Bombay High Court
Mahesh Bhimraj Jadhav vs State Of Maharashtra And Anr on 11 August, 2023
Bench: P. K. Chavan
2023:BHC-AS:23018 APPEAL-657-2019.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.657 OF 2019
a/w
INTERIM APPLICATION NO.2303 OF 2023
IN
CRIMINAL APPEAL NO.657 OF 2019
Mahesh Bhimraj Jadhav ]
Age about 27 years, ]
Occupation - Service, Indian Inhabitant ]
Residing at - Navratna Chawl, ]
Behind Bodaria Hospital, ]
D.B. Pawar Chowk, ]
Ramabai Ambedkar Nagar, ]
Ghatkopar (E), Mumbai - 400 077. ]
(Presently Appellant is in Yerwada ]
Jail at Pune) ] Appellant
(Orig. Accused)
Versus
1. The State of Maharashtra ]
(At the instance of Pant Nagar ]
Police Station, Mumbai in ]
C.R. No.109/2014) ]
2. XYZ ]
Age 25, Occupation : Not known ]
Through Pant Nagar Police Station ]
.....
Mr. Aliabbas Delhiwala, Appointed Advocate for Appellant.
Mr. A.R. Kapadnis, A.P.P, for Respondent No.1-State.
Mr. Vaibhav Gaikwad, Appointed Advocate for Respondent No.2.
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 31st July, 2023.
PRONOUNCED ON : 11th August, 2023.
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JUDGMENT:
1. By this appeal, the appellant challenges the judgment and
order passed by the Designated Court under the Protection of
Children from the Sexual Offences Act, 2012, Greater Bombay (for
short "POCSO Act") dated 12th March, 2019 passed in POCSO
Special Case No.457 of 2014 by which he has been convicted of the
offence punishable under section 376 of the Indian Penal Code (for
short "I.P.C") r/w section 6 of the POCSO Act and sentenced to
suffer rigorous imprisonment for 10 years with fine of 20,000/-, in
default, to suffer rigorous imprisonment for three months.
2. Prosecution case is as follows.
3. The prosecutrix who was aged about 17 years got acquainted
with the appellant in March, 2013 and they became friends. She
was in the 10th standard at the relevant time. Their friendship
ultimately turned into love. The prosecutrix and the appellant used
to meet frequently when the prosecutrix used to attend her
computer classes.
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4. In the month of November, 2013, the appellant invited the
prosecutrix for celebration of his birthday at Titwala. When the
prosecutrix reached Titwala, appellant asked her to accompany him
in a restaurant. The prosecutrix realized that it was a hotel with
lodging facility. It is the case of the prosecution that the appellant
thereafter forced the prosecutrix to remove her clothes and
thereafter committed sexual intercourse with her. The prosecutrix
could not resist as she was scared. Even she could not oppose the
act of the appellant. The appellant, however, convinced and
promised her that he would marry her. He, thereafter, again
committed sexual intercourse with her.
5. After a few hours, both returned to their respective places,
however, their meetings continued at her computer class. It is
further alleged that the appellant became so possessive of the
prosecutrix that he did not allow her to talk with her other friends.
The prosecutrix was disappointed with such behaviour of the
appellant and, therefore, stopped talking with him since January,
2014. The appellant, however, tried to establish contact with the
prosecutrix.
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6. In the month of February, 2014, the prosecutrix missed her
menstrual cycle. When her moth asked about it, being scared, she
could not disclose the fact. She was brought to Rajawadi Hospital
by her mother on 19th March, 2014. After undergoing medical
examination and sonography, it revealed that she was carrying a
foetus of 4 and ½ months in her womb.
7. The First Information Report (Exhibit 7) came to be lodged
on the same day. Information was given to P.W.10 - Vishnu Gopal
Talekar (retired P.S.I) who rushed to the Hospital with W.P.S.I
Suvarna Sonawane. Statement of the prosecutrix was recorded. A
crime was registered bearing Crime No.109 of 2014 against the
appellant under section 376 of the I.P.C, 4, 5 (j) (ii) and 6 of the
POCSO Act. The foetus was aborted on 23 rd March, 2014. The
appellant came to be arrested on 19 th March, 2014 itself. The
Investigating Officer recorded the statement of the witnesses, drew
spot panchanama (Exhibit 17) in respect of the room of the lodge
where the appellant alleged to have raped the prosecutrix, collected
samples of abortus as well as blood samples of the prosecutrix and
the appellant. Samples were forwarded to the Forensic Science
Laboratory for D.N.A analysis. Birth certificate of the prosecutrix
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was collected which revealed that her date of birth was 1 st April,
1997. After investigation, a charge-sheet was filed in the Court of
Special Judge under the POCSO Act. A charge was framed under
sections 4 and 6 of the POCSO Act and 376 of the I.P.C. The
appellant pleaded not guilty and claimed to be tried. 13 witnesses
have been examined. The learned Special Judge, after going
through the evidence and hearing the respective sides, by the
impugned judgment and order convicted and sentenced the appellant as
above.
8. I heard Mr. Delhiwala, learned Counsel for the appellant at a
considerable length as well as the learned A.P.P.
9. A brief note has been tendered by Mr. Delhiwala wherein he tried
to demonstrate as to how the prosecution has miserably failed to
establish the charge against the appellant beyond reasonable doubts. He
gave a comparative chart depicting the evidence of the prosecutrix during
trial vis-a-vis her statement under section 164 of the Cr. P.C
recorded by the Judicial Magistrate First Class, Mazgaon, Mumbai.
The learned Counsel has mainly argued on the aspect that the
prosecution has failed to establish that the victim was minor
at the time of the alleged offence and, secondly, even if
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evidence in the form of DNA report (Exhibit 50) indicates that the
appellant and the prosecutrix are biological parents of the DNA of
abortus of the prosecutrix, yet, according to Mr. Delhiwala, in the
absence of proper procedure being followed by the Investigating
Agency as to how the samples were collected, who carried the
samples, where samples were preserved in the Forensic Science
Laboratory, it cannot be said that the prosecution has proved that
the abortus of the prosecutrix is due to the act committed by the
appellant.
10. Learned Counsel in his elaborate argument attempted to bring
on record the previous conduct of the prosecutrix who had multiple
affairs. She was married with one Alex Behra who had been tried by
the prosecution wherein the prosecutrix in her evidence before the
trial Court admitted her relations as well as marriage with the said
Alex Behra. According to the learned Counsel, there are several
contradictions and omissions on record from which testimony of
the prosecutrix as well as the prosecution witnesses cannot be said
to be of sterling nature and gives rise to several doubts of which
benefit is required to be given to the appellant, who according to
Mr. Delhiwala, had undergone a substantial part of the sentence. In
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order to buttress his points as regard evidentiary value of the DNA
report, he has pressed into service a judgment of the Hon'ble
Supreme Court in the case of Rahul Vs. State of Delhi, Ministry of
Home Affairs and another, (2023) 1 Supreme Court Cases 83. The
Counsel has also invited my attention to the inconsistencies in the
evidence of the prosecutrix as regards the date, time and place of
alleged incident.
11. Per contra, the learned A.P.P took me through the evidence of
the prosecutrix as well as medical experts and the person who had
proved DNA report by contending that the prosecution has not
only established age of the prosecutrix as below 18 but also
established the fact that the appellant is the biological father of the
abortus. Learned A.P.P would argue that there are no suggestions
given to the prosecutrix by the defence that she was major on 14 th
November, 2011 when she had affair with the said Alex Behra with
whom the prosecutrix admitted her marriage. He has also invited
my attention to the school leaving certificate of the prosecutrix
which depicts her date of birth as "1th April, 1997". According to
him, there is no reason to doubt the genuineness of the school
leaving certificate of the prosecutrix which has been duly proved by
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the prosecution. As far as evidence in the form of DNA is
concerned, Mr. Kapadnis has placed reliance on a judgment in the
case of Mukesh and another Vs. State (NCT OF DELHI) and
others, (2017) 6 Supreme Court Cases, 1.
12. Two vital aspects are required to be seen in this appeal viz:
whether the prosecution has proved age of the prosecutrix, meaning
thereby, whether she was below 18 years at the time of the alleged
incident and secondly, whether D.N.A report which indicates that
the appellant and the prosecutrix are biological parents of the
abortus, can be accepted as a conclusive proof? In support of it's
case, prosecution examined as many as 13 witnesses.
13. It would be interesting to scan the evidence of the prosecutrix
who deposed as P.W.1. At the relevant time, the prosecutrix was
studying in 11th standard at Maheshwari Vidyalaya, Maniklala,
Ghatkopar (West). Since there was summer vacation, she was doing
a job of Compounder in the Hospital of one Dr. D.D. Bodare.
Appellant was residing in front of the Hospital. The appellant used
to follow and was trying to talk with her. However, she was
reluctant. When she joined Anubhav Computer Class, after taking
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admission in the College, the appellant continued following her.
Ultimately, it seems that friendship developed between the appellant
and the prosecutrix and thereafter it turned into love affair.
14. Coming to the alleged incident, it is testified by the
prosecutrix that in the month of November, 2013, the appellant
informed the prosecutrix that since he wanted to celebrate his
birthday, she has to participate in the said celebration. The appellant
took her to Titwala in a hotel. He booked a room. The appellant
thereafter tried to touch her and convinced her that he was going
to marry her and then forcibly committed rape upon her. The
prosecutrix calmed herself down and wept. The appellant again
raped her. After some time, both of them left the said hotel and
returned to their homes. Her evidence further reveals that in the
month of January, 2014, she missed her period and, therefore, her
mother, who was disturbed, asked her about it. As she was scared,
she did not disclose about the incident to her mother. When her
mother took her to Rajawadi Hospital on 19th March, 2014, after
sonography, it was found that the prosecutrix was carrying a foetus
of 4 and ½ months. The foetus was terminated at the Hospital. On
the same day, Police from Pantnagar Police Station recorded her
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statement and an First Information Report came to be registered
which is at Exhibit 7. It is surprising that if the incident of rape
alleged to have committed by the appellant in the month of
November, 2013, how the foetus was found to be 4 and ½ months
on 19th March, 2014 i.e merely after 3 months? P.W.6- Dr. Meena
Uday Saujani testified that the prosecutrix was examined by one Dr.
Nadima Sayyed at Rajawadi Hospital. Though P.W.6 - Dr. Meena
Saujani is a Doctor, she did not do anything except accompanying
Dr. Nadima Sayyed who had not only examined the prosecutrix but
also conducted M.T.P on 23rd March, 2014 with the consent of the
prosecutrix. It was Dr. Nadima Sayyed who had collected blood of
abortus, soft tissues as well as blood samples of the prosecutrix for
forwarding the same to the Forensic Science Laboratory. According
to the evidence of this witness, the prosecutrix had 18.3 weeks
gestation. Prosecution did not examine Dr. Nadima Sayyed for the
reasons best known to it. She would have been the best person to
give evidence as regards the gestation period of the prosecutrix.
This is significant in the light of several admissions given by the
prosecutrix herself in her cross which renders her testimony
unworthy of credit on the aspect of not only her date of birth but also on
the aspect that the appellant was responsible for impregnating her.
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15. In her cross-examination by the defence, the prosecutrix has
given several vital admissions which would again render her
testimony unworthy of credit as it would be very difficult to accept
her entire version as truthful in respect of the alleged incident. She
admits that her mother lodged a report with Pantnagar Police
Station on 14th November, 2011 against one Alex Behera for
kidnapping and rape. Alex Behra was charge-sheeted and tried for
various offences at the Sessions Court, Mumbai. The prosecutrix,
as a witness, deposed before Court Room No.31 of that Court. She
unequivocally admits that she was in love with Alex Behra and had
married with him. They resided as husband and wife. Alex Behra
was thereafter acquitted by the Sessions Court of the charges
framed against him. She admits that there is no documentary
evidence tendered by her for obtaining divorce of her marriage with
Alex Behra.
16. The prosecutrix has further admitted her second affair and
marriage with one Sajan Randive. She admits photograph at
Exhibit 12 as regards her marriage with said Sajan Randive. She
also admits that after her marriage with Sajan Randive, she
conceived, however, foetus was aborted. She did not obtain
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consent of Sajan Randive before aborting the foetus. She did not
disclose the date of abortion.
17. Prosecutrix's last marriage was with one Kanocharan Panda
on 18th February, 2018. The prosecutrix volunteered that at the
time of her affair with Alex Behra, she was 16 years. She also
categorically admits about giving false evidence of her marriage
with Alex Behra though she was never married to him. She also
admits that after her marriage with Kanocharan Panda, she ran
away from his house as he was not maintaining her but subjected to
beating and harassment. If the prosecutrix was 16 years of age
when her mother lodged a report on 15 th December, 2010, how
come she was below 18 years in November, 2013 when the
appellant alleged to have raped her by taking her to a lodge at
Titwala on the pretext of his birthday? In her evidence, she testified
that the appellant took her to a lodge at Titwala in November,
2013, however, no specific date has been stated. Interestingly,
during her cross-examination, she admits that the appellant took
her to Titwala on 27th June, 2013 and not in November, 2013.
Evidence of this witness, therefore, is highly unacceptable and
unbelievable. This particular aspect creates a reasonable doubt as
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regards the age of the prosecutrix. She, therefore, cannot be said to
be a witness of truth whose evidence is required to be discarded in
totality.
18. There are few more crucial aspects as regards her evidence. As
already stated, she testified about the alleged act of rape in the
month of November, 2013 when she met the appellant near
Ghatkopar Railway Station. In her statement under section 164 of
the Code of the Cr. P.C, she had stated that the appellant asked her
friend Geeta to get her to the party and, it was Geeta who took her
to Titwala. The appellant was already present in the Hotel. At the
instance of the appellant, she stayed with him in the Hotel where
the alleged incident occurred. The prosecution has not examined
friend of the prosecutrix namely Geeta who could have been the
best witness to depose as to whether she had, at the instance of the
appellant, took the prosecutrix to Titwala or whether it was the
appellant who had enticed her at the relevant time. Withholding the
evidence of Geeta would lead to drawing an adverse inference
against the prosecution.
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19. While giving medical history to Dr. Nadima Sayyed, the
prosecutrix had stated that it was a sexual intercourse which had
occurred at the home of the appellant in November, 2013, which is
in sharp contrast of what has been stated hereinbefore that she was
raped in a lodge at Titwala.
20. As regards her date of birth, surprisingly, the learned
Additional Sessions Judge, after the cross-examination of the
prosecutrix again recorded her examination-in-chief on the point of
her birth certificate which procedure is unknown to law. It seems
that learned Counsel for the appellant did not object such course
being followed by the learned Additional Sessions Judge. Be that as
it may. It seems that no age proof was annexed along with the
charge-sheet by the prosecution. No explanation appears to have
been given as to why it was produced by the prosecutrix at the time
of recording her evidence, that too, after completing the cross-
examination. Nevertheless, it has come on record in further
examination-in-chief that date of birth of the prosecutrix is 1 st
April, 1997. Learned Counsel for the appellant in the cross-
examination simply suggested that it is a forged birth certificate. It
was suggested to the prosecutrix that before the earlier session trial
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in the Sessions Court, she had already deposed about completing 18
years of age at the time of her marriage with Alex Behra. However,
the prosecutrix had denied the said suggestion. By merely deposing
about her date of birth and producing a certificate to that effect
cannot be accepted as a conclusive proof of her age in view of the
fact that the prosecution has neither examined author of the said
certificate nor there is any authenticate and acceptable evidence to
indicate that the said certificate was in fact issued when the
prosecutrix was born. A bare look at the said certificate (Exhibit
13), reveal that name of the prosecutrix is suffixed with "Kumari"
which is nowhere clarified by the prosecution as to whether it is in
respect of prosecutrix herself and not in respect of another girl.
Even the name of the mother of the prosecutrix is different than
what has been brought on record by the prosecution, in the sense,
name is wrongly spelled. There is no evidence on record as regards
authenticity of the entries at Exhibit 13. There is nothing to
indicate on whose information such entries stood recorded and
what was the source of information. Had there been evidence of her
parents, this aspect could have been clarified.
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21. Learned Counsel for the appellant has, therefore, placed
implicit reliance on a precedent of the Hon'ble Supreme Court in
the case of Madan Mohan Singh and others Vs. Rajni Kant and
another (2010) 9 Supreme Court Cases, 209. In this judgment it is
held that the entries made in the official record by an official or
person authorized in performance of official duties may be
admissible under Section 35 of the Evidence Act but the Court has a
right to examine their probative value. Authenticity of the entries
would depend on whose information such entries stood recorded
and what was the source of information. Similar view has been
expressed by the Hon'ble Supreme Court in the case of Murugan
alias Settu Vs. State of Tamil Nadu, (2011) 6 Supreme Court Cases
111 wherein it has been held that identity of the person connected
with birth register entries must be established by independent
evidence. Sans any independent evidence in order to establish the
entries in Exhibit 13 coupled with the several admissions of the
prosecutrix, it would not be safe to accept Exhibit 13 as a
conclusive proof of age of the prosecutrix at the time of the alleged
incident which has also not been proved by the prosecution. Spot
panchanama - Exhibit 17 as well F.I.R Exhibit 7 is also not free
from doubt, in the sense, there is an interpolation so far as the date of
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offence is concerned. "November, 2013" appears to have been
inserted subsequently by scrubbing the earlier date which has not
been explained by the prosecution anywhere, at least through the
evidence of P.W.10- Vishnu Talekar. Spot panchanama - Exhibit 17
clearly reveals that the prosecutrix was taken to Shri Ganesh Lodge
at Titwala on 27th June, 2014. However, again figure "4" in the year
2014 has been overwritten as "2013" which has not been explained
by the prosecution. These are all very serious discrepancies in the
prosecution case which definitely would go to it's root.
22. P.W.2- Kamal Shrichand Budhrani is the owner of Shri
Ganesh Lodge at Titwala, Kalyan. He had produced register and
relevant entries dated 27th June, 2013. The sum and substance of
his evidence is that the appellant and the prosecutrix had visited his
Hotel on 27th June, 2013. As already stated, it was the evidence of
the prosecutrix that she was taken to the said Lodge in November,
2013. P.W.2 - Kamal Budhrani could not identify the appellant
during trial. However, his evidence indicates that the boy who
accompanied the prosecutrix on that day was allotted Room
No.315 on the third floor. The said boy had tendered copy of his
PAN Card as well as given his Mobile number 9819960149.
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Evidence of this witness can be accepted with a pinch of salt for the
simple reason that he is a stock Police witness who admits in his
cross-examination that he deposed 50 to 60 times in various Courts
at Alibag, Kalyan, Thane and Mumbai. His evidence is full of
omissions, in the sense, he had, for the first time deposed in the
Court that the appellant and the prosecutrix had been to his lodge,
secondly, both had booked a room as they wanted to take rest after
taking Darshan in the temple. He had, further, for the first time
testified that his brother Amar took entry in the hotel register. As
regards handing over copy of PAN Card as well as mobile number
of the appellant is also proved to be an omission. Thus, evidence of
this witness is not at all helpful to the prosecution in proving the
fact that the appellant and the prosecutrix had visited Shri Ganesh
Lodge at Titwala. There is no evidence even on the aspect as to
whether he is really the owner of the said hotel. This witness had
not even been summoned to give evidence in the Court as he admits
that he appeared in the Court because he received a phone call from
the Police. The evidence of this witness is, therefore, worthless.
23. P.W4 - Dr. Satchidanand Shivlingappa Payannavar was
attached to Rajawadi Hospital as a Medical Officer at the relevant
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time. He collected blood samples of the appellant for DNA test.
According to this witness, Police Naik - Jagtap Buckle No.960083
brought tubes for collecting blood samples. It is not clear what kind
of tubes were brought by this Police Naik and from where. The
prosecution did not examine Police Naik Jagtap. There is no
evidence that the tubes were brought by Police Naik Jagtap from
the Forensic Science Laboratory. It is not the evidence of P.W. 4 -
Dr. Satchidanand Shivlingappa that Police Naik Jagtap had brought
a kit containing the tubes. This is important in the light of the fact
that the prosecution has sought to rely upon the DNA evidence for
establishing paternity of the abortus. Non examination of Police
Naik Jagtap would indeed fatal to the prosecution. Evidence of
P.W.4 - Dr. Satchindanand Shivalingappa reveals that he had handed
over the said two tubes to the MRO Department to seal it, meaning
thereby, this witness had not sealed the blood samples. He admits
that a form which was to be filled in at the relevant time and which
bears the seal and signature of the Officer is at Exhibit 20. The
original format was given to the Police which is marked as Exhibit
21. According to this witness, blood of the appellant was collected
for DNA profiling. Indoor paper which is marked as Exhibit 22
indicates date as "25.03.2014" instead of "26.03.2014". The
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witness testified that it was a mistake. As already stated, for want of
evidence of Police Naik Jagtap, it is difficult to ascertain what kind
of tubes were brought by him and from where. Secondly, there is
no evidence that he had in fact carried collected blood samples to
the Forensic Science Laboratory. The mistake, according to this
witness, in mentioning date as "25.03.2014" instead of
"26.03.2014" had not been intimated by him either to the Forensic
Science Laboratory or to the Investigating Officer. The evidence of
this witness is also not aboveboard. This is because even P.W.5 - Dr.
Kiran Sambhaji Kalyankar who was on duty at the same Hospital
had already on 20th March, 2014 examined the appellant and had
also collected the blood samples. If the appellant was already
produced before P.W. 5 - Dr. Kiran Kalyankar on 20 th March, 2014,
why was he again produced before P.W.4 - Dr. Satchidanand
Shivlingappa within 5 days i.e on 25 th March, 2014? Why his blood
samples were taken again by P.W.4 - Dr. Satchindanand
Shivalingappa if they are already taken by Dr. Kiran Kalyankar on
20th March, 2014. The prosecution has not explained twice
collection of blood of the appellant within a span of five days.
P.W.5 - Dr. Kiran Kalyankar testified that he collected the blood
samples for grouping and the same was sent to the Forensic Science
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Laboratory under seal and covering letter which is at Exhibit 31.
According to P.W.5 - Dr. Kiran Kalyankar, he could not collect
blood samples for DNA as required DNA kit was not brought by
the Police.
24. During his cross-examination, P.W.5 - Dr. Kiran Kalyankar
admits that entire form which was to be filled up by the Medical
officer has not been completely filled up by him. Name of the
appellant as well as the sections under which he was charged were
written by his clerk. He even could not remember as to whether
column which indicates that the consent of the appellant was taken
before his examination was written by him or by someone else. The
witness volunteered that it might be written by his Clerk. As such,
there is some scope for doubt as to whether P.W.4 - Dr.
Satchidanand Shivanligappa had properly collected and sealed the
blood samples and whether the same were forwarded to the
Forensic Science Laboratory in a kit provided by the Laboratory or
whether blood samples collected by P.W.5 - Kiran Kalyankar were
forwarded for the purpose of ascertaining the DNA profile?
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25. Now, coming to the evidence of P.W.6 - Dr. Meena Uday
Saujani. She was attached to Rajawadi Hospital at the relevant time
when the prosecutrix was brought by Police Buckle No.01462 of
Pantnagar Police Station. It is unclear whether the said Police was a
male of female. The sum and substance of the evidence of this
witness is that the prosecutrix was examined by Dr. Nadima Sayyed
to whom all the details were narrated by the prosecutrix. The role
of this witness, as it appears from her evidence is that she was just
present at the time of examination of the prosecutrix. Though she
testified that the prosecutrix was pregnant with 18.3 weeks
gestation and also to the fact that the foetus was aborted on 23 rd
March, 2014 after which sample of the foetus, soft tissues and
blood of the abortus were collected, yet all this procedure was not
conducted by this witness and, therefore, her evidence cannot be
accepted and relied upon in the absence of evidence of Dr. Nadima
Sayyed. The best evidence could have been of Dr. Nadima Sayyed
who has not been examined. There is even no evidence that she was
not subjected to the process of the Court. P.W.6 - Dr. Meena
Saujani testified that Dr. Pradhya and Dr. Motwani had terminated
pregnancy of the prosecutrix (MTP) on 23 rd March, 2014. Even
those two Doctors have not been examined by the prosecution.
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However, a photostat copy of the MTP report is proved at Exhibit
35.
26. It is pertinent to note that the soft tissues and blood of the
abortus were transferred in a DNA kit and handed over to the
Police after sealing it. It is not clear from the evidence of this
witness as to who collected soft tissues and transferred the same in a
DNA kit and handed over to the Police. This is also an important
fact which is missing from the evidence of this witness. She even
has not deposed that samples were collected by Dr. Nadima Sayyed
and handed over to the Police. There is no evidence as to whom
samples were given for sending it to Forensic Science Laboratory.
There is even no evidence as to who filled the form of the
prosecutrix when her samples were collected for DNA profile.
27. There is no doubt that P.W.12 - Shrikant Hanumant Lade
who was attached to Forensic Science Laboratory Kalina as an
Assistant Chemical Analyzer had conducted D.N.A profile test after
receipt of the D.N.A profile of the appellant as well as the
prosecutrix. He had concluded that the appellant and the
prosecutrix were biological parents of the D.N.A of Exhibit 2
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(abortus) of the proseutrix. Coming back to the evidence of P.W.6 -
Dr. Meena Saujani. As already stated above, her evidence would be
hardly of any assistance to the prosecution in light of the fact that
prosecution did not examine Dr. Nadima Sayyed, Dr. Pradhnya and
Dr. Motwani. There is no evidence that Dr. Nadima Sayyed had
left this country. Learned Counsel for the appellant submitted that
the prosecution had not produced sonography report and,
therefore, no evidence could have been given in respect of
contents of the said report in the absence of sonography report
on record.
28. P.W.7- Santosh Sitaram Chouhan was attached to Pantnagar
Police Station as Police Naik. What he testified is that he carried
two small plastic containers to the Forensic Science Laboratory,
Kalina as per the direction of P.W.13 - Kalpna Pawar who was
senior Police Inspector at the relevant time. A forwarding letter
dated 24th March, 2014 (Exhibit 38) is proved by this witness.
However, the said letter does not depict his name as to whether he
was authorized to carry the samples. There is no mention in
Exhibit 38 as to whose blood samples were forwarded to the
Forensic Science Laboratory by senior Police Inspector through
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Santosh Chouhan. The Clerk of the Forensic Science Laboratory
has put his endorsement acknowledging receipt of two sealed plastic
containers, however, it is difficult to understand what has been
forwarded to the Forensic Science Laboratory by P.W.13 - Kalpana
Pawar through this witness. Even P.W.8- Balkrishna Laxman Patade
who was attached to J.J. Marg Police Station testified that on 19 th
April, 2014, he carried almost 20 to 25 samples to the Forensic
Science Laboratory. It is difficult to understand as to why this
witness has been examined by the prosecution who was neither
attached to Pantnagar Police Station nor he was concerned with the
present case. In his cross-examination, he admits that he did not
know the persons whose blood samples he had deposited in the
Forensic Science Laboratory. His statement was also not recorded
by the Investigating Officer for carrying samples. He also admits
that he had no concern with Pantnagar Police Station at the relevant
time.
29. Coming back to the evidence of P.W.12- Shrikant Lade upon
whose evidence prosecution has tried to lay emphasis in order to
establish the charge against the appellant. His evidence mainly
indicates as to how he had extracted DNA from abortus of the
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prosecutrix and how the same was amplified by PCR (Polymerase
Chain Reaction). It is needless to go into the procedural aspects
and the technicalities as to how the D.N.A came to be extracted
from the blood sample of the prosecutrix and the abortus of the
prosecutrix. He opined that the appellant in Forensic Science
Laboratory ML case No. DNA 474/14 and the prosecutrix are
concluded to be the biological parents of DNA of Exh.2 (abortus)
of the prosecutrix. As already stated hereinabove, the evidence as
regards collection of blood samples of the appellant, prosecutrix
and the abortus as well as career has not been properly proved by
the prosecution. In view of the ratio laid down by the Hon'ble
Supreme Court in the case of Rahul Vs. State of Delhi, Ministry of
Home Affairs and another, (2023) 1 Supreme Court Cases, 36, it is
settled law that the DNA evidence is in the nature of opinion
evidence as envisaged under section 45 of the Evidence Act and like
any other opinion evidence, its probative value varies from case to
case. It has been held that;
"If the DNA evidence is not properly
documented, collected, packaged and preserved,
it will not meet the legal and scientific
requirements for admissibility in a court of law.
It is because extremely small samples of DNA
can be used as evidence, greater attention to
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contamination issues is necessary while locating,
collecting, and preserving DNA evidence can be
contaminated when DNA from another source
gets mixed with DNA relevant to the case. This
can happen when someone sneezes or coughs
over the evidence or touches his/her mouth,
nose, or other part of the fact and then touches
area that may contained the DNA to be tested.
The exhibits having biological specimen, which
can establish link among victim (s), suspect (s),
scene of crime for solving the case should be
identified, preserved, packed and sent for DNA
profiling."
30. It is not clear from the evidence of witnesses as to how long
the samples remained in the Malkhana of the Police Station.
Possibility of tampering of the samples can not be ruled out. Even
forwarding of samples in tubes has not been clearly proved by the
prosecution as to whether the samples were forwarded in a kit
provided by the Forensic Science Laboratory. In case of Rahul
(supra), the Hon'ble Supreme Court referred 153 rd report of Law
Commission of India which is extracted below;
"DNA evidence involves comparison between
genetic material thought to come from the
person whose identity is in issue and a sample
of genetic material from a known person. If
the samples do not "match", then this will
prove a lack of identity between the known
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person and the person from whom the
unknown sample originated. If the samples
match, that does not mean the identity is
conclusively proved. Rather, an expert will be
able to derive from a database of DNA
samples, an approximate number reflecting
how often a similar DNA "profile" or
"fingerprint" is found. It may be, for
example, that the relevant profile is found in
1 person in every 1,00,000: This is described
as the "random occurrence ratio" (Phipson
1999, 15th Edn., para 14.32).
Thus, DNA may be more useful for
purposes of investigation but not for raising
any presumption of identity in a court of
law".
Thus, DNA may be more useful for the purpose of investigation but
not for raising any presumption of identity in a court of law.
31. Thus, having taken into consideration the totality of the facts,
circumstances and evidence on record, it is difficult to hold that the
prosecution has proved it's case beyond all reasonable doubts since
it has failed in establishing age of the prosecutrix. Learned trial
Judge has not properly appreciated the evidence by ignoring several
inconsistencies, contradictions and omissions on record. Even the
date of the incident has not been established by the prosecution. For
the aforesaid reasons, a benefit of doubt needs to be given to the
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appellant. Consequently, following order is passed.
:ORDER:
[a] The Appeal is allowed.
[b] The judgment and order dated 12th March,
2019 passed by the Designated Judge under
Protection of Children from Sexual Offences
Act, 2012 in POCSO Special Case No.457 of
2014 is quashed and set aside and the appellant
is acquitted of the offence punishable under
section 6 of the POCSO Act.
[c] The appellant be released forthwith, if not
required in any other case.
[d] Amount of fine, if paid, be refunded to the
appellant.
32. Appeal stands disposed of.
33. In view of disposal of the appeal, Interim Application, stands
disposed of.
[PRITHVIRAJ K. CHAVAN, J.]
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