16. In the matter of Brijbhusan Singh v. Emperor2, the Privy
Council has observed that a statement made under Section
164 CrPC cannot be used as a substantive piece of evidence
and it can be used to cross-examine the person who made it,
and the result may be to show that the evidence of the
witness is false. But that does not establish that what he
stated out of Court under Section 164 CrPC is true.
Similarly, in Mamand and others v. Emperor3, it has been
observed by the Privy Council that the statement of a
witness made under Section 164 CrPC can be used only to
discredit the evidence given by him in Court, and not for any
other purpose. Such a statement cannot be treated as
substantive evidence of the facts stated.
17. In the matter of Ram Kishan Singh v. Harmit Kaur and
another4, with regard to the value to be given to a statement
under Section 164 CrPC, the Supreme Court has held that
"a statement under Section 164 of the Code of Criminal
Procedure is not substantive evidence. It can be used to
corroborate the statement of a witness. It can be used to
contradict a witness."
recorded under Section 164 CrPC constitutes substantial
evidence and held that a statement of a witness recorded
under Section 164 CrPC cannot be used as substantive
evidence and can be used only for the purpose of
contradicting or corroborating the maker of such statement.
21. Finally, in the matter of Somasundaram alias Somu v.
State represented by the Deputy Commissioner of
Police8, a three judge bench of the Supreme Court
considered the purport and value of Section 164 CrPC and
further considered the issue which is similar to the issue in
7 (2013) 14 SCC 266
8 (2020) 7 SCC 722
hand before us as to, what would be the position if the
person giving the statement resiles from the same completely
when he is examined as s witness ? In paragraph 81 of the
report following question was framed by their Lordships :-
it is quite vivid that statement of a person/witness under
Section 164 of Cr.P.C. is not an evidence, much less,
substantial evidence within the meaning of Section 3 of the
Evidence Act and it can be used only for the purpose of
corroboration or contradiction. In absence of any other
legally admissible evidence corroborating the evidence under
Section 164 of Cr.P.C., no conviction can be made on the
basis of statement under Section 164 of Cr.P.C.
24. Now, the second major basis for conviction of appellants is
the DNA report Ex. P-31. It is clear from the evidence that
the blood sample of the victim and the sample of her dead
fetus were collected on 25/04/2019 and the blood sample of
appellant Ram Singh was collected on 26/04/2019. The said
samples were sent for DNA test vide Exhibit P-30 on
27/04/2019 by the Superintendent of Police, District -
Narayanpur. As per the test report (Ex.P-31) of the DNA Unit
of the State Forensic Science Laboratory, Raipur, the said
samples were received in the laboratory after 4 days on
30/04/2019.
25. At this stage, it would be appropriate to notice Section 53A of
CrPC, which relates to examination of a person accused of
rape by medical practitioner as also Section 164A of CrPC,
which relates to medical examination of the victim of rape.
The legislature, in its wisdom, has inserted Section 53A and
Section 164A of the CrPC by the Act 25 of 2005 w.e.f.
23.06.2006 and same are reproduced as under:-
(3) The report shall state precisely the reasons for
each conclusion arrived at.
(4) The exact time of commencement and
completion of the examination shall also be noted
in the report.
(5) The registered medical practitioner shall,
without delay, forward the report of the
investigating officer, who shall forward it to the
Magistrate referred to in Section 173 as part of the
164A. Medical examination of the victim of
rape.-(1) Where, during the stage when an offence
of committing rape or attempt to commit rape is
under investigation, it is proposed to get the person
of the woman with whom rape is alleged or
attempted to have been committed or attempted,
examined by a medical expert, such examination
shall be conducted by a registered medical
practitioner employed in a hospital run by the
Government or a local authority and in the absence
of such a practitioner, by any other registered
medical practitioner, with the consent of such
woman or of a person competent to give such
consent on her behalf and such woman shall be
sent to such registered medical practitioner within
twenty-four hours from the time of receiving the
information relating to the commission of such
offence.
(2) The registered medical practitioner, to whom
such woman is sent shall, without delay, examine
her person and prepare a report of his examination
giving the following particulars, namely:-
(vi) other material particulars in reasonable detail,
(3) The report shall state precisely the reasons for
each conclusion arrived at.
(4) The report shall specifically record that the
consent of the woman or of the person competent,
to give such consent on her behalf to such
examination had been obtained.
(5) The exact time of commencement and
completion of the examination shall also be noted
in the report.
(6) The registered medical practitioner shall,
without delay forward the report to the
investigating officer who shall forward it to the
Magistrate referred to in Section 173 as part of the
documents referred to in clause (a) of Sub-Section
(5) of that section. (7) Nothing in this section shall
be construed as rendering lawful any examination
without the consent of the woman or of any person
competent to give such consent on her behalf."
26. The scope of DNA test has elaborately been discussed by
their Lordships of the Supreme Court in the matter of Anil
alias Anthony Arikswamy Joseph v. State of
Maharashtra9 and it has been held in Para-18 as under:-
"18. Deoxyribonucleic acid, or DNA, is a molecule
that encodes the genetic information in all living
organisms. DNA genotype can be obtained from any
biological material such as bone, blood, semen,
saliva, hair, skin, etc. Now, for several years, DNA
profile has also shown a tremendous impact on
forensic investigation. Generally, when DNA profile
of a sample found at the scene of crime matches
with DNA profile of the suspect, it can generally be
concluded that both samples have the same
biological origin. DNA profile is valid and reliable,
but variance in a particular result depends on the
quality control and quality procedure in the
laboratory."
9 (2014) 4 SCC 69
27. Similarly, in the matter of Mukesh and another v. State
(NCT of Delhi) and others10 the procedure to be adopted for
collecting the samples as well as the precautions which are
to be taken for conducting the DNA test has elaborately been
discussed by their Lordships of Supreme Court in Para-221
to 228 of the judgment, are are reproduced herein for the
sake of convenience.
"211. DNA is the abbreviation of Deoxyribo
Nucleic Acid. It is the basic genetic material in all
human body cells. It is not contained in red blood
corpuscles. It is, however, present in white
corpuscles. It carries the genetic code. DNA
structure determines human character, behaviour
and body characteristics. DNA profiles are
encrypted sets of numbers that reflect a person's
DNA makeup which, in forensics, is used to identify
human beings. DNA is a complex molecule. It has a
double helix structure which can be compared with
a twisted rope 'ladder'.
212. The nature and characteristics of DNA had
been succinctly explained by Lord Justice Phillips
in Regina v. Alan James Doheny & Gary Adams,
(1997) 1 Cr App R 369 (CA). In the above case, the
accused were convicted relying on results obtained
by comparing DNA profiles obtained from a stain
left at the scene of the crime with DNA profiles
obtained from a sample of blood provided by the
appellant. In the above context, with regard to DNA,
the following was stated by Lord Justice Phillips:
"Deoxyribonucleic acid, or DNA, consists of long
ribbon-like molecules, the chromosomes, 46 of
which lie tightly coiled in nearly every cell of the
body. These chromosomes - 23 provided from the
mother and 23 from the father at conception,
form the genetic blueprint of the body. Different
sections of DNA have different identifiable and
10 (2017) 6 SCC 1
discrete characteristics. When a criminal leaves a
stain of blood or semen at the scene of the crime
it may prove possible to extract from that crime
stain sufficient sections of DNA to enable a
comparison to be made with the same sections
extracted from a sample of blood provided by the
suspect. This process is complex and we could
not hope to describe it more clearly or succintly
than did Lord Taylor C.J. in R. v. Deen, The
Times, 10-01-1994 (transcript: 21-121993), so we
shall gratefully adopt his description:
"The process of DNA profiling starts with
DNA being extracted from the crime stain
and also from a sample taken from the
suspect. In each case the DNA is cut into
smaller lengths by specific enzymes. The
fragments produced are sorted according to
size by a process of electrophoresis. This
involves placing the fragments in a gel and
drawing them electromagnetically along a
track through the gel. The fragments with
smaller molecular weight travel further than
the heavier ones. The pattern thus created
is transferred from the gel onto a
membrane. Radioactive DNA probes, taken
from elsewhere, which bind with the
sequences of most interest in the sample
DNA are then applied. After the excess of
the DNA probe is washed off, an X-ray film
is placed over the membrane to record the
band pattern. This produces an auto
radiograph which can be photographed.
When the crime stain DNA and the sample
DNA from the suspect have been run in
separate tracks through the gel, the
resultant auto-radiographs can be
compared. The two DNA profiles can then
be said either to match or not.""
213. In the United States, in an early case Frye v.
United States, 54 App DC 46 : 293 F 10103 (1923),
it was laid down that scientific evidence is
admissible only if the principle on which it is based
is substantially established to have general
acceptance in the field to which it belonged. The US
Supreme Court reversed the above formulation in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993
SCC Online US SC 104 stating thus:
"Although the Frye (supra) decision itself focused
exclusively on "novel" scientific techniques, we do
not read the requirements of Rule 702 to apply
specially or exclusively to unconventional
evidence. Of course, well- established
propositions are less likely to be challenged than
those that are novel, and they are more handily
defended. Indeed, theories that are so firmly
established as to have attained the status of
scientific law, such as the laws of
thermodynamics, properly are subject to judicial
notice under Federal Rule of Evidence 201.
* * *
This is not to say that judicial interpretation, as
opposed to adjudicative fact finding, does not
share basic characteristics of the scientific
endeavor:
"The work of a judge is in one sense enduring
and in another ephemeral... In the endless
process of testing and retesting, there is a
constant rejection of the dross and a constant
retention of whatever is pure and sound and
fine." B.Cardozo, The nature of the Judicial
Process at pp.178, 179 (1921)."
214. The principle was summarized by Blackmun,
J., as follows: [Daubet (supra)]
"To summarize: "general acceptance" is not a
necessary precondition to the admissibility of
scientific evidence under the Federal Rules of
Evidence, but the Rules of Evidence--especially
Rule 702--do assign to the trial judge the task of
ensuring that an expert's testimony both rests on
a reliable foundation and is relevant to the task
at hand. Pertinent evidence based on
scientifically valid principles will satisfy those
demands.
The inquiries of the District Court and the Court
of Appeals focused almost exclusively on "general
acceptance," as gauged by publication and the
decisions of other courts. Accordingly, the
judgment of the Court of Appeals is vacated and
the case is remanded for further proceedings
consistent with this opinion."
After the above judgment, the DNA Test has been
frequently applied in the United States of America.
215. In District Attorney's Office for the Third
Judicial District v. Osborne, 2009 SCC Online US SC
73, Roberts, C.J. of the Supreme Court of United
States, while referring to the DNA Test, stated as
follows:
"DNA testing has an unparalleled ability both to
exonerate the wrongly convicted and to identify
the guilty. It has the potential to significantly
improve both the criminal justice system and
police investigative practices. The Federal
Government and the States have recognized this,
and have developed special approaches to ensure
that this evidentiary tool can be effectively
incorporated into established criminal procedure-
usually but not always through legislation.
* * *
Modern DNA testing can provide powerful new
evidence unlike anything known before. Since its
first use in criminal investigations in the mid-
1980s, there have been several major advances
in DNA technology, culminating in STR
technology. It is now often possible to determine
whether a biological tissue matches a suspect
with near certainty. While of course many
criminal trials proceed without any forensic and
scientific testing at all, there is no technology
comparable to DNA testing for matching tissues
when such evidence is at issue."
216. DNA technology as a part of Forensic Science
and scientific discipline not only provides guidance
to investigation but also supplies the Court accrued
information about the tending features of
identification of criminals. The recent advancement
in modern biological research has regularized
Forensic Science resulting in radical help in the
administration of justice. In our country also like
several other developed and developing countries,
DNA evidence is being increasingly relied upon by
courts. After the amendment in the Criminal
Procedure Code by the insertion of Section 53A by
Act 25 of 2005, DNA profiling has now become a
part of the statutory scheme. Section 53A relates to
the examination of a person accused of rape by a
medical practitioner.
217. Similarly, under Section 164A inserted by Act
25 of 2005, for medical examination of the victim of
rape, the description of material taken from the
person of the woman for DNA profiling is must.
Section 53A sub-section (2) as well as Section
164(A) sub-section (2) are to the following effect:
"Section 53A. Examination of person accused
of rape by Medical Practitioner.-(1) ... ... ... ...
(2) The registered medical practitioner conducting
such examination shall, without delay, examine
such person and prepare a report of his
examination giving the following particulars,
namely:-
(i) the name and address of the accused and of
the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the
accused,
(iv) the description of material taken from the
person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail.
Section 164A. Medical Examination of
the victim of rape.- (1) ... ... ... ...
(2) The registered medical practitioner, to whom
such woman is sent, shall, without delay,
examine her person and prepare a report of his
examination giving the following particulars,
namely:-
(i) the name and address of the woman and of the
person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the
person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the
woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable
detail."
218. This Court had the occasion to consider
various aspects of DNA profiling and DNA reports.
K.T. Thomas, J. in Kamti Devi (Smt.) and another v.
Poshi Ram, (2001) 5 SCC 311 observed: (SCC p.
316, para10)
"10. We may remember that Section 112 of the
Evidence Act was enacted at a time when the
modern scientific advancements with
deoxyribonucleic acid (DNA) as well as
ribonucleic acid (RNA) tests were not even in
contemplation of the legislature. The result of a
genuine DNA test is said to be scientifically
accurate. ..."
219. In Pantangi Balarama Venkata Ganesh v.
State of Andhra Pradesh, (2009) 14 SCC 607, a two-
Judge Bench had explained as to what is DNA in
the following manner:
"41. Submission of Mr Sachar that the report of
DNA should not be relied upon, cannot be
accepted. What is DNA? It means:
"Deoxyribonucleic acid, which is found in
the chromosomes of the cells of living
beings is the blueprint of an individual.
DNA decides the characteristics of the
person such as the colour of the skin, type
of hair, nails and so on. Using this genetic
fingerprinting, identification of an individual
is done like in the traditional method of
identifying fingerprints of offenders. The
identification is hundred per cent precise,
experts opine."
There cannot be any doubt whatsoever that there
is a need of quality control. Precautions are
required to be taken to ensure preparation of
high molecular weight DNA, complete digestion of
the samples with appropriate enzymes, and
perfect transfer and hybridization of the blot to
obtain distinct bands with appropriate control.
(See article of Lalji Singh, Centre for Cellular and
Molecular Biology, Hyderabad in DNA profiling
and its applications.) But in this case there is
nothing to show that such precautions were not
taken.
42. Indisputably, the evidence of the experts is
admissible in evidence in terms of Section 45 of
the Evidence Act, 1872. In cross-examination,
PW 46 had stated as under:
"If the DNA fingerprint of a person matches
with that of a sample, it means that the
sample has come from that person only. The
probability of two persons except identical
twins having the same DNA fingerprint is
around 1 in 30 billion world population."
220. In Santosh Kumar Singh v. State Through CBI,
(2010) 9 SCC 747, which was a case of a young girl
who was raped and murdered, the DNA reports
were relied upon by the High Court which were
approved by this Court and it was held thus:
"71. We feel that the trial court was not justified
in rejecting the DNA report, as nothing adverse
could be pointed out against the two experts who
had submitted it. We must, therefore, accept the
DNA report as being scientifically accurate and
an exact science as held by this Court in Kamti
Devi v. Poshi Ram (supra). In arriving at its
conclusions the trial court was also influenced by
the fact that the semen swabs and slides and the
blood samples of the appellant had not been kept
in proper custody and had been tampered with,
as already indicated above. We are of the opinion
that the trial court was in error on this score. We,
accordingly, endorse the conclusions of the High
Court on Circumstance 9."
221. In Inspector of Police, Tamil Nadu v. John
David, (2011) 5 SCC 509 a young boy studying in
MBBS Course was brutally murdered by his senior.
The torso and head were recovered from different
places which were identified by the father of the
deceased. For confirming the said facts, the blood
samples of the father and mother of the deceased
were taken which were subject to DNA test. From
the DNA, the identification of the deceased was
proved. Paragraph 60 of the decision is reproduced
below:
"60. ... The said fact was also proved from the
DNA test conducted by PW 77. PW 77 had
compared the tissues taken from the severed
head, torso and limbs and on scientific analysis
he has found that the same gene found in the
blood of PW1 and Baby Ponnusamy was found in
the recovered parts of the body and that therefore
they should belong to the only missing son of
PW1."
222. In Krishan Kumar Malik v. State of Haryana,
(2011) 7 SCC 130, in a gang rape case when the
prosecution did not conduct DNA test or analysis
and matching of semen of the appellant-accused
with that found on the undergarments of the
prosecutrix, this Court held that after the
incorporation of Section 53- A in CrPC, it has
become necessary for the prosecution to go in for
DNA test in such type of cases. The relevant
paragraph is reproduced below:
"44. Now, after the incorporation of Section 53-A
in the Cr.P.C w.e.f 23.06.2006, brought to our
notice by the learned counsel for the respondent
State, it has become necessary for the
prosecution to go in for DNA test in such type of
cases, facilitating the prosecution to prove its
case against the accused. Prior to 2006, even
without the aforesaid specific provision in CrPC
the prosecution could have still restored to this
procedure of getting the DNA test or analysis and
matching of semen of the appellant with that
found on the undergarments of the prosecutrix to
make it a foolproof case, but they did not do so,
thus they must face the consequences."
223. In Surendra Koli v. State of Uttar Pradesh and
others, (2011) 4 SCC 80 the appellant, a serial
killer, was awarded death sentence which was
confirmed by the High Court. While confirming the
death sentence, this Court relied on the result of
the DNA test conducted on the part of the body of
the deceased girl. Para 12 is reproduced below:-
"12. The DNA test of Rimpa by CDFD, a pioneer
institute in Hyderabad matched with that of
blood of her parents and brother. The doctors at
AIIMS have put the parts of the deceased girls
which have been recovered by the doctors of
AIIMS together. These bodies have been
recovered in the presence of the doctors of AIIMS
at the pointing out by the accused Surendra Koli.
Thus, recovery is admissible under Section 27 of
the Evidence Act."
224. In Mohammed Ajmal Mohammad Amir Kasab
alias Abu Mujahid v. State of Maharashtra, (2012) 9
SCC 1, the accused was awarded death sentence on
charges of killing large number of innocent persons
on 26th November, 2008 at Bombay. The accused
with others had come from Pakistan using a boat
'Kuber' and several articles were recovered from
'Kuber'. The stains of sweat, saliva and other bodily
secretions on those articles were subjected to DNA
test and the DNA test matched with several
accused. The Court observed:
"333. It is seen above that among the articles
recovered from Kuber were a number of blankets,
shawls and many other items of clothing. The
stains of sweat, saliva and other bodily secretions
on those articles were subjected to DNA profiling
and, excepting Imran Babar (deceased Accused
2), Abdul Rahman Bada (deceased Accused 5),
Fahadullah (deceased Accused 7) and Shoaib
(deceased Accused 9), the rest of six accused
were connected with various articles found and
recovered from the Kuber. The appellant's DNA
matched the DNA profile from a sweat stain
detected on one of the jackets. A chart showing
the matching of the DNA of the different accused
with DNA profiles from stains on different articles
found and recovered from the Kuber is annexed
at the end of the judgment as Schedule III."
225. In Sandeep v. State of Uttar Pradesh, (2012) 6
SCC 107, the facts related to the murder of
pregnant paramour/girlfriend and unborn child of
the accused. The DNA report confirmed that the
appellant was the father of the unborn child. The
Court, relying on the DNA report, stated as follows:
"67. In the light of the said expert evidence of the
Junior Scientific Officer it is too late in the day
for the appellant Sandeep to contend that
improper preservation of the foetus would have
resulted in a wrong report to the effect that the
accused Sandeep was found to be the biological
father of the foetus received from the deceased
Jyoti. As the said submission is not supported by
any relevant material on record and as the
appellant was not able to substantiate the said
argument with any other supporting material, we
do not find any substance in the said
submission. The circumstance, namely, the
report of DNA in having concluded that accused
Sandeep was the biological father of the
recovered foetus of Jyoti was one other relevant
circumstance to prove the guilt of the said
accused."
226. In Rajkumar v. State of Madhya Pradesh,
(2014) 5 SCC 353 the Court was dealing with a case
of rape and murder of a 14 year old girl. The DNA
report established the presence of semen of the
appellant in the vaginal swab of the prosecutrix.
The conviction was recorded relying on the DNA
report. In the said context, the following was stated:
"8. The deceased was 14 years of age and a
student in VIth standard which was proved from
the school register and the statement of her
father Iknis Jojo (PW1). Her age has also been
mentioned in the FIR as 14 years. So far as
medical evidence is concerned, it was mentioned
that the deceased prosecutrix was about 16 years
of age. So far as the analysis report of the
material sent and the DNA report is concerned, it
revealed that semen of the appellant was found
on the vaginal swab of the deceased. The clothes
of the deceased were also found having
appellant's semen spots. The hair which were
found near the place of occurrence were found to
be that of the appellant."
227. In Nandlal Wasudeo Badwaik v. Lata Nandlal
Badwaik, (2014) 2 SCC 576 the appellant, father of
the child born to his wife, questioned the paternity
of the child on the ground that she did not stay
with him for the last two years. The Court directed
for DNA test. The DNA result opined that the
appellant was not the biological father of the child.
The Court also had the occasion to consider Section
112 of the Evidence Act which raises a presumption
that birth during marriage is conclusive proof of
legitimacy. The Court relied on the DNA test
holding the DNA test to be scientifically accurate.
The pertinent observations are extracted below:
"19. The husband's plea that he had no access to
the wife when the child was begotten stands
proved by the DNA test report and in the face of
it, we cannot compel the appellant to bear the
fatherhood of a child, when the scientific reports
prove to the contrary. We are conscious that an
innocent child may not be bastardised as the
marriage between her mother and father was
subsisting at the time of her birth, but in view of
the DNA test reports and what we have observed
above, we cannot forestall the consequence. It is
denying the truth. "Truth must triumph" is the
hallmark of justice.
20. As regards the authority of this Court in
Kamti Devi, this Court on appreciation of
evidence came to the conclusion that the
husband had no opportunity whatsoever to have
liaison with the wife. There was no DNA test held
in the case. In the said background i.e. non-
access of the husband to the wife, this Court held
that the result of DNA test "is not enough to
escape from the conclusiveness of Section 112of
the Act." The judgment has to be understood in
the factual scenario of the said case. The said
judgment has not held that DNA test is to be
ignored. In fact, this Court has taken note of the
fact that DNA test is scientifically accurate. We
hasten to add that in none of the cases referred
to above, this Court confronted with a situation
in which a DNA test report, in fact, was available
and was in conflict with the presumption of
conclusive proof of legitimacy of the child under
Section 112 of the Evidence Act. In view of what
we have observed above, these judgments in no
way advance the case of the respondents."
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."
28. The Supreme Court again in the matter of Pattu Rajan
v. State of Tamil Nadu 11 considered the evidentiary
value of DNA test in light of the provisions contained in
Section 45 of the Indian Evidence Act, 1872 and held in
Para-49 & 50 as under:
"49. One cannot lose sight of the fact that DNA
evidence is also in the nature of opinion evidence as
envisaged in Section 45 of the Indian Evidence Act.
Undoubtedly, an expert giving evidence before the
Court plays a crucial role, especially since the
entire purpose and object of opinion evidence is to
aid the Court in forming its opinion on questions
concerning foreign law, science, art, etc., on which
the Court might not have the technical expertise to
form an opinion on its own. In criminal cases, such
questions may pertain to aspects such as ballistics,
fingerprint matching, handwriting comparison, and
even DNA testing or superimposition techniques, as
seen in the instant case.
50. The role of an expert witness rendering opinion
evidence before the Court may be explained by
referring to the following observations of this Court
11 (2019) 4 SCC 771
in Ramesh Chandra Agrawal v. Regency Hospital
Limited & Ors:
"16. The law of evidence is designed to ensure
that the court considers only that evidence which
will enable it to reach a reliable conclusion. The
first and foremost requirement for an expert
evidence to be admissible is that it is necessary
to hear the expert evidence. The test is that the
matter is outside the knowledge and experience
of the lay person.
Thus, there is a need to hear an expert opinion
where there is a medical issue to be settled. The
scientific question involved is assumed to be not
within the court's knowledge.
Thus cases where the science involved, is highly
specialized and perhaps even esoteric, the central
role of an expert cannot be disputed..."
29. Recently, in the matter of Manoj and others vs. State of
Madhya Pradesh12 their Lordships of the Supreme Court
while highlighting the need to ensure quality testing and
lesser possibility of tempering of evidence has elaborately
discussed the evidentiary value of the DNA report and laid
down the law with regard to DNA Profiling Methodology,
Statistical Analysis and Collection & Preservation of
Evidence and held in Paras-151 to 158 as under:
"151. During the hearing, an article published by
the Central Forensic Science Laboratory, Kolkata 13 was
relied upon. The relevant extracts of the article are
reproduced below:
"Deoxyribonucleic acid (DNA} is genetic material
present in the nuclei of cells of living organisms.
An average human body is composed of about
12 (2023) (2) SCC 353 : 2002 SCC Online SC 677
13 DNA Profiling in Justice Delivery System, Central Forensic Science Laboratory,
Directorate of Forensic Science, Kolkata (2007) .
100 trillion of cells. DNA is present in the
nucleus of cell as double helix, supercoiled to
form chromosomes along with Intercalated
proteins. Twenty-three pairs of chromosomes
present In each nucleated cells and an individual
Inherits 23 chromosomes from mother and 23
from father transmitted through the ova and
sperm respectively. At the time of each cell
division, chromosomes replicate and one set goes
to each daughter cell. All Information about
Internal organisation, physical characteristics,
and physiological functions of the body is
encoded in DNA molecules in a language
(sequence) of alphabets of four nucleotides or
bases: Adenine (A), Guanine (G}, Thymine (T} and
Cytosine (C) along with sugar- phosphate
backbone. A human haploid cell contains 3
billion bases approx. All cells of the body have
exactly same DNA but it varies from individual to
Individual in the sequence of nucleotides.
Mitochondrial DNA (mtDNA} found in large
number of copies in the mitochondria is circular,
double stranded, 16,569 base pair in length and
shows maternal inheritance. It is particularly
useful in the study of people related through the
maternal line. Also being in large number of
copies than nuclear DNA, it can be used in
the analysis of degraded samples. Similarly, the Y
chromosome shows paternal inheritance and is
employed to trace the male lineage and resolve
DNA from males in sexual assault mixtures.
Only 0.1 % of DNA (about 3 million bases}
differs from one person to another. Forensic DNA
Scientists analyse only few variable regions to
generate a DNA profile of an individual to
compare with biological clue materials or control
samples.
................................................
DNA Profiling Methodology
DNA profile is generated from the body
fluids, stains, and other biological specimen
recovered from evidence and the results are
compared with the results obtained from
reference samples. Thus, a link among victim(s)
and/or suspect(s) with one another or with crime
scene can be established. DNA Profiling Is a
complex process of analyses of some highly
variable regions of DNA. The variable areas of
DNA are termed Genetic Markers. The current
genetic markers of choice for forensic purposes
are Short Tandem Repeats (STRs). Analysis of a
set of 15 STRs employing Automated DNA
Sequencer gives a DNA Profile unique to an
Individual (except monozygotic twin). Similarly,
STRs present on Y chromosome (Y- STR) can also
be used in sexual assault cases or determining
paternal lineage. In cases of sexual assaults, Y-
STRs are helpful in detection of male profile even
in the presence of high level of female portion or
in case of azoo11permic or vasectomized" male.
Cases In which DNA had undergone 40 DNA
profiling in Justice Delivery System, Central
Forensic Science Laboratory, Directorate of
Forensic Science, Kolkata (2007). environmental
stress and biochemical degradation, min lSTRs
can be used for over routine STR because of
shorter amplicon size.
DNA Profiling is a complicated process and
each sequential step involved in generating a
profile can vary depending on the facilities
available In the laboratory. The analysis
principles, however, remain similar, which
include:
1. isolation, purification & quantitation of DNA
2. amplification of selected genetic markers
3. visualising the fragments and genotyping
4. statistical analysis & interpretation.
In mt DNA analysis, variations in
Hypervariable Region I & II (HVR I & II) are
detected by sequencing and comparing results
with control samples:
Statistical Analysis
Atypical DNA case involves comparison of
evidence samples, such as semen from a rape,
and known or reference samples, such as a blood
sample from a suspect. Generally, there are three
possible outcomes of profile comparison:
1) Match: If the DNA profiles obtained from
the two samples are indistinguishable, they are
said to have matched.
2) Exclusion: If the comparison of profiles
shows differences, it can only be explained by the
two samples originating from different sources.
3) Inconclusive: The data does not support a
conclusion Of the three possible outcomes, only
the "match" between samples needs to be
supported by statistical calculation. Statistics
attempt to provide meaning to the match. The
match statistics are usually provided as an
estimate of the Random Match Probability (RMP)
or in other words, the frequency of the particular
DNA profile in a population.
In case of paternity/maternity testing,
exclusion at more than two loci is considered
exclusion. An allowance of 1 or 2 loci possible
mutations should be taken Into consideration
while reporting a match. Paternity of Maternity
Indices and Likelihood Ratios are calculated
further to support the match.
Collection and Preservation of Evidence
If 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. Because
extremely small samples of DNA can be used as
evidence, greater attention to 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
face and then touches area that may contain 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.
152. In an earlier judgment, R v. Dohoney & Adams,
(1997) 1 Crl App Rep 369 (CA), the UK Court of Appeal
laid down the following guidelines concerning the
procedure for introducing DNA evidence in trials: (1)
the scientist should adduce the evidence of the DNA
41 1997 (1) Crl App Rep 369 comparisons together
with his calculations of the random occurrence ratio;
(2) whenever such evidence is to be adduced, the
Crown (prosecution) should serve upon the defence
details as to how the calculations have been carried
out, which are sufficient for the defence to scrutinise
the basis of the calculations; (3) the Forensic Science
Service should make available to a defence expert, if
requested, the databases upon which the calculations
have been based.
153. The Law Commission of India in its 185 th Report
on Review of the Indian Evidence Act, 2003, observed
as follows:
"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 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 100,000: This is
described as the 'random occurrence ratio'
(Phipson 1999).
Thus, DNA may be more useful for purposes of
investigation but not for raising any presumption
of identity in a court of law."
154. In Dharam Deo Yadav v. State of UP, (2014) 5
SCC 509 this Court discussed the reliability of DNA
evidence in a criminal trial, and held as follows:
"36. The DNA stands for deoxyribonucleic acid,
which is the biological blueprint of every life. DNA
is made-up of a double standard structure
consisting of a deoxyribose sugar and phosphate
backbone, cross-linked with two types of nucleic
acids referred to as adenine and guanine, purines
and thymine and cytosine pyrimidines.....DNA
usually can be obtained from any biological
material such as blood, semen, saliva, hair, skin,
bones, etc. The question as to whether DNA tests
are virtually infallible may be a moot question,
but the fact remains that such test has come to
stay and is being used extensively in the
investigation of crimes and the Court often
accepts the views of the experts, especially when
cases rest on circumstantial evidence. More than
half a century, samples of human DNA began to
be used in the criminal justice system. Of course,
debate lingers over the safeguards that should be
required in testing samples and in presenting the
evidence in Court. DNA profile, however, is
consistently held to be valid and reliable, but of
course, it depends on the quality control and
quality assurance procedures in the laboratory."
42 185th Report, on Review of the Indian
Evidence Act, 2003 43 (2015) 5 SCC 509.
155. The US Supreme Court, in District Attorney's
Office for the Third Judicial District v. Osborne (supra)
dealt with a post- conviction claim to access evidence,
at the behest of the convict, who wished to prove his
innocence, through new DNA techniques. It was
observed, in the context of the facts, that
"Modern DNA testing can provide powerful new
evidence unlike anything known before. Since its
first use in criminal investigations in the mid-
1980s, there have been several major advances
in DNA technology, culminating in STR
technology. It is now often possible to determine
whether a biological tissue matches a suspect
with near certainty. While of course many
criminal trials proceed without any forensic and
scientific testing at all, there is no technology
comparable to DNA testing for matching tissues
when such evidence is at issue. DNA testing has
exonerated wrongly convicted people, and has
confirmed the convictions of many others."
156. Several decisions of this Court - Pantangi
Balarama Venkata Ganesh v. State of Andhra
Pradesh, (2009) 14 SCC 607; Santosh Kumar Singh v.
State; (2010) 9 SCC 747; State of Tamil Nadu v. John
David, (2011) 5 SCC 509; Krishan Kumar Malik v.
State of Haryana; (2011) 7 SCC 130; Surendra Koli v.
State of Uttar Pradesh; (2011) 4 SCC 80; Sandeep v.
State of Uttar Pradesh, (2012) 6 SCC 107; Rajkumar v.
State of Madhya Pradesh, (2014) 5 SCC 353; and
Mukesh (supra) have dealt with the increasing
importance of DNA evidence. This court has also
emphasized the need for assuring quality control,
about the samples, as well as the technique for
testing- in Anil v. State of Maharashtra, (2014) 4 SCC
69:
"18. Deoxyribonucleic acid, or DNA, is a molecule
that encodes the genetic information in all living
organisms. DNA genotype can be obtained from
any biological material such as bone, blood,
semen, saliva, hair, skin, etc. Now, for several
years, DNA profile has also shown a tremendous
impact on forensic investigation. Generally, when
DNA profile of a sample found at the scene of
crime matches with DNA profile of the suspect, it
can generally be concluded that both samples
have the same biological origin. DNA profile is
valid and reliable, but variance in a particular
result depends on the quality control and quality
procedure in the laboratory."
157. This court, in one of its recent decisions- Pattu
Rajan v. The State of Tamil Nadu, considered the
value and weight to be attached to a DNA report:
"52. Like all other opinion evidence, the probative
value accorded to DNA evidence also varies from
case to case, depending on facts and
circumstances and the weight accorded to other
evidence on record, whether contrary or
corroborative. This is all the more important to
remember, given that even though the accuracy
of DNA evidence may be increasing with the
advancement of science and technology with
every passing day, thereby making it more and
more reliable, we have not yet reached a juncture
where it may be said to be infallible. Thus, it
cannot be said that the absence of DNA evidence
would lead to an adverse inference against a
party, especially in the presence of other cogent
and reliable evidence on record in favour of such
party."
158. This court, therefore, has relied on DNA reports,
in the past, where the guilt of an accused was sought
to be established. Notably, the reliance, was to
corroborate. This court highlighted the need to
ensure quality in the testing and eliminate the
possibility of contamination of evidence; it also held
that being an opinion, the probative value of such
evidence has to vary from case to case."
30. Very recently and finally, in the matter of Rahul (supra),
their Lordships of the Supreme Court (three-Judges Bench),
while considering the evidentiary value of DNA evidence and
taking note of decision of Manoj (supra) held that the DNA
evidence is in the nature of opinion evidence like any other
opinion evidence, its probative value varies from case to case
and held in Para-38 as under:
"38. It is true that PW 23 Dr B.K. Mohapatra,
Senior Scientific Officer (Biology) of CFSL, New
Delhi had stepped into the winess box and his
report regarding DNA profiling was exhibited as
Ext. PW 23/A, however mere exhibiting a
document, would not prove its contents. The record
shows that all the samples relating to the accused
and relating to the deceased were seized by the
investigating officer on 14.02.2012 and 16.02.2012;
and they were sent to CFSL for examination on
27.02.2012. During the period, they remained in
the malkhana of the police station. Under the
circumstances, the possibility of tampering with the
samples collected also could not be ruled out.
Neither the trial Court nor the High Court has
examined the underlying basis of the findings in
the DNA reports nor have they examined the fact
whether the techniques were reliably applied by the
expert. In the absence of such evidence on record,
all the reports with regard to DNA profiling become
highly vulnerable, more particularly when the
collection and sealing of the samples sent for
examination were also not free from suspicion."
31. In view of aforesaid legal position qua DNA profiling report
and its probative value, the prosecution is duty bound to
prove the guilt of the accused beyond reasonable doubt and
burden is always upon the prosecution to lead evidence by
taking all the precautions for proving DNA evidence. It is
necessary for the prosecution as the entire process of
collecting the blood samples for DNA profiling is controlled
and done by the human agencies i.e. doctors and the
investigating officers. Every step to preserve the sample from
manipulation/contamination has to be proved, as absence of
those steps may cause prejudice to the accused. The
prosecution is required to put all the positive evidence
regarding the fact that all the precautions have been taken
by the doctors as well as by the police officials regarding the
preservation of the DNA samples. As held in the matter of
Pattu Rajan (supra) DNA report is "an opinion" and its
probative value varies from case to case. The science of DNA
is at a developing stage, as such, it will be risky to solely rely
upon the DNA report in absence of any substantive piece of
evidence.
32. In the matter of Santa Singh v. State of Punjab14, the
Supreme Court has held that if there exists a suspicious
delay in sending the sealed parcel to the expert, the result is
vitiated.
33. Similarly, in the matter of Amarjit Singh alias Babbu v.
State of Punjab15, the Supreme Court has held that non-
sealing of the revolver at the spot was a serious infirmity as
the possibility of tampering could not be ruled out and
observed in paragraph 7 as under: -
"7. The entire prosecution case, thus, is clouded
with number of infirmities which compel this Court
not to accept such an unworthy evidence. These
infirmities have been brushed aside by the
Designated Court by observing that since the model
14 AIR 1956 SC 526
15 1995 Supp (3) SCC 217
number of the revolver was noted down, the non-
sealing of the revolver or the handing over of the
same to some other police official or a private
person, who has not been examined are of no
consequence. We are unable to agree and
subscribe to this view in a case of this nature. The
non-sealing of the revolver at the spot is a serious
infirmity because the possibility of tampering with
the weapon cannot be ruled out. The report of PW
4 that the weapon is capable of being fired is
insignificant since it cannot be said with certainty
as to what was the condition of the weapon at the
time of the recovery, apart from the evidence of PW
4 that he did not test-fire the revolver."
34. Thereafter, in the matter of Mahmood v. State of U.P.16,
their Lordships of the Supreme Court have emphasized the
need for fair and cautious investigation by holding that there
should be fair and cautious investigation and Investigating
Officer should rule out possibility of fabrication and his
conduct should dispel suspicion. It has been observed in
paragraphs 15 & 18 of the report as under: -
"15. Further, the investigator did not take all the
necessary precautions which could be taken to
eliminate the possibility of fabrication of this
evidence, or to dispel suspicion as to its
genuineness. Admittedly, he sealed the box with
his own seal which thereafter remained with him
throughout. He did not take the signatures of the
witnesses on the parcel containing the gandasa. He
did not after sealing the parcel entrust his seal to
the Sarpanch or any other respectable person of the
village. According to the prosecution the
fingerprints found on the gandasa could possibly be
bloodprints and that the blade of the gandasa was
all smeared with human blood. But this gandasa
was never sent to the Chemical Examiner or the
16 (1976) 1 SCC 542
Serologist. No explanation of the same is
forthcoming. This being the case, the contention of
Mr. R.K. Garg at the Bar, that the gandasa, Ex. 1,
or smear of the alleged blood on it was not sent to
the Chemical Examiner for fear of the fabrication
being detected and exposed, cannot be rejected
outright.
18. Secondly, even if it is assumed that the handle
of this gandasa bore the fingerprints of the
appellant, then also it would not inexorably and
unmistakably lead to the conclusion that the
appellant, and none else was the murderer of
Dwarka, unless it was firmly proved further that the
fatal injury to the deceased was caused with this
weapon. Definite proof of this link was lacking in
this case. The missing link could be best supplied
by showing that there was blood on this gandasa,
and that blood was of human origin. But this was
not done."
35. A Division of the M.P. High Court in the matter of Vijay
Singh v. State of M.P.17 held that there is no explanation
regarding the period of ten days during which articles were
available with the prosecution and due to lack of evidence
regarding sealing of the articles in a proper manner and its
identification, the seizure of material and consequential
report regarding the said article/material cannot be believed.
36. Now, in light of the aforesaid principles of law laid down by
their Lordships of the Supreme Court to ensure
handling/safety of samples drawn qua the facts of the
present case, the question for consideration by us is whether
DNA samples were drawn by the investigating agency during
the course of investigation in accordance with law ?
17 (2004) 4 MPLJ 543
37. In the present case, no evidence has been presented by the
prosecution regarding when, where and how the blood
samples were kept in safe custody from the date of collection
on 25/04/2019 & 26/04/2019 till the date of deposition to
the Laboratory on 30/04/2019. No satisfactory explanation
has been brought on record for the delay of 4-5 days from
the time of taking the samples to depositing the same in the
laboratory. The person who took the said samples has also
not been examined by the prosecution so that it can be
ascertained whether he had properly taken the samples and
sealed it as per the rules or not. Similarly, the constable
Somnath Potai who deposited the said samples in the
Laboratory has also not been examined by the prosecution.
In such a situation, in the light of aforesaid judgments, the
DNA report (Ex.P-31) cannot be accepted as valid piece of
evidence as the possibility of tampering with the samples
cannot be ruled out. Thus, the conviction on the basis of
the DNA test report cannot be said to be justified.
38. On the basis of the above evidence analysis, we find that the
trial court, after the victim (PW-1) and her family members
turned hostile, convicted the appellants on the basis of the
statement of the victim recorded under Section 164 of CrPC
and the DNA test report, due to which, the prosecution case
against the appellants is not found to be proved beyond
doubt and there is lack of clear, sufficient and reliable
evidence for conviction. In such a situation, the judgment in
question is not found to be sustainable.
39. Accordingly, the three appeals are allowed. The impugned
judgment is hereby set aside and the appellants are
acquitted of the charges levelled against them.
40. Appellant Ramsingh Salam is reported to be in jail. He be
released from jail forthwith, if his detention is not required
in connection with any other offence. Appellants Vijan
Mandal and Mankumari Yadav are on bail. They need not
surrender, however, their bail bonds shall remain in force for
a period of six months in view of the provisions contained in
Section 437A of the CrPC.
41. Let a certified copy of this judgment along with the original
record be transmitted forthwith to the concerned trial Court
for necessary information & action, if any. A copy of the
judgment may also be sent to the concerned Jail
Superintendent wherein appellant Ramsingh is suffering the
jail sentence.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Judge Judge
Khatai
