Dilip S/O. Sudam Karale vs The State Of Maharashtra
2022 Latest Caselaw 931 Bom

                                                  Criminal Appeal No.560/2018
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.560 OF 2018


 Shri Dilip s/o Sudam Karale
 age 55 years, Occu. Labourer &
 Agriculturist, R/o Tokewadi Shivar,
 Agadgaon, Taluka Nagar,
 District Ahmednagar, Maharashtra
 (Arrested on 14/1/2017
 At present lodged in Jail)                          ... APPELLANT
                                                     (Orig. Accused)
          VERSUS

 1.       The State of Maharashtra,
          at the instance of
          Nagar Taluka Police Station,
          Taluka Nagar, Dist. Ahmednagar
          (Copy to be served on the office
          of Public Prosecutor, High Court
          of Judicature of Bombay,
          Bench at Aurangabad)

 2.       Indubai Anna Bhingardive,
          Age 47 years, Occu. Agriculturist
          R/o Hadola Vasti, Agadgaon,
          Taluka Nagar, Dist. Ahmednagar
          PIN - 414 001 (M.S.)                       ... RESPONDENTS

                               .......
 Shri A.D. Ostwal, Advocate for appellant
 Shri S.P. Sonpawale, A.P.P. for respondent No.1 - State
 Shri Amit Savale, Advocate for respondent No.2
                               .......

                                  CORAM :       R. G. AVACHAT, J.
                  Date of reserving judgment : 12th January, 2022
                  Date of pronouncing judgment : 27th January, 2022


 JUDGMENT:

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This appeal is directed against the judgment and

order dated 14/6/2018, passed by Additional Sessions Judge,

Ahmednagar in Special Case No.137/2017, convicting the

appellant for the offence punishable under Section 376(2)(1)

of the Indian Penal Code and sentencing him to rigorous

imprisonment for a period of ten years and to pay a fine of

Rs.60,000/-. In default of payment of fine, the appellant is

directed to undergo simple imprisonment for a period of one

year.

2. The facts giving rise to the present appeal are as

follows :-

P.W.1 "X" informant has a 23 year old daughter, by

name "Y" (prosecutrix). She is deaf, dumb and mentally

challenged as well. Both the informant and her husband used

to be away from home for work during day time. The

prosecutrix used to be alone at home. Sister-in-law of the

informant would reside in the neighbourhood. Co-sister of the

informant noticed some physical change with the prosecutrix.

The informant, therefore, took the prosecutrix to a Primary

Health Centre, Deogaon for medical screening. The

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prosecutrix was found to be pregnant of five and half months.

The informant, therefore, realised that someone took

advantage of the mental condition of the prosecutrix and

committed rape of her. The informant, therefore, lodged First

Information Report (F.I.R. - Exh.11) against an unknown

person. A crime vide C.R. No.222/2016, therefore, came to

be registered with Nagar Taluka Police Station. The informant

thereafter gave a supplementary statement, suspecting the

appellant to be responsible to the pregnancy of the

prosecutrix. The Police Station Officer, therefore, summoned

the appellant. The appellant, in turn, suspected involvement

of the father of the prosecutrix and her cousin as well. The

Police Station Officer, therefore, decided to go for D.N.A. test.

He produced the appellant and both the other suspects before

the Medical Officer Dr. Ashwini Sonawane (P.W.8). Their blood

samples were obtained. Meanwhile, the prosecutrix delivered

a baby girl. Blood samples of both the baby and prosecutrix

were also obtained for D.N.A. test. The blood samples were

delivered to an expert at Forensic Science Laboratory, Kalina,

Mumbai. The D.N.A. report concluded the appellant to be the

biological father of the baby of the prosecutrix. The appellant

was, therefore, arrested. He gave a disclosure statement,

pointing out a place whereat he had sexual intercourse with

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the prosecutrix. Statements of persons acquainted with the

facts and circumstances of the case were recorded. On

completion of the investigation, the appellant was proceeded

against by filing the charge sheet.

3. Since the prosecutrix was found to have belonged

to a Scheduled Caste, relevant provisions of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989 (Atrocities Act) were also invoked. Learned Additional

Sessions Judge framed the charge (Exh.3). The appellant

pleaded not guilty. His defence is of false implication on

account of having made complaint against the father of the

prosecutrix.

4. To establish the charge, prosecution examined 11

witnesses and produced in evidence various documents. The

trial Court, on appreciation of the evidence, convicted the

appellant and sentenced to suffer imprisonment as stated

hereinabove. The appellant, was, however, acquitted of the

charge under Section 3(2)(v) of the Atrocities Act and Section

7(1)(d) of Protection of Civil Rights Act. The State has not

preferred appeal against the said acquittal.

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5. Heard. Learned counsel for the appellant would

submit that, there is an inordinate delay in lodging of the

F.I.R. The informant is an interested witness. The prosecutrix

is an adult lady. She was not examined as a witness. There

is no evidence to indicate the prosecutrix to have been

mentally retarded to such an extent to be unable to give oral

evidence. The panch witness to the disclosure statement did

not stand by the prosecution. The medical officer who

certified the prosecutrix to be mentally retarded, has

categorically admitted her to have not been affected by

severe or profound mental retardation. Learned counsel

would further submit that, without examination of an expert

the D.N.A. report came to be admitted in evidence. The

appellant has thus suffered in his defence and lost an

opportunity to cross-examine the expert. The procedure of

taking blood samples for D.N.A. examination was not

fullproof. There has been tampering with the blood samples.

Before obtaining the appellant's blood sample, his consent

was not obtained. The same affects the right to privacy. The

D.N.A. report brought into existence this way, therefore,

ought not to have been read in evidence. It is not known as

to why for little over three weeks the D.N.A. kits were kept

long at the police station. As such, it is a case based on

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circumstantial evidence and that is only on the D.N.A. report

without there being substantive evidence of the prosecutrix,

attributing the appellant with the alleged sexual intercourse.

The benefit of doubt should have, therefore, been extended to

the appellant. It was for the prosecution to prove its case.

Suspicion, howsoever strong, cannot take place of proof. The

learned counsel, therefore, urged for allowing the appeal. He

would, in the alternative, submit that the appellant is little

over 56 years of age. He has 3 daughters and a son and old

parents to look after. He, therefore, urged for reduction in

quantum of sentence.

6. The learned A.P.P. would, on the other hand,

submit that, the F.I.R. was lodged against unknown person. It

was lodged soon after the prosecutrix was found to have been

pregnant. The delay, if any, in lodging the F.I.R. is, therefore,

inconsequential. It was the appellant himself who had

suspected involvement of the father and cousin of the

prosecutrix. Blood samples of the trio were, therefore,

obtained for D.N.A. test. The appellant, without any demur,

submitted himself for taking his blood sample. The medical

officer who took the blood samples, has categorically given

the evidence as to how the blood samples were obtained. The

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same indicates there was no procedural lapse. No sooner the

blood samples were obtained, those were sent to the Forensic

Science Laboratory, Kalina, Mumbai the same day. The

reports indicate that the seals were intact. The D.N.A. report

is a conclusive proof. The same nails the appellant in the

offence in question. According to learned A.P.P., no

interference with the impugned judgment and order is thus

warranted. He, therefore, urged for dismissal of the appeal.

7. Considered the submissions advanced. Perused

the evidence in the case. Gone through the authorities relied

on. Let us appreciate the evidence in the case.

8. P.W.1 informant is a rustic woman. The

prosecutrix is her daughter. It is in the evidence of P.W.1 that

the prosecutrix is deaf, dumb and mentally challenged as

well. Both the informant and her husband used to be away

from home during day time to earn their living. The

prosecutrix used to be alone at home. Some change in the

physical appearance of the prosecutrix was noticed. She was,

therefore, medically screened. The medical examination

report disclosed the prosecutrix was pregnant of little over

five months. It was Tarabai, co-wife of P.W.1, who had

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noticed the change in the physical appearance of the

prosecutrix. In view of this court, non-examination of Tarabai

is of no consequence. It is further in her evidence that, she,

therefore, lodged F.I.R. Exh.11 against an unknown person.

True, the F.I.R. may be said to have been lodged late. The

fact is, however, that, it has been lodged against an unknown

person. Delay in lodging of an F.I.R. is of no consequence

since the appellant did not have a reason to say it to have

been lodged with a concocted version. It is only after

registration of the F.I.R. the informant gave a supplementary

statement suspecting the involvement of the appellant. As

such, the evidence of P.W.1 informant undoubtedly

establishes that her daughter (prosecutrix) is deaf and dumb.

She conceived, and on maturity, delivered a baby girl. The

evidence of P.W.1 further states that, her house is on way to

the field of the appellant. The appellant used to pass by the

informant's house. the appellant would greet the prosecutrix

by waving his hand and signs as well. This is a reason why

the prosecutrix suspected the appellant's involvement. So far

as up to this, evidence of P.W.1, there is nothing to name the

appellant in the offence in question. There is also nothing to

suggest the P.W.1 to have any reason to falsely suspect the

appellant's involvement in the offence in question.

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9. On the question of mental retardness of the

prosecutrix, P.W.1 has specifically stated so. It was even

suggested in the cross-examination of P.W.1 that the

prosecutrix would talk with her by signs. P.W.5 Dr. Ashok

Kumar was a Psychiatrist. At the relevant time, he was

serving in Civil Hospital, Ahmednagar. It is in his evidence

that, the prosecutrix was referred for medical examination on

16/8/2016. He clinically examined her to find her to be

incapable to give consent for sexual intercourse. The medical

case record of the prosecutrix was placed on record vide

Exh.30. P.W.5 Dr. Ashok Kumar although admitted that the

prosecutrix was not completely mentally retarded, he denied

suggestion that a person with moderate mental retardation

could distinguish between good and bad things. The doctor

has categorically denied that the prosecutrix was in the

senses to protect her own interest i.e. to distinguish between

good and bad things. P.W.5 Dr. Ashok Kumar being an

expert, and there being no contra evidence, it has to be

safely concluded that the prosecutrix was a mentally

challenged person and, therefore, incapable to give consent

for sexual intercourse. When the prosecutrix had conceived

and delivered a baby girl, it has to be assumed that someone

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took advantage of her mental status and had sexual

intercourse with her. Such act does amount to an offence of

rape. The question is, whether the appellant is the author of

the crime in question.

10. P.W.1 had suspected the involvement of the

appellant herein. The appellant was, therefore, summoned

by the concerned police station. The appellant suspected

involvement of the father of the prosecutrix and her cousin as

well. The investigating officer, therefore, decided to go for a

D.N.A. test since in the meanwhile the prosecutrix has

delivered a baby girl.

11. P.W.6 Prashant, investigating officer, testified that,

he had been to Mumbai to fetch six kits for taking necessary

samples for D.N.A. examination. He, therefore, wrote a letter

to Forensic Science Laboratory, Kalina. Office copy of the

letter is placed at Exh.42. His evidence indicates that, he

accordingly brought six kits. True, those kits were kept in

the police station for little over three weeks before those

came to be used. P.W.6 Prashant has, however not been

subjected to any question in this regard to point out that the

kits had not been kept in the required temperature and,

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therefore, the kits were not fit for being used. The evidence

of P.W.6 Prashant further indicates that on 17/10/2016, the

appellant and two other suspects were produced before P.W.8

Dr. Ashwini for obtaining their blood samples for D.N.A. test.

12. P.W.7 Haribhau testified to have had taken the trio

to Civil Hospital, Ahmednagar on 17/10/2016 for obtaining

their blood samples. It is true that, the blood sample of the

appellant was taken at the instance of the police. The learned

counsel for the appellant, therefore, appears to be justified in

contending that pressure was exerted on the appellant to

submit for medical examination and to give blood sample.

According to learned counsel, that no one can be compelled

to give a blood sample as the same would amount to

compelling a person to be a witness against himself. It is also

true that, Section 53-A of the Code of Criminal Procedure

could not be invoked since the appellant was not under

arrest. The entire cross-examination of all the prosecution

witnesses and even the appellant's examination under Section

313 of the Code of Criminal Procedure, however, indicate that

the appellant, without any demur, appeared before the

concerned medical officer and gave his blood sample.

Criminal Appeal No.560/2018 :: 12 ::

13. P.W.8 Dr. Ashwini was categorical to state to have

had taken blood samples of the trio one after another. It is in

her evidence that, she took blood samples in three different

syringes in the sample kits. After taking the blood samples,

the kits were labeled with the names of the respective

persons with mentioning dates thereon. It is further in her

evidence that, after taking blood sample of one of the three,

the procedure for sealing and labeling was first completed and

then only the blood sample of second one was obtained and

so on. It is in her evidence that, Wax Seal was applied on

each kit and then handed over to the carrier (P.W.7). She

had prepared the case papers of the trio whose blood samples

were obtained. The case papers have been placed on record

at Exhs.47 to 49. It is true that, in the cross-examination,

P.W.8 Dr. Ashwini has admitted that after collecting the blood

sample, the work of labeling and sealing was done by sister.

She was, however, categorical to state that, sealing and

labeling was done in her presence and supervision. It is true

that, the appellant had moved the trial Court, asking for

production of CCTV footage of the place whereat his blood

sample was obtained. According to learned counsel for the

appellant, there was possibility of the samples having been

tampered with. The appellant suspected swapping of the

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labels affixed on the sample kits. It appears that, production

of CCTV footage was asked for very late. The concerned Civil

Surgeon had expressed his inability to produce the CCTV

footage since it was not available. It is also true that, along

with each kit two blank consent forms are supplied. The

consent form is to be filled up in respect of the person whose

blood sample has to be obtained. The consent form is

required to bear signature of the concerned incumbent. The

sample of the blood has to be obtained in the presence of two

witnesses. In the case in hand, the consent form of the

appellant herein is not forthcoming. However, the evidence of

P.W.8 Dr. Ashwini undoubtedly indicates that she obtained the

blood samples of appellant and two others one after other.

On obtaining sample of one of them, the sealing and labeling

was completed first. The Court has no reason to doubt the

evidence of P.W.8 Dr. Ashwini.

14. It is true, all evidence needs to be packed and

sealed properly in separate envelopes. The responsibility for

this lies with the examining doctor. All blood samples must

be refrigerated until handed over to next in chain of custody.

The hospital has the responsibility of properly preserving

samples till handed over to police. (Commentary on Medical

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Jurisprudence and Toxicology - by Modi). It is also true,

admissibility of expert opinion is conditioned upon the

inviolability of forensic sample which necessitates infallible

procedural management to avoid tampering, manipulation

and mishandling of samples. The procedural protocol must

invoke evidence dynamics to annul scope of any influence to

modify, obscure, relocate or obliterate physical evidence,

regardless of bona fide or malicious intent. In forensic world,

selection, collection, packaging, labeling storage,

preservation, transport and maintenance of chain of custody

are vital steps for handling physical samples with utmost care

and expertise aiming to avoid risk of contamination,

destruction, loss or potential fiddle. (Article on Management

of DNA Sample in Rape Incidents, by G.K. Goswami and

Siddhartha Goswami - (2018) 7 SCC J-4.

15. It is reiterated that, the evidence of P.W.8 Dr.

Ashwini proves the procedure of taking blood sample was

flawless. Soon after taking the samples of the blood, the kits

were handed over to P.W.7, who in turn delivered the same at

Forensic Science Laboratory, Kalina the same day. Office copy

of the covering/ forwarding letter is at Exh.46. The letter

bears acknowledgment receipt dated 18/10/2016. It records

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that, three sealed plastic containers were received. The same

indicates that, the seals were intact. The investigating officer

had no occasion to first take the kits to the police station,

keep them there for a while and then transmit them to

Forensic Science Laboratory, Kalina. P.W.7 Haribhau, Police

Head Constable has categorically testified that it was he who

had produced the appellant and two others before P.W.8 Dr.

Ashwini for obtaining their blood samples. It was he in whose

presence the blood samples were obtained, labeled and

sealed. It was he who carried those samples immediately

and delivered them to Forensic Science Laboratory at Kalina.

It is only after obtaining the blood samples of the appellant

and two others, the prosecutrix delivered a baby girl on

31/10/2016.

16. Then there is evidence of P.W.11 Dr. Vijay. It is in

his evidence that he had received a request (Exh.53) for

blood sample of the prosecutrix and her new born for D.N.A.

test. He, therefore, obtained blood samples of both of them

in D.N.A. kits after filling necessary form. Those forms have

been placed on record. It is in his evidence that the D.N.A.

kits were kept in a cold box. He handed them over to P.W.7

Haribhau. The evidence of P.W.7 Haribhau is to the effect

Criminal Appeal No.560/2018 :: 16 ::

that he carried those blood samples to Forensic Science

Laboratory, Kalina and delivered them on 2/11/2016. The

office copy of the forwarding letter with acknowledgment

receipt thereof are at Exhs.53 and 55.

17. The D.N.A. report (Exh.14) has been admitted in

evidence through the oral evidence of the investigating officer

and the doctor as well. The report states that the plastic

containers were received in sealed condition. The seals were

intact and as per the copy sent. The same were about the

other two blood samples of the prosecutrix and the new born.

True, the report indicates that the analysis started on

18/10/2016 and was completed on 11/1/2017. The learned

counsel for the appellant would submit, what kind of analysis

was done during the period of about three months. He meant

to say that the samples might have been tampered with.

According to him, the D.N.A. report should not be read in

evidence without there being evidence of an expert who did

the analysis and gave his report.

18. The Apex Court, in case of Mukesh and another

Vs. State (NCT of Delhi) and others [ (2017) 6 SCC 1 ], has

observed :-

Criminal Appeal No.560/2018 :: 17 ::

"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 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."

19. In view of the aforesaid observations of the Apex

Court, the reliance on the judgment of the Gujarat High Court

in case of Premjibhai Bachubhai Khasiya Vs. State of Gujarat

and Anr. reported in 2009 Cri.L.J. 2888 is of no avail for the

appellant herein.

20. The D.N.A. report (Exh.14) records the result of

analysis as under :

(1) The DNA extracted from blood sample of ex1 Ku. Mangal Anna Bhingardive, ex2 B/o Ku. Mangal Anna Bhingardive was typed at 15 STR LOCI and gender specific Amelogenin locus using PCR Amplification technique.

(2) The DNA extracted from blood samples of ex1 Anna Vishwanath Bhingardive, ex2 Dilip Sudam Karale & ex3 Akash Vijay Thombe in F.S.L.M.L. Case No.DNA-1909/16 was typed at

Criminal Appeal No.560/2018 :: 18 ::

15 STR LOCI and gender specific Amelogenin locus using PCR Amplification technique.

Interpretation :

(1) For all the 15 different genetic systems analyzed with the PCR, putative father Dilip Sudam Karale in F.S.L.M.L. Case No.DNA- 1909/16 matched the obligate paternal alleles present in the child B/o Ku. Mangal Anna Bhingardive at all STR loci; similarly mother Ku. Mangal Anna Bhingardive matched the obligate maternal alleles present in child B/o Ku. Mangal Anna Bhingardive at all STR loci.

(2) Out of 15 different genetic systems analyzed with the PCR, putative father Anna Vishwanath Bhingardive in F.S.L.M.L. Case No.DNA-1909/16 did not match the obligate paternal alleles present in the child B/o Ku. Mangal Anna Bhingardive at 10 STR loci.

(3) out of 15 different genetic systems analyzed with the PCR, putative father Akash Vijay Thombe in F.S.L.M.L. Case No.DNA- 1909/16 did not match the obligate paternal alleles present in the child B/o Ku. Mangal Anna Bhingardive at 10 STR loci.

21. Section 293 of the Code of Criminal Procedure

reads thus :

"293. Reports of certain Government scientific experts.--

(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

Criminal Appeal No.560/2018 :: 19 ::

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 Controller 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;

(g) any other Government Scientific Expert specified, by notification, by the Central Government for this purpose."

  22.              The         phraseology    of    Section       293        above





                                                        Criminal Appeal No.560/2018
                                            :: 20 ::

undoubtedly indicates that, examination of an expert in proof

of his report is not a statutory requirement. The appellant

had every opportunity to seek witness summons for

appearance of the expert who analysed the samples of D.N.A.

report and to cross-examine him on the aspect of the matter.

The Apex Court, in case of Rajiv Singh Vs. State of Bihar,

[ (2015) 16 SCC 369 ], observed :

"Though in terms of Section 293 of the Code of Criminal Procedure the report being one from the Government Scientific Expert, the same could have been per-se, used as evidence in the trial by the trial Court in its discretion."

23. The facts in Rajiv Singh's case (supra)

undoubtedly indicate that it was the prosecution who had

voluntarily offered the witness to prove the express report.

The facts further indicate that, instead of analyzing the

sample at the Government Laboratory, the work was assigned

to private laboratory. The witness has admitted that, he has

no requisite expertise in discipline of D.N.A. test. On the

facts and circumstances of the case, the D.N.A. report was

not acted upon.

24. As such, the analysis of the evidence referred to

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hereinabove would undoubtedly indicate that blood samples

of the appellant and two others were obtained one after

another. The same day the blood samples were delivered at

Forensic Science Laboratory, Kalina in sealed condition.

Thereafter the blood samples of the prosecutrix and the new

born were obtained and similarly delivered at Forensic

Science Laboratory. The expert at Forensic Science

Laboratory, Kalina analysed the blood samples and gave his

report (Exh.14), concluding the appellant to be the biological

father of the baby delivered by the prosecutrix. The same

was not possible unless the appellant had a sexual

intercourse with the prosecutrix, who was unable to give

consent therefor. As such, the evidence on record

undoubtedly nail the appellant with the offence in question.

The trial Court has passed a well reasoned order. This Court

has no reason to take a different view on reappreciation of

the evidence. The appeal, therefore, fails.

25. The submission made by learned counsel for the

appellant that it was post commission of the offence in

question, Section 376 of the Indian Penal Code was amended

providing minimum sentence of imprisonment of ten years is

not correct. When the offence was committed, the minimum

Criminal Appeal No.560/2018 :: 22 ::

sentence prescribed for the offence with which the appellant

was charged with, was not less than ten years imprisonment.

This Court is, therefore, unable to concede to the request of

the learned counsel for the appellant to reduce the sentence

of imprisonment to the period of seven years in view of the

peculiar facts and circumstances of the case.

26. In the result, the Criminal Appeal is dismissed.

( R. G. AVACHAT ) JUDGE

fmp/-