Karnataka High Court
State Of Karnataka vs Malleshi S/O. Sharanu Nayak Alias ... on 5 June, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
-1-
NC: 2024:KHC-D:7504-DB
CRL.A No. 100504 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 100504 OF 2021 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR,
ANKOLA POLICE STATION,
DISTRICT UTTARA KANNADA
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
Digitally signed (BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
by GIRIJA A
BYAHATTI
Location: HIGH
COUIRT OF
KARNATAKA
AND:
1. MALLESHI
S/O. SHARANU NAYAK ALIAS TALAWAR
AGE: 48 YEARS,
R/O: ELAGOD
TQ: SHINDAGI-581349
DIST: BIJAPUR
NOW AT AVERSA-581316
TQ: ANKOLA, DIST: UTTARA KANNADA.
-2-
NC: 2024:KHC-D:7504-DB
CRL.A No. 100504 of 2021
2. SHILPA
D/O. CHANDRAHAS AGER
AGE: 23 YEARS,
R/O: AVERSA-581316,
TQ ANKOLA, DIST UTTARA KANNADA
...RESPONDENTS
(BY SRI. S.V. YAJI, ADVOCATE FOR R1;
NOTICE TO R2 SERVED)
THIS CRIMINAL APPEAL IS FILED U/S. 378(1) AND (3) OF
CR.P.C., PRAYING TO SET ASIDE AND GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
24.02.2021 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, FTSC-1, U.K. KARWAR (SPECIAL COURT FOR
TRIAL OF CASES FILED UNDER POCSO) ACT IN SPECIAL CASE
NO.42/2014 AND TO CONVICT AND SENTENCE THE
RESPONDENTS/ACCUSED FOR THE OFFENCES PUNISHABLE U/S
448, 376, 504 AND 506 OF IPC AND SECTION 6 OF POCSO ACT
AND U/S 3(2) (V) OF SC/ST ACT 1989, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, MOHAMMAD NAWAZ, J., DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-D:7504-DB
CRL.A No. 100504 of 2021
JUDGMENT
This appeal is preferred by the State against the
judgment and order dated 24.02.2021 passed by the
Court of Additional District and Sessions Judge - FTSC-I,
U.K. Karwar (Special Court for trial of cases under POCSO
Act).
2. The learned Sessions Judge vide impugned
judgment has acquitted the respondent/accused of the
offences punishable under Sections 448, 376, 504 and 506
of IPC, Section 6 of the Protection of Children from Sexual
Offences Act, 2012 ('POCSO', for short) and Section
3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 ('SC/ST Act', for
short).
3. We have heard Sri. M. B. Gundawade, learned
Addl. SPP appearing for the appellant/State and Sri. S. V.
Yaji, learned counsel appearing for respondent/accused.
NC: 2024:KHC-D:7504-DB
4. It is the case of the prosecution that the victim
girl (PW1) is a minor belonging to scheduled caste and she
is a resident of Aversa Village, Ankola Taluk. The accused
knowing very well that the victim girl is a minor and she
belongs to scheduled caste, induced her stating that he is
in love with her and he will marry her and on 17.04.2014
at about 1.30 pm, when no one was present in her house,
trespassed into her house and in spite of her resistance,
committed forcible penetrative sexual assault on her.
Further, the accused took her to the nearby hillock area
several times and repeatedly committed penetrative
sexual assault on her, on account of which the victim girl
became pregnant. Further, the accused abused the victim
and threatened her not to disclose the incident to others
and thereby committed the charged offences.
5. Charges were framed against the accused for
offences punishable under Sections 448, 376, 504, 506 of
NC: 2024:KHC-D:7504-DB
IPC, Section 5(j)(ii)(l) r/w Section 6 of POCSO Act and
under Section 3(2)(v) of SC/ST(POA) Act,1989.
6. In order to establish the charges leveled against
the accused, prosecution in all examined PWs.1 to 27 and
got marked Ex.P1 to P42.
7. The victim who is examined as PW1 has not
supported the prosecution case. She has completely
denied the sexual assault alleged to have committed on
her by the accused. Further, PWs.4 to 9, the relatives of
the victim and PW.10-an independent witness has also
turned hostile and not supported the case of prosecution.
Hence, the prosecution, to establish that the accused has
committed repeated penetrative sexual assault on the
victim, on account of which she became pregnant and
delivered a baby, is relying on the medical evidence and
the DNA report marked as Ex.P.42.
8. The learned Sessions Judge having examined
the evidence on record, particularly the DNA report has
NC: 2024:KHC-D:7504-DB
come to the conclusion that, it is highly unsafe to convict
the accused by relying on the DNA Test alone, without any
corroboration. To arrive at the said conclusion, the
Learned Sessions Judge has relied on the judgment of this
Court passed in Crl.A.No.1933/2019 decided on
19.12.2019, in the case of 'Nagappa s/o Manappa Vs.
State of Karnataka'.
9. Learned Addl. SPP assailing the impugned
judgment would vehemently contend that, the prosecution
has established that the victim was a minor as on the date
of commission of the offence by examining the Head
Masters namely PWs.11 and 12 and marking the
documents Exhibits P23 and P24. He contended that the
prosecution has also established that the victim belongs to
scheduled caste by examining the Tahasildar-PW.21 and
marking Ex.P.32-Caste certificate of the victim. He would
further contend that the prosecution has established that
the accused was not a member of Scheduled Caste or
Scheduled Tribe, by examining PW.15-Tahasildar who has
NC: 2024:KHC-D:7504-DB
issued Ex.P27 wherein, it is stated that the accused
belongs to Hindu Talawar caste which does not come
either under Scheduled Castes or Schedule Tribes.
10. The learned Addl. SPP has vehemently
contended that the victim was 22 weeks and 5 days
pregnant when she was examined by PW.20 on
13.09.2014 and as per scanning report Ex.P29 issued by
PW.16. He contended that subsequently, victim gave birth
to a child and in order to establish that the accused is the
biological father of the child, DNA examination was
conducted by PW.27 and as per his report-Ex.P.42, victim
girl is the biological mother and accused is the biological
father of the child. He therefore contended that the DNA
examination report being a conclusive evidence to
establish paternity of a child, the learned Sessions Judge
was not justified in discarding the said evidence and
acquitting the accused. He has therefore, sought to allow
the appeal and convict the accused for the charged
offences.
NC: 2024:KHC-D:7504-DB
11. Per contra, learned counsel appearing for
respondent/accused has contended that in this case,
victim has denied the allegations made against the
accused and even her close relatives namely her grand
mother, mother and sisters have also not supported the
prosecution case. It is contended that DNA report is only
an opinion and without corroboration the said report alone
cannot be accepted to convict the accused. It is further
contended that from the cross examination of PW.27, it is
clear that DNA examination was not conducted in
accordance with law and there are procedural lapses and
therefore, based on the said DNA report-Ex.P.42, it is
highly unsafe to convict the accused. He has therefore
argued in support of the judgment passed by the trial
Court and sought for dismissal of the appeal.
12. It is the case of prosecution that the victim girl
was a minor aged below 18 years and she belongs to
Scheduled Caste. The prosecution has placed reliance on
NC: 2024:KHC-D:7504-DB
the evidence of PW-11 and PW-12 to prove that the victim
was a minor as on the date of commission of offence.
13. PW-11, Head Master of Katyayini High School,
Aversa, has issued Ex.P-23, as per which, the date of birth
of the victim is 20.07.1998. PW-12 is the in-charge Head
Master during the relevant period and he has issued Ex.P-
24, study certificate pertaining to the victim, which shows
that she studied from 1st standard to 8th standard in the
Government Higher Primary School, Aversa, Ankola and
received the Transfer Certificate during 2010-2011. As
per Ex.P-24, the date of birth of the victim is 20.07.1998.
14. The learned Sessions Judge has accepted the
evidence of PW-11 and PW-12 as well as Exs.P-23 and P-
24 and held that the prosecution has proved that the
victim was a minor as on the date of incident. We find
that the said finding is based on the evidence and material
on record.
- 10 -
NC: 2024:KHC-D:7504-DB
15. In order to prove that the victim belongs to
Scheduled Caste and the accused was not a member of
Scheduled Caste, the prosecution has examined PW-15
and PW-21 and the documents at Exs.P-27 and P-22.
16. As per Ex.P-32 issued by PW-21-Tahasildar,
victim belongs to Hindu Bedara caste. He has stated that
the victim belongs to Scheduled Caste. Similarly, PW-15,
Tahasildar by issuing Ex.P-27 with regard to caste of the
accused has stated that the accused belongs to Hindu
Talwar caste. According to the prosecution, the accused is
not a member of Scheduled Caste and therefore, he has
committed the offence under Section 3(2)(v) of
SC/ST(POA) Act.
17. It is contended by the learned counsel for
accused that Ex.P-27 does not pertain to the accused as
the name mentioned in the said certificate is Mallappa
Sharanappa Talawar and it is not the name of the accused.
- 11 -
NC: 2024:KHC-D:7504-DB
He would further contend that the accused has produced
one document i.e., Transfer Certificate wherein the caste
of the accused is mentioned as Hindu Bedar. The learned
counsel has therefore tried to contend that even the
accused belong to Scheduled Caste.
18. The learned Sessions Judge has relied on the
said documents produced by the accused and also relied
on the admission made by the Investigating Officer-PW-25
to hold that the accused belongs to Hindu Bedar caste,
coming under Scheduled Caste.
19. A perusal of Ex.P-27 shows that the name
mentioned in the said document pertains to Mallappa
Sharanappa Talawar, whereas the name of the accused is
Malleshi S/o. Sharanu Nayak. It is no doubt true that PW-
15 has stated that both the persons are one and the same
and Ex.P-27 pertains to the accused. However, the
Investigating Officer-PW-25 has admitted in the cross-
examination that the accused belongs to Hindu Bedar
caste. Therefore, a doubt arises with regard to the caste
- 12 -
NC: 2024:KHC-D:7504-DB
of the accused and the document-Ex.P-27 issued by PW-
15 stating that accused belongs to Hindu Talawar
category-I. Hence, it cannot be held conclusively that the
prosecution has established beyond reasonable doubt that
the accused is not a member of Scheduled Caste.
20. The complaint is lodged on 13.09.2014, marked
as Ex.P1. The incident is alleged to have taken place six
months prior to the date of lodging the complaint. PW.26-
Police Inspector of Ankola police station on receiving
Ex.P1, registered a case and proceeded with the
investigation. The victim girl was sent for medical
examination to Ankola Government Hospital. She was
examined by PW.20. On abdominal examination she
noticed that the victim was six months pregnant. She has
stated that there is no sign of any forcible sexual
intercourse. Report submitted by her is marked as
Ex.P.30. On the basis of scanning report, she opined that
there is no sign of forcible sexual intercourse.
- 13 -
NC: 2024:KHC-D:7504-DB
21. PW.16 is the CMO of one Kamala Hospital,
Ankola. She has deposed that she has done the scanning
of victim girl and as per scanning report-Ex.P.29, the
victim was 22 weeks 5 days pregnant.
22. In her deposition, the victim who is examined
as PW.1 has stated that she has not at all become
pregnant and not delivered a baby. However, in view of
the above medical evidence placed on record by the
prosecution, it is difficult to accept that the victim girl did
not become pregnant. What is relevant to be seen is that
whether, the accused has committed penetrative sexual
assault on the minor victim, on account of which she
became pregnant and delivered a child.
23. In order to establish the paternity of the child
the prosecution has got marked Ex.P42-the DNA report
issued by PW.27. The prosecution is relying on the
- 14 -
NC: 2024:KHC-D:7504-DB
evidence of PW.23, PW.27 and the evidence of the
investigating officer.
24. It is contended by the learned Addl. SPP that
the victim girl delivered a baby girl and therefore, to
establish that the accused is the father of the child, blood
samples of the accused, victim and the baby were taken
as per the direction of the learned Sessions Judge.
Thereafter, the samples were sealed and sent for DNA
examination. He contended that as per DNA examination,
the victim is the biological mother and accused is the
biological father of the baby.
25. PW.23 who conducted physical general
examination of the accused speaks about obtaining the
blood samples of victim girl, her child and accused on
10.07.2015 with the help of a lab technician, in the Court.
He has also issued Ex.P.36 stating that there is nothing to
suggest that accused is incapable of performing sexual
intercourse. Further, he has stated that he sealed the
- 15 -
NC: 2024:KHC-D:7504-DB
blood samples taken in the Court, labeled them and
handed over to the investigating officer.
26. PW.27 working as Scientific Officer, FSL,
Bengaluru has deposed that on 13.07.2015, he received
three sealed articles concerning to the case which was
submitted by the Head Constable-472-Keshgiri Naik,
Ankola Police Station. All the three articles were sealed
intact and sent by keeping them in temperature controlled
theromocol box. By adopting internationally validated
protocol, he extracted DNA from all three coded blood
samples etc. and subjected DNA was profiled using genetic
analyzer instrument. As per the finding, 50% of the
alleles/genes present in the DNA of sample blood collected
from female baby was matching with the alleles/genes
present in the DNA of blood collected from the victim and
remaining 50% alleles/genes present in the DNA of sample
blood collected from female were matching with the
alleles/genes present in the DNA of sample blood collected
from the accused. He has opined that the victim girl is the
- 16 -
NC: 2024:KHC-D:7504-DB
biological mother and accused is the biological father of
the female baby.
27. In the instant case, the victim has not
supported the case of prosecution. She has completely
denied the allegations leveled against the accused that he
trespassed into her house on 17.04.2014 and committed
forcible penetrative sexual assault and later, on several
occasions, took her to hillock area and committed
penetrative sexual assault and made her pregnant etc.
Hence, the sole material available for the Court to come to
the conclusion that the accused has committed penetrative
sexual assault on the victim and made her pregnant, on
account of which she delivered a baby girl, is the DNA
report and the evidence of PWs.23 and 27.
28. Learned Addl. SPP has relied on the judgment
of Hon'ble Apex Court in the case of Chamanlal Vs. State
of Himachal Pradesh reported in (2020) 17 SCC 69 to
contend that in view of the victim delivering a baby and
the DNA report which states that accused is biological
- 17 -
NC: 2024:KHC-D:7504-DB
father of the baby delivered by the victim, the prosecution
has firmly established the said charges leveled against the
accused.
29. The DNA report or the scientific method to
determine the paternity if firmly established, the only
challenge that can be setup by the defense is that there is
tampering with the blood sample of the accused and no
proper procedure is followed while drawing the blood
samples and to show that there was a possibility of
tampering of blood samples, then only there could be
some room for suspicion about DNA report.
30. In the case of State of Gujarath Vs.
Jayantibhai Somabhai Khant reported in 2015 Crl.L.J.
3209, it is held that if the DNA report is sole piece of
evidence even if it is positive cannot be conclusively fix the
identity of the miscreant.
31. In the case on hand, we are required to
carefully examine the evidence of both PW.23 and PW.27
- 18 -
NC: 2024:KHC-D:7504-DB
and the DNA report Ex.P.42. PW.23 has deposed that on
10.07.2015, he went to the Court along with lab technician
and in the open Court he drew the blood samples of victim
girl, her child and accused with the help of lab technician
and sealed blood samples, labeled them and handed over
to the investigating officer. In the cross examination, he
has admitted that separate registers are kept for making
chemical examination in Court but he has not produced
the extract of chemical examination register in this case.
According to him, the accused and victim signed on the
respective identification forms. However, the victim has
completely denied the same. It is relevant to mention that
the investigation officer who received the sealed blood
samples was not examined before the trial court. As per
PW.27, he received three sealed articles on 13.07.2016,
which was brought by one Head Constable HC-472-
Keshgiri Naik, Ankola Police Station. He is also not
examined by the prosecution. It is not forthcoming as to
where the sealed blood samples were kept from
03.07.2015 to 13.07.2015.
- 19 -
NC: 2024:KHC-D:7504-DB
32. The Investigating Officer namely CW-27 who
received the sealed blood samples handed over by PW-23
is a material witness to speak about the blood samples
received by him on 10.07.2015 and sending the same to
the FSL for DNA examination through Head Constable-472
namely Keshagiri Naik. The said witness is given up by the
prosecution for the reasons best known.
33. PW-27 who issued Ex.P-42 has stated in the
cross-examination that the quantity of blood samples
taken up for DNA examination and EDTA test
preservatives were not mentioned in his report, in order to
confirm that there was no contamination. He has
admitted that he has not mentioned in the
acknowledgement that the blood samples were kept in
thermocol ice cold box, while transporting it.
34. The learned Sessions Judge has placed reliance
on para 13 to 15 of the judgment passed by a Coordinate
Bench of this Court by a coordinate bench of the Court in
- 20 -
NC: 2024:KHC-D:7504-DB
the case of Nagappa s/o. Manappa (supra), which are
extracted hereunder:
13. The only material which is available before the Court is
that of the opinion of PW19, the DNA test report as per
Ex.P.16. 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
detection. To prove the case of the prosecution the DNA
technology as a latest tool of forensic science, is the by
product of modern genetic science. Many Courts not
only in India even in United States have relied upon and
have accepted it as a admissible evidence. However, by
close reading of the material through which the scientific
result is going to be taken, the entire process of
procuring the DNA evidence is controlled by human
agencies i.e. Investigating Officers and forensic
scientists, there is ample chance of manipulation,
tampering of such evidence by corrupt officers or
scientist which needless to say highly prejudices the
accused person. Even preservative methods adopted
are not properly brought on record. In that light,
prosecution has to establish corroboration to such
evidence and its truthfulness error free, accurate,
unbiased and correct testing.
14. No doubt Article 20(3) on the constitution of India, if it
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
- 21 -
NC: 2024:KHC-D:7504-DB
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 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 reply 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 basic complex human
problems, which are not of mathematical precision and
the fate of every case depends upon its own factual
matrix.
The trial Court taking into consideration the medical
evidence of PW-27 and the DNA report-Ex.P-42 issued by
- 22 -
NC: 2024:KHC-D:7504-DB
him held that the principles laid down in the above
judgment are aptly applicable to the present case and
therefore, it is highly unsafe to convict the accused only by
relying upon the DNA Test. The findings recorded by the
trial Court cannot be said to be either perverse or illegal.
35. This being an appeal against the judgment of
acquittal, we find no convincing material to reverse the
said judgment. The appeal therefore fails.
36. For the forgoing reasons, we pass the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
gab - upto para 4
HMB -para 5 to 23
NAA -para 24 to end
