The Bombay High Court allowed an appeal filed by the original accused, challenging his conviction for the offences punishable under Section 376(2)(l) of the IPC. The Court observed that the prosecution is duty bound to prove all the steps which were taken by the investigating agency right from collecting the blood samples, preservation, etc.
Brief Facts:
The informant is the brother of the victim. FIR came to be lodged by the informant on 10.05.2013 stating that he had gone to Kolhapur district to work. The Sarpanch of the village of the native place of the victim gave a telephone call to the informant and informed him that the victim is pregnant for around 5 to 6 months and, therefore, he should return to the village. Therefore, four days prior to the FIR, the informant came back to his village and lodged a report against an unknown person.
In the supplementary statement recorded on 13.05.2013, the name of the accused came to be revealed and he came to be arrested on 12.12.2013. After considering the evidence and hearing both sides, the learned Trial Judge convicted the accused by holding him guilty. Hence, this appeal.
Observations of the Court
The Court noted that the prosecution has heavily relied on DNA report Exhibit-41 and the opinion that was given in respect of the DNA test of the samples taken of the victim, child, and the accused.
The Court observed that though DNA testing and report are based on a well-developed science and can lead to concluded evidence, it still depends upon the extracting of samples, their preservation, and ruling out the possibility of tampering. Considering the DNA report from the series of decisions, the legal position for the DNA profiling report, and its probative value concerned, the prosecution is duty bound to prove all the steps which were taken by the investigating agency right from collecting the blood samples, preservation, etc.
When the ocular evidence was not supporting, conviction ought not to have been based only on the DNA test report i.e., medical report. Therefore, the finding and conclusions in the judgment by the learned Trial Court are perverse and not based on legal principles. Therefore, it deserves to be set aside.
Further, the Court remarked that P.W.4 and P.W.5 are not trustworthy as they have changed their statements in the cross.
The decision of the Court:
The Bombay High Court, allowing the appeal, set aside the impugned order passed by the learned Additional Sessions Judge.
Case Title: Suresh s/o Devidas Malche vs The State of Maharashtra
Coram: Hon’ble Justice Vibha Kankanwad and Hon’ble Justice Y. G. Khobragade
Case no.: CRIMINAL APPEAL NO.306 OF 2016
Advocate for the Appellant: Ms. S. K. Adkine
Advocate for the Respondent: Mr. A. V. Deshmukh
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