Imamhusain @ Ajaykumar @ ... vs The State Of Karnataka
2021 Latest Caselaw 6814 Kant

          IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS 20TH DAY OF DECEMBER, 2021

                       PRESENT

      THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

                         AND

          THE HON'BLE MS.JUSTICE J.M. KHAZI

          CRIMINAL APPEAL NO.100233/2019

BETWEEN

IMAMHUSAIN @ AJAYKUMAR @ NOORAHMED CHIKMATH,
AGE: 40 YEARS, OCC: PRIVATE WORK,
R/O: BASAVESHWARNAGAR, HAVERI,
TQ AND DIST: HAVERI.
                                       ...APPELLANT
(BY SRI. R.H.ANGADI, AMICUS CURIAE)

AND

THE STATE OF KARNATAKA,
THROUGH HAVERI TOWN POLICE STATION,
REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, BENCH DHARWAD.
                                       ...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO ALLOW THIS CRIMINAL APPEAL BY
SETTING ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 20.12.2017 AND ORDER OF SENTENCE DATED
22.12.2017 PASSED BY THE PRL. DIST. & SESSIONS JUDGE &
SPL. JUDGE, HAVERI IN SPL. S.C.NO.19/2014 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 506, 376(2)(I)(F) OF
IPC AND UNDER SECTIONS 4 & 6 OF THE POCSO ACT.
                                     2




     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 04.12.2021 COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:

                             JUDGMENT

In this appeal filed under Section 374(2) of the Code

of Criminal Procedure, 1973 (hereinafter referred to as

"Cr.P.C." for short), appellant has challenged his conviction

and sentence for the offences punishable under Sections

376(2)(i)(f), 506 of the Indian Penal Code, 1860

(hereinafter referred to as "IPC" for short) and Sections 4

and 6 of Protection of Children from Sexual Offences Act,

2012 (hereinafter referred to as "POCSO Act" for short).

2. For the sake of convenience, the parties are

referred to by their rank before the Trial Court.

3. It is the case of the prosecution that

complainant Yashodha was given in marriage to one

Basavannyya and their marriage took place on

24.04.2001. She led married life with the said

Basavannayya for a period of one and half years.

Thereafter, she left the house and at that time she was

pregnant. Subsequently, she fell in love with accused and

started living with him at Byadgi along with her five year

old daughter, who is examined as PW.7 (hereinafter

referred to as "prosecutrix" for short). Thereafter, they

shifted to Basaveshwarnagar of Haveri and were staying in

a rented house. At that time, her daughter was studying in

Rotary School.

4. It is further case of the prosecution that

subsequently the husband of complainant died. After his

death, she filed a suit seeking partition of the share of her

husband. For the purpose of attending the Court

proceedings, she used to go to Mundagod once in a week

or fortnight. During that time, the prosecutrix was staying

alone with the accused. The complainant got the accused

converted to Lingayath caste and he was given name

Ajaykumar @ Basayya Chikmath and he was doing vehicle

business. The allegations against the accused are that

taking advantage of the absence of the complainant, he

repeatedly committed rape on the prosecutrix and gave

threat to her that if she reveals the said fact to the

complainant or anyone, he is going to kill the complainant

as well as the prosecutrix. As a result of the sexual assault

made by the accused, the prosecutrix became pregnant

and on 06.09.2014 she gave a birth to a male child and it

died on the next day and thereby the accused has

committed the offences punishable under Sections

376(2)(i)(f), 506 of IPC and Sections 4 and 6 of POCSO

Act.

5. Charge is framed against the accused for the

offences punishable under Sections 376(2)(i)(f), 506 of

IPC read with Sections 4 and 6 of POCSO Act.

6. Accused has pleaded not guilty and claimed to

be tried.

7. In support of the prosecution case, 22

witnesses are examined as PWs.1 to 22, Exs.P1 to 41 and

MOs.1 to 10 are marked.

8. During the course of his statement under

Section 313 of Cr.P.C., accused has denied the

incriminating material arising out of the evidence led on

behalf of the prosecution. He has not led any defence

evidence on his behalf.

9. After hearing arguments of both sides, the

learned Special Judge has convicted the accused for the

offences punishable under Sections 376(2)(i)(f), 506 of

IPC read with Sections 4 and 6 of POCSO Act and

sentenced him as under:

"For the offence punishable under Section 6 of POCSO Act read with Section 376(2)(i)(f) of IPC accused shall undergo life imprisonment and to pay fine of Rs.25,000/-, in default to undergo rigorous imprisonment for three years.

For the offence under Section 506 of IPC accused shall undergo simple imprisonment for two years and to pay fine of Rs.25,000/-, in default to undergo simple imprisonment for six months.

For the offence punishable under Section 4 of POCSO Act, there is no need to award separate sentence.

The aforesaid substantive sentences shall run concurrently."

10. The learned counsel representing the accused

submits that the impugned judgment and order of

conviction is contrary to law, facts and material placed on

record and as such, it is liable to be set aside. Except the

interested witnesses, rest of the prosecution witnesses

have turned hostile and not supported the prosecution

case. The Police have not collected the blood sample from

the body of the child for DNA test in the presence of the

independent witness. The Trial Court has not appreciated

the evidence of the prosecutrix and PW.1, who is the

complainant and mother of the prosecutrix, in right

perspective. Complainant is a woman of loose character

and the prosecutrix has also fell in the same line.

Complainant had illicit relationship with several persons

and this fact is not appreciated by the Trial Court. The

prosecutrix while attending the School used to travel in the

autorickshaw of one Sikhandar and she had gone to Jog

and Vijayapura with the said Sikhandar and the pregnancy

carried by her belong to the said Sikhandar. The accused

has nothing to do with the same and this fact is not

appreciated by the Trial Court.

11. The learned counsel would further submit that

the testimony of the prosecutrix consists of several

omissions and contradictions which goes to the root of the

prosecution case. There is no clear and clinching evidence

regarding the allegations made against the accused.

Accused is a resident of Devagiri and for some time

complainant resided at Devagiri. During this period, she

had collected money from several women who were the

members of Mahila Sangha and misappropriated the same.

At that time, accused supported those women who had

lost the money. On account of it, complainant has

developed enmity against the accused. Similarly, accused

was not in good terms with the Investigating Officer i.e.,

PW.20 Pavar, while he was working as CPI of Haveri Town

Police Station. Both complainant and PW.20 have joined

together to file a false complaint against the accused and

prays to allow the appeal.

12. On the other hand, the learned Additional

State Public Prosecutor supports the impugned judgment

and order and submits that while the accused and

complainant were living together as husband and wife,

with the prosecutrix, during the absence of complainant,

accused has committed repeated rape on the prosecutrix

who was aged 12 years. As a result of which she became

pregnant. After coming to know about the pregnancy of

the prosecutrix, she filed a complaint against the accused.

Subsequently, prosecutrix gave birth to a male child which

died on the next day.

13. The learned Additional State Public Prosecutor

would further submit that the DNA test of the dead child of

the prosecutrix reveal that accused is its biological father.

The said medical evidence corroborates with the testimony

of complainant and the prosecutrix. Appreciating the oral

and documentary evidence placed on record, the learned

Special Judge has rightly convicted the accused and

sentenced him to undergo imprisonment for life for the

offence punishable under Section 376(2)(i)(f) of IPC, which

means during the entire remander of his natural life. He

would further submit that absolutely there are no

justifiable grounds to interfere with the impugned

judgment and order and prays to dismiss the appeal.

14. We have heard elaborate arguments above

sides and perused the records.

15. It is the definite case of the prosecution that

complainant i.e., PW.1 Yashodha married one

Basavannayya Chikkmath on 24.04.2001 and when she

was pregnant with the prosecutrix, she went to her sister's

house for delivery. Since her husband was suffering from

fits, she did not go back to her matrimonial home.

Subsequently, she started living with the accused as wife

and husband along with the prosecutrix. After the death of

her husband, she filed a suit in Mundagod Court seeking

partition of her husband's property and on the date of

hearing, she used to attend the Court at Mundagod. It is

further case of the prosecution that on 26.07.2014 when

the prosecutrix complained of stomach ache, complainant

took her to District Hospital, Haveri and through PW.12

Dr.Netravati, she came to know that prosecutrix is

pregnant and at that point of time, prosecutrix revealed

that when she had gone to Mundagod to attend the Court

proceedings, accused committed rape on her and

accordingly she filed the complaint setting the law into

motion.

16. Accused has denied and disputed that he and

complainant were living as husband and wife along with

the prosecutrix and during the absence of complainant, he

has committed rape on the prosecutrix resulting in her

pregnancy. Apart from alleging that complainant was a

woman of loose character, he has made allegations that

prosecutrix was moving with an auto driver by name

Sikhandar and had gone with him to Jog and Bijapur and

the child which the prosecutrix was carrying belong to the

said Sikhandar and he has been falsely implicated in

collusion with the Investigating Officer against whom he

had given a complaint to the Superintendent of Police.

17. It is pertinent to note that after the death of

the child given birth by the prosecutrix, at the instance of

the Investigating Officer, the Medical Officer, who

conducted its postmortem examination has collected its

body parts and they were sent to FSL for DNA profiling.

Similarly, the blood sample of accused was also collected

in the presence of the Judicial Magistrate and its DNA

profiling was also made. According to the prosecution, the

DNA profile of the accused and the dead child match and

the forensic expert has given the report that the accused is

the biological father of the dead child. In the light of the

said report, it is to be examined whether the defence of

the accused that one Sikhandar is the father of the child is

tenable.

18. PW.13 Dr.Basavaraj Olekar is the medical

officer who has examined the accused and given report at

Ex.P-28 to the effect that there is nothing to suggest that

he is incapable of performing sexual intercourse. He has

identified the accused who was produced through video

conference before the Court. After examining the FSL

Report he has given final opinion as per Ex.P-29. The

testimony of this witness is not seriously disputed except

suggesting that in Ex.P-28 some of the columns are struck

out, for which he has replied that those columns which are

not applicable are struck out.

19. During the course of their evidence,

complainant i.e., PW.1 and the prosecutrix in clear and

unequivocal terms have deposed that accused was living

with them in their house at Haveri. PW.1 has stated that

before shifting to Haveri, they i.e., herself, prosecutrix and

the accused were staying together at Byadgi and at that

time, prosecutrix was aged five years. During her cross-

examination though PW.1 has deposed that from Byadgi

they shifted to Motebennuru and from there they shifted to

Haveri, she has denied the suggestion that she lived at

Bankapura for two years, also at Devagiri and Sirsi. When

the incident in question has taken place at Haveri, the

cross-examination of PW.1 as to the previous places she

stayed does not assume importance.

20. To prove that accused was living with the PW.1

and the prosecutrix, in addition to their evidence, the

prosecution has relied upon the testimony of PWs.5 and 6,

who are their neighbours living in the opposite house.

According to PW.1 and the prosecutrix on 26.07.2014,

when they went to the Hospital, PWs.5 and 6 also

accompanied them. PWs.5 and 6 have deposed that at

Haveri they were living in the house opposite the house of

PW.1 and the prosecutrix and on 26.07.2014, they had

also gone to the District Hospital, Haveri with PW.1 and

the prosecutrix. However, they have not identified the

accused. In this regard, PWs.5 and 6 have stated that they

have not seen the accused in the house of complainant.

During her cross-examination by the prosecution, when

suggested that accused was also living in the house of

PW.1 and the prosecutrix, she has not denied the said

suggestion, but expressed ignorance. However, during his

cross-examination by the prosecution, PW.6 has denied

that accused was living with PW.1 and the prosecutrix.

They have also denied that after the examination of the

prosecutrix by the Medical Officer at District Hospital,

Haveri, they came to know that she was pregnant and the

accused was responsible for her pregnancy.

21. During her cross-examination by the defence,

PW.5 has deposed that one Gurubasayya Chapparadahalli

was visiting the house of PW.1 and the prosecutrix. On this

aspect, PW.6 has expressed ignorance. From the manner

in which these two witnesses have given evidence, it is

clear that they are won over by the accused. When PW.5 is

able to speak regarding the occasional visit of

Gurubasayya Chapparadahalli to the house of complainant,

their evidence that they have not seen the accused staying

with PW.1 and the prosecutrix, is not reliable especially

when she was living in the house opposite to the house of

PW.1 and the prosecutrix. We have no hesitation to hold

that only to help the accused, PWs.5 and 6 have deposed

that they have not seen the accused living in the house of

PW.1 and the prosecutrix.

22. In order to establish that accused and PW.1

were living as husband and wife and sometimes accused

used to go to school to take the prosecutrix with him in his

capacity as her father, the prosecution has relied upon the

evidence of PW.9 Ashok Bidanurmath and PW.10

Channabasappa Dalavayi, who were working as Teacher

and Headmaster in the Rotary School where the

prosecutrix was studying. Though they have deposed

regarding the fact of prosecutrix studying in their School,

when suggested that some time accused used to come to

take the prosecutrix with him, they have expressed

ignorance by stating that they do not remember as several

people come to the School. Therefore, the evidence of

PWs.9 and 10 is not of much help to the case of the

prosecution to establish that accused was living with the

complainant and prosecutrix in their house.

23. PW.14 Chennabasavva Prabhayanamath is the

sister of PW.1 and maternal aunt of the prosecutrix. Her

evidence establish the fact that initially PW.1 was married

to one Basavannayya Chikmath and prosecutrix was born

to him and as the said Basavannayya Chikmath was

suffering from fits, after PW.1 came to her parental home

for her delivery, she did not return to her matrimonial

home and subsequently, Basavannayya Chikmath died.

She has deposed that at Haveri, PW.1 was living with the

accused and the prosecutrix and in respect to the suit filed

by her, PW.1 used to go to Mundagod. She has also

deposed regarding the prosecutrix giving birth to a baby

boy and it died while in the hospital.

24. Except making general denials, accused has

not placed any material on record to show that at the

relevant point of time, he was living elsewhere. Inspite of

PWs.5 and 6 turning hostile with regard to accused living

with PW.1 and prosecutrix in their house and PWs.9 and

10 turning hostile with regard to accused some times

coming to the School and taking back the prosecutrix on

one or the other pretext in his capacity as her parent, the

evidence of PW.1 as well as the prosecutrix coupled with

the testimony of PW.14, prove the fact that after the death

of husband of PW.1, accused and PW.1 lived together as

husband and wife at Byadagi and Haveri with the

prosecutrix. Their testimony with regard to accused living

with PW.1 and prosecutrix is cogent, consistent and

admissible. We find no reason to disbelieve the same.

25. Coming to the allegations that accused

committed rape on the prosecutrix about 4-5 times while

PW.1 had gone to Mundagod to attend the Court

proceedings. During the course of her evidence,

prosecutrix who was aged 14 years at the time of her

evidence has deposed in unequivocal terms, the fact of

accused committing rape on her during the absence of

PW.1, her mother. She has specifically stated that first

time accused raped her when she did not go to School on

account of her ill health. She has also stated that during

January 2014 and February 2014 accused came to her

School and brought her back to home from the School by

falsely saying that her mother had returned and committed

rape on her. She has also deposed that on the fourth

occasion i.e., on 17.07.2014, after dropping PW.1 to the

bus stop, accused returned and made a call to her falsely

stating that prosecutrix is not well and therefore, he is

taking her to the hospital, he once again committed rape

on her.

26. During the course of her evidence, the

prosecutrix has specifically deposed regarding the threat

given by the accused not to reveal the fact of he having

committed rape on her or else he would kill her mother.

She has also deposed about the accused frequently

assaulting her mother for one reason or the other,

especially after he committed rape on the prosecutrix with

a view to prevent her from revealing the said fact to PW.1.

27. It is pertinent to note that PW.1 has come to

know about the accused having raped the prosecutrix only

when she went to PW.12 Dr.Netravati. During the course

of her evidence, prosecutrix has deposed that during

February 2014, her mother along with accused took her to

Dr.Kalal. On examination, Dr.Kalal told that she is

suffering from typhoid and anemia prescribed some tonic.

On this aspect, PW.1 has deposed that when prosecutrix

missed her menstrual cycle for four months, she showed

her to few Doctors, but they said that due to anemia, she

is not having menstrual cycle and she would be alright.

Other than this, there is no evidence to show that PW.1

was aware of the pregnancy of the prosecutrix. Accused

has made suggestions to PW.1 that she made several

attempts to get the child of the prosecutrix aborted and on

26.07.2014 also she had gone to District Hospital, Haveri

to get the fits aborted and PW.12 Dr.Netravati became

angry and reprimanded her. Of course PW.1 has denied

these suggestions. We have carefully examined the

testimony of prosecutrix with regard to the accused having

committed rape on her. We find no reason to disbelieve

her evidence especially when PW.1 and the prosecutrix

have no ill-will or motive to falsely implicate the accused.

28. Accused has made a futile attempt to bring in

motive against PW.1 to falsely implicate him by suggesting

that at Devagiri and Nagendranamatti she had collected

money from members of the Mahila Sangha and

misappropriated the same and at that time, he stood by

those women and also gave a complaint against her and

therefore, she had motive to falsely implicate him.

However, except making bald suggestions, accused has

not placed any evidence on record to prove these

allegations. Atleast he could have produced the complaint

which he had allegedly lodged against PW.1 at Haveri City

Police Station. In the absence of any corroborating

evidence, the accused has failed to prove that he has been

falsely implicated.

29. Giving the reasons for taking the prosecutrix

for medical examination, PW.1 has deposed that after

prosecutrix reaching puberty, she had regular menstrual

cycle for three months and thereafter she did not have her

menstrual cycle and therefore on 26.07.2014 she took the

prosecutrix to PW.12 Dr.Netravati.

30. PW.12 Dr.Netravati is the lady Medical Officer,

working at District Government Hospital, Haveri. On

26.07.2014, she has examined the prosecutrix and found

that she is pregnant. During the course of her evidence,

PW.12 has deposed to this effect and stated that the

prosecutrix was brought before her with the history that

she did not have her menstrual cycle since four months

and on thorough examination she found that she was

pregnant of 18 to 20 weeks and she was suffering from

depression. On enquiry, the prosecutrix reveal that her

step father i.e., accused had committed rape on her 4-5

times during the absence of her mother i.e., when she had

gone to attend the Court proceedings and 17.07.2014 was

the last time he committed rape on her.

31. PW.12 has also deposed that she called the so

called father of the prosecutrix i.e., accused to the Hospital

and made enquiry. Though initially he denied, later on he

admitted the fact of having raped the prosecutrix. PW.12

has specifically stated that at the time of her examination,

prosecutrix was aged about 12 years and prima facie her

enquiry revealed an offence under the POCSO Act and

therefore, she prepared a preliminary report as per Ex.P23

and informed the jurisdictional Police and submitted it. The

testimony of PW.12 regarding accused admitting his guilt

is an extra judicial confession and it is admissible.

32. At this stage, it is necessary to refer to the

provisions of Sections 19, 21 and 22 of POCSO Act.

Section 19 of POCSO Act enjoins a duty on any person who

apprehend that an offence under this Act is likely to be

committed or has knowledge that such an offence has

been committed, to provide such information to the Special

Juvenile Police Unit or local Police.

33. Section 20 of POCSO Act makes failure to

report or record the case an offence. It provides that any

person who fails to report the commission of an offence

under sub Section (1) of Section 19 or Section 20 or who

fails to record such offence under sub Section (2) of

Section 19 shall be punished with imprisonment of either

description which may extend to six months or with fine or

with both. At the same time, Section 22 makes false

complaint or false information punishable.

34. This explains as to why PW.12 choose to call

the accused and enquire him about the allegations made

by PW.1 and the prosecutrix and after making herself sure

about the allegations, she has prepared the report at

Ex.P23 and handed it over to the Police.During the

course of her evidence, PW.12 has deposed that in her

report, she has noted that there are signs of sexual

intercourse in the form of lacerated and torn hymen. Her

evidence reveals that after the complaint was filed, the

prosecutrix was not given to the custody of her mother

i.e., PW.1 and from the Children's Home (¨Á®ªÀÄA¢gÀ) Haveri

she was shifted to Davanagere Government Hospital and

on 06.09.2014 prosecutrix gave premature birth to a baby

boy and it died while undergoing treatment and

subsequently the DNA profile of the child reveal that it is

the biological child of the accused.

35. On this aspect, PW.12 has deposed that after

giving birth to the child and discharged from Davanagere

Government Hospital, the prosecutrix was admitted to

Government Hospital, Haveri and for a period of three

months she was given treatment and during this period,

she got the feed back about the case. Based on this

information, she has deposed to the above facts. While

giving evidence she has brought the copy of case file of

Davanagere Hospital which was forwarded to the

Government Hospital, Haveri. It is marked as Ex.P26. The

Copy of DNA report is marked as Ex.P26(a). The first

instance when this witness examined the prosecutrix on

26.07.2014 she got her examined through the dentist and

the dental report at Ex.P26(b) determines her age as 12 to

14 years. PW.12 has also identified the accused as the

person whom she enquired on 26.07.2014 and who

admitted of having raped the prosecutrix.

36. During her cross-examination, PW.12 has

admitted that the out patients coming to the Hospital are

required to get OPD Slip. PW.12 is questioned as to

whether she is having any document to show that on

26.07.2014 she examined the prosecutrix. It appears on

that day OPD slip was not prepared. In this regard, PW.1

has clearly deposed that on that day as it was 07:00 p.m.,

the concerned worker writing the OPD slip had already

gone and as such they did not get the OPD slip as the OPD

hours were over. PW.12 has clearly stated that during

2014 there was no facility of CCTV camera in the hospital.

At para 8 of her cross-examination, PW.12 has deposed

that along with the report at Ex.P25, she handed over the

accused to the Police. For reasons best known to him the

Investigating Officer has not shown that along with the

report at Ex.P25 they have taken the custody of the

accused. On the other hand, as per PW.22, he has arrested

the accused on 26.07.2014 i.e., on the same day

complaint was filed. However, he has not given any report.

We find no reason to disbelieve the testimony of PW.12

that she enquired the accused about the allegation and he

confessed and along with the report at Ex.P25, the

concerned Police took the accused with them. Thus the

oral testimony of PW.1, prosecutrix as well as that of

PW.12 prove the fact that accused committed rape on the

prosecutrix resulting in her pregnancy.

37. The case of the prosecution that accused is the

biological father of the male child delivered by the

prosecutrix is substantiated by the DNA report. As already

discussed, on 06.09.2014 prosecutrix gave birth to a male

child and on 07.09.2014 it died. PW 21 Ganapathi

Konganoli, P.S.I. has conducted inquest on the dead body

of the child as per Ex.P-7. Ex.P-8 is the Photograph

captured at the time of inquest. He has deposed that PW.4

Tejappa Lamani and PW.8 Puttayya Magodu were the

panchas for the inquest. PW.4 Tejappa Lamani has

deposed regarding the inquest. However PW.8 Puttayya

Magodu has claimed that he signed the inquest mahazar at

Ex.P-7 at the Police Station. The testimony of PW.21

supported by the evidence of PW.4 prove the inquest

mahazar at Ex.P-7.

38. PW.17 Dr. Mamata Patil has conducted the

Postmortem examination on the dead body of the child.

Her evidence proves the same. On the directions of the

investigation officer she has also harvested the skin of the

head, Femur, Humorous, Intestine, Liver and Heart for the

purpose of DNA testing. She has deposed that the cause of

death was due to acute respiratory failure as a result of

prematurity. The Postmortem report is at Ex.P 30. The

evidence of this witness is not disputed by the defence,

except suggesting that the dead child was not that of the

prosecutrix. Since the prosecution is relying upon the DNA

of the child given birth by the prosecutrix to connect the

accused to the rape committed on her, this suggestion is

absurd.

39. It is pertinent to note that after harvesting the

body parts of the deceased child, the investigation officer

has sent them to the FSL, Bangaluru for DNA profiling.

PW.18 L.Purushotham, Scientific Officer, DNA Centre, FSL,

Bangaluru has conducted the DNA test and prepared the

DNA Profile as per Ex.P-32. He has specifically stated that

on 08.09.2014 he received the body parts in a sealed

condition and the seal as well as those organs were in

proper condition and therefore he gave registration

No.DNA-274/2014 and after following the required

procedure, he prepared the DNA Profile of the dead child.

Since the blood sample of either or both parents of the

dead child were not sent, he has reported to the

investigating officer that without the blood sample of the

parents of the child, the maternity and paternity of the

child could not be find out.

40. Consequently the investigating officer has

requested the trial Court to permit him to take the blood

sample of the accused. Vide order dated 25.09.2014 the

learned Special Judge has permitted taking of blood

sample of the accused. He has observed that the same

shall be done in the presence of a Magistrate in order to

have an impartial collection of blood sample. Consequently

he has directed the accused to be produced before the Prl.

Civil Judge (Jr Dn) and JMFC, Haveri between 2:30 to 2:45

p.m on the same day. He also directed the investigating

officer to procure a doctor to collect the blood samples in

the presence of the learned Magistrate from the body of

the accused and preserve the same and send it across for

the purpose of DNA examination. In the order sheet it is

noted that after the said exercise the accused was

produced back before the Special Judge and he was further

remanded to judicial custody. It is further observed that a

Doctor by name Dr. L.N.Rathod was present before the

Court and submitted that as per the instructions of the

District Surgeon and the request of the Investigating

Officer he has drawn blood samples from the body of the

accused and he has collected the same in a proper

container, sealed the same and protected it for the

purpose of sending to DNA profiling. The Special Judge has

permitted the investigating officer to send the blood

sample for DNA profiling to FSL under proper and due care

through the official superior.

41. The evidence of PW.18 further establish that

he received blood sample of accused in refrigerated box

and from the documents enclosed with the same he

ascertained that the blood sample was collected on

25.09.2014 at 2:45 p.m. in the presence of the judicial

Magistrate. He also came to know that since the mother of

the dead child was not well and was under going treatment

at Davanagere Hospital, her blood sample was not

collected and sent. Having found that the sample was in a

proper condition, he gave registration No.DNA-292/2014

and after following the prescribed procedure, he prepared

the DNA Profile of the accused as per Ex.P-33. On

comparison of DNA Profile of the deceased child and

accused it was found that deceased child is the Biological

of spring of the accused as it had inherited 50% of the

Gene/ Alili from the accused. Therefore he came to the

conclusion that accused is the Biological father of the

deceased child. Though PW.18 has been cross examined at

length, the defence has failed to indicate any reason to

disbelieve his evidence.

42. Since after determining the DNA Profile of the

dead child, he has forwarded the same with an observation

that in order to establish the paternity of the child, blood

sample of father and mother is required, PW.18 has been

cross examined suggesting that in order to establish the

paternity of the child the blood sample of the mother is not

required. He has admitted the same and explained that at

the time of giving the preliminary report he was not aware

as to in respect of the mother or father the report is

required to be given and therefore he requested for the

blood sample of father and mother. He has denied that at

the instance of the investigating officer he had given a

false report.

43. Thus the testimony of PW.18 coupled with the

DNA reports at Ex.P-32 and 33 prove that accused is the

Biological father of the deceased child and there by the

prosecution has proved that prosecutrix conceived the

child of the accused as a result of rape committed by him.

This also falsify the defence of the accused that the child

conceived by the prosecutrix belong to one Sikandar. We

have no hesitation to hold that only for the sake of defence

accused has taken such a false plea. So also accused has

failed to establish that on account of he supporting women

whose money PW.1 has allegedly misappropriated and also

on the ground that due to ill-will between him and the

Investigating Officer, he has been falsely implicated.

44. Much is made out about the fact that accused

is called Imamhusain @ Noorahmed @ Ajaykumar

Chikmath. It appears that accused is a Muslim and his

name is Imamsab @ Noorahmed. During the course of her

evidence PW.1 the mother of the prosecutrix has deposed

that after the death of her husband she came in contact

with the accused and started living with him. She has also

stated that she converted him to Lingayat community and

named him as Ajaykumar @ Basayya Chikamath.

Therefore in the complainant as well as subsequent

documents he has been described as Imamhusain @

Noorahmed @ Bassayya Chikmath. In the charge as well

as in the judgment he has been described as Imamhusain

@ Ajaykumar @ Noorahmed Chikmath.

45. Thus from the above discussion we hold that

the charges leveled against the accused are proved beyond

reasonable doubt. Taking into consideration the oral and

documentary evidence placed on record, the trial Court has

rightly convicted and sentenced the accused. We find no

reasons to interfere with the same and accordingly we

proceed to pass the following:

ORDER

The appeal filed by the appellants fails and

accordingly it is dismissed.

We place on record our appreciations to the able

assistance rendered by Sri.R.H.Angadi, learned Amicus

Curiae.

Sri.R.H.Angadi, learned Amicus Curiae submits that

he has represented the appellant/accused pro bono and

there is no need to order for grant of any remuneration.

We appreciate his gesture.

Sd/-

JUDGE

Sd/-

JUDGE

RSH / PJ