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Sh. Chandresh Sharma vs State Of H.P on 24 May, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. R No. 250 of 2017

.
Decided on: 24.05.2018

Sh. Chandresh Sharma ..Petitioner

Versus
State of H.P. ……Respondent

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 Yes.
For the petitioner: Mr. R.K. Bawa, Sr. Advocate
r with Mr. Ajay K. Sharma,
Advocate.

For the respondents: Mr. Narinder Guleria, Addl. A.G
with Mr. R.P. Singh and
Mr.Kunal Thakur, Dy. A.Gs.

Dharam Chand Chaudhary, Judge (Oral)

Order dated 4.8.2017, passed by learned

Additional Sessions Judge(II), Kangra at Dharamshala

in an application under Section 216 of the Code of

Criminal Procedure framing thereby additional charge

under Section 376 IPC against the petitioner

(hereinafter referred to as the ‘accused’), is under

challenge in this petition on several grounds, however,

mainly that similar application was previously

dismissed by learned trial Court, hence, there being no

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

31/05/2018 22:59:57 :::HCHP
2

change in the facts and circumstances, no such order

could have been passed.

.

2. On having gone through the entire record

and also taking into consideration the submissions

made on behalf of the accused as well as the

prosecution, it is apparent that similar application filed

by the prosecution with a prayer to frame additional

charge for the commission of offence punishable

under Section 376 of the Indian Penal Code against

the accused was dismissed by learned trial Judge with

the following observations:-

“…….The evidence in the present case is near
completion as the only Investigating Officer is to be
examined. Accused had not done any cross

examination against the charge under section 376
IPC, therefore, framing of additional charge is

surely going to prejudice the defence of the
accused. Moreover, there is no supporting oral

evidence in this regard. Further the result of DNA
profiling is not perfect science, there are possibility
of error as well. As per Modi’s Medical
jurisprudence:-

The DNA is the generic material that
makes every individual different, except
for genetically identical twins. A pattern
of chemical signals i.e. genetic code, has
been discovered within the DNA
molecule, which is very unique to each
individual, just like their actual

31/05/2018 22:59:57 :::HCHP
3

fingerprint. Thus, the DNA profiling,
unique to each individual, is colloquially
referred to as DNA fingerprint and it is

.

also known as DNA typing. The

companies who offer the DNA profiling
claim that a DNA match of two individuals

is as unlikely as 1 in 30 billion. One more
estimation puts it as 1 in
780,000,000,000.

There are still chances of the DNA profiling of

two individuals matching, the benefit of which must
be given to the accused. Taking the case in hand
under section 216 Cr.P.C., I am of the view that the
ralteration or addition of charge is surely going to

prejudice the case of the accused as he has already
cross examined all the material witnesses except
Investigating Officer and Scientific Officer. This will
amounts to opening of the case once again.

Moreover, also there is no oral evidence in this case
regarding the offence u/s 376 IPC.

For the foregoing discussion and observation,
the present application is hereby disallowed.

Application stands disposed of it after its due
registration be tagged with main case.

Let Investigating Officer be summoned and

Scientific Medical Officer be examined through
video conferencing, a letter in this regard be issued
to Forensic Expert of SFL Junga, he will be examined
at 03.00-PM through video conferencing. Put up on
02.12.2016.”

3. Mr. R.K. Bawa, learned Senior Advocate

assisted by Mr. Ajay K. Sharma, Advocate strenuously

contended that when the application previously

31/05/2018 22:59:57 :::HCHP
4

instituted with a prayer to frame additional charge

against the accused was dismissed with the

.

observations that no oral evidence to show that the

deceased was subjected to sexual intercourse by the

accused is available on record and that the DNA

profiling is not a prefect science, the impugned order

could have not been passed in a subsequent

application, more particularly, there being no change

in the circumstances and the evidence available on

record.

4. Admittedly, the charge can be altered or

modified at any stage of the proceedings in the trial.

As noticed supra, the previously instituted application

was dismissed vide order dated 5.11.2016 with the

observations that the DNA profiling is not a perfect

science and also that there is no supporting oral

evidence in this regard. True it is that it is not the case

of the prosecution that the deceased was subjected to

sexual intercourse by the accused and even no

investigation on these lines was ever conducted. In

the report filed under Section 173 Cr.P.C also, there is

no mention that the deceased was also subjected to

sexual intercourse. The Medical Officer PW-22 Dr.

31/05/2018 22:59:57 :::HCHP
5

Susheel Sharma, Assistant Professor, Department of

Forensic Medicine, Dr. RPGMC, Tanda while conducting

.

post-mortem, also preserved viscera, blood in gauze,

nail clips, and two vaginal swabs for analysis for report

by the expert in the State Forensic Science Laboratory.

The DNA profiling in this regard was conducted by PW-

43 Dr. Vivek Sehajpal. He has issued the report Ext.

PW-43/A. On the basis of required tests, he concluded

that the DNA of the accused was found in the vaginal

swab of the deceased. This according to him is

suggestive of the fact that there was sexual

intercourse between the accused and the victim. On

the day i.e., 5.11.2016, when the order in the

previously instituted application was passed, only the

DNA profiling report Ext. PW-43/A was available on

record and no any other corroborative material

thereto. Such material has come on record by way of

the testimony of PW-43 Dr. Vivek Sehajpal, Assistant

Director, DNA Reports, SFSL, Junga and on re-

examination of PW-22 Dr. Susheel Sharma.

5. Therefore, this Court is not in agreement

with the submissions that there being no change in

the circumstances nor any material available on

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6

record, the impugned order could have not been

passed when the similar application was dismissed

.

vide order dated 5.11.2016 for the reason that PW-22

had preserved the vaginal swabs for DNA profiling and

the blood sample also, whereas, the exhibits so

preserved have been tested and analyzed by PW-43

Dr. Vivek sehajpal. Therefore, prima-facie there is

evidence to show that sexual intercourse had taken

place between the accused and the prosecutrix. Such

evidence, in the considered opinion of this Court, is

sufficient to frame the additional charge, even if it was

never the case of the the prosecution right from the

very beginning. The present is a case which hinges

upon the circumstantial evidence and keeping in mind

this aspect also, the additional charge is required to be

framed so that the prosecution ultimately may not fail

on any technical ground. On the other hand, no

prejudice is likely to be caused to the accused as he

has cross-examined the witnesses PW-43 and PW-22.

He is still at liberty to recall any witness already

examined for cross-examination or may produce any

other and further evidence in his defence.

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7

6. Such being the legal and factual position,

this petition fails and the same is accordingly

.

dismissed. Pending application(s), if any, shall also

stand disposed of.

Any observations made hereinabove shall

remain confined to the disposal of the present petition

and have no bearing on the merits of the case.

r Send down the records.

May 24, 2018 (Dharam Chand Chaudhary)
Judge

(naveen)

31/05/2018 22:59:57 :::HCHP

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