive proof of fact. In order to draw lateral support to his

arguments he has relied upon the following judicial

pronouncements:

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1. Mohd. Imran Kahan vs. State (Govt. of
NCT of Delhi), 2011(4) Criminal Court
Cases 398 (SC):

2. State of H.P. vs. Mehboon Khan and
other connected matters, Latest HLJ
2014 (HP) (FB) 900;

.

3. Rajiv singh vs. State of Bihar another,

Criminal Appeal No. 1708 of 2015
(arising out of SLP (Crl.) No. 8111 of
2014.

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

we have gone through the record carefully.

8. Avowedly, in sexual offences medical evidence is crucial

aid to Courts to convict or acquit the accused, however, the same

cannot at all be read in isolation without important ancillary

material. In the case in hand, in the morning of 05.07.2017 the

prosecutrix was allegedly raped by the accused in District Hospital,

Bilaspur. As per the prosecution case, the prosecutrix went to the

hospital for bringing medicines for her mother. So, the testimony of

the prosecutrix, who was examined as PW-2, is very vital in the case

in hand.

9. The prosecutrix was examined as PW-7. She deposed

that she is studying in 9th class and her date of birth is 04.06.2002.

She has further deposed that in the morning of 22.08.2015 she went

to R.H. Bilaspur, for bringing medicines to her mother. As per the

version of the prosecutrix, the accused, who is her uncle, took her in

a room in the upper storey of the hospital building and she handed

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over to him prescription slip and money for the medicines. The

accused told her to sit in the room and that he will bring the

medicines, but the accused bolted the door from inside, laid her on

.

the bed and committed sexual assault on her. As per the

prosecutrix, the accused also threatened her to kill her and her

parents in case she discloses the incident to anyone. The accused

also gagged her mouth. Subsequently, the prosecutrix came back to

her home and earlier she could not report the matter owing to fear.

As per the testimony of the prosecutrix, police got her medically

examined in R.H. Bilaspur and after couple of months police made

inquires from her. Her statement, Ex. PW-1/A, was recorded by the

police and she was taken by the police to the room of the hospital,

where the accused committed rape on her. Police clicked

photographs of the spot, which are Ex. PA-1 to Ex. PA-8, and she

was medically examined. The prosecutrix, in her cross-examination,

has admitted that on 22.08.2015 she went to Police Station,

Ghumarwin, but did not divulge that the accused committed rape on

her due to fear. She did not divulge even before the Magistrate that

the accused committed rape on her while her statement under

Section 164 Cr.P.C. was being recorded. The prosecutrix has

deposed that another case was against Kuldeep Singh. She did not

divulge the fact qua rape by the accused to anyone outside the

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hospital or in the bus. On 22.08.2015 she went to hospital and

came back home alone.

10. PW-2, Dr. N.K. Sankhyan, medically examined the

.

accused on 10.11.2015. He has preserved the blood of the accused

in EDTA tube and also on FTA card for DNA profiling and other tests.

As per the opinion of this witness, there was nothing suggestive of

the fact that the accused could not perform sexual intercourse. PW-

2 issued medico legal certificate of the accused, which is Ex. PW-

2/B. As per report of SFSL, Junga, Ex. PW-2/C, blood and semen

were not detected on the underwear of the accused. This witness, in

his cross-examination, has deposed that he handed over the blood

sample in a sealed condition to the police.

11. PW-21, Dr. Bandana Gautam, deposed that on

22.08.2018 the prosecutrix, who was 13 years of age, was brought

by the police before her for her medical examination with alleged

history of sexual assault. She medically examined the prosecutrix

and observed as under:

“1. There was no scar/injury/swelling
noted on face, neck, breasts and
around the vaginal region,

2. Secondary sexual organs well
developed,

3. Hymen was not intact,

4. No undergarments were worn by the
victim at the time of examination.”

She preserved vaginal swab, slides, FTA card for DNA profiling, pubic

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hair and all the items were sealed with seal of C.H. Ghumarwin and

handed over to Police for chemical analysis. This witness issued

medico legal certificate, which is Ex. PW-21/B. On receipt of report,

.

Ex. PW-21/C, from RFSL, Mandi, she opined that possibility of

intercourse could not be ruled out. However, she reserved her final

opinion till the final report of DNA profiling. She did not find any

injury on the person of the prosecutrix when she medically examined

her. The samples were preserved and handed over by her to lady

Constable Sarita on the same day.

12. PW-17, Dr. Anupam Sharma, deposed that the

prosecutrix was referred to her for determination of her age. She

advised X-ray of right shoulder, elbow and wrist and X-ray pelvis AP

view. As per this witness, after the forensic opinion, the age of the

prosecutrix was found about thirteen years and half plus minus half

year.

13. In the case in hand the police booked the accused only

after receipt of DNA profiling report. DNA report is Ex. PW-19/A,

which reveals as under:

“1. the DNA profile obtained from Exhibit-1
(vaginal swab, prosecutrix) matched
completely with the DNA profile obtained
from Exhibit-1b (blood sample of same
victim, i.e., prosecutrix) recevied vide file
No. 2136/SFSL/DNA(293)/15,docket No.
8856/5a dt 30.09.15 P.S. Ghumarwin.

2. The male DNA profile obtained from
Exhibit-1a (vaginal swab, prosecutrix)

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received vide file no.
2136/SFSL/DNA(293)/15, docket No.
8856/5a dt 30.09.15 P.S. Ghumarwin
matched completely with the DNA profile
obtained from Exhibit-4 (Blood sample,
Ramesh Chand).”

.

Thus, DNA profiling report, Ex. PW-19/A, clearly goes against the

accused. Now, it is to be seen that the samples sent for carrying out

DNA profiling were of the accused and that of the prosecutrix and

the same were drawn by the medical expert and safely handed over

to the police and lastly the police deposited the same in the

laboratory without tampering the same.

14. PW-21, Dr. Bandana Gautam, categorically deposed that

she preserved vaginal swab, slides, FTA card for DNA profiling, pubic

hair and sealed the same with C.H. Ghurmarwin seal and handed

over it to the police for chemical analysis. Another key witness in

the present case is PW-16, HHC Kewal Kishore. He has specifically

deposed that on 17.11.2015 he took two sealed parcels, which were

sealed with seals of R.H. Bilaspur, two sealed envelopes, specimen of

seals used vide R.C. No. 316/15, dated 16.11.2015, to SFSL, Junga.

On his return, he handed over the receipt to MHC. PW-4, HC

Mohinder Singh, MHC Police Station, Ghumarwin, deposed that on

22.08.2015 LC Sarita Devi deposited with him a sealed envelope,

which was with seals of C.H. Ghumarwin. He made entry to this

effect in the malkhana register, copy of which is Ex.PW-4/A. This

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witness has further deposed that on 26.09.2015 LC Sarita Devi

brought RFSL report, Ex. PW-1/H, alongwith the case property and

the same were deposited with him in the malkhana. On 30.09.2015

.

he sent a sealed envelope, which was sealed with two seals of seal of

C.H. Ghumarwin and two seals of RFSL, Mandi, which were stated to

have contained blood sample, vaginal swab, slide, pubic hair, FTA

card of the victim, a sealed parcel sealed with seven seals of seal ‘M’

and a seal of RFSL, Mandi, parcels containing blood sample and

nails of the accused for being deposited with SFSL, Junga, for DNA

profiling. As per this witness, after deposit of the parcels at SFSL,

Junga, Constable Sunil Kumar deposited the receipt with him, copy

of RC is Ex. PW-1/G.

15. Now, it is to be seen whether the accused perpetrated the

crime or not. The testimony of PW-10 is germane. PW-10, Shri

Sohan Lal, Driver in the Health Department, deposed that accused,

in his presence, showed the room where he committed rape on the

prosecutrix. As per this witness, to this effect police prepared memo,

Ex. PW-10/A, which bears his signatures and the signatures of

witness Madan Gopal. As per this witness, accused was serving as

Ambulance driver at Regional Hospital. Thus, it is clear from the

deposition from PW-10 that the accused identified the spot of

occurrence in his presence where he had committed sexual

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intercourse with the prosecutrix, who was minor. The accused did

not dispute the statement made by PW-10, so it is rather accepted by

the accused that at the relevant time he was serving as Ambulance

.

driver at R.H. Bilaspur.

16. Admittedly, one of the focal point in the case in hand is

the age of the prosecutrix and as per the prosecution she was born

on 04.06.2002, as such she was less than 18 years of age at the time

of occurrence. The accused has mainly endeavored hard to dispute

the age of the prosecutrix. As per the testimony of the prosecutrix

her date of birth is 04.06.2002. The prosecutrix stepped into the

witness-box on 02.09.2016 and she has categorically deposed that

she is student of 9th class in Government Senior Secondary School,

Amarpur. The accused has not specifically disputed the age of the

prosecutrix while the prosecutrix was cross-examined. The

prosecution, in order to strengthen its case examined PW-12, Shri

Vivek Kumar, TGT, Government High School Chuwari, Tehsil

Ghumarwin. As per this witness, police vide application, Ex. PW-

12/A, requested him for providing record qua date of birth of the

prosecutrix. This witness has further deposed that as per the school

record the date of birth of the prosecutrix is 04.06.2002. Now, the

tentative age of the prosecutrix has been fortified by the medical

evidence. PW-2, Dr. N.K. Sankhyan, Medical Officer, has deposed

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that on 20.12.2012 he examined X-ray films, Ex. PW-2/D to Ex. PW-

2/F, of the prosecutrix and he found that acromion and corocoid

appeared, but acromion not fused. He has further deposed that that

.

head of humerous was not fused – 13 to 14 years. All epiphysis at

elbow appeared and fused-more than 13 years. Epiphysis of radious

and ulna at wrist not fused, pisiform was present – 12 TO 15 years.

Iliac crest started appearing. Head of femur and lessor trochonter

not fused. Epiphysis of ishial tuberosity not appeared. Triratriate

cartilage is almost fused – about 13 to 14 years. The cumulative

effect of the deposition of PW-2, Dr. N.K. Sankhyan, is that in any

case the age of the prosecutrix at the time of occurrence was about

thirteen and half years plus minus half year. PW-2 has been cross-

examined at length and he has deposed that he considered all the

conditions, i.e., fusion of epiphysis depends upon the environmental

condition and nutrition and hereditary etc. at the time of giving

opinion qua the age of the prosecutrix. Thus, in view of the

statement of PW-2, Dr. N.K. Sankhyan, Medical Officer, P.G.

Forensic Medicines and Toxicology, lucidly shows that in any case

age of the prosecutrix at the time of the occurrence was less than 14

years after considering plus minus of half year. PW-17, Dr. Anupam

Sharma, who conducted X-ray examination of the prosecutrix also

opined that the prosecutrix was about thirteen years of age half plus

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and minus half year.

17. As per the prosecution story, the accused made a

disclosure statement and in order to prove this fact the prosecution

.

has examined PW-9, Constable Chanchal Singh. He has deposed

that on 12.11.2015 accused made a disclosure statement that he

could identify the place where he had committed rape on the

prosecutrix. The disclosure statement is Ex. PW-9/A, which is

signed by him and by Constable Sandeep Kumar.

18. The prosecutrix (PW-7) deposed that the accused, who is

known to her, as she used to tie rakhi to the son of the accused, took

her to a room when she had gone to the hospital for bringing

medicines to her mother. She has further deposed that the accused

committed sexual intercourse with her and thereafter he threatened

her to do away with her life in case she divulges the incident to

anyone.

19. The blood of the accused was taken by PW-2, Dr. N.K.

Sankhyan, and it was sealed by him and thereafter the same

remained in safe custody, so there is nothing to doubt DNA profiling

report, Ex. PW-19/A.

20. The versions of other prosecution witnesses, which are

formal in natures, can be succinctly looked into. PW-1, Inspector

Ashok Chauhan, deposed that he was investigating a matter which

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was registered vide FIR No. 179 of 2015 wherein the prosecutrix

herein alleged that one Kuldeep Singh inserted fingers in her private

part/vagina. He has further deposed that after receipt of report from

.

chemical examiner it was noticed that semen was found on the

vaginal swab and slides of the prosecutrix, so the prosecutrix was

interrogated on 10.11.2015 and her statement was recorded under

Section 154 Cr.P.C., which is Ex. PW-1/A, in the presence of her

mother in their house. On the anvil of this statement, FIR was

registered.

21. PW-4, HC Mohinder Singh, the then MHC Police Station,

Ghumarwin, deposed that on 22.08.2015, Lady Constable Sarita

Devi deposited with him a sealed envelope, having seals of C.H.

Ghumarwin. He incorporated entry to this effect in the malkhana

registered, copy whereof is Ex. PW-4/A. This witness has further

deposed that on 26.09.2015, Lady Constable Sarita Devi brought

result (Ex. Pw-1/H) from RFSL, Mandi, alongwith the case property

and deposited the same in the malkhana. As per the testimony of

this witness, on 30.09.2015 he sent the sealed envelope and two

seals of RFSL, Mandi, which stated to have contained blood sample,

vaginal swab, slide of victim and pubic hair of victim and FTA card of

victim, one sealed parcel sealed with seven seals of seal ‘M’ and a

seal of RFSL, Mandi, which stated to have contained blood samples

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and nails of the accused for being deposited in SFSL, Junga.

Constable Sunil Kumar handed over receipt to him. He has further

deposed that copy of RC is Ex. PW-1/G.

.

22. PW-6, Lady Constable Sarita Sharma, deposed that on

22.08.2015, she took the prosecutrix to C.H. Ghumarwin for her

medical examination and after her medical examination, medico

legal certificate of the prosecutrix was handed over to her. She has

further deposed that the medical officer also handed over to her an

envelope containing the samples preserved during examination,

which she safely deposited with MHC, Police Station, Ghumarwin.

The prosecutrix also handed over to her white school uniform

salwar, which was containing soil and the same was sealed in a

parcel, which was sealed with seven seals of impression ‘M’ and

taken into possession vide memo, Ex. PW-6/A. This witness, in her

cross-examination, has deposed that on 22.08.2015 Dr. Bandana,

Medical Officer, C.H. Ghumarwin, handed over to her the articles

and Dr. Bandana herself prepared the parcels.

23. PW-15, HC Lalit Kumar, deposed that on 10.11.2015 ASI

Rajinder deposited a sealed parcel, which was duly sealed with three

seals of R.H. Bilaspur, stated to have contained blood sample of FTA

card and underwear of the accused, one sealed envelope addressed

to DNA section, SFSL, Junga alongwith specimen of seal used at

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R.H. Bilaspur with him. He has further deposed that entry qua the

deposit of the aforesaid case property is made at Sr. No. 140/15 in

the malkhana register. As per the deposition of this witness, on

.

16.11.2015 the above said parcels were sent to SFSL, Junga,

through HHC Kewal Kishore, vide RC No. 316/15, and receipt, qua

deposit of the same, was handed over to him by HHC Kewal Kishore

on his return. The copy of malkhana register is Ex. PW-15/B and

copy of RC is Ex. PW-15/A.

24. PW-20, SI Naresh Kumar, deposed that accused made

disclosure statement, Ex. PW-9/A, and consequent thereto he got

identified room No. 17 in the second floor of trauma centre, where he

committed sexual assault on prosecutrix. As per this witness, to this

effect he prepared spot map, Ex. PW-20/A, and memo, Ex. PW-10/A,

was also prepared. He also clicked photographs, Ex. PA-1 to Ex. PA-

8 and recorded the statements of witnesses Madan Gopal and Sohan

Lal.

25. From the above discussion it is clear that the

prosecution has clearly proved that the blood sample of the accused

was taken by PW-2, Dr. N.K. Sankhyan, and it remained in safe

custody till the DNA profiling was done and the same matches with

sperm profiling of the vaginal swab of the prosecutrix. This scientific

evidence is completely corroborated by the testimonies of the

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prosecution witnesses, as enumerated hereinabove and other

circumstantial evidence, including the disclosure statement made by

the accused and all other circumstances, which have come on

.

record, are so well connected leaving any scope of doubt. The

participation of the accused while getting a false case registered

against one Kuldeep son of Mansa Ram and other material, which

has come on record, the prosecution has clearly proved its case and

the available material leads to only one conclusion that the accused

had committed the offence. In the instant case, DNA profiling is

accurate and conclusive proof, as the prosecution has proved that it

was the DNA derived from the blood of the accused and from the

vaginal swab of the prosecutrix which matches and the prosecution

has also proved that sample of the blood of the accused was taken

by PW-2, Dr. N.K. Sankhyan, and the sample remained intact. The

prosecution has also successfully proved that the sample of blood of

the accused was not tampered with till DNA profiling was done. So,

the judgment rendered by Hon’ble Supreme Court in Rajiv Singh vs.

State of Bihar another, Criminal Appeal N o. 1708 of 2015

(arising out of SLP (Crl.) No. 8111 of 2014), whereupon the learned

counsel for the appellant has placed reliance, is not applicable to the

facts of the present case, as in the case supra the Hon’ble Supreme

Court noticed shortcomings and deficiencies in the DNA sampling,

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test etc. and thus the DNA report was not accepted. However, in the

instant case, there is nothing to doubt the DNA report, as the

testimonies of prosecution witnesses remain unshakable and inspire

.

confidence qua drawing of samples, samples remaining intact till the

DNA profiling was done and there is nothing to suspect the accuracy

of DNA matching report, Ex. PW-19/A.

26. The learned counsel for the appellant has also placed

reliance on a judgment of this High Court rendered in State of H.P.

vs. Mehboon Khan (alongwith connected matters), Latest HLJ

2014 (HP) (FB) 900, wherein Hon’ble Full Bench has held that

report of an expert is merely a piece of evidence and not conclusive

proof of a fact. It has also been held that opinion of the expert is

only of advisory in nature, which enables the Court to form its

independent opinion. The judgment (supra) relates to Narcotic

Drugs and Psychotropic Substances Act, 1985. Now, as far as the

DNA profiling is concerned, it cannot be compared with the narcotic

material analysis, as in the case of narcotics the analysis is not as

accurate as the DNA profiling. Thus, the judgment (supra) is of no

help to the appellant, when further other evidence also leads to only

conclusion, i.e. guilt of the accused.

27. The learned counsel for the appellant has placed reliance

on another judgment of Hon’ble Supreme Court rendered in Mohd.

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Imran Khan vs. State (Govt. of NCT of Delhi), 2011(4) Criminal

Court Cases 398 (S.C.), wherein vide para 14 it has been held as

under:

.

“AGE:

14. Both the courts below have laboured
hard to find out the age of the prosecutrix
for the reason that defence produced
certificate from Safdarjung Hospital, New

Delhi to create confusion and the I.O. in
order to help the appellants had made a
statement that the certificate on record did
not belong to the prosecutrix. The medical
report of the Radiologist issued by Ram
Manohar Lohia Hospital, New Delhi revealed

that age of the prosecutrix was between 16
and 17 years. The Birth Certificate issued
under Section 17 of the Registration of Birth
Death Act, 1969 reveals that a female
child was born on 2.9.1974 by the wedlock
r of Prabhu Dass and Devki, residents of
Sector 12/69, R.K. Puram, New Delhi and its

registration number had been 4840. It also
reveals that number of live children
including this child had been two. However,
this certificate has been duly proved by Vijay
Kumar Harnal, Medical Record Officer,

Safdarjung Hospital, New Delhi (PW.9), who
explained that one female child was born in
Safdarjung Hospital at 7.15 a.m. on
2.9.1974. Her mother’s name was Devki, wife

of Prabhu Dass and her address was R.K.
Puram, New Delhi. He also explained that
the other Birth Certificate produced by the

defence according to which a female child
was born on 12.9.1971 was of a different
female child who was born to one Devi Rani,
wife of Prabhu Dayal, residents of Kotla

Mubarakpur and thus, it did not belong to
Monika, prosecutrix. Similar evidence had
been given by Dr. R.K. Sharma, C.M.O.,
N.D.M.C., Delhi (PW.7). According to him, the
female child was born with Registration
No.4840 on 2.9.1974 and he further
explained that the name of the parents and
address of another female child born on
27.9.1971 bearing different registration
no.4502 had been totally different, i.e.
Prabhu Dayal and Devi Rani, residents of
Kotla Mubarakpur . The number of living

30/10/2018 22:58:24 :::HCHP

– 21 –

children with that family is also different
from that of the prosecutrix. These
documents have thoroughly been examined
by the courts below and we do not see any
cogent reason to examine the issue further.

The medical report and the deposition

.

of the Radiologist cannot predict the exact

date of birth, rather it gives an idea with a
long margin of 1 to 2 years on either side. In
Jaya Mala v. Home Secretary, Government of
J K Ors., 1982 AIR(SC) 1297, this Court

held:

“However, it is notorious and one can
take judicial notice that the margin of error
in age ascertained by radiological
examination is two years on either side.”

(See also: Ram Suresh Singh v.
Prabhat Singh @ Chhotu Singh Anr., 2009
6 SCC 681; and State of Uttar Pradesh v.
Chhotey Lal, 2011 2 SCC 550)

In view of the above as we have seen

the original record produced before us, we
are of the considered opinion that the
prosecutrix was less than 16 years of age on
the date of incident.”

It is settled law that the medical report and the deposition of the

Radiologist cannot with certainty predict the exact date of birth and

it only gives an idea with a long margin of 1 to 2 years on either side.

However, in the case in hand there is not only medical evidence

which establishes the tentative age of the prosecutrix at the relevant

time to be 13 years, but the medical evidence is also supported by

other material, i.e., record of the school, where the prosecutrix was

studying and as per this record, she was born on 04.06.2002. Thus,

in all cases the age of the prosecutrix was less than 14 years and

30/10/2018 22:58:24 :::HCHP

– 22 –

even if plus minus one to two years is made, the age of the

prosecutrix will be less than 15 years. So, the judgment (supra) is

also not applicable to the facts of the present case.

.

28. 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 rightly convicted the

accused. We find no reason to reverse the findings rendered by the

learned Trial Court. The appeal, which sans merits, deserves

dismissal and is accordingly dismissed, as the prosecution has

proved the guilt of the accused conclusively and beyond the shadow

of reasonable doubt.

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

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

(Sanjay Karol)

Judge

(Chander Bhusan Barowalia)
Judge

30th October, 2018
(virender)

30/10/2018 22:58:24 :::HCHP

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