1 Apeal200-16Ors..odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.200/2016
with
CRIMINAL APPEAL NO.205/2016
with
CRIMINAL APPEAL NO.206/2016
with
CRIMINAL APPEAL NO.363/2016
…
CRIMINAL APPEAL NO.200/2016
Jitendra s/o Suresh Gabhane,
Aged about 23 years,
Occupation: Labour,
R/o Chincholi, Tahsil Mohadi,
District Bhandara. .. APPELLANT
.. Versus ..
The State of Maharashtra,
Through P.S.O., P.S. Andhalgaon,
Tahsil Mohadi, District Bhandara. .. RESPONDENT
Mr. R.M. Daga, Advocate for Appellant.
Mr.N.R. Rode, Additional Public Prosecutor for Respondent.
….
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CRIMINAL APPEAL NO.205/2016
Ishwar Mangaldas Tikapache,
Aged 21 years,
Occupation: Labour,
R/o Chincholi, Tahsil Mohadi,
District Bhandara. .. APPELLANT
.. Versus ..
The State of Maharashtra,
Through P.S.O., P.S. Andhalgaon,
Tahsil Mohadi, District Bhandara. .. RESPONDENT
Mr. A.C. Jaltare, Advocate for Appellant.
Mr.N.R. Rode, Additional Public Prosecutor for Respondent.
….
CRIMINAL APPEAL NO.206/2016
Vijay s/o Shamu Nagfase,
Aged 21 years,
Occupation: Labour,
R/o Chincholi, Tahsil Mohadi,
District Bhandara. .. APPELLANT
.. Versus ..
The State of Maharashtra,
Through P.S.O., P.S. Andhalgaon,
Tahsil Mohadi, District Bhandara. .. RESPONDENT
Mr. A.C. Jaltare, Advocate for Appellant.
Mr.N.R. Rode, Additional Public Prosecutor for Respondent.
…
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CRIMINAL APPEAL NO.363/2016
Atul s/o Vishvanath Hatwar,
Aged 19 years,
Occupation: Labour,
R/o Chincholi, Tahsil Mohadi,
District Bhandara. .. APPELLANT
.. Versus ..
The State of Maharashtra,
Through P.S.O., P.S. Andhalgaon,
Tahsil Mohadi, District Bhandara. .. RESPONDENT
Mr. C.R. Thakur, Advocate for Appellant.
Mr.N.R. Rode, Additional Public Prosecutor for Respondent.
…
CORAM : R.K. Deshpande Manish Pitale, JJ.
RESERVED ON : September 28,2017
PRONOUNCED ON : October 4,2017.
JUDGMENT (per Manish Pitale, J. )
By this common judgment, four appeals filed by four
accused persons are being disposed of. All the four accused
persons have been convicted by the impugned judgment and
order passed by the Court of Additional Sessions Judge,
Bhandara in Special Criminal (Child) Case No.14 of 2015 for
offences under Section 363 read with 34 of the Indian Penal
Code (IPC) and sentenced to suffer rigorous imprisonment for 3
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years and to pay fine of Rs.500/- and under Section 376(D)
read with Section 34 of the IPC, sentenced to suffer rigorous
imprisonment for 20 years and to pay fine of Rs.1,000/-.
2. The prosecution case in brief is that on 16.02.2015,
the complainant (hereinafter referred to as “the prosecutrix”)
had gone to see Hangama Dance Programme at about 8.30
p.m. in the village when her friend one Atul Meshram phoned
her and asked her to meet him. The prosecutrix asked the
said Atul Meshram to come behind her house. The said Atul
Meshram came on motorcycle after about 10 minutes along
with two friends but he did not stop where the prosecutrix was
waiting and went ahead. Thereupon, the prosecutrix called
him on phone and he asked her to come near the river side.
The said Atul Meshram came alone at the said place to meet
the prosecutrix, when the four boys came towards them. At
this point, the said Atul Meshram ran away leaving the
prosecutrix alone and she ran towards the river side on
Dhusala road.
3. The said four boys i.e. the appellants herein (accused
Nos. 1 to 4) intimidated the prosecutrix. Accused No.1 Atul
Hatwar (appellant in Criminal Appeal No. 363 of 2016) lifted the
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prosecutrix and closed her mouth with his hand and took her to
the neighbouring field. Accused No.2 Jitendra Gabhane
(appellant in Criminal Appeal No. 200 of 2016), accused no.3
Ishwar Tikapache (appellant in Criminal Appeal No.205 of 2016
and accused No.4 Vijay Nagfase (appellant in Criminal Appeal
No.206 of 2016) accompanied the said accused No.1. Accused
No.1 Atul Hatwar first committed forcible sexual intercourse
with the prosecutrix and thereafter other three accused one by
one committed the said act forcibly on the prosecutrix.
Thereafter, accused no.1 Atul Hatwar brought the prosecutrix
near the canal and left her there, asking her to meet him the
next morning.
4. The prosecutrix returned home and narrated the
incident to her sister Nilima Satpute (PW1). The sister and
brother-in-law of the prosecutrix took her to the Police Station
and on the basis of her oral report, first information report (FIR)
was registered at 12.30 a.m. on 17.02.2015 at Police Station
Andhalgaon against the aforesaid four accused persons under
Sections 363 and 376(D) of the IPC, as also under Sections 3(1)
(xi), 3(1)(xii) and 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and
further under Section 6 of the Protection of Children from
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Sexual Offences Act.
5. Upon registration of the FIR, the investigating officer
Anand Bhoite, the Sub Divisional Police Officer, as the
investigating officer started the investigation. The prosecutrix
was sent for medical examination on 17.02.2015 at 12.30 p.m.
and she was examined by Dr. Chanchal Khobragade (PW11). In
the medical examination report at Exh.85, the age of the
prosecutrix was recorded as 16 years. It was recorded that
there was absence of injury on the hymen and that no injuries
were seen on the genitals. During the medical examination the
blood sample, pubic hair, nail clippings and vaginal swab were
collected by Dr. Yogesh Nakade (PW9).
6. These samples were forwarded to the Police Station
Andhalgaon and they were seized along with the clothes of the
prosecutrix on 17.02.2015 at 2.20 p.m. in the Police Station.
The said samples and clothes were sent for chemical analysis
to the Forensic Laboratory.
7. The investigating officer (PW12) arrested the four
accused persons on 17.02.2015. The accused persons
executed memorandum under Section 27 of the Evidence Act,
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pursuant to which their clothes were seized by the
investigating officer (PW12) by executing seizure
panchanamas in the Police Station on 17.02.2015 itself. The
clothes of the accused were also sent for chemical analysis to
the Forensic Laboratory.
8. On 13.03.2015, test identification parades were
conducted as part of the investigation, when the prosecutrix
identified accused No.1 Atul Hatwar and accused No.3 Ishwar
Tikapache, while she could not identify accused no.2 Jitendra
Gabhane and accused No.4 Vijay Nagfase. It is relevant to
mention here that accused No.4 Vijay Nagfase was not named
in the FIR. The chemical analysis reports as also the DNA
analysis reports were received from the Forensic Laboratory
and on the basis of the material collected during investigation,
charge sheet was submitted against the accused persons for
commission of the aforesaid offences.
9. On 08.06.2015, charge was framed against the
accused persons and the trial commenced. The prosecution
examined 12 witnesses to prove its case and it heavily relied
upon the medical evidence, particularly the DNA report, in
order to prove its case against the accused persons. The
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incriminating circumstances were put to the accused persons
under Section 313 of the Cr.P.C. They claimed that the
circumstances were false and also separately stated that they
had been falsely implicated because they had an altercation
with PW1 Nilima, sister of the prosecutrix as also the husband
of PW1 i.e. Suraj Satpute. It is relevant to mention here that
the prosecution did not examine the said Suraj Satpute and
Atul Meshram, friend of the prosecutrix, who was with her
when the four accused persons accosted her, was also not
examined by the prosecution.
10. By the impugned judgment and order dated
06.05.2016, the Sessions Court held all the four accused
persons guilty under Sections 363 and 376(D) read with 34 of
the IPC, while acquitting them for offences under the SC and
ST (Prevention of Atrocities) Act, 1989 and under Section 6 of
the Protection of Children from Sexual Offences Act. These
four appeals have been filed by the four accused persons
challenging the said judgment and order of the Sessions Court.
11. Mr. R.M. Daga, learned counsel appearing for the
appellant Jitendra Gabhane (accused No.2 in Criminal Appeal
No. 200 of 2016) submitted that there were contradictions in
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the evidence of PW1 (Nilima) and PW2 (prosecutrix). There
were admissions in the evidence of PW2 prosecutrix showing
that the appellant Jitendra Gabhane (accused No.2) was falsely
implicated and that he was not even identified by the
prosecutrix in the test identification parade. According to the
learned counsel for the appellant, such evidence was not
enough to convict the said appellant. Apart from this, the
learned counsel for the appellant submitted that the mainstay
of the impugned judgment and order of the Sessions Court for
convicting the appellant was the DNA report (Exh.81) dated
03.12.2015, but, the said report was vitiated because of lack
of evidence on record to show proper collection of blood
samples and insufficient proof that the samples used for the
DNA analysis were properly preserved and sent to the Forensic
Laboratory. According to the learned counsel for the appellant,
the procedure of collection of samples was vitiated in such a
manner that the DNA report, although incriminating and
against the appellant, could not be looked into by the Court.
On this basis, the learned counsel for the appellant claimed
that the appellant (accused No.2) was wrongly convicted by
the impugned judgment and order.
12. Mr. A.C. Jaltare, learned counsel appearing for the
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appellant Ishwar Tikapache (accused No.3 in Criminal Appeal
No. 205 of 2016) and for appellant Vijay Nagfase (accused No.4
in Criminal Appeal No. 206 of 2016) adopted contentions raised
on behalf of accused No.2. He further submitted that the name
of accused No.4 Vijay Nagfase was not even stated in the FIR
and that he was wrongly roped in later on. He further
submitted that the said accused no.4 was not identified by the
prosecutrix in the test identification parade, which further
created doubt about his involvement. As regards accused No.3
Ishwar Tikapache, learned counsel submitted that his name
was added in the FIR by the prosecutrix on the police telling
her his name and that this factor also created a serious doubt
about the involvement of the said accused. The DNA report
was attacked on the same grounds by the learned counsel for
accused Nos. 3 and 4, as was submitted on behalf of the
accused No.2.
13. Mr. C.R. Thakur, learned counsel appearing for the
appellant Atul Hatwar (accused No.1 in Criminal Appeal No.
363 of 2016) submitted that the entire story of the prosecutrix
was false and that he was falsely implicated by her. The
learned counsel submitted that in the absence of examination
of Atul Meshram, friend of the prosecutrix, who was with her
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when the accused persons were said to have seen the
prosecutrix, the prosecution story was not at all proved. The
DNA report was also found fault with by the learned counsel
appearing for the appellant-accused No.1, on the same
grounds as was submitted on behalf of other accused. It was
submitted that the Sessions Court has committed grave error
in convicting and sentencing the accused for serious offence,
even when there was no evidence on record to prove the
prosecution story.
14. Mr. N.R. Rode, learned Additional Public Prosecutor,
appearing on behalf of the State supported the impugned
judgment and order of the Sessions Court. It was submitted
that the oral and documentary evidence on record was
sufficient to prove the guilt of the accused and that the
evidence of the prosecutrix along with that of her sister PW1
Nilima was enough to prove the case of the prosecution. It was
submitted that the DNA report showing the presence of DNA of
all the accused on the undergarment of the prosecutrix was a
clinching piece of evidence and that the appeals filed by the
accused deserved to be dismissed.
15. In the present case, a perusal of the depositions of
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PW1 Nilima and PW2- the prosecutrix show that there are
statements that raise doubts about the manner in which the
incident has occurred. PW1 Nilima in her deposition states that
the prosecutrix while narrating the incident to her had named
only accused No.1 Atul Hatwar as having raped her. The
prosecutrix (PW2) made the following statement in her cross-
examination:
“It is true that police told me that he is
Jitendra Gabhane. It is true that I was not
knowing the name of Jitendra Gabhane at the
time of filing the complaint. It is true that
names Jitendra Gabhane and Ishwar
Tikapache were told to me by the police and
were written in the complaint by the police. It
is true that I did not state the name of Jitendra
Gabhane to the police in my complaint. It is
not true to say that I did not identify accused
No.2 Jitendra Gabhane in identification
parade.”
The aforesaid statement of the prosecutrix shows that she did
not know the names of accused No.2 Jitendra Gabhane and
accused no.3 Ishwar Tikapache and that the Police told her the
names while the complaint was being written. In fact the
prosecutrix clearly stated that she did not name accused No.2
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Jitendra Gabhane to the Police in her complaint. The further
statement that it was not true that she did not identify accused
no.2 Jitendra Gabhane in the test identification parade, is
obviously incorrect because record shows that she failed to
identify him and this is also confirmed by the evidence of PW8,
the Naib Tahsildar, who conducted the test identification
parade. It is also evident from the record that accused No.4
Vijay Nagfase was not even named by her in the FIR and the
prosecutrix also failed to identify him in the test identification
parade.
16. The prosecutrix only identified accused no.1 Atul
Hatwar and accused No.3 Ishwar Tikapache in the test
identification parade. Therefore, to that extent her testimony
and that of PW1 Nilima appears to be doubtful as against
accused Nos. 2 and 4. The medical examination of the
prosecutrix at Exh.85 shows that there are no injuries found on
her body, there is absence of injury on the hymen and no
injuries on the genitals. The case of the prosecutrix is that the
four accused persons one after the other forcibly had sexual
intercourse with her and yet there is no physical injury on her
body or her genitals. This factor also raises some doubt about
the story of the prosecution.
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17. Even if some doubts arise as aforesaid in the story of
the prosecution due to inconsistencies in the oral evidence and
the result of the medical examination, the strongest
incriminating circumstance against the accused persons is the
DNA report dated 03.12.2015 (Exhs. 80 and 81). In order to
appreciate the report, it would be necessary to refer to the
chemical analysis report of the clothes of the prosecutrix and
the four accused persons dated 18.02.2015 sent by the
Regional Forensic Science Laboratory, Nagpur. This report
shows the numbers allotted to various articles, which are
referred to in the DNA report and therefore, the same needs to
be quoted:
”
Description of Parcel/s
– Five sealed parcels, seals intact and as per copy sent
__
Description of Articles contained in Parcel/s
1. Full Sweater
2. Full T-shirt
3. Sando Banian wrapped in paper labelled- 3A(6).
4. Gamcha (torn)
5. Full Pant
6. Knicker
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7. Jerkin stated as sweater
8. Jeans full pant
9. Sandow banian wrapped in paper labelled –
10. Full shirt 3B(6).
11. Knicker
12. Full shirt
13. Sandow banian
14. Night full pant (lower) wrapped in paper labelled- 3C(6).
15. Knicker
16. Half shirt
17. Sleeveless banian
18. Jeans full pant wrapped in paper labelled 3D(6).
19. Knicker
20. Jeans full pant
21. Full T-Shirt
22. Slip wrapped in paper labelled- 3E(6).
23. Brassiere
24. Knicker
_
Result of Analysis
– Exhibit (20) has one blood mix semen stain of about 5 cm in
diameter on back middle portion.
– Exhibit (24) has three blood mix semen stains one of about 4
cm in diameter and two of about 5 cm in diameter on middle
portion.
– Exhibit (11) has one semen stain of about 2 cm in diameter
on front middle portion.
– Exhibit (15) has one semen stain of about 3 cm in diameter
on front middle portion.
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– No blood is detected on exhibits 1,2,3,4,5,6,7,8,9,10,11,12,
13,14,15,16,17,18,19,21,22 and 23.
– No semen is detected on exhibits 1,2,3,4,5,6,7,8,9,10,12,13,
14,16,17,18,19,21,22 and 23.
– Blood mix semen detected on exhibits 20 and 24 is human.
– Semen detected on exhibits 11 and 15 is human.
”
18. In this context, the DNA report assumes importance,
particularly the interpretation portion forwarded by the
Regional Forensic Science Laboratory, Nagpur. The portion of
interpretation is reproduced hereinbelow:
“Interpretation
1) Mixed DNA profile obtained from semen
detected on ex.11 Knicker in DNAa-324/15
contains DNA of Jitendra Suresh Gabhne and
Ishwar Mangaldas Ticapache in DNAn-569/15
and Vijay Shamu Nagfase.
2) DNA profile obtained from semen detected
on ex.15 knicker in DNAa-324/15 is of male
origin and matched with DNA profile of
Ishwar Mangaldas Ticapache in DNAn-569/15.
3) Mixed DNA profile obtained from blood
mixed semen detected on ex.20 Jeans Full::: Uploaded on – 04/10/2017 05/10/2017 01:59:50 :::
17 Apeal200-16Ors..odtPant in DNAa-324/15 contains DNA of Roshni
Nageshwar Sukhdeve, Jitendra Suresh Gabhne
and Ishwar Mangaldas Tikapache in DNAn-
569/15.
4) Mixed DNA profile obtained from blood
mixed semen detected on ex.24 Knicker in
DNAa-324/15 contains DNA of Roshni
Nageshwar Sukhdeve, Jitendra Suresh Gabhne
and Ishwar Mangaldas Tikapache in DNAn-
569/15 and Vijay Shamu Nagfase.
5) Mixed DNA profile obtained from ex.2
Pubic Hair in DNAa-324/15 contains DNA of
Ishwar Mangaldas Ticapache in DNAn-569/15
and Vijay Shamu Nagfase.
6) Female DNA profile obtained from ex.4
Vaginal Swab in DNAa-324/15 matched with
DNA profile of Roshni Nageshwar Sukhdeve in
DNAn-569/15.”
19. A perusal of the said chemical analysis report, as also
the interpretation in the DNA analysis report, clearly shows that
the DNA of the accused persons was found on the jeans full
pant and the knicker of the prosecutrix. The presence of DNA
of all the accused persons on the aforesaid clothes of the
prosecutrix is a highly incriminating circumstance pointing
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towards their guilt. The significance of the said DNA report is
obvious when DNA analysis has been accepted as a reliable
scientific method of investigation for proving involvement of
the accused. It has been held by the Hon’ble Supreme Court in
its judgment in the case of Mukesh and another .v. State
(NCT of Delhi) and others – (2017) 6 Supreme Court
Cases 1 as follows:
“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.”
In the same judgment, the Hon’ble Supreme Court has further
held as follows:-
“457. DNA evidence is now a
predominant forensic technique for
identifying criminals when biological tissues
are left at the scene of crime or for
identifying the source of blood found on any
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articles or clothes, etc. recovered from the
accused or from the witnesses. DNA testing
on samples such as saliva, skin, blood, hair or
semen not only helps to convict the accused
but also serves to exonerate. The
sophisticated technology of DNA
fingerprinting makes it possible to obtain
conclusive results. Section 53-A CrPC is
added by the Code of Criminal Procedure
(Amendment) Act, 2005. It provides for a
detailed medical examination of accused for
an offence of rape or attempt to commit rape
by the registered medical practitioners
employed in a hospital run by the
Government or by a local authority or in the
absence of such a practitioner within the
radius of 16 km from the place where the
offence has been committed by any other
registered medical practitioner.”
20. Thus, the clinching nature of the evidence in the form
of DNA analysis report is undeniable and it has to be accepted
as a very strong proof of the involvement of the accused in the
crime. But, as observed by the Hon’ble Supreme Court in the
above mentioned judgment, if the DNA report is absolutely
dented and it is established that there has been no quality
control or quality assurance and if the sampling has been
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improper and that there is evidence to show tampering of the
samples, the DNA test report would be unsafe to be made a
basis for convicting the accused.
21. In order to come to a conclusion as to whether the
collection of blood samples was proper and that there was
proper quality control ensuring that there was no tampering
with the samples in the present case, it is necessary to analyse
the evidence on record in the form of seizure panchanamas
and the evidence of PW9 Dr. Yogesh Nakade, PW10 N.P. Bhale,
Assistant Chemical Analyser, who gave the DNA report and
PW11 Dr. Chanchal Khobragade who conducted the medical
examination of the prosecutrix. The blood samples of the four
accused persons along with semen samples and pubic hair
were collected vide Exhs. 67 to 74, on 17.02.2015.
22. These samples were forwarded to the Regional
Forensic Science Laboratory, Nagpur by the investigating
officer (PW12) on 18.02.2015 vide Exh.109. In this connection,
the seizure of clothes of the accused and the prosecutrix also
assumes significance and such clothes were also forwarded on
18.02.2015 to the Regional Forensic Science Laboratory,
Nagpur for chemical analysis. The chemical analysis reports of
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the clothes and the blood samples of the accused persons and
the prosecutrix were sent by the Regional Forensic Science
Laboratory, Nagpur to the investigating officer as per Exhs. 117
to 122. A perusal of the said exhibits shows that the chemical
analysis of the clothes of the accused persons and the
prosecutrix started on 24.04.2015 and it was completed on
16.11.2015. The chemical analysis of the blood and other
samples of the accused persons started on 18.02.2015 and it
was completed on 16.11.2015. Similarly the chemical analysis
of the blood, pubic hair and vaginal swab of the prosecutrix
started on 18.02.2015 and it was completed on 16.11.2015.
The aforesaid chemical analysis reports at Exhs. 117 to 122
were all sent by the Regional Forensic Science Laboratory,
Nagpur to the investigating officer and the Medical Officer,
General Hospital on 11.12.2015. These reports showed blood
mixed semen on the jean pant and knicker of the prosecutrix,
which was found to be human. The DNA profiling was
separately done.
23. In this regard the evidence of PW10 Neha Bhale,
Assistant Chemical Analyser, is relevant because she is the
person who has proved the DNA report. Her evidence shows as
to what was the manner in which blood samples were collected
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22 Apeal200-16Ors..odt
for DNA analysis. The relevant portion of the deposition of
PW10 Neha Bhale reads as follows:-
“All the above seven samples were taken for
D.N.A. Extraction. S.T.R. , D.N.A. profiling was
done. Four of above samples were found to
have mixed D.N.A. profile. One sample was
found to have male D.N.A. profile. One
sample was found to have female D.N.A.
profile. No amplyfiable D.N.A. Is obtained in
one of the samples. On 05.02.2015, I sent
letter to Andhalgaon police station for sending
fresh blood of all the four accused and victim.
I dispatched my report to the Andhalgaon
police station on 01.09.2015. My report now
shown to me is the same. It bears my
signature. Its contents are true and correct. It
is at Ex.79.
2. On 15.09.2015, I received blood
samples of three accused, namely, Atul
Hatwar, Ishwar Tikapache and Jitendra
Gabhane, and the victim Roshani. All the four
samples have taken for D.N.A. extraction.
S.T.R., D.N.A profiling was done. On
8.10.2015, I received the blood sample of
accused Vijay Nagfase. The above sample
was taken for D.N.A. extraction. S.T.R.,
D.N.A. profiling was done. All the D.N.A.
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23 Apeal200-16Ors..odtcompared with the D.N.A. profiles obtained as
per Ex.79. Semen stain cuttings from knicker
labelled Bn-620/15/11 was found to contain
the D.N.A. of Jitendra Gabhane, Ishwar
Tikapache and Vijay Nagfase. Semen stain
cuttings from knicker labelled Bn-620/15/15
was found to contain the D.N.A. of Ishwar
Tikapache. Blood mixed semen stain cuttings
from Jeans Full Pant labelled Bn-620/15/20
was found to contain the D.N.A. of Roshani
Sukhdeve, Jitendra Gabhane and Ishwar
Tikapache. Blood mixed semen stain cuttings
from knicker labelled Bn-620/15/24 was found
to contain the D.N.A. of Roshani Sukhdeve,
Jitendra Gabhane, Ishwar Tikapache and Vijay
Nagfase. Public Hair in a phial labelled
Roshani Naneshwar Sukhdeve, also labelled
Bn-625/15/2 was found to contain D.N.A. of
Ishwar Tikapache and Vijay Nagfase. In Nail
Clippings in a phial labelled Roshni Naneshwar
Sukhdeve also labelled Bn-625/15/3 no D.N.A.
profile was found. Vaginal Swab in a phial
labelled Roshni Naneshwar Sukhdeve, also
labelled Bn-625/15/4 was found to contain
D.N.A. of Roshani Sukhdeve. I dispatched my
reports to the police station Andhalgaon on
03.12.2015. My reports now shown to me are
the same. It bears my signatures. Its contents
are true and correct. It is at Exh.80 and 81.”
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24 Apeal200-16Ors..odt
24. It is evident from the portion of the deposition quoted
above that the blood samples of accused persons collected on
17.02.2015 were not used for DNA profiling and report.
Although it is stated by PW10 in the said portion of the
deposition that on 05.02.2015 she sent a letter to the Police
Station for sending fresh blood of all the four accused and
victim, the said request letter is actually dated 05.06.2015,
which is clear from perusal of the original record. In any case
since the incident itself was of 16.02.2015, the date 05.02.2015
is clearly a typographical error. On the said letter dated
05.06.2015 sent by PW10 to the Police Station for collection of
fresh blood sample, an application dated 06.07.2015 (Exh.10)
was moved by the Assistant Public Prosecutor before the
Sessions Court for permission to take blood samples of the
accused. On 09.09.2015, the Sessions Court passed an order
granting permission to the prosecution for collection of blood
samples of the accused.
25. In the said deposition of PW10, it is clearly stated that
she received blood samples of three accused i.e. accused No.1
Atul Hatwar, accused No.2 Jitendra Gabhane and accused No.3
Ishwar Tikapache on 15.09.2015 and further that she received
fresh blood sample of accused No.4 Vijay Nagfase on
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25 Apeal200-16Ors..odt
08.10.2015. It is these samples that were used for DNA
profiling and report by PW10. The DNA reports are at Exhs. 80
and 81 dated 03.12.2015 sent by PW10 to the investigating
officer. These reports record that the analysis started on
15.09.2015 and it was completed on 30.11.2015. The relevant
portion of interpretation given by the PW10, Assistant Chemical
Analyser has been quoted above, in paragraph 18. This is the
most incriminating evidence against all the four accused.
Therefore, it is necessary to analyse whether collection of
blood samples has been proper and there has been quality
control and quality assurance in the process of collection of
samples and their analysis.
26. It is clear from the material and evidence on record
that PW10 did make a request on 05.06.2015 for fresh blood
samples and that an order was passed by the Sessions Court
on 09.09.2015 granting such permission. It is also stated by
PW10 that she received the fresh blood samples of the three
accused on 15.09.2015 and that of accused no. 4 on
08.10.2015. But, there is no evidence on record about when
and where were the blood samples of the accused actually
collected and by whom. There are no panch witnesses or even
statement by the Doctor or medical staff who collected the
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26 Apeal200-16Ors..odt
fresh blood samples of the accused. The investigating officer
makes no mention of such fresh collection of blood samples of
the accused. PW9 Dr. Yogesh Nakade merely states about
seizure of blood samples of the accused persons on
17.02.2015, but, evidently the said blood samples were not
used for DNA analysis. Thus, the DNA reports and
interpretation at Exhs. 80 and 81 do not appear to be free from
doubt. The high level of purity in the process of collection of
blood samples expected for using the DNA report and its
interpretation against the accused, has not been maintained in
the present case.
27. In this context, the interpretation at Sr. No.1 given by
PW10, quoted above in paragraph 18, is surprising. It records
that DNA profiling obtained from semen detected on knicker at
Exh.11 belonging to accused no.2 Jitendra Gabhane shows the
DNA not only of accused no.2 Jitendra Gabhane but also that of
accused no.3 Ishwar Tikapache and accused no.4 Vijay
Nagfase. It can be understood that DNA of PW2 Jitendra
Gabhane would be found on his knicker, but presence of DNA
of accused No.3 Ishwar Tikapache and that of accused No.4
Vijay Nagfase is difficult to fathom. This indicates lack of
quality control and quality assurance as also improper
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27 Apeal200-16Ors..odt
sampling or tampering in the process of DNA analysis. This
factor also dents the DNA report considerably.
28. The said DNA report at Sr. No.6 also records that the
vaginal swab of the prosecutrix shows only her DNA profile. In
her deposition PW11 Dr. Chanchal Khobragade states that in
the clinical examination of the prosecutrix there was nothing
to suggest that sexual assault had taken place. She also stated
that in a case of gang rape by four persons, injuries on labia
majora and minora must be found which were not found in the
present case and further that no injury on any part of the body
of the prosecutrix was found and that there was no bleeding
injury. The medical examination conducted by PW11 on the
prosecutrix also recorded that there was absence of any injury
on the hymen. All this material on record in the form of
medical evidence does not support the case of the prosecution.
Although the DNA report and its interpretation at Exhs. 80 and
81 are incriminating on the face of it, but there is lack of
evidence regarding proper sampling and quality control leading
to the DNA report.
29. Another important aspect of quality control in the
context of DNA report is the evidence pertaining to seizure of
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28 Apeal200-16Ors..odt
clothes of the prosecutrix and whether they were kept in
proper sealed condition throughout, upto the stage of the DNA
analysis and report. The seizure panchanama of the clothes of
the prosecutrix is at Exh.35 and PW3 Kundatai is the panch
witness examined for proving the same. In her evidence the
said panch witness does not state anything about sealing of the
clothes in her presence. The seizure panchanama (Exh.35)
records that clothes were received in sealed condition from
Medical Officer but, they were opened in the Police Station and
again sealed. The opening of the seal of the clothes in the
Police Station and then again keeping them in sealed condition,
does not rule out the possibility of tampering.
30. Apart from this, the record shows that although
Exh.117 i.e. the letter of the Regional Forensic Science
Laboratory, Nagpur records that the clothes of the four accused
and the prosecutrix were received on 18.02.2015 in sealed
parcels, at Exh.79, which is the examination report for DNA
analysis shows that cuttings from knicker and jeans of the
prosecutrix were used for the analysis. This document at
Exh.79 does not record that the clothes were received in
sealed condition or the date on which they were received and it
is also not recorded when the cuttings from the knicker and
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29 Apeal200-16Ors..odt
jeans of the prosecutrix were taken. It is these cuttings that
are used for the ultimate DNA report analysis and
interpretation at Exhs. 80 and 81. In the absence of clear
evidence as to whether the sealed condition of the clothes of
the prosecutrix was maintained and when and where the
cuttings of knicker and jeans were made for proceeding with
the analysis, the interpretation at Exh.80 is rendered seriously
doubtful and unreliable.
31. This shows that the quality control expected in such a
case where the DNA report becomes the most important
evidence against the accused, has not been maintained upto
the required standard and it renders the DNA report and
analysis unreliable and doubtful.
32. The material on record, therefore, shows that there
has been lack of quality control in maintaining the sealed
condition of the clothes while sending them for chemical
analysis and DNA report. There is also lack of evidence on
collection of fresh blood samples of the accused. On the
second aspect, a feeble attempt was made on behalf of the
respondent-State by filing an application under Section 391 of
the Cr.P.C. , placing on record certain documents, claiming that
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30 Apeal200-16Ors..odt
such documents proved that the fresh blood samples of the
four accused persons were indeed collected in the presence of
witnesses on 14.09.2015, in pursuance of the order dated
09.09.2015 passed by the Sessions Court. It was submitted
that this Court may allow the application for additional
evidence in the interest of justice.
33. This application was opposed by the counsel for the
appellants on the ground that it would amount to permitting
the prosecution to fill in the lacunae in the evidence. The
learned counsel for the respondent-State relied upon the
judgment of the Hon’ble Supreme Court in the case of Ashok
Bhutia .vs. State of Sikkim – (2011) 4 Supreme Court
Cases 402 to claim that the prosecution was seeking to only
cure irregularity in the evidence, as the documents pertaining
to actual collection of fresh blood samples on 14.09.2015 were
already available. It was submitted that the Hon’ble Supreme
Court had held that the additional evidence can be taken at the
appellate stage in exceptional circumstances to remove an
irregularity, where the circumstances so warrant in public
interest.
34. We are aware that the power under Section 391 of
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31 Apeal200-16Ors..odt
the Cr.P.C. can be exercised for ascertaining the truth and for
removing an irregularity in the evidence. But, in the facts of
the present case we find that even if the said application is
allowed and the prosecution is permitted to lead additional
evidence to prove collection of fresh blood samples on
14.09.2015, it would still not help the prosecution beyond a
certain point. Even if it is held that fresh blood samples were
indeed collected on 14.09.2015 and those were the very
samples received on 15.09.2015 by PW10, the Chemical
Analyser, the DNA report and analysis cannot be held to be
free from doubt. This is essentially because the evidence on
seizure and proper sealing of the clothes of the prosecutrix is
not on record. In fact, the evidence indicates that there was
every possibility of tampering with the clothes of the
prosecutrix because the seal put by the Medical Officer was
opened in the Police Station as per Exh.35 seizure panchanama
and there is no evidence on record to show when the cuttings
of the knicker and jeans of the prosecutrix were made and
when such cuttings were forwarded to the Chemical Analyser
for DNA analysis. In the face of such material showing lack of
evidence of proper sealing and sampling as also quality control
in the clothes and cuttings of the clothes of the prosecutrix,
even if the evidence regarding fresh samples sought to be
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32 Apeal200-16Ors..odt
brought on record by the prosecution is accepted, the serious
doubt about the DNA report and its interpretation is not taken
away.
35. In this backdrop, the application filed by the
respondent-State under Section 391 of the Cr.P.C. is rejected.
36. The following facts emerge from a consideration of
the oral and documentary evidence on record:
(a) The prosecutrix claimed to be with her friend Atul
Meshram at the time when the four accused persons accosted
them, but, the prosecution did not examine the said Atul
Meshram.
(b) The prosecution also did not examine Suraj Satpute,
brother-in-law of the prosecutrix, although he had
accompanied her to the Police Station and she claimed to have
shown the accused persons to the said Suraj Satpute at the
Hangama Programme.
(c) In the FIR, it is recorded that the prosecutrix came
home and told her elder sister PW1 Nilima about the incident,
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while in the deposition of PW1 Nilima, it is stated that the
prosecutrix came at the place of Hangama Programme and
narrated the incident to her.
(d) PW1 Nilima stated in her deposition that the
prosecutrix told her that accused no.1 Atul Hatwar raped her,
but in the FIR accused Nos. 2 and 3 were also named.
(e) Accused no.4 Vijay Nagfase was not named in the
FIR.
(f) In her cross-examination, the prosecutrix (PW2)
admitted that she did not know the names of accused No. 2
Jitendra Gabhane and accused No.3 Ishwar Tikapache. She
further stated that their names were told by the Police and
they were written in the complaint by the Police. She further
stated that she did not state the name of accused Nos. 2
Jitendra Gabhane to the Police in her complaint.
(g) In the test identification parade, the prosecutrix
identified only accused no.1 Atul Hatwar and accused No.3
Ishwar Tikapache, while she failed to identify accused No.2
Jitendra Gabhane and accused No.4 Vijay Nagfase.
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34 Apeal200-16Ors..odt(h) The incident took place at about 9.30 p.m. on
16.02.2015 and the FIR was registered at 12.30 a.m. on
17.02.2015, but the prosecutrix was medically examined at
12.30 p.m. on 17.02.2015 and she was in the same clothes, as
the said clothes were shown to have been seized in the Police
Station at 2.30 p.m. on 17.02.2015.
(i) The blood samples and other samples from the
bodies of the accused persons were collected on 17.02.2015
and sent to the Regional Forensic Science Laboratory, Nagpur.
These were used for chemical analysis and the reports were
submitted on 11.12.2015, but the said blood samples were not
used for DNA analysis.
(j) PW10 , Assistant Chemical Analyser states in her
deposition that fresh blood samples of the accused persons
were received on 15.09.2015 and 08.10.2015, on the basis of
which the DNA reports and interpretation were prepared. But,
there is no evidence on record as to when, where and by whom
were the said fresh blood samples collected.
(k) The seizure panchanama Exh.35 and Exh.79 i.e.
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35 Apeal200-16Ors..odtexamination report show that the clothes of the prosecutrix
were not properly sealed throughout the process of seizure till
the DNA analysis was made. The seal of the clothes was
opened in the Police Station showing possibility of tampering.
Exh.79 does not show when the cuttings from the knicker and
jeans of the prosecutrix were taken and there is no date of
receipt and the number of the parcels in Exh.79. This creates
serious doubt about the manner in which DNA analysis was
conducted and it seriously dents the DNA report and
interpretation at Exhs. 80 and 81.
(l) The evidence of PW11 Dr. Chanchal Khobragade who
conducted the medical examination of the prosecutrix read
with Exh.85 (medical examination report) shows that there was
no injury on the hymen and the genitals of the prosecutrix.
There was no evidence of sexual assault as claimed by the
prosecutrix , as there was not a single injury found on her
body, despite the fact that the gang rape by four accused
persons was said to have occurred in a field.
(m) The evidence of PW9 Dr. Yogesh Nakade shows that
the medical examination of the accused persons demonstrated
that smegma was found on the tip of the penis of all the four
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36 Apeal200-16Ors..odtaccused persons and that presence of such smegma shows
that there was no sexual intercourse committed by the
accused.
(n) As stated above, presence of DNA of accused No. 3
Ishwar Tikapache and accused No.4 Vijay Nagfase on the
knicker of accused no.2 Jitendra Gabhane creates doubt about
the manner in which the clothes and semen as also blood
samples were collected, stored and analysed. Possibility of
tampering cannot be ruled out.
37. The aforesaid facts create doubt about the
prosecution story. The Sessions Court has referred to some of
these facts, but it has gone ahead to convict and sentence the
four accused mainly on the basis of the DNA report. The
circumstances brought on record showing doubts regarding the
purity of sampling and quality control, have been brushed
aside by the Sessions Court, as the interpretation in the DNA
report appears to clearly point towards the involvement of the
accused persons in the alleged crime.
38. But, in order to convict the accused persons on the
basis of DNA analysis and report, it is an absolute necessity
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37 Apeal200-16Ors..odtthat the collection of samples and quality control as regards
testing is of the highest standard. This is because DNA
evidence has been accepted as conclusive proof. Any material
on record creating doubt about the sampling being proper and
showing that there has not been adequate quality control and
further that possibility of tampering of samples cannot be ruled
out, creates serious doubt about the veracity of the DNA report
and its analysis. In the instant case, the evidence of PW10,
Assistant Chemical Analyser, read with other material evidence
on record shows that quality control and proper sampling of the
expected standard has not been maintained, thereby rendering
the DNA report doubtful.
39. The entire oral, documentary, medical and expert
evidence on record, when considered together, creates serious
doubts about the prosecution story and the claims of the
prosecutrix. Any doubt must necessarily enure to the benefit
of the accused. As cogent and clinching evidence is not on
record to prove the guilt of the accused, it would not be safe to
uphold the conviction and sentence awarded by the Sessions
Court.
40. In view of the above, the appeals filed by the four
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38 Apeal200-16Ors..odtaccused persons are allowed. Accordingly, we set aside the
judgment and order of the Sessions Court and we acquit the
appellants- accused Nos. 1 to 4 of the charges framed against
them. The appellants be released from custody forthwith, if not
required in any other case. The amount of fine, if any paid, be
refunded to the appellants.
(Manish Pitale, J. ) (R.K. Deshpande, J.)
...halwai/p.s.
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