Rajkishorsingh Ranvirsingh ... vs The State Of Maharashtra
2021 Latest Caselaw 4234 Bom

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          CRIMINAL APPELLATE JURISDICTION
              CRIMINAL APPEAL NO. 937 / 2018


Shri. Rajkishorsingh Ranvirsing Tomar )
Age : 36 years, Occu: Mechanic         )
R/o.-Om Sai Ram Chawl, Room No.2 )
Guralvalipada, Khadavli Road, Kalyan )
Dist. Thane, Native- Kankalipura       )
At Lavedi, Tal & Dist.Itawa, U.P.
(Presently detained Nasik Prison, Nasik)      ....Appellant
                                           (Orig.Accused)
                               V/s.
The State of Maharashtra
Through Kalyan Taluka Police Station
C.R.No.I-113/2014                         ....Respondent
                      ****
Ms. Anjali Patil a/w. Mr. Arun Rajput, Advocate for the
        applicant.
Mr. Yogesh Dabke, APP for State.

CORAM                :           SANDEEP K. SHINDE, J.
JUDGMENT RESERVED ON :           3RD MARCH, 2021.
JUDGMENT PRONOUNCED ON :         9TH MARCH, 2021.


JUDGMENT :

1. The questions that arise for consideration in this

Appeal are,

(i) Whether the trial Court was justified in

convicting and sentencing the appellant for the

offence punishable under Sections 376, 506 of the Rane 2/16

Indian Penal Code ("IPC" for short) and Sections 4

and 6 of the Protection of Children from Sexual

Offences Act, 2012 ("POCSO Act" for short) for

rape of his stepdaughter, when mother of the victim

had turn hostile and the conviction was passed on

the basis of scientific evidence in the form of

Deoxyribonucleic Acid (DNA) Report ?;

(ii) Whether the learned trial Judge was justified

in admitting the Report of Assistant Director of

State Forensic Laboratory/Scientific Expert under

Section 293 of the Criminal Procedure Code, 1973

("Cr.P.C." for short), in evidence though it was not

admitted by the defence ?, and

(iii) Whether the trial Court was required to

summon the Scientific Expert, before admitting his

report in terms of provisions of Section 293 of the

Cr.P.C. ?"

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2. Before, adverting to the first question, I would prefer to

answer the second and third question. Section 293 of Cr.P.C.

provides that the report of the scientific expert may be used

in evidence in any enquiry, trial or order and other

proceedings of the Court. The provisions of the Section are

intended to save time and avoid needless examination of

experts mentioned therein, unless, the Court found it

necessary to examine the expert or when the accused

requested for examination of the expert. If the Court does

not find it necessary to analyse the Chemical Examiner or

any other expert mentioned in Sub-

Section (4) of Section 293 and accused does not make any

prayer to summon and examine the expert, the report can be

used in evidence without examination of the expert.

3. In the case of Dasu and Ors. V/s. State of

Maharashtra, reported in 1985 Cri.L.J. 1933, the

Division Bench of this Court, while dealing with the similar

issue has held in para-25 as under :

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"25. The learned Counsel for the accused No. 3, Mr. Nair, submits that the learned trial Judge was not right in admitting the report of the Chemical Analyser in evidence, as he had taken objection to its validity and admissibility. According to him, the learned trial Judge before admitting on record the report of the Chemical Analyser and using it in this case should have summoned the concerned Chemical Analyser and should have examined him touching the report Ex. 27 made by him. We are unable to agree with the learned Counsel. Section 293 Cr. P.C. reads as follows:

293.(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.

(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed Him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.

(4) This section applies to the following Government scientific experts, namely:

(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

(b) the Chief Inspector of Explosives;

(c) the Director of the Finger Print Bureau;

(d) the Director, Haffkeine Institute, Bombay;

(e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government.

It is true that when the report of the Chemical Analyser was sought to be admitted on record the learned Counsel for the accused No. 3, Mr. Nair, raised objection to its admission on record. Beyond putting an objection for its admission on Rane 5/16

record the learned Counsel has done nothing in the matter. He never moved the trial Court to summon the concerned Chemical Analyser. He also did not at any time demonstrate in what respect the report was deficient and necessitated the calling of the Chemical Analyser before admitting it in evidence. In the absence of any request from the learned Counsel for summoning the Chemical Analyser and also in the absence of his showing in what respect the report was deficient and needed further elucidation before admitting it in evidence, in our opinion the learned trial Judge was right in admitting the report of the Chemical Analyser in evidence and in using it as evidence in this case."

4. To conclude on this aspect, it must therefore be held

that, it is not incumbent on the prosecution to examine,

unless the Court is moved by the accused for issuing summon

to expert or when Court, may in the circumstances may deem

just and proper to summon the expert. Therefore, to be

stated that the provisions of Section 293 are not controlled or

regulated by the provisions under Section 294 of the Code.

5. Herein, DNA report was not admitted by the defence.

However, there was no application moved by the accused for

summoning the expert nor accused demonstrated in what

respect, the report was deficient so as to summon the expert

before admitting the DNA report in evidence. In the

circumstances, the objection raised by the learned Counsel

for the appellant, that the trial Court ought not to have Rane 6/16

admitted the DNA Report in evidence without first

examining the expert, is rejected. The second and third

questions are answered accordingly.

6. Briefly stated, the prosecution case is, that victim's

father, Rajendra Behenwal died in the year 2000 when she

was just two to three years old and thereafter she was

residing with her siblings at maternal grandfather's house at

Shahad, District-Thane. Her mother remarried in or around

2010 and since 2012 the victim started living with her

mother, sisters, stepfather (accused) and stepbrother at

Titwala. At the material time, she was studying in the

seventh standard. It is unfolded in the evidence that, she

was born on 27th June, 2000. Her mother was a domestic

help and used to leave the house in the morning at 9:00 a.m

and return at around 6.30 p.m. Victim would depose that,

while she was alone at home, her stepfather forced sexual

assault, on her, for multiple times, which had not been

disclosed either to her mother or to her schoolmates though

she was attending the school. When she missed her menses,

she was examined by Doctor who told to her mother, that Rane 7/16

the victim was four months pregnant. The victim was

admitted in KEM Hospital. However, before terminating

the pregnancy, victim's mother lodged the report on 17 th

April, 2014 at Kalyan Taluka Police Station, whereupon

Crime under Section 376 of the IPC Sections 3 and 4 of the

of the POCSO Act, was registered against an 'unknown

person'. Victim was admitted in the hospital on 17th April,

2014 and discharged on 22nd April, 2014. Dr. Hemangi

Choudhary-P.W.3, after examining the victim, opined that,

victim was 16 to 17.4 weeks pregnant. The fetus was

terminated on 21st April, 2014. Testimony of Dr. Hemangi

Choudhary reveals that, forensic staff had collected blood

sample of victim and captured fetal cells, for DNA analysis.

Dr. Choudhary, opined that, in view of the x-ray reports at

the material time, the age of the victim was 14 years.

7. After the victim was discharged from the hospital

on 26th April, 2014, the victim's statement was recorded. As

well, supplementary statement of her mother was also

recorded. Victim and her mother were examined as P.W.2

and P.W.1 respectively. Indeed, the FIR lodged on 17th Rane 8/16

April, 2014 was against a 'unknown person', in as much as,

the victim revealed to mother, that around the month of

December, 2013 when she was returning from school, on the

way, one rickshaw driver made her to sit in the rickshaw and

offered to drink water, whereafter she was sexually assaulted

by the rickshaw driver. Victim did not divulge better

particulars. It seems that, she had disclosed the name of

Manish @ Manoj Rathod, her schoolmate, a person who

forced sexual assault on her. Investigation revealed, Manish

@ Manoj Rathod was a fake name and no such person was

studying in the school, which the victim was attending.

Therefore, to be stated that, the victim initially tried her

level best to hide the identity of the assailant. However, on

26th April, 2014 she revealed that, her stepfather had

repeatedly forced a sexual assault on her, when nobody was

at home. On these revelations, police arrested the accused,

whereafter he was subjected to test as required under Section

53-A of the Criminal Procedure Code. Supplementary

statement of mother was also recorded on the same day.

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8. Be that as it may, regrettably, mother turned

unfriendly to the prosecution. However, the victim in her

testimony narrated in detail, the incident and though she was

subjected to searching cross-examination, defence could not

elicit any material to disbelieve her version. Her version, was

cogent, consistent and trustworthy. What appears from her

evidence is that, at the material time, the victim was hardly

14 years old. She had lost her father when she was two or

three years old. Since after the death of her father, she was

living with her maternal grandfather atleast upto 2010-11.

He mother remarried, whereafter she started living with her

mother and stepfather. Her stepfather was a mechanic.

Thus, to be inferred from these circumstances that, she was

living in a very poor state and at the mercy of her mother and

stepfather. She testified that, she did not reveal the incident

to anyone, as she was apprehensive and on brink of loosing

the shelter. Infact, she testified, her stepfather had

threatened her of dire consequences, if she would disclose the

incident to anyone. It is on 26 th April 2014, when her

statement was recorded, she divulged the unfortunate Rane 10/16

incident to the police, whereafter the accused was arrested.

She was examined as a witness in December, 2015 and her

testimony suggest that since after lodging the complaint, she

was living in shelter-home and preferred not to live with her

mother. This fact, clearly indicates that, before recording her

statement, she was under the influence of mother and

stepfather. In the circumstances, it can be said that, she was

prevented from disclosing the incident, at the first instance,

due to compelling circumstances, stated above. In my view,

victim's conduct was not unnatural at all, and therefore

simply because she did not disclose the name of her

stepfather initially, that itself was not sufficient to disbelieve

her, when other evidence corroborates her version.

9. The trial Court believed the testimony of the

victim and also relied on the DNA Report. The Assistant

Director, Forensic Science Laboratory opined that,

"Rajkishor Ranvirsingh Tomar of F.S.L. ML. Case No. DNA-

646/14 and victim are concluded, to be the biological

parents of the DNA of ex2 sternum bone."

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10. I have concluded hereinabove, that the report was

admissible and has been correctly admitted by the learned

trial Court under Section 293 of the Criminal Procedure

Code. At the cost of repetition, it may be stated that, though

this report was not admitted by the accused, the defence has

not pointed out any deficiency in the report by moving the

Court either for summoning the Forensic Expert or

otherwise. In the circumstances, the report of an Expert has

been correctly relied on by the learned trial Judge to convict

the accused of the charge and sexual assault on the minor

victim.

11. In the present proceedings, the learned Counsel

for the appellant assailed the report on the ground that, there

is no quality assurance of blood sampling of accused, victim

and fetus and in absence of such evidence, tampering of

samples cannot be ruled out. Before dealing with the

objections and the contentions raised by the Counsel for the

appellant in respect of the DNA test report, it may be stated

that in the case of Mukesh and Anr. V/s. State of (NCT Rane 12/16

of Delhi) and Others, 2017 (6) SCC 1, Hon'ble Apex

Court, has held thus :

"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 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."

. In paragraph-228, it was held thus :

"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."

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11. From the aforesaid authorities, the law laid down

by the Apex Court relating to the reliability of the DNA test

is that, conviction can be based on the DNA test report

subject to requirement that, sampling the blood has to be

proper and there should not be material indicating any

tampering of samples. In this case, the evidence shows,

soonafter the arrest, the Investigating Officer addressed a

letter to the Medical Officer, KEM Hospital and requested

for preserving the fetal cells of the victim for DNA profiling.

On 18th April, 2014, grouping of victim's blood was done by

pathologists. On 21st April, 2014 Dr. Hemangi Choudhary

aborted the fetus and product of conception for DNA

analysis were collected and preserved as could be seen from a

case-paper in the handwriting of Dr. Shashank Tyagi. On

the same day, Inspector attached to Kalyan Taluka Police

Station, requested the Medical Officer, KEM Hospital to

preserve and handover the blood samples and fetal cells to

Constable, Talmaale and on the same day, the samples were

forwarded to the Forensic Lab. Likewise, after arrest, the Rane 14/16

accused blood samples were taken for DNA checking on 30 th

April, 2014 and on the same day, the blood samples of the

accused were forwarded to the Forensic Laboratory. The

chronology of the events as narrated relating to the collection

of blood samples and its grouping shows, it was done properly

and the samples were forwarded to the Forensic Laboratory.

Infact, though Dr. Hemangi Choudhary and Dr. Manoj

Parchake, Assistant Professor, K.E.M. Hospital, Forensic

Medicines, were cross-examined, but were not suggested that

grouping was improper or otherwise. Likewise, the defence

has not suggested the Investigating Officer, that the samples

forwarded to the Forensic Science Laboratory were not intact

and/or were tampered. Thus, in consideration of the

evidence on record, in my view, the sampling was done

properly and there is no material indicating any tampering of

samples. Thus, in my view, the DNA report has been rightly

relied on by the learned trial Judge and it cannot be faulted

with.

12. Herein, though victim's mother has turned

unfriendly to prosecution, the evidence of the victim was Rane 15/16

found cogent, consistent and trustworthy. I have no reason

to disbelieve the victim's evidence. Though she was cross-

examined, her evidence has not shaken at all. Thus, the

impugned conviction is founded on cogent, reliable and

acceptable evidence.

13. Sections 29 and 30 of the POCSO Act, provides

for presumption of certain offences and presumption of

culpable mental state. It provides that, in prosecution for

offences under Sections 3, 5, 7 and 9 of the Act, the Court

shall presume existence of culpable mental state and it shall

be the defence for the accused to prove the fact that he had

no such mental state with respect to the act charged as an

offence in that prosecution. Section 30 provides that, a fact is

said to be proved only when the Court believes to exist

beyond reasonable and not simply when its existence is

established by preponderance of probability. In this case,

the DNA test report and the evidence of the victim has

proved beyond reasonable doubt, the mensrea on the part of

the accused and further the evidence does not show the

defence has rebutted the presumption at all.

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14. The evidence and the material on record, has

proved, though victim's mother was hostile to prosecution,

the charge has been conclusively proved beyond reasonable

doubt against the appellant and the trial Court was justified

in convicting and sentencing the appellant under the

provisions of the Indian Penal Code and POCSO Act for

having committed rape on stepdaughter.

15. Therefore, the Appeal is dismissed and the

judgment and order passed by the Learned Special Judge,

Kalyan in Atro. Special Case No.78/2014 convicting the

accused under Sections 376 & 506 of the IPC and Sections 4

and 6 of the POCSO Act, 2012 is confirmed. The Appeal

stands disposed of accordingly.

         Digitally
         signed by
Neeta    Neeta S.
         Sawant
S.       Date:
Sawant   2021.03.09
         15:09:27                                (SANDEEP K . SHINDE, J.)
         +0530