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, NewDelhi 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 revealedthat 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 itsregistration 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, wifeof Prabhu Dass and her address was R.K.
Puram, New Delhi. He also explained that
the other Birth Certificate produced by thedefence 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 KotlaMubarakpur 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 living30/10/2018 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 Courtheld:
“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)
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