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Salim Ahmed S/O. Habibul Rahaman … vs The State Of Maharashtra Thr. Sr. … on 24 July, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

CRIMINAL APPEAL NO.463/2017

Salim Ahmed s/o
Habibul Rahman Ansari,
aged 46 years, Occ. Vegetable Vendor,
r/o Plot No. 87, Sangam Nagar,
In front of Banti Cycle Stores,
P. S. yashodhara Nagar, Nagpur. …..APPELLANT

…V E R S U S…

The State of Maharashtra,
through Senior Police Inspector,
Police Station, Jaripatka, Nagpur. …RESPONDENT

——————————————————————————————-
Mr. Amit Choube, Advocate for appellant.
Mrs. Swati Kolhe, A.P.P. for respondent.
——————————————————————————————-

CORAM:- MANISH PITALE, J.
Date of Reserving the Judgment :-
JULY 12, 2018
Date of Pronouncing the Judgment:-
JULY 24, 2018

J U D G M E N T

1. The question that arises for consideration in this appeal

is whether the trial Court was justified in convicting and

sentencing the appellant for an offence punishable under Section

376 (2), (f), (i) (n) of the Indian Penal Code (IPC) and Section 5

(j) (l) (n) punishable under Section 6 of the Protection of Children

from Sexual Offences Act, 2012 (POCSO Act) for the rape of his

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own daughter, when the material witnesses had turned hostile and

the conviction was recorded on the basis of scientific evidence in

the form of Deoxyribonucleic Acid (DNA) report.

2. The appellant has been sentenced by the Court of

Special Judge under the POCSO Act, Nagpur for the offence stated

above, to suffer rigorous imprisonment for 10 years and to pay a

fine of Rs.10,000/-. The case of the prosecution was that the

prosecutrix was the daughter of the appellant and his wife

(complainant) and that they were residing with other members of

the family in their house at Sangam Nagar, Nagpur. About a

month prior to lodging of report, in the present case, the

prosecutrix fell ill and when she was taken to the hospital, the

Doctor informed the complainant-Shafikunnisa Salim Ahmed

Ansari (PW3) that her daughter i.e. the prosecutrix was pregnant.

When complainant-Shafikunnisa (PW3) inquired from her

daughter-prosecutrix as to what had happened, she stated that the

appellant i.e. her father had taken her to the house of Nilima

Meshram (PW5) in March-2014 and that he had forcibly

committed sexual intercourse with her. She further revealed that,

thereafter on several occasions, the appellant committed the said

act with her. On that basis, on 28.08.2014, the report was lodged

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with police by complainant-Shafikunnisa (PW3), when the

prosecutrix was already five months pregnant. On this basis, a

First Information Report (FIR) was registered against the appellant

and investigation was undertaken by the investigating officer-

Rajesh Thakur (PW7).

3. During the course of investigation, statements of

witnesses were recorded and the prosecutrix was sent for medical

examination. After the prosecutrix delivered a girl child, blood

samples of the appellant, the prosecutrix and the girl child were

sent for DNA analysis. Report of the DNA test revealed that the

appellant and the prosecutrix were indeed biological father and

mother of the girl child. On the basis of such material, the

prosecution examined 13 witnesses, in support of its case. These

witnesses included; mother of the prosecutrix, her brother,

prosecutrix herself, the Doctors and the Chemical Analyser, who

had conducted the DNA text. The prosecutrix (PW6), her mother

complainant-Shafikunnisa (PW3), neighbour-Maya Patel (PW2),

brother of the prosecutrix-Salman Ansari (PW4), employer of the

appellant in whose house the appellant first sexually assaulted the

prosecutrix-Nilima Meshram (PW5) and the pancha witness-

Pawan Kolte (PW1), all turned hostile. Therefore, it was evidence

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of only Doctors, investigating officer and other police officer and

the Chemical Analyser that supported the prosecution case.

4. By the impugned judgment and order, the trial Court

found that the prosecutrix, her mother and her brother had turned

hostile because the appellant was the only bread winner of the

house. The trial Court also found that evidence on record,

particularly DNA report read with the documentary evidence on

record, proved the prosecution case beyond reasonable doubt. On

this basis, the appellant stood convicted and sentenced in the

aforesaid manner.

5. Mr. Amit Choube, Advocate, learned counsel appointed

to appear on behalf of the appellant, submitted that when the

prosecutrix herself and other material prosecution witnesses had

disowned the prosecution and they had turned hostile, the trial

Court was not justified in convicting and sentencing the appellant.

It was submitted that even if the DNA test was to be accepted as

proved, if there was lack of evidence and material to show that

blood samples were collected in a proper manner, it could not be

the sole basis of conviction of the appellant.

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6. Per contra, Mrs. Swati Kolhe, learned A.P.P. appearing

for the respondent-State, submitted that the trial Court had

correctly analysed the evidence of the prosecution witnesses as the

hostile witnesses had stated in cross-examination that they wanted

the appellant to be acquitted since he was the only bread winner

of the family. It was further submitted that DNA test was a

conclusive test, demonstrating the guilt of the appellant and that

no fault could be found with the finding rendered by the trial

Court against the appellant.

7. Heard counsel for the parties and perused the record. In

the present case, where serious allegation of rape committed by

the appellant against his own daughter has been made, the

daughter (prosecutrix) has turned hostile. The mother of

complainant-Shafikunnisa (PW3) has also turned hostile. A

perusal of evidence of these two witnesses reveals that the

prosecutrix (PW6), on being cross-examined by the Public

Prosecutrix, has stated as follows:

“3. My birth date is 27.06.2000. It is true that
after my delivery, my blood sample and blood sample of
my child was taken. It is true that on 29.08.2014, my

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sonography was done. It is true that my father is the
only earning member in our family. It is true that as
such, it is my desire that my father is to be acquitted.”

Mother of the prosecutrix Shafikunnisa (PW3), upon

being declared hostile, in cross-examination by the Public

Prosecutor stated as follows:

“It is true that the accused is the only earning member
in my family. It is true that it is my desire that accused
is to be acquitted.”

Thus, it becomes evident that both these material

prosecution witnesses have turned hostile in order to ensure that

the only earning member of their family i.e. the appellant, escapes

conviction. They have not supported the prosecution case and the

statements they had made to the police during investigation.

8. Other prosecution witnesses i.e. brother of prosecutrix-

Salman Ansari (PW4), pancha witness for spot panchanama-

Pawan (PW1), neighbour-Maya (PW2) and owner of the house

where the appellant was employed as watchman-Nilima (PW5),

have turned hostile. In this situation, the only evidence in support

of the prosecution case is in the form of deposition of the

investigating officer, other police officials, Doctors and the

Chemical Analyser, who conducted the DNA test. The whole basis

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of conviction rendered by the trial Court against the appellant is

the report of the DNA test, supported by the evidence of the said

witnesses who did not turn hostile.

9. DNA test is an effective tool of investigation and proof of

guilt of the accused and it has now been accepted with the

advancement of scientific technology, due to accuracy of the test.

The question, as to whether DNA test report can be relied upon for

proving case of the prosecution, has engaged attention of the

Courts for some time. The Hon’ble Supreme Court has considered

and pronounced upon the said question in number of judgments.

In recent judgment in the case of Mukesh and anr. Vs. State

(NCT of Delhi), and others; reported in (2017) 6 SCC; the

Hon’ble Supreme Court took into consideration series of its earlier

judgments on the said question as also judgments of foreign

jurisdiction. The Hon’ble Supreme Court also took note of

amendment of the Code of Criminal Procedure by insertion of

Section 53-A therein, which provides for DNA Profiling, where a

person is accused of having committed rape. It has been noted

that DNA test has an unparalleled ability, both for exonerating the

wrongly convicted and to identify the guilty.Upon noticing various

judgments, the Hon’ble Supreme Court has found as follows:

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“228. From the aforesaid authorities, it is quite
clear that DNA report deserves to be accepted unless it is
absolutely dented and for non- acceptance of the same, it
is to be established that there had been no quality
control or quality assurance. If the sampling is proper
and if there is no evidence as to tampering of samples,
the DNA test report is to be accepted.”

It has been further held in the said judgment as follows:

“455. Before considering the above findings of DNA
analysis contained in tabular form, let me first refer to
what is DNA, the infallibility of identification by DNA
profiling and its accuracy with certainty. DNA –
Deoxyribonucleic acid, which is found in the
chromosomes of the cells of living beings, is the blueprint
of an individual. DNA is the genetic blue print for life
and is virtually contained in every cell. No two persons,
except identical twins have ever had identical DNA. DNA
profiling is an extremely accurate way to compare a
suspect’s DNA with crime scene specimens, victim’s DNA
on the blood-stained clothes of the accused or other
articles recovered, DNA testing can make a virtually
positive identification when the two samples match. A
DNA finger print is identical for every part of the body,
whether it is the blood, saliva, brain, kidney or foot on
any part of the body. It cannot be changed; it will be
identical no matter what is done to a body. Even
relatively minute quantities of blood, saliva or semen at

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a crime scene or on clothes can yield sufficient material
for analysis. The Experts opine that the identification is
almost hundred per cent precise. Using this i.e. chemical
structure of genetic information by generating DNA
profile of the individual, identification of an individual
is done like in the traditional method of identifying
finger prints of offenders. Finger prints are only on the
fingers and at times may be altered. Burning or cutting
a finger can change the make of the finger print. But
DNA cannot be changed for an individual no matter
whatever happens to a body.”

10. The aforesaid position of law pertaining to reliability of

DNA tests, shows that it can be the basis of conviction of accused.

The only requirement being that sampling of the blood samples

has to be proper and there should be no material indicating any

tampering of samples. Therefore, it becomes extremely important

that there is evidence on record to show that collection of blood

samples of the accused, the prosecutrix and the girl child in the

present case, has been proper and that there is no evidence of

tampering of the same.

11. In this context, not only the oral evidence of the

investigating officer-Rajesh (PW7), Dr. Samata (PW8),

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Dr.Dharmendra (PW9) and Chemical Analyser-Sau. Vaishali

(PW11), assumes significance, but documentary evidence

pertaining to collection of blood samples also becomes crucial.

The material on record shows that on 02.09.2014, a requisition

was sent by investigating officer-Rajesh (PW7) at Exh.-58 to the

Chief Medical Officer of the hospital requesting for a DNA kit for

collecting blood sample of the appellant. The evidence of Dr.

Samata (PW8) shows that the said requisition at Exh.-58 was

indeed received by her and that she collected the blood sample of

the appellant in the DNA kit which was sealed and handed over

for further action. At Exh.-59 is the letter dated 02.09.2014, sent

by the investigating officer (PW7) to the Deputy Director of

Regional Scientific Laboratory, forwarding blood sample of the

appellant in sealed DNA kit for analysis. At Exh.-60 is the invoice

challan issued by the Regional Scientific Laboratory about receipt

of said sealed DNA kit with blood sample.

12. On 27.10.2014, the investigating officer-Rajesh (PW7)

issued a requisition for DNA Kits for conducting DNA tests of the

prosecutrix and the girl child. At Exh.-103 and at Exh.-104 is the

endorsement dated 27.10.2014 regarding receipt of the DNA kits.

At Exh.-63 is the requisition sent by the investigating officer-

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Rajesh (PW7) to the Medical Officer of the hospital for collection

of blood samples of the prosecutrix and girl child for DNA analysis.

At Exh.-64 is the requisition sent by the investigating officer

(PW7) to the Regional Scientific Laboratory for conducting DNA

analysis of the blood samples collected from the prosecutrix and

the girl child. At Exh.-65 is the invoice challan regarding receipt of

two sealed plastic containers containing blood samples for DNA

analysis. All these documents at Exhs.-63, 64 and 65 are dated

29.10.2014. At Exh.-105 and 106 are the documents showing

collection of blood samples of the prosecutrix and the girl child by

Medical Officer, in presence of the investigating officer (PW7) and

two others.

13. The DNA report in the present case is at Exhs.-68 and

69, given by Chemical Analyser-Sau. Vaishali (PW11) who was

examined by the prosecution. A perusal of the evidence of the

said witness shows that she has deposed in detail about the

manner in which the scientific test was conducted. She has also

deposed about the manner in which blood samples were received

in sealed plastic container-kits and she has supported the findings

of the said DNA report. In cross-examination, nothing of

significance has been brought out.

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14. In this context, the learned counsel appearing on behalf

of the appellant, submitted that while Dr. Samata (PW8) who

collected the blood sample of the appellant has been examined by

the prosecution, the Doctor, who collected the blood sample of the

prosecutrix and the girl child, was not examined by the

prosecution. According to the learned counsel, this was fatal for

the prosecution case as there was absence of cogent evidence to

show that the blood samples of the prosecutrix and the girl child

were collected in proper manner and that they were not tampered

with. But, a perusal of the Exhs. 105 and 106 i.e. documents

showing collection of blood samples of the prosecutrix and the girl

child, shows that the blood samples were collected in presence of

three witnesses, including the investigating officer (PW7). A

perusal of the evidence of the investigating officer (PW7) shows

that he has fully supported the entire process of requisitioning of

DNA kits for collection of blood samples and actual collection of

blood samples of the prosecutrix and the girl child. A specific

assertion of the said witness that he had collected the blood

samples and sent them for chemical analysis, has not been

discredited in cross-examination. Although, the prosecutrix (PW6)

has turned hostile, in the above quoted portion of her statement in

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cross-examination, she has specifically admitted that after

delivery, her blood samples and that of the girl child were indeed

collected.

15. Thus, a perusal of the documents at Exhs.-105, 106,

103, 63, 64 and 65 read with the evidence of the prosecutrix and

that of investigating officer (PW7) shows without any doubt that

there was no tampering with the procedure of collection of blood

samples of the prosecutrix and the girl child as also delivery of the

said samples to the Chemical Analyser (PW11) to prepare DNA

report. Similarly, the documents at Exhs.58, 59 and 60 read with

the evidence of Dr. Samata (PW8), as also the investigating officer

(PW7), demonstrates that there was indeed no material to show

any tampering with collection and delivery of blood sample of the

appellant to the Chemical Analyser (PW11). The contention

raised on behalf of the appellant that failure of the prosecution to

examine the Doctor, who collected the blood sample of the

prosecutrix and the girl child, was fatal for the prosecution case, is

wholly unsustainable in the face of the aforesaid documentary and

oral evidence on record.

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16. Once it is found that the procedure of collection of blood

samples and their submission to the laboratory for analysis was

absolutely proper and there was no evidence as to tampering of

the same, the DNA report needs to be accepted. The Chemical

Analyser (PW11) entered the witness box and proved the DNA test

report and in her cross-examination, her evidence remained

steadfast. In this situation, it becomes clear that report of the DNA

test clearly indicated that it was the appellant who had committed

the act of sexual intercourse against his own daughter, the

prosecutrix (PW6) and that he was rightly convicted and

sentenced by the trial Court.

17. Merely because the material prosecution witnesses,

particularly the prosecutrix (PW6) herself and her mother

complainant-Shafikunnisa (PW3) had turned hostile, it cannot

lead to acquittal of the appellant, in the facts of the present case. It

is indeed sad and poignant that despite such a reprehensible act

committed by the appellant against his own daughter

(prosecutrix), his wife complainant-Shafikunnisa (PW3) and the

very same daughter-prosecutrix (PW6) have chosen not to support

the prosecution case and they have turned hostile. But the

scientific evidence in the form of DNA test report on record has

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nailed the guilt of the appellant. As noted by the Hon’ble Supreme

Court in the case of Nandlal Wasudeo Badwaik vs. Lata Nandlal

Badwaik and Ors., reported in AIR 2014 SC 932, to deny the

DNA test report would be to deny the truth. It is further observed

by the Hon’ble Supreme Court in the said judgment that the

hallmark of justice is “Truth must triumph.”

18. The evidence and material on record clearly

demonstrates that despite the material prosecution witnesses

turning hostile, the prosecution has conclusively proved its case

beyond reasonable doubt against the appellant and that the trial

Court was justified in convicting and sentencing the appellant

under the provisions of the Indian Penal Code and the Protection

of Children from Sexual Offences Act for having committed rape of

his own daughter, prosecutrix (PW6). Therefore, this appeal is

dismissed and the judgment and order passed by the trial Court is

confirmed.

Professional charges of Mr. Amit Choube, learned

counsel appointed for the appellant, are quantified at Rs.5,000/-.

(Manish Pitale, J.)

kahale

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