Karnataka High Court

Rajesh Prasad Yadav @ Chootu vs State Of Karnataka By on 20 December, 2023

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                     CRL.A No. 388 of 2019




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 20TH DAY OF DECEMBER, 2023

                                        BEFORE
                       THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
                           CRIMINAL APPEAL NO. 388 OF 2019
                BETWEEN:

                1.    RAJESH PRASAD YADAV @ CHOOTU
                      SON OF VASUDEVA YADAV
                      AGED 20 YEARS
                      RESIDING AT : GURUCHAK GRAMA,
                      NARAHAT POLICE THANA JURISDICTION
                      NAVADA DISTRICT
                      BIHAR STATE-805122
                                                              ...APPELLANT
                (BY SRI. S.BALAKRISHNAN, ADVOCATE)
                AND:

                1.    STATE OF KARNATAKA BY
                      SHO CHANDRA LAYOUT POLICE STATION,
                      REPTD BY GOVT. PLEADER
                      HIGH COURT BUILDINGS
Digitally             BANGALORE-560 001.
signed by                                                   ...RESPONDENT
SUMITHRA R      (BY SMT. SOWMYA R., HCGP)
Location:
High Court of
Karnataka            THIS CRL.A IS FILED U/S.374(2) OF CR.PC PRAYING TO
                SET ASIDE THE JUDGMENT CONVICTION DATED 23.01.2019
                AND SENTENCE DATED 31.01.2019 PASSED BY THE LIV
                ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-55)
                SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN
                DISTRICT IN SPL.C.C.NO.257/2016 - CONVICTING THE
                APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 4 AND 6 OF
                POCSO ACT AND SECTION 376 OF IPC.

                     THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS
                DAY, THE COURT DELIVERED THE FOLLOWING:
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                                              NC: 2023:KHC:46653
                                        CRL.A No. 388 of 2019




                        JUDGMENT

The Judgment and Order dated 23.01.2019 passed in

Spl.CC No.257/2016 by the Child Friendly Court,

Bengaluru Urban District, convicting and sentencing the

accused for the offence punishable under Sections 4 and 6

of POCSO Act, 2012 and Section 376 of IPC is assailed in

this appeal.

2. In brief, the case of the prosecution is that the

accused was working in Nayanadahalli Anche,

Gangodahalli, Ajijshet Industrial Town, 1st Cross, No.135,

MAH Plastic Factory, wherein the victim girl aged 15 years

was also working. When she was changing her dress the

accused captured her nude pictures in his mobile phone

and then started threatening that he will upload the said

pictures in the internet, if she did not obey his words.

On 24.02.2016, the accused induced her to come to the

factory and committed aggravated penetrative sexual

assault on her repeatedly, as a result of which she

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conceived. Further, he destroyed the memory card and

sim card of his mobile phone which contained the nude

pictures of the victim.

3. Charges were framed against the accused for

the offences punishable under Section 376, 201 IPC,

Section 67 of IT Act and Sections 3(a), 4, 5 (l) r/w Section

6 of POCSO Act, 2012.

4. In order to bring home the guilt of the accused,

the prosecution in all examined 21 witnesses and got

marked 28 documents and MOs.1 and 2.

5. The learned Sessions Judge while convicting the

accused, observed that in the first part of her evidence,

victim has not denied the incident, but she has only stated

that she did not remember what the accused did to her.

She has admitted the statement given to the police at

NIMHANS Hospital as per Ex.P1. PWs.6 and 18 were

present throughout while her statement was recorded by

the police. PW18-lady doctor has given the complete

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history as unfolded by the victim, which corroborates with

Exs.P1 and P3. The learned Sessions Judge has also relied

on the statement of the victim recorded under Section 164

of Cr.P.C. and placed reliance on the scientific examination

report done by PW21, marked as Ex.P28 to come to a

conclusion that the accused was the biological father and

the victim girl was the biological mother of the foetus that

was terminated. The learned Sessions Judge has found the

accused guilty of the offences punishable under Sections 4

and 6 of the POCSO Act and Section 376 of IPC, however,

found insufficient evidence insofar as Section 67 of the I.T.

Act and Section 201 IPC and acquitted him of the said

offence.

6. A perusal of the evidence of the victim,

examined as PW1 shows that she has denied the

prosecution case regarding aggravated Penetrative sexual

assault committed on her by the accused. She has stated

that she did not know what was written in the complaint,

marked as Ex.P1. She has not corroborated the statement

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recorded by the learned Magistrate under Section 164

Cr.P.C. Hence, she was treated hostile by the prosecution.

In the cross-examination conducted by the public

prosecutor she has denied that on 22.02.2016 when she

was working in the factory the accused called her and

showed the pictures of her changing her dress etc. and

then threatened her and committed aggravated

penetrative sexual assault. Her statement recorded under

Section 164 of Cr.P.C is not a substantial piece of

evidence. PWs.2 and 3 namely the mother and the sister

of PW1 have also not supported the case of the

prosecution and they have been treated hostile. Nothing

is elicited from their evidence to establish the charges

levelled against the accused. In view of the hostility of

the said witnesses, the prosecution case rests on the

medical evidence.

7. It is the case of the prosecution that on account

of the aggravated penetrative sexual assault committed by

the accused, the victim became pregnant and the foetus

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was terminated. PW15, medical officer working at

K.C.General Hospital, Malleswaram, Bengaluru, has

deposed that on 08.04.2016 at 12.20 a.m., the victim girl

was referred from casualty to their hospital for medical

termination of pregnancy and after confirming positive

through blood test and scanning and after consent given

by the victim girl and her mother pregnancy was

terminated. She has stated that the products of

conception, blood samples of the victim were collected,

packed and sealed and then handed over to the police for

DNA test. The Scientific officer who has issued the DNA

report at Ex.P3 is examined as PW21. As per the said

report, the accused and the victim girl are the biological

parents of the foetus that was terminated.

8. The learned counsel for the appellant has relied

on a decision of the Gujarat High Court reported in 2009

Crl.L.J. 2888 in the case of Premjibhai Bachubhai

Khasiya v. State of Gujarat and Another, wherein it is

held that the DNA report can be of great significance

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where there is supporting evidence, however, such report

cannot be accepted in isolation or as sole piece of evidence

to record conviction in rape case. He has also relied on a

decision of the co-oridnate Bench of this Court reported in

2020 SCC online KAR 5221 in the case of Paramesha

V. State of Karnataka by Circle Inspector of Police.

It is relevant to refer to paras-19 to 22 of the said

judgment, which are extracted hereunder:

"19. On perusal of the evidence which has been produced before the Court, the victim and the mother of victim have not supported the case of the prosecution and the only evidence which has been remained before the Court is that the production of Ex.P14, the DNA test. It is the specific contention of the learned counsel for the appellant that the report produced at Ex.P14 is not proved and formal proof will not help the case of prosecution when the same has been denied and challenged, then under such circumstances, the author of the said document has to be examined before the Court. For the purpose of brevity, I quote Sections 293 and 294 of Cr.P.C which read as under;

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"293. Reports of certain Government scientific experts.- (1)

20. Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.

(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.

(4) This section applies to the following Government scientific experts, namely.-

(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

(b) the Chief Inspector of-Explosives;

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(d) the Director, Haffkeine Institute, Bombay;

(e) the Director, Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government.

(g) any other Government scientific expert specified by notification, by the Central Government for this purpose.

294. No formal proof of certain documents-(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.

(2) The list of documents shall be in such form as may be prescribed by the State Government.

(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of

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the signature of the person to whom it purports to be signed:

Provided that the Court may, in its discretion, require such signature to be proved."

21. On close reading of Section 294(3) it indicates that where the genuineness of any document is not disputed, then under such circumstances, no formal proof of the document is necessary. But as could be seen from the evidence of PW.8 who has taken the blood sample of accused in his cross-examination he has admitted that Ex.P13 form for the DNA test has been brought by the Investigating Officer and it has been filled up by the Police and no witnesses were also present and he has sent it through the Police. In a criminal case when the prosecution relies on the experts evidence to prove the charges mere production of the report in the Court is not sufficient. If prosecution relies on the report of the expert not only the report is to be produced, but the author of the report is also to be examined before the Court on oath and an opportunity should be given to the accused to cross-examine the said expert on the correctness or otherwise of the said report. In the instant case, admittedly the expert has not been examined. This proposition of law has been laid down by this Court

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in the case of Parappa (quoted supra) at paragraph No.20 that it has been observed as under:

"20. This Provision should not be confused with the general law governing the admissibility of an expert's evidence. In a criminal case when the prosecution relies on the expert's evidence to prove the charges against the accused mere production of the said expert's report into Court is not sufficient. It does not become a part of the Court record on mere production. If the prosecution relies on a report of the expert, not only the report is to be produced, the author of the report is also to be examined in the Court on oath and an opportunity should be given to the accused to cross-examine the said expert on the correctness of the report. It is only then the said evidence becomes admissible and not otherwise. In such a criminal prosecution, the Court has not appointed the expert. It is the prosecution, to prove its case, needs report and they have to examine such an expert to prove their case. In a criminal trial, expert is a witness for the prosecution. He is not a Commissioner appointed by the Court in the proceedings."

22. I am conscious of the fact that the DNA test is an impact of the modern scientific and technological revolution. No doubt this new technology can be used as an effective tool in crime

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detection. To prove the case of the prosecution, the DNA technology as is a latest tool of modern genetic science. Many courts not only in India, but even in United State have relied upon and accepted it as a admissible evidence. However by close reading of the material, the scientific result is going to be taken, the entire process of procuring the DNA evidence is controlled by human agencies i.e., Investigating Officer and the forensic scientist. There is ample chance of manipulation or tampering of such evidence by the Corrupt Officers or Scientist which needless to say highly prejudice the accused persons. Even preservation method adopted are not properly brought on record. Under such circumstances the prosecution has to establish the corroboration of such evidence and its truth. This proposition of law has been laid down by this Court in case of Nagappa (quoted supra) at paragraph Nos.14 to 17 it has been observed as under:

"14. No doubt Article 20(3) of the Constitution of India, if it is contended that the accused is not bound to give the blood test, however, in order to have an investigation, the Investigating Officer or the Court can direct him to give the blood for DNA sample. Merely because he has given the consent for taking the blood, then under such circumstances, the report which has been given cannot be accepted as a gospel

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truth. When there is ample chance of tampering, then under such circumstances it is going to be highly prejudice the accused person. The science may be infallible, but human action, which controls the result of the scientific forensic examination, is always fallible and there is probability of manipulation and tampering with the scientific evidence.

15. Keeping in view the above said facts, I am of the considered opinion that it is highly unsafe to rely upon the sole DNA test to convict the person on the basis of the said test. There must be a unique balance between scientific evidence and human evidence. Therefore, existing value based criminal justice system cannot be done away with and as such, a susceptible balance has to be struck between the modern system based on scientific and technological knowledge and our existing value based system. It should be remembered that the law directly deals with the basis complex human problems, which are not of mathematical precision and the fate of every case depends upon its own factual matrix.

16. It is observed in the decision of Shakthiman Vs. State of Maharashtra through Police Station Officer reported in 2019 SCC Online Bom 139 that the DNA report or the scientific method to determine the paternity or sexual assault is firmly

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established. The only challenge for it can be set up for there occurred tampering with the blood sample of the accused at any stage. If something is on record to show that there was a possibility of tampering of the blood sample of the accused, then only there could be some room for suspicion about DNA report. But it will have to be judged from the facts of each case on hand.

17. It has also been observed in one more decision of the Gujarat High Court in the case of State of Gujarat Vs. Jayantibhai Somabhai Khant, 2015 Crl.L.J.3209, that if the DNA report is the sole piece of evidence, even if it is positive, cannot conclusively fix the identity of the miscreant. Wherein it has been observed as under:

"We are not unmindful of a decision of this Court in the case of Premjibhai Bachubhai Khasiya Vs. State of Gujarat, 2009 Cri LJ 2888 wherein a Division Bench of this Court observed that if the DNA report is the sole piece of evidence, even if it is positive, cannot conclusively fix the identity of the miscreant, but if the report is negative, it would conclusively exonerate the accused from the involvement or charge. It was observed that science of DNA is at a developing stage and it would be risky to act solely on a positive DNA

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report. This decision was rendered more than four and a half years back. Science and Technology has made much advancement, and world over DNA analysis technology is being relied upon with greater confidence and assurance. We do not think that the Indian Courts need to view the technology with distrust. Of course, subject to the laboratory following the usual protocols, DNA result can be of immense value to the investigators, prosecutors as well as Courts in either including or excluding a person from involvement in a particular act. The said decision of this Court must be viewed in the background of the facts in which it was rendered. It was a case where the accused were charged with offence under Sections 363, 366 and 376 read with Section 114 of the Penal Code, 1860. All important witnesses including the prosecutrix herself had turned hostile and did not support the prosecution. Despite which, the trial Court handed down conviction primarily on the basis of DNA report which opined that the DNA profiling of the foetus matched with that of the appellant original prime accused. It was in this background while reversing the conviction, the above noted observations were made. It can thus be seen that mere establishment of the

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identity of the father of the foetus in any case would not be sufficient to record conviction of the accused for rape and gang-rape under Sections 363, 366 and 376 of the Penal Code, 1860. The said decision, in our opinion, therefore, cannot be seen as either rejecting the reliability of the DNA technology or laying down any proposition that in every case the DNA result must be corroborated by independent evidence before the same could be relied upon."

9. The prosecution has relied on the DNA report at

Ex.P.28 issued by PW.21, to substantiate that the victim is

the biological mother and accused is the biological father

of the product of conception. PW.15 is the lady medical

officer examined who speak about collecting the product of

conception containing foetus and placenta and blood

sample of the victim. However, the prosecution has not

examined the doctor who collected the blood sample of the

accused. PW.9 is the police constable, who only speak

about taking the accused to Victoria hospital for drawing

blood sample and collecting the blood sample. It is not

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forthcoming as to who drew the blood sample of the

accused for DNA examination and as to what was the

procedure followed. The prosecution is silent on this

material aspect. Hence, in these circumstances, the DNA

report alone could not be relied upon, particularly when

the victim has turned hostile, to convict the accused.

10. The learned counsel for the appellant submits

that the accused while on parole has married the victim

girl and she has begotten a child which is now aged about

two years. He submits that the victim and the child has

no shelter and there is no one to look after them. He has

relied on a decision of the Hon'ble Apex Court in the case

of K.Dhandapani V. The State by the Inspector of

Police, (Crl.A.796/2022, disposed of on 09.05.2022)

wherein, under similar circumstances, in the peculiar facts

and circumstances of the case, taking into consideration

the subsequent events, conviction and sentence of the

accused was set aside.

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11. For the foregoing reasons and in the peculiar

facts and circumstances of the case, the appeal deserves

to be allowed. Accordingly, the following:

ORDER

i. The appeal is allowed.

ii. The Judgment dated 23.01.2019 and Order on sentence dated 31.01.2019 passed in SPL.CC No.257/2016 by the Child Friendly Court, Bengaluru Urban District, Bengaluru, convicting and sentencing the accused for the offence punishable under Sections 4 and 6 of the POCSO Act, 2012 and Section 376 of IPC is set aside.