[Cites 47, Cited by 0]
Chattisgarh High Court
Dipankar Vishwas vs State Of Chhattisgarh on 15 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
Digitally signed by 2026:CGHC:17148-DB
ALOK SHARMA
Date: 2026.04.22 AFR
19:08:41 +0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 277 of 2024
Dipankar Vishwas S/o Mr. Hirendra Vishwas Aged About 31 Years R/o
Borgaon, Keshkal, P.S. Keshkal, District : Kondagaon, Chhattisgarh
--- Appellant(s)
versus
State Of Chhattisgarh Through Station House Officer Of Police Station
Keshkal, District : Kondagaon, Chhattisgarh
--- Respondent(s)
CRA No. 280 of 2024
Lenkat Vijay Kishore S/o Mr. Prabhuram Aged About 40 Years Resident
Of Jamgaon, P.S. Keshkal, District Kondagaon (C.G.)
---Appellant(s)
Versus
State Of Chhattisgarh Through Station House Officer Of Police Station
Keshkal, District Kondagoan (C.G.)
--- Respondent(s)
For Appellant(s) : Mr. Raza Ali, Advocate.
For Respondent/State : Mr. Shailendra Sharma, Panel Lawyer.
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Order on Board
Per Ramesh Sinha, Chief Justice
15/04/2026
1. These two criminal appeals arise out of the same incident and the
same FIR, but by different sessions trials; however, the trial of the
case was concluded together before the learned trial court, and a
common judgment has been passed, therefore, both these
appeals are being heard and decided together.
2. The Criminal Appeal No. 277 of 2024 has been filed by the
appellant, Dipankar Vishwas, against the impugned judgment of
conviction and sentence dated 14.12.2023 passed by the learned
Special Judge, SC/ST (PA) Act, 1989, Kondagaon, District
Kondagaon in Special Criminal Case No. SC/ST (PA) Act 1989,
No. 6/2021, whereby the appellant Dipankar Vishwas has been
convicted and sentenced in the following manner:-
Conviction Sentence
Under Section 342 of IPC 06 months RI and fine of Rs.
100/-, in default of payment
undergo R.I. for 01 month.
Under Section 384 of IPC 01 year RI and fine of Rs. 100/-,
in default of payment undergo
RI for 1 month.
Under Section 506 of IPC 06 months RI and fine of Rs.
50/-, in default of payment
undergo RI for 15 days.
Under Section 376(D) of IPC 20 year RI and fine of Rs.
1000/-, in default of payment
undergo RI for 1 year
Under Section 66(E) of the 02 years RI and fine of Rs.
Information Technology Act, 10000/- in default of payment
2000. undergo RI of 04 months.
Under Section 3(2)(v) of the Life imprisonment & fine of Rs.
Scheduled Castes and the 1000/- in default of payment RI
Scheduled Tribes (Prevention for 01 year.
of Atrocities) Act, 1989.
Under Section 3(2)(va) of the RI for 06 months and fine of Rs.
Scheduled Castes and the 50/- in default of payment RI for
Schedules Tribes (Prevention 15 days.
of Atrocities) Act, 1989.
3. The Criminal Appeal No. 280 of 2024 filed by the appellant-
Lenkat Vijay Kishore against the impugned judgment of
conviction and sentenced dated 14.12.2023 passed by learned
Special Judge, SC/ST (PA) Act, 1989, Kondagaon, District
Kondagaon in Sessions Case No. 47/2021, whereby the
appellant- Lenkat Vijay Kishore has been convicted and
sentenced in the following manner:
Conviction Sentence
Under Section 342 of IPC 06 months RI and fine of Rs.
100/-, in default of payment
undergo RI for 01 month.
Under Section 384 of IPC 01 year RI and fine of Rs. 100/-
in default of payment undergo RI
for 01 month.
Under Section 506 of IPC 06 months RI and fine of Rs.
50/-, in default of payment
undergo RI for 15 days.
Under Section 376(D) of IPC 20 year RI and fine of Rs.
1000/-, in default of payment
under RI 01 year.
Under Section 66(E) of the 02 years RI and fine of Rs.
Information Technology Act, 10000/- in default of payment
2000. undergo RI of 04 months.
4. The brief facts of the case are that on 08.02.2021, at about 08:00
pm, the victim called her friend in the house of her another friend
and when they were chatting, at about 01:00 am in the night, the
neighbour/accused persons prepared a video and thereafter,
knocked the door and extorted that if they will not them the
money they will get the video viral. Her friend transferred Rs.
50,000/- into the bank account of the accused Dipankar Vishwas,
and thereafter, they forced her friend (P.W. 6) to go away from the
place and took her inside the room and committed rape upon her
one after another. Her friend came back along with police officers,
and they took them to the police station. On the written complaint
Ex.P/2 made by the victim PW-3, the FIR of Crime No. 15/2021
(Ex.P/3) at Police Station Keshkal, District Kondagaon has been
registered against the accused persons Dipankar Vishwas and
Venkat Vijay Kishore for the offence under Sections 342, 376-D
and 384 of the IPC.
5. The victim was sent for her medical examination to the
Community Health Centre, Farasgaon, District Kondagaon,
where she was medically examined by PW-7 Dr. Jyotirmay
Prabhawati, who gave her report Ex.P/6. While medically
examining the victim, the doctor noticed injury on her private part,
hymen absent, congestion of the vagina, tear present. She gave
a provisional opinion that, according to history, physical and
genital examination, there are signs suggestive of recent forceful
penetration of the vagina; however, slides of her vaginal and anal
swab were prepared, sealed and handed over to the police for
their FSL examination. Spot map Ex.P/5 was prepared by the
Police, and Ex.P/22 was prepared by the Patwari. The underwear
of the victim was seized vide seizure memo Ex.P/7. The social
status certificate of the victim Ex.P/8 has also been seized vide
seizure memo Ex.P/9. Statement under Section 164 of the
Cr.P.C. of the victim (Ex.P/10) has also been recorded by the
learned Judicial Magistrate First Class, Kondagaon. The
transaction details through the mobile phone of PW-6, a friend of
the victim, have also been obtained, which are Ex.P/13 and
Ex.P/14.
6. The accused persons were arrested on 09.02.2021 and they too
have been sent for their medical examination to Community
Health Centre, Keshkal where they have been medically
examined by PW-8, Dr. Manjul Ghodheshwar who after medical
examination of the appellant Lenkat Vijay Kishore gave his report
Ex.P/16 and with respect to the medical examination of the
accused Dipankar Vishwas gave his report Ex.P/17. While
medically examining both these accused persons, the doctor has
not noticed any external injuries on their bodies and found them
capable of performing sexual intercourse. From the appellant
Dipankar Vishwas, one mobile phone has been seized vide
seizure memo Ex. P/25, his underwear has been seized vide
seizure memo Ex.P/27. From Lenkat Vijay Kishore, one mobile
phone has been seized vide seizure memo Ex.P/26, and his
underwear has been seized vide seizure Ex.P/28. Rs. 50,000/-
cash has also been seized after withdrawing it from SBI, Bank
Keshkal branch, from his bank account vide seizure memo
Ex.P/29. The underwear seized from the appellants was sent to
the doctor for its query report, who gave its query report Ex.P19
and Ex.P/20, and advised its chemical examination for
confirmation of the presence of semen.
7. The pubic hair, vaginal slides, anal slides, and underwear of the
victim, and the underwear of the accused persons were sent for
their FSL examination to the Regional FSL, Jagdalpur, from
where the report Ex.P/34 has been received. According to the
FSL report, except for the pubic hair of the victim, semen and
human sperm were found on all the other sent articles. The police
have also sent the blood samples of the victim as well as the
accused persons for their DNA test with the consent of the victim
as well as the accused persons, and their consent letter is
Ex.P/38, Ex.P/39 and Ex.P/40. The blood sample of the victim,
accused persons Dipankar Vishwas and Lenkat Vijay Kishore, for
the DNA test was collected by the doctor at Medical College
Hospital, Jagdalpur, which has been seized vide seizure memo
Ex.P/42. The blood samples and the seized articles in which
semen and sperm were found in the FSL report were duly sent to
State FSL, Raipur, along with the memo of Superintendent of
Police, Kondagaon Ex.P/66, which was received by the State
FSL, Raipur and the police obtained an acknowledgement
Ex.P/67. Along with the memo dated 25.08.2021 Ex.P/68 the
police obtained the DNA report Ex.P/69 to Ex.P/73 whereby the
DNA profile of the semen found on the underwear of the accused
persons were matched with the vaginal swab, anal swab, and
vaginal smear of the victim, further the DNA profile of blood
samples of the victim and accused persons were also matched
the CDR and CAF of the mobile phone seized from the accused
persons were also obtained by the Police from its service
provider company along with the certificate under Section 65-B of
the Indian Evidence Act, 1872 which are Ex.P/75 to Ex.P/79 and
the deleted data from the mobile phones have been retrieved and
kept it pen drive by the cyber laboratory of Chhattisgarh Police,
Naya Raipur and their examination report is Ex.P/78.
8. Statement of the witnesses under Section 161 of the Cr.P.C. have
been recorded and charge-sheet was filed against the accused
Dipankar Vishwas before the learned trial Court for the offence
under Section 342, 376-D and 384 of IPC and Section 3 (2)(v),
3(2)(va) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (in short' SC/ST Act') and
Section 66E of the Information Technology Act, 2000 ( in short' IT
Act'). Since the accused Lenkat Vijay Kishore belong of
Scheduled Tribes community, the charge-sheet against him was
filed before the learned Judicial Magistrate First Class, Keshkal,
District Kondagaon, for the offence under Sections 342, 376-D
and 384 of IPC and Section 66E of the IT Act. The case against
the accused Lenkat Vijay Kishore was committed to the Court of
learned Sessions Judge, Kondagaon, however, vide order dated
02.08.2021, passed by the learned Sessions Judge, Kondagaon,
the case against the accused Lenkat Vijay Kishore was
transferred to the learned trial Court where the charge-sheet
against the accused Dipankar Vishwas was filed and thereafter,
trial against both the accused persons were conducted jointly. On
the basis of the charge-sheet filed against the accused Dipankar
Vishwas, the Special Sessions Case No. 06/2021, was
registered, and after committal of the case against the accused
Lenkat Vijay Kishore, the Sessions Case No. 47/2021, was
registered, and then the trial of both cases was carried out jointly.
9. The learned trial Court framed charge against the accused
Dipankar Vishwas for the offences under Sections 342, 384, 506,
376-D of the IPC, Section 3(2)(v) and 3(2)(va) of the SC/ST Act,
and Section 66E of the IT Act, whereas the charge against the
accused Lenkat Vijay Kishore has been framed by the learned
trial court of the offence under Section 342, 384, 506 and 376-D
of the IPC and Section 66E of the IT Act. The accused persons
denied the charge and claimed trial.
10. In order to prove the charge against the appellant, the
prosecution has examined as many as 20 witnesses. Statement
of the accused persons under Section 313 of Cr.P.C. has also
been recorded in which they denied the circumstances that
appear against them, pleaded innocence and submitted that they
have been falsely implicated in the offence. In support of their
defence, one defence witness, DW-1, has been examined by
them.
11. After appreciation of oral as well as documentary evidence led by
the parties, the learned trial Court has convicted the accused
persons and sentenced them as mentioned in the earlier part of
this judgment. Hence, these appeals.
12. Mr. Raja Ali, learned counsel appearing in both these appeals for
the respective appellants, would submit that the prosecution has
failed to prove its case beyond reasonable doubt. There are
material omissions and contradictions in the evidence of
prosecution witnesses, which cannot be the basis to convict the
accused persons for the offence in question. The alleged place of
the incident has adjoining houses of others; however, none of the
neighbours has heard any noise or alarm from the victim or her
friend. When her friend was allegedly threatened by the accused
person and forced to leave the place, he would have taken
immediate help from the people of the vicinity to save the victim,
but he did not do so, which itself creates a serious doubt on the
prosecution's case. Presence of the victim along with her friend in
the house of her another friend who was not there that too at
about 01:00 am in the night, clearly shows that she herself was
engaged in suspicious activities. There is no video retrieved from
the mobile phone of the accused persons, as alleged by the
victim. The evidence with respect to the money transaction is not
sufficient to connect the accused persons with the offence in
question, and all that has been framed by the prosecution is only
to implicate the accused in the alleged offence. The conduct of
the victim and her friend is suspicious as they have not raised
any alarm, and there is no sign of any protest found on the body
of the victim when she was medically examined by the doctor.
13. He would further submit that the medical and scientific evidence
of FSL and DNA reports are only an opinion of the subject expert;
however, that itself is not sufficient to hold the accused persons
guilty of the offence in question. There are material
inconsistencies in the evidence of prosecution witnesses, and
there are various components that are missing from the
circumstances; thus, the conviction and sentence against the
accused person cannot be sustained. By allowing their appeals,
the accused person may be acquitted.
14. On the other hand, learned counsel appearing for the State
opposes in his submissions made by learned counsel for the
accused persons and has submitted that the prosecution has
proved its case beyond a reasonable doubt. But for minor
omissions or contradictions, the evidence of prosecution
witnesses is fully reliable and sufficient to hold the accused
persons guilty of the offence. The prompt and named FIR has
been registered against the accused persons. Injuries have been
found on the private part of the victim, and in the FSL report,
semen and sperm were found on the vaginal slides of the victim.
Further, the DNA report duly confirmed the involvement of the
accused persons in the offence in question. The injuries found on
the body of the victim, medical and scientific from FSL and DNA
laboratory, corroborate each other with the allegations levelled by
the victim. Further, from the data extracted from the mobile phone
of the accused persons and their bank details, the transfer of an
amount of Rs. 50,000/- from the bank account of the friend of the
victim through UPI mode has also been proved by the bank
account details as well as cyber reports. All these evidences are
duly and closely connected to the accused persons towards their
guilt, which has been rightly considered by the learned trial Court
and holds them guilty of the alleged offence. The accused
persons could not extend the evidence available against them in
their 313 Cr.P.C. statement; therefore, in view of sufficient and
overwhelming evidence available against the accused persons,
their conviction and sentence are justified, and their appeals are
liable to be dismissed.
15. We have heard learned counsel for the parties and perused the
record of the trial Court with utmost circumspection.
16. PW-3 is the victim of the offence and is 23 years of age at the
time of the incident. She stated in her evidence that she knew the
appellants by their names and faces. PW-6 is her friend who
used to come to her house in the course of his ongoing work on
the construction of drainage in the vicinity. During his work, a
conversation between them was started. She asked the PW-6 to
come to Keshkal as she also had to go to Keshkal for her own
work and she asked to come to the house of another friend, PW-
2. She took the keys of the house of PW-2, who had gone to a
birthday party, and she had gone to his house alone. At about
11:30 at night, her friend PW-6 came to the main road and made
a telephonic call to her. She asked the accused, Dipankar
Vishwas, to help and asked him to drop her off at the place where
her friend was waiting. The accused Dipankar Vishwas left her
with her friend PW-6 and came back. She accompanied her
friend PW-6 and came back to the house of PW-2 in his car. At
01:00 am, when they were chatting in the room, the accused
Dipankar Vishwas prepared a video from the window and bolted
the door from the outside. He called his friend Lenkat Vijay
Kishore and thereafter called them outside for the room. When
they came out of the room, they demanded money and stated
that they had prepared a video and if they did not them Rs.
50,000/-, they would get the video viral. Her friend PW-6
transferred Rs. 50,000/- through phone-pay of his mobile phone
to the bank account of Dipankar Vishwas. Thereafter, the
accused persons forced her friend, PW-6, to go away from the
place and dragged her inside the room, and Dipankar Vishwas
committed rape upon her. Thereafter, the other accused, Lenkat
Vijay Kishore, also committed rape upon her. Somehow, she was
able to message her friend PW-6, "help me", and then her friend
PW-6 came back along with 4 - 5 police officers, and they took all
of them to Police Station Keshkal. She made her written
complaint to the police, which is Ex.P/2 and then police
proceedings were started. She was sent for her medical
examination to CHC, Farasgaon and other police proceedings
were conducted. In cross-examination, she admitted that she had
a telephonic conversation with her friend PW-6. She voluntarily
stated that PW-6 is a contractor and with respect to his work of
contractor-ship, she had a telephonic call with him. She admitted
that on the date of the incident, up to 11:30 pm, she had a normal
conversation with her friend PW-6. She also admitted that PW-2
is also her friend. She had gone to the house of her friend PW-2
at 08:00 pm, which is situated at a distance of about 150 meters
from the national highway. She further admitted that before
leaving her house, she informed her parents that she was going
to Keshkal for her work. She also admitted that she asked her
friend PW-2 to manage a room there. She further admitted that
her friend PW-6 was unknown about her stay in the night at
Keshkal. She was also cross-examined with respect to her 164
Cr.P.C. statement; however, she answered that at the time of
recording of her 164 Cr.P.C. statement, her mental condition was
not good, and she had contracted some part of her 164 Cr.P.C.
statement. From perusal of her evidence, it transpires that the
contradiction with her 164 Cr.P.C is with respect to the affairs of
the day; however, the substantive allegation of gang rape by the
accused person remains intact. In further cross-examination, she
admitted that her friend PW-2 had introduced her to the accused
Dipankar Vishwas. She also showed her ignorance about any
commercial transaction between her friend PW-6 and the
accused persons. From her evidence, the allegation of preparing
a video, the threat given by the accused persons to extort money
from them, transfer of Rs. 50,000/- through phone-pay mode by
her friend PW-6 to the bank account of the accused Dipankar
Vishwas and thereafter commission of rape by them one after
another have been duly substantiated by the victim in her
evidence. Even, it is not the specific defence of the accused
persons that they have not committed any offence of rape, and
they have been falsely implicated by the victim for any oblique
motive. The sequence of the incident, as narrated by the victim,
does not appear to be against the normal course of their conduct.
The discrepancies in her evidence are trivial in nature, which
does not affect the substantive allegation levelled by her against
the accused persons.
17. The evidence of the victim (PW-3) inspires confidence and forms
the base of the prosecution's case. It is well settled that the
testimony of a victim of sexual assault stands on a higher
pedestal and, if found reliable, requires no corroboration as a
matter of law. The core of the testimony of PW-3 remains intact
and is further corroborated by PW-2 and PW-6, who have
supported the circumstances leading to the incident as well as
the conduct of the accused persons. In "Appabhai and Another
vs. State of Gujarat" 1988 (Supp) SCC 241, the Hon'ble
Supreme Court held that the sole testimony of the victim, if
trustworthy, is sufficient to base a conviction. In para 13 of its
judgment, it has been held that:-
"The court while appreciating the evidence must
not attach undue impor-tance to minor
discrepancies. The discrepancies which do not
shake the basic version of the prosecution case
may be discarded. The discrepancies which are
due to normal errors of perception or observation
should not be given im-portance. The errors due
to lapse of memory may be given due allowance.
The court must evaluate the entire material on
record by excluding the exagge-rated version
given by any witness. When a doubt arises in
respect of certain facts alleged by such witness,
the proper course is to ignore that fact only
unless it goes into the root of the matter so as to
demolish the entire prosecution story. The
witnesses may go on adding embellishments to
their version perhaps for the fear of their
testimony being rejected by the court. The
courts, however, should not disbelieve the
evidence of such witnesses altogether if they are
other-(Para 13) wise trustworthy."
18. In the case of "State of Himanchal Pradesh v. Sanjay Kumar",
2017 (2) SCC 51, it has been held that the sole statement of the
victim can be the sole basis for conviction unless cogent reasons
exist for the court to be hesitant in believing her statement. It has
been observed that:-
"30. By no means, it is suggested that whenever
such charge of rape is made, where the victim is
a child, it has to be treated as a gospel truth and
the accused person has to be convicted. We
have already discussed above the manner in
which the testimony of the prosecutrix is to be
examined and analysed in order to find out the
truth thereinand to ensure that deposition of the
victim is trustworthy. At the same time, after
taking all due precautions which are necessary,
when it is found that the prosecution version is
worth believing, the case is to be dealt with all
sensitivity that is needed in such cases. In such
a situation one has to take stock of the realities
of life as well. Various studies show that in more
than 80% cases of such abuses, perpetrators
have acquaintance with the victims who are not
strangers. The danger is more within than
outside. Most of the time, acquaintance rapes,
when the culprit is a family member, are not
even reported for various reasons, not difficult to
fathom. The strongest among those is the fear of
attracting social stigma. Another deterring factor
which many times prevents such victims or their
families to lodge a complaint is that they find
whole process of criminal justice system
extremely intimidating coupled with absence of
victim protection mechanism. Therefore, time is
ripe to bring about significant reforms in the
criminal justice system as well. Equally, there is
also a dire need to have a survivor-centric
approach towards victims of sexual violence,
particularly, the children, keeping in view the
traumatic long-lasting effects on such victims.
31. After thorough analysis of all relevant and
attendant factors, we are of the opinion that
none of the grounds, on which the High Court
has cleared the respondent, has any merit. By
now it is well settled that the testimony of a
victim in cases of sexual offences is vital and
unless which necessitate looking for there are
compelling corroboration of a statement, the
courts should find no difficulty to act on the
testimony of the victim of a sexual assault alone
to convict the accused. No doubt, her testimony
has to inspire confidence. Seeking corroboration
to a statement before relying upon the same as
a rule, in such cases, would literally amount to
adding insult to injury. The deposition of the
prosecutrix has, thus, to be taken as a whole.
Needless to reiterate that the victim of rape is
not an accomplice and her evidence can be
acted upon without corroboration. She stands at
a higher pedestal than an injured witness does.
If the court finds it difficult to accept her version,
it may seek corroboration from some evidence
which lends assurance to her version. To insist
on corroboration, except in the rarest of rare
cases, is to equate one who is a victim of the lust
of another with an accomplice to a crime and
thereby insult womanhood. It would be adding
insult to injury to tell a woman that her claim of
rape will not be believed unless it is corroborated
in material particulars, as in the case of an
accomplice to a crime. Why should the evidence
of the girl or the woman who complains of rape
or sexual molestation be viewed with the aid of
spectacles fitted with lenses tinged with doubt,
disbelief or suspicion? The plea about lack of
corroboration has no substance (See Bhupinder
Sharma v. State of H.P.2). Notwithstanding this
legal position, in the instant case, we even find
enough corroborative material as well, which is
discussed hereinabove."
19. In the present case, the victim, PW-3, has consistently deposed
about the preparation of the video, the threat to make it viral,
extortion of Rs. 50,000/-, and commission of gang rape by both
the appellants. Minor inconsistencies pointed out by the defence
relate only to peripheral aspects and do not go to the root of the
prosecution's case. As observed in "State of U.P. v. M.K.
Anthony" 1985 (1) SCC 505, trivial discrepancies which do not
shake the basic version of the prosecution are to be ignored. In
para 10, it has been held that:-
"10. While appreciating the evidence of a
witness, the approach must be whether the
evidence of the witness read as a whole appears
to have a ring of truth. Once that impression is
formed, it is un-doubtedly necessary for the court
to scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole
and evaluate them to find out whether it is
against the general tenor of the evidence given
by the witness and whether the earlier evaluation
of the evidence is shaken as to render it
unworthy of belief. Minor discrepancies on trivial
matters not touching the core of the case, hyper-
technical approach by taking sentences torn out
of context here or there from the evi-dence,
attaching importance to some technical error
committed by the investigating officer not going
to the root of the matter would not ordinarily
permit rejection of the evidence as a whole. If
the court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this
benefit will have to attach due weight to the
appreciation of evidence by the trial court and
unless there are reasons weighty and formidable
it would not be proper to reject the evidence on
the ground of minor variations or infirmities in the
matter of trivial details. Even honest and truthful
witnesses may differ in some details unrelated to
the main incident becausepower of observation,
retention and reproduction differ with indivi-
duals. Cross-examination is an unequal duel
between a rustic and refined lawyer. Having
examined the evidence of this witness, a friend
and well-wisher of the family carefully giving due
weight to the comments made by the learned
counsel for the respondent and the reasons
assigned to by the High Court for rejecting his
evidence simultaneously keeping in view the
appreciation of the evidence of this witness by
the trial court, we have no hesitation in holding
that the High Court was in error in rejecting the
testimony of witness Nair whose evidence
appears to us trustworthy and credible."
20. Further in the case of "Mukesh and Another vs. State (NCT of
Delhi) and Others", 2017 (6) SCC 1, the Hon'ble Supreme Court
has held that:-
"392. Courts should not attach undue importance
to discrepancies, where the contradictions sought
to be brought up from the evidence of the
prosecutrix are immaterial and of no
consequence. Minor variations in the testimony of
the witnesses are often the hallmark of truth of
the testimony. Trivial discrepancies ought not to
obliterate an otherwise acceptable evidence. Due
to efflux of time, there are bound to be minor
contradictions/discrepancies in the statement of
the prosecutrix but such minor discrepancies and
inconsistencies are only natural since when truth
is sought to be projected through human, there
are bound to be certain inherent contradictions.
But as held in Om Prakash v. State of U.P.214,
the court should examine the broader
probabilities of a case."
21. PW-2, the friend of the victim in whose house the alleged incident
was committed, has stated in his evidence that he is well
acquainted with the accused persons and the victim. A day before
the date of the incident, the victim made a telephone call to him
and asked for the keys of his room. On the date of the incident, at
about 04 -05 pm, the victim came there, and he took her to his
room. He bought food for her from the bus stand, and after
leaving her in the room, he left the place and went to an
engagement function of the sister of his friend. He also asked the
accused Dipankar Vishwas, to assist her if she would require any
help. At about 09:10 pm, he had a telephone call with the victim,
and she informed him that her friend had come. The next morning
at about 08:00 am, he made a telephonic call to the victim, but
her mobile was found switched off. When he was on the way, he
had a telephone call with the victim, and she called him to the
police station Keshkal, and when he went there, she informed
him about the incident. In cross-examination, nothing could be
extracted from this witness so that the case of the prosecution
could be disbelieved. It is not in dispute that the alleged incident
took place in the room of this witness, P.W. 2.
22. P.W. 6 is the person with whom the victim was chatting in the
room of P.W. 2 on the date of the incident. P.W. 6, a friend of the
victim, stated in his evidence that during his work of
contractorship, he met with the victim. The father of the victim
was the supervisor of his work. They exchanged their mobile
numbers and had a conversation. The victim called her at
Keshkal on 08-02-2021, at the house of another friend. With the
help of the accused Dipankar Vishwas, she came to the place
where he was waiting for her. When they were chatting, the
accused Dipankar bolted the door of the room from the outside.
Thereafter, he threatened them that they are doing bad work
there and he will call the police. He took the amount from his
purse and demanded more money, and then he returned the
cash to him and asked him to withdraw the amount from the ATM.
He transferred Rs. 25,000/-, 25,000/- two times through Phone-
Pay to the bank account of Dipankar. After some time, he called
another accused, Lenkat Vijay Kishore. Thereafter, they forced
him to go away from there and assured him that the victim would
be safe with them. He left the place and waited in his car near
Goldi Dhaba. After some time, he received a message on his
mobile phone from the victim, "Save me" and "bu yksxks a us esjs lkFk
xyr dke fd;k g". Thereafter, he had gone to the Keshkal police
station and came back along with police personnel. They found
both the accused persons with the victim in the room, and then
the victim disclosed the incident. The police personnel took them
to the police station at about 4.00 a.m. The victim lodged a
written report there, and then the police proceedings were
started. In cross-examination, he admitted that the victim is his
friend. He met with the victim 2-3 times. He also admitted that he
and the victim were chatting, and the accused threatened them
that he would call the people of the vicinity. He also admitted that
he can ask for help from local residents. He did not know the P.W.
2. He further stated that he was under distress, therefore, he
could not call the police through the helpline number. He denied
that he was having love affair with the victim. From the evidence
of this witness also, the defence could not elicit any material to
discredit his evidence. His evidence is also corroborative with the
evidence of victim P.W. 3 and her other friend P.W. 2.
23. P.W. 1 is the Assistant Sub Inspector of Police, posted at the
police station, Kondagaon. He stated in his evidence that on the
date of the incident, he was on patrolling duty. He received a
message from the police station that he had to proceed to the
place of the incident and then he along with P.W. 6, went there at
the place of the incident. When he opened the door of the room,
he saw a girl and two boys there, who are the present accused
persons. The girl was crying. P.W. 6 had informed about the
incident of preparing their video and the transfer of an amount of
Rs. 50,000/- to Bengali doctor. He took them to the police station
and handed them over to the Station House Officer. Though for
some part of his statement, he was turned hostile, but in his
cross-examination, he remained firm in saying that as and when
they opened the door, he found the girl and the accused persons
inside the room.
24. P.W. 5 is the Assistant Sub Inspector of police and is posted at
the police station Keshkal. He stated in his evidence that on the
date of the incident, he was with P.W. 1 in patrolling duty. On
receiving information from the police station, they proceeded
towards the place of the incident along with P.W. 6. He informed
them about the incident of the preparation of the video and
transfer of Rs. 50,000/- through Phone-Pay. When they reached
on the spot, they found the girl and the accused persons and
thereafter, they took them to the police station. The girl was
crying at that time. In cross-examination, he too remained firm
about the presence of the victim and the accused persons in the
room, and the girl was crying, they took them to the police station
and corroborated the evidence of P.W. 1 and also the other
witnesses.
25. After lodging of the FIR, the victim was sent for her medical
examination to CHC, Farasgaon. She was being medically
examined by P.W. 7, Dr. Jyotirmay Prabhawati. She stated in her
evidence that she medically examined the victim on 09.02.2021.
At the time of her medical examination, she disclosed the
incident, which she had written in her medical report. She does
not find any external injuries on her body. On internal
examination, she found redness in her private part and injury
there. Her hymen was absent, and laceration was present. She
prepared two slides of her vaginal swab, two slides of anal swab,
two slides of vaginal smear and vaginal washing. The same were
sealed and handed over to the police. After her medical
examination, she gave her report, Ex. P-6. She also gave her
query report, Ex. P-15. She admitted in her cross-examination
that she could not say as to with whom the victim made physical
relationship. Nothing in her cross examination which discredit the
injuries found on the private part of the victim. Preparation of
vaginal slides is also not under challenge in her cross-
examination. From the evidence of the doctor, who medically
examined the victim, the allegation of sexual intercourse is found
corroboration with that of the evidence of the victim and other
witnesses that the victim and both accused persons were found
inside the room, where the victim suffered sexual abuse by the
accused persons.
26. P.W. 8, Dr. Tejeshwar Netam, medically examined the accused
persons and gave reports Ex. P-16 and P-17. He stated in his
evidence that on 09.02.2021, he medically examined the accused
Lenkat Vijay Kishore at about 01:50 pm. He did not notice any
external injuries on his body; however, smegma was found
absent on his penis. He found him capable of performing sexual
intercourse. Likewise, on medical examination of the accused
Dipankar Vishwas, he did not find any external injuries; however,
smegma was absent on his penis also. He was also found to be
capable of performing sexual intercourse. The underwear of the
accused persons has also been examined by him, and he
referred them to FSL and proved Ex. P-19, P-20 and P-21.
Nothing has been asked by the defence in his cross-examination.
The significant aspect of his evidence is that the incident is said
to have occurred in the intervening night of 08.02.2021 and
09.02.2021, and the accused persons were medically examined
by the doctor on 09.02.2021 at about 01:50 pm and 02:00 pm, i.e.
within 24 hours of the alleged time of the incident. The doctor has
found that smegma was absent on the penis of the accused
persons.
27. P.W. 11 is the Dy. Superintendent of Police and the investigating
officer, who conducted part of the investigation. He stated in his
evidence that he recorded the statement of the witnesses as per
their disclosure. He sent the pubic hair, Valval swab slide, vaginal
swab slide, anal swab slide, vaginal smear slide, vaginal
washing, her underwear, the underwear of the accused Dipankar
and Lenkat Vijay Kishore to the FSL for its examination. After its
examination, he received the FSL report Ex. P-34. In the FSL
report, except for the pubic hair of the victim, semen and sperms
were found in all other samples. He also sent the request letter
Ex. P-37, to JMFC, Kondagaon, for the blood sample of the victim
and the accused persons for the DNA test. He also obtained
consent Ex. P-38, P-39, P-40 and P-41 from the accused
Dipankar Vishwas, the victim, the accused Lenkat Vijay Kishore
and the brother of the victim, respectively. Dr. Gyanendra Kumar,
P.W. 20, has taken blood sample from the person concerned, and
he seized the said blood samples vide seizure memo Ex. P-42.
He also sought the necessary information and bank account
statement from the SBI, Keshkal branch, with respect to the
money transfer of Rs. 50,000/- through Phone-Pay by P.W. 6. The
said amount was transferred by Dipankar Vishwas to the bank
account of Lenkat Vijay Kishore through Phone-Pay, and he also
sought necessary information about the same from the bank. The
bank account statements are annexed to the case. he further
stated that he also sent a memo Ex. P-53, for the recovery of the
deleted video from the mobile phone of Dipankar Vishwas, which
was prepared on the date of the incident, along with a query
about whether the said video was prepared from the mobile
phone of Dipankar Vishwas, and to keep the video safe. From the
bank statement, he found that the amount of Rs. 50,000/- was
transferred from the mobile phone of Dipankar Vishwas to the
mobile phone of Lenkat Vijay Kishore. He also proved various
memos written to FSL, cyber cell, bank, and also to the service
provider company of mobile phone, etc. in his cross-examination,
the defence could not extract any material to disbelieve his
evidence. He, being the investigating officer, proved his part in
the investigation and the document prepared by him during the
investigation.
28. P.W. 12 is the lady constable, posted at the police station
Keshkal. She stated in her evidence that she has taken the victim
to CHC, Farasgaon, for her medical examination. The doctor has
given her 07 sealed packets after the medical examination of the
victim, which has been given to the Sub-Inspector, and the
seizure memo is Ex. P-55. She also submitted supplementary
challan before the learned trial Court against the accused
persons of Crime No. 15/2021, registered at the police station
Keshkal. The IG police, Bastar Range, granted permission (Ex.
P-65) to file a supplementary challan. She also stated about the
seizure of 09 packets containing the material sent to FSL, which
is Ex. P-36. She also stated about the documents annexed with
the supplementary challan, which are the FSL report, DNA report,
report of the cyber cell, etc. In cross-examination, she admitted
that she had filed two supplementary challans in the case.
29. P.W. 14 is the Inspector of police and is posted at the police
station, Keshkal. He stated in his evidence that he arrested the
accused persons on 09.02.2021. He issued the notice Ex. P-12
for submission of bank transaction details of the relevant bank
transaction between him and Dipankar Vishwas. He sent the
accused persons for their medical examination to CHC, Keshkal
and their underwear for the query report. He also seized Rs.
50,000/- cash from the accused Lenkat Vijay Kishore, which was
withdrawn from his bank account, vide seizure memo Ex. P-29.
He also seized a mobile phone from the accused Dipankar
Vishwas and another mobile phone from Lenkat Vijay Kishore,
and seizure memos are Ex. P-25 and P-26. He also seized the
sealed packets of pubic hair of the victim, her vaginal slides and
her underwear, vide seizure memo Ex. P-55. The underwear of
the accused persons has also been seized by him vide seizure
memo Ex. P-58 and P-59. He also proved that a notice Ex. P-60
was issued by him to P.W. 6 for giving bank account details about
the transfer of Rs. 50,000/-. In the said document, Ex. P-60,
Dipankar Vishwas has disclosed that the amount transferred in
his bank account on 09.02.2021, has been transferred in the
bank account of Lenkat Vijay Kishore, through Phone-Pay mode.
He also seized the social status certificate (Ex. P-8) of the victim
vide seizure memo Ex. P-9. In cross-examination, he admitted
that in the arrest memo of the accused persons and in the seizure
memos, he had not mentioned the time and serial numbers of
currency notes have not been mentioned. The discrepancies
brought by the defence in his evidence are trivial in nature and do
not affect the prosecution's case. The timing of the arrest and the
serial numbers of the currency notes do not have any vital
significance in the facts and circumstances of the case. The
timing of sending the accused persons for their medical
examination may have some significance, but they were sent on
09.02.2021 itself, and the doctor examined them at about 01:50
pm and 02:00 pm, which is within 24 hours of the alleged time of
the incident, and found no smegma on their penis. Therefore, no
benefit can be extended to the defence by the cross-examination
of this witness.
30. P.W. 17 is the lady Sub-Inspector of police and was posted at the
police station, Farasgaon. She was being called to the police
station Keshkal, where the victim had given her a written report,
Ex. P-2. Based on the written complaint, she registered the FIR,
Ex. P-3 against the accused persons Dipankar Vishwas and
Lenkat Vijay Kishore. She prepared the spot map Ex. P-5 and
sent the victim to CHC Farasgaon for her medical examination,
after obtaining her consent. She also seized the underwear of the
victim vide seizure memo Ex. P-7 and sent it for query report from
the doctor. In cross-examination, she stood on her part of the
investigation, which she did, and nothing could be brought by the
defence to disbelieve her evidence.
31. P.W. 19 is the Police Constable and brother of the victim. He
stated in his evidence that on 09.02.2021, he received a mobile
call, and then he went to the police station Keshkal along with his
parents. They were informed about the incident committed by the
accused persons against the victim. After declaring him hostile,
he admitted that the victim had informed him about the incident of
rape by the accused persons. In cross-examination, he admitted
to taking the blood sample of the victim and the accused persons
in his presence. There is no cross-examination on the point that
the victim has not disclosed any incident to him.
32. P.W. 20, Dr. Gyanendra Kumar, was the Assistant Professor,
posted at the Medical College, Jagdalpur. He had taken blood
samples of the victim and the accused persons, duly sealed it
and handed them over to the police for their DNA test.
33. The other witness, P.W. 4, who is the father of the victim, did not
disclose any relevant fact except for the seizure of certain
articles. P.W. 9 is the Patwari, who prepared the spot map Ex. P-
22. P.W. 10 is the driver and witness to the seizure memo Ex. P-
25 to P-29. The other witnesses, P.W. 13, P.W. 15, P.W. 16, and
P.W. 18, are witnesses to the procedure of investigation.
34. The accused persons have examined one defence witness, who
was the landlady of the house where the incident took place. She
stated in her evidence that Dipankar Vishwas is her neighbour.
The victim came to the room of another tenant. All the rooms are
adjacent. She asked the victim about the reason for visiting there,
and she disclosed that she came there along with her sister and
brother-in-law. In cross-examination, she admitted that she has a
good relationship with the accused, Lenkat Vijay Kishore. She
admitted that she did not know anything about the incident. On
the date of the incident, she was having headache and went to
sleep early.
35. From the material produced by the prosecution and the evidence
of the victim P.W. 3, and other witnesses, in the present case, it
can be safely held that the victim is a sterling witness, as has
been observed by the Hon'ble Supreme Court in the case of
"Santosh Prasad alias Santosh Kumar vs. State of Bihar",
2020 (3) SCC 443. In para 5.4.2, it has been held that:-
"5.4.2. In Rai Sandeep³, this Court had an occasion to
consider who can be f said to be a "sterling witness". In
para 22, it is observed and held as under: (SCC p. 29)
"22. In our considered opinion, the "sterling
witness" should be of a very high quality and
calibre whose version should, therefore, be
unassailable. The court considering the version
of such witness should be in a position to accept
it for its face value without any hesitation. To test
9 the quality of such a witness, the status of the
witness would be immaterial and what would be
relevant is the truthfulness of the statement
made by such a witness. What would be more
relevant would be the consistency of the
statement right from the starting point till the end,
namely, at the time when the witness makes the
initial statement and ultimately before the court.
It should be natural and consistent with the case
of the prosecution qua the accused. There
should not be any prevarication in the version of
such a witness. The witness should be in a
position to withstand the cross-examination of
any length and howsoever strenuous it may be
and under no circumstance should give room for
any doubt as to the factum of the occurrence,
the persons involved, as well as the sequence of
it. Such a version should have co-relation with
each and every one of other supporting material
such as the recoveries made, the weapons
used, the manner of offence committed, the
scientific evidence and the expert opinion. The
said version should consistently match with the
version of every other witness. It can even be
stated that it should be akin to the test applied in
the case of circumstantial evidence where there
should not be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him. Only if the version
of such a witness qualifies the above test as well
as all other such similar tests to be applied, can
it be held that such a witness can be called as a
"sterling witness" whose version can be
accepted by the court without any corroboration
and based on which the guilty can be punished.
To be more precise, the version of the said
witness on the core spectrum of the crime
should remain intact while all other attendant
materials, namely, oral, documentary and
material objects should match the said version in
material particulars in order to enable the court
trying the offence to rely on the core version to
sieve the other supporting materials for holding
the offender guilty of the charge alleged."
36. The Supreme Court in the matter of Ranjit Hazarika v. State of
Assam, AIR 1998 SC 635 has held that the evidence of a victim
of sexual assault stands almost on a par with the evidence of an
injured witness and to an extent is even more reliable. It must not
be overlooked that a woman or a girl subjected to sexual assault
is not an accomplice to the crime but is a victim of another
person's lust and it is improper and undesirable to test her
evidence with a certain amount of suspicion, treating her as if she
were an accomplice.
37. The Supreme Court in the matter of Rai Sandeep @ Deenu v.
State of NCT of Delhi, 2012 (8) SCC 21 held as under:-
"In our considered opinion, the 'sterling witness'
should be of a very high quality and caliber
whose version should, therefore, be
unassailable. The Court considering the version
of such witness should be in a position to accept
it for its face value without any hesitation. To test
the quality of such a witness, the status of the
witness would be immaterial and what would be
relevant is the truthfulness of the statement
made by such a witness. What would be more
relevant would be the consistency of the
statement right from the starting point till the end,
namely, at the time when the witness makes the
initial statement and ultimately before the Court.
It should be natural and consistent with the case
of the prosecution qua the accused. There
should not be any prevarication in the version of
such a witness. The witness should be in a
position to withstand the cross-examination of
any length and howsoever strenuous it may be
and under no circumstance should give room for
any doubt as to the factum of the occurrence,
the persons involved, as well as, the sequence
of it. Such a version should have co-relation with
each and everyone of other supporting material
such as the recoveries made, the weapons
used, the manner of offence committed, the
scientific evidence and the expert opinion. The
said version should consistently match with the
version of every other witness. It can even be
stated that it should be akin to the test applied in
the case of circumstantial evidence where there
should not be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him. Only if the version
of such a witness qualifies the above test as well
as all other similar such tests to be applied, it
can be held that such a witness can be called as
a 'sterling witness' whose version can be
accepted by the Court without any corroboration
and based on which the guilty can be punished.
To be more precise, the version of the said
witness on the core spectrum of the crime
should remain intact while all other attendant
materials, namely, oral, documentary and
material objects should match the said version in
material particulars in order to enable the Court
trying the offence to rely on the core version to
sieve the other supporting materials for holding
the offender guilty of the charge alleged."
38. The medical and scientific evidence lend strong corroboration to
the ocular version. PW-7, the examining doctor, noticed injuries
on the private parts of the victim, including laceration and
congestion, suggestive of recent forceful sexual intercourse. The
FSL report (Ex. P-34) confirmed the presence of semen and
sperm on the vaginal and other samples, and the DNA reports
(Ex. P-69 to P-73) conclusively matched the biological material of
the appellants with the samples obtained from the victim. Such a
conclusive forensic linkage significantly strengthens the
prosecution's case. In the case of "Mukesh" (supra), the
Supreme Court emphasized that DNA evidence is a scientifically
accurate and reliable means of establishing guilt. They have
considered in detail the scientific valuation of the DNA report in
paragraphs 211 to 228, which are as under:-
211. DNA is the abbreviation of deoxyribonucleic 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 aperson'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 Phillips, L.J. in R. v. Doheny-55,
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 Phillips, L.J.:
"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
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 Deen86 (transcript:
21-12-1993), 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 States87, 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 formulationin
Daubert v. Merrell Dow Pharmaceuticals Inc stating
thus: (SCC OnLine US SC)
"Although the Fry 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 findine, 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 summarised by Blackmun, J., as
follows: (Daubert case, SCC OnLine US SC)
"To summarise: "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. Osborne89, Roberts, C.J. of the Supreme
Court of United States, while referring to the DNA test,
stated as follows: (SCC OnLine US SC)
"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 recognised 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 regularised 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 53-A by Act 25 of 2005, DNA profiling has now
become a part of the statutory scheme. Section 53-A
relates to the examination of a person accused of rape
by a medical practitioner.
217. Similarly, under Section 164-A 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 a must. Section 53-A sub-
section (2) as well as Section 164-A sub-section (2) are
to the following effect:
"53-A. 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.
* * *
164-A. 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 v. Poshi Ram% observed: (SCC p. 316,
para 10)
"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
A.P.91, a two-Judge Bench had explained as to what is
DNA in the following manner: (SCC pp. 617-18, paras
41-42)
"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. State2, 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:
(Santosh Kumar case2, SCC p. 772, para 71)
"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. 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 v. John David94, 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 subjected to DNA test. From the
DNA, the identification of the deceased was proved.
Para 60 of the decision is reproduced below: (SCC p.
528)
"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 PW 1
and Baby Ponnusamy was found in the
recovered parts of the body and that therefore
they should belong to the only missing son of PW
1."
222. In Krishan Kumar Malik v. State of Harvana95, 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 CrPC, it has become necessary
for the prosecution to go in for DNA test in prosecutrix,
this Court held that after the incorporation of Section
53-A in such type of cases. The relevant paragraph is
reproduced below: (SCC p. 140. para 44)
"44. Now, after the incorporation of Section
53-A in the Criminal Procedure Code w.e.f 23-6-
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 U.P.9%, 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: (Surendra
Koli case%, SCC p. 84)
"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 Mohd. Ajmal Amir Kasab v. State of
Maharashtra98, the accused was awarded death
sentence on charges of killing large number of innocent
persons on 26-11-2008 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:
(SCC p. 125, para 333)"
333. It is seen above that among the articles
recovered from Kuber were a number of blankets,
shawis 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 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 U.P.99, 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: (SCC p.
133, para 67)
"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 M.P. 100, 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: (SCC pp.
357-58, para 8)
"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
clothesof the deceased were also found having
the appellant's semen spots. The hair which were
found near the place of occurrence were found to
be that of the appellant."
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 qualityassurance. If the sampling is proper
and if there is no evidence as to tampering of samples,
the DNA test report is to be accepted."
39. Further, the absence of smegma on the private parts of the
accused persons, noticed within 24 hours of the incident, is a
relevant incriminating circumstance, as held in "State of
Maharashtra v. Chandraprakash Kewalchand Jain" 1990 (1)
SCC 550, indicating recent sexual activity.
40. The prosecution has also proved the element of extortion and the
surrounding circumstances through cogent evidence. PW-6 has
categorically stated about the transfer of Rs. 50,000/- through
Phone-Pay to the account of appellant Dipankar Vishwas, which
is duly supported by bank records (Ex. P-13, P-14) and further
corroborated by the investigation of PW-11 and PW-14. The
recovery of the said amount from the account of co-accused
Lenkat Vijay Kishore establishes the money trail. The presence of
both accused, along with the victim inside the room, as stated by
PW-1 and PW-5, immediately after the incident, is a crucial
circumstance forming part of the chain of evidence. The defence
argument regarding the absence of alarm or conduct of the victim
is untenable in view of the settled legal position that different
individuals react differently to trauma.
41. In the case of "Babasaheb Apparao Patil vs. State of
Maharashtra, 2008 (17) SCC 425, the Hon'ble Supreme Court
has observed that:-
"19. .............The post-event conduct of a
witness varies from person to person. It
cannot be a cast-iron reaction to be followed
as a model by everyone witnessing such
event. Different persons would react
differently on seeing any serious crime and
their behaviour and conduct e would,
therefore, be different. (See Rammi v. State of
M.P.3, SCC p. 654, para 8.)..............
42. It is also necessary to quote here the observation made by the
Hon'ble Supreme Court with respect to the impact of the offence
of rape upon the victim. In the case of "State of Punjab v.
Gurmit Singh" 1996 (2) SCC 384, it has been observed that:-
21. Of late, crime against women in general and
rape in particular is on the increase. It is an irony
that while we are celebrating women's rights in
all spheres, we show little or no concern for her
honour. It is a sad reflection on the attitude of
indifference of the society towards the violation
of human dignity of the victims of sex crimes. We
must remember that a rapist not only violates the
victim's privacy and personal integrity, but
inevitably causes serious psychological as well
as physical harm in the process. Rape is not
merely a physical assault - it is often destructive
of the whole personality of the victim. A murderer
destroys the physical body of his victim, a rapist
degrades the very soul of the helpless female.
The Courts, therefore, shoulder a great
responsibility while trying an accused on charges
of rape. They must deal with such cases with
utmost sensitivity. The Courts should examine
the broader probabilities of a case and not get
swayed by minor contradictions or insignificant
discrepancies in the statement of the
prosecutrix, which are not of a fatal nature, to
throw out an otherwise reliable prosecution case.
If evidence of the prosecutrix inspirers
confidence, it must be relied upon without
seeking corroboration of her statement in
material particulars. If for some reason the Court
finds it difficult to place implicit reliance on her
testimony, it may look for evidence which may
lend assurance to her testimony, short of
corroboration required in the case of an
accomplice. The testimony of the prosecutrix
must be appreciated in the background of the
entire case and the trial court must be alive to its
responsibility and be sensitive while dealing with
cases involving sexual molestations.
43. Further, in the case of "Prahlad and Another vs. State of
Haryana", 2015 (8) SCC 688, the Hon'ble Supreme Court has
observed that:-
"17. It has to be borne in mind that an offence of
rape is basically an assault on the human rights
of a victim. It is an attack on her individuality. It
creates an incurable dent in her right and free
will and personal sovereignty over the physical
frame. Everyone in any civilised society has to
show respect for the other individual and no
individual has any right to invade on physical
frame of another in any manner. It is not only an
offence but such an act creates a scar in the
marrows of the mind of the victim. Anyone who
indulges in a crime of such nature not only does
he violate the penal provision of IPC but also the
right of equality, right of individual identity and in
the ultimate eventuality an important aspect of
rule of law which is a constitutional commitment.
The Constitution of India, an organic document,
confers rights. It does not condescend or confer
any allowance or grant. It recognises rights and
the rights are strongly entrenched in the
constitutional framework, its ethos and
philosophy, subject to certain limitations. Dignity
of every citizen flows from the fundamental
precepts of the equality clause engrafted under
Article 14 and right to life under Article 21 of the
Constitution, for they are the "fons juris" of our
Constitution. The said rights are constitutionally
secured.
18. Therefore, regard being had to the gravity of
the offence, reduction of sentence indicating any
imaginary special reason would be an anathema
to the very concept of rule of law. The
perpetrators of the crime must realise that when
they indulge in such an offence, they really
create a concavity in the dignity and bodily
integrity of an individual which is recognised,
assured and affirmed by the very essence of
Article 21 of the Constitution."
44. In the case of "Vijay alias Chinee vs. State of Madhya
Pradesh" (2010) 8 SCC 191, the Hon'ble Supreme Court
unequivocally held that the mere absence of injuries on the
person of a victim in a case of gang rape cannot be construed as
indicative of consent. The Hon'ble Supreme Court recognized
that lack of physical resistance or visible marks of violence does
not necessarily imply willingness, particularly in circumstances
where the victim may be overpowered, threatened, or placed in
fear for her life or safety. It was emphasized that consent must be
a voluntary and unequivocal agreement, and its existence must
be assessed from the overall facts and circumstances rather than
inferred from the absence of injuries. Therefore, the defence
cannot rely solely on the non-existence of bodily injuries to argue
consent, as such an approach would be contrary to the principles
laid down by the Court and would undermine the dignity of the
victim.
45. The conviction of the appellant Dipankar Vishwas is also under
Sections 3(2) (v) and 3(2)(va) of the SC/St Act. It is not disputed
by the accused Dipankar that the victim is a member of the
Scheduled Tribe community, and he is not a member of the
Scheduled Tribe community. The document Ex. P-8, i.e. the
social status certificate of the victim issued by the competent
authority, duly proved that the victim is a member of the
Scheduled Tribe community. Section 3(2)(v) and 3(2)(va) clearly
provide that if the offence is committed knowing that such a
person is a member of a Scheduled Tribe, he shall be punished.
In the present case, in paragraph 2 of the evidence of the victim,
P.W. 3, she stated that when she accompanied Dipankar
Vishwas, on the way, he asked her name, and then she disclosed
to him her name and surname. She further deposed that she
informed him that she is a member of the Scheduled Tribe. This
part of her evidence could not be rebutted in her cross-
examination by the accused Dipankar Vishwas. The learned trial
Court also considered in para 39 of its judgment that the accused
Dipankar Vishwas was in knowledge that the victim belonged to
the Scheduled Tribe community. Therefore, we do not find any
scope for interference in the conviction and sentence of the
appellant Dipankar Vishwas for the offence under Section 3(2)(v)
and 3(2)(va) of the SC/ST Act.
46. In view of the aforesaid analysis, this Court finds that the
prosecution has successfully established the guilt of the
appellants beyond reasonable doubt. The evidence of the victim
(P.W. 3) is cogent, credible and duly corroborated by medical,
scientific and circumstantial evidence. The findings recorded by
the learned trial Court are based on proper appreciation of
evidence and do not suffer from perversity or illegality.
Consequently, the impugned judgment of conviction and
sentence dated 14.12.2023 warrants no interference.
47. Accordingly, both Criminal Appeals, being devoid of merit, are
hereby dismissed.
48. The appellants are reported to be in jail. They shall serve the
entire sentence as awarded by the learned trial Court. They are
entitled to set off the period already undergone during the trial
and during the pendency of this appeal.
49. Registry is directed to send a copy of this judgment to the
concerned Superintendent of Jail where the appellants are
undergoing their jail sentence to serve the same on the
appellants informing them that they are at liberty to assail the
present judgment passed by this Court by preferring an appeal
before the Hon'ble Supreme Court with the assistance of High
Court Legal Services Committee or the Supreme Court Legal
Services Committee.
50. The trial Court record along with a copy of this judgment be sent
back immediately to the trial Court concerned for compliance and
necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Alok
Headnote
The DNA report, being scientifically accurate, can be accepted as
sufficient proof of the involvement of the accused in the offence of rape
with the victim unless it is absolutely tainted for non-acceptance of the
same, particularly when the other circumstances, like injuries found on
the body of the victim and the FSL report regarding the presence of
semen in the vaginal slides of the victim, have duly corroborated the
allegation and are sufficient to base the conviction of the accused.
