Kethavath Mallesh vs The State Of Telangana
2025 Latest Caselaw 4277 Tel

Telangana High Court

Kethavath Mallesh vs The State Of Telangana on 26 June, 2025

       THE HONOURABLE SMT JUSTICE K. SUJANA


         CRIMINAL REVISION CASE No.17 of 2025


ORDER:

This Criminal Revision Case is filed before this Court

with a prayer to set aside the judgment and conviction passed

in Crl.A.No.3 of 2023 dated 10.12.2024 on the file of the I

Additional District and Sessions Judge, at Mahabubnagar,

preferred against the judgment and conviction passed in

JCC.No.31 of 2020 dated 10.02.2023 before the Court of the

Child Justice Board cum Judicial Magistrate of First Class,

Mahabubnagar.

2. Brief facts of the case are that the revision petitioner, a

student and child in conflict with law (for short 'CCL'),

preferred an appeal vide Crl.A.No.3 of 2023 under Section 52 of

the Juvenile Justice (Care and Protection of Children) Act,

2015, challenging the conviction and sentence passed in

JCC.No.31 of 2020 by the Juvenile Justice Board-cum-Judicial

Magistrate of First Class for Child Cases, Mahabubnagar. The

CCL was found guilty of offences punishable under Section

376(2)(n) of IPC and Section 5 read with 6 of the Protection of

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Children from Sexual Offences (POCSO) Act, 2012. He was

directed to be sent to the Special Home for Boys, Hyderabad,

for a period of three years to undergo reformative services,

including education, counselling, skill development,

behavioural therapy, and psychiatric support.

3. The case originated from Crime No.104 of 2019

registered by the CI of Police, Jadcherla Rural Circle, alleging

that during his intermediate studies through

Dr. B.R. Ambedkar Open University at Kalwakurthy, the CCL

developed acquaintance with the minor victim. He proposed

love to her, and in January 2019, under the pretext of

marriage, took her to a secluded hillock near Appannapally

village and engaged in sexual intercourse. It was alleged that

such acts occurred on multiple occasions at the same location,

despite his knowledge that the victim was a minor. In March

2019, the victim became pregnant and disclosed the same to

the CCL in June 2019, requesting marriage. However, he

evaded the proposal. On 02.09.2019, she again contacted him,

but upon his refusal to marry her, she allegedly consumed

pesticide on 03.09.2019 after being scolded by her father in the

agricultural fields for neglecting her studies. She was shifted to

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Area Hospital, Badepally, and later to Government Hospital,

Mahabubnagar, where she succumbed during treatment on

07.09.2019.

4. Post-mortem examination revealed six months'

pregnancy, and DNA analysis confirmed the CCL as the

biological father of the fetus. The cell phone and motorcycle

allegedly used during the incidents were recovered pursuant to

a confession-cum-seizure panchanama. The prosecution

examined 17 witnesses and marked 22 exhibits, along with 2

material objects. The CCL denied the allegations during

examination under Section 313 Cr.P.C. and did not adduce

defence evidence. Though the trial Court found no sufficient

evidence to establish charges under Sections 305 and 366-A

IPC relating to abetment of suicide and kidnapping, it held the

sexual assault charge proved based on oral testimony, medical

findings, and DNA evidence, and accordingly, the CCL was

convicted under Section 255(2) Cr.P.C. and sentenced as

above.

5. The appellate Court, upon hearing both parties and

perusing the record, confirmed the findings of the trial Court,

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holding that the DNA results were conclusive and established

the culpability of CCL under Section 376(2)(n) IPC and Section

5 r/w 6 of the POCSO Act, 2012. It found no grounds to

interfere with either conviction or sentence and dismissed the

appeal on 10.12.2024, further directing cancellation of bail

bonds and extending the benefit of Section 428 Cr.P.C. in

computation of detention. Aggrieved thereby, this Criminal

Revision Case is preferred.

6. Heard Sri K.Venkata Vara Prasad, learned counsel for

revision petitioner, and Sri E.Ganesh, learned Assistant Public

Prosecutor, appearing for respondent - State.

7. Learned counsel for revision petitioner contended that

the judgments and convictions rendered by both the Trial

Court and the Appellate Court are contrary to law, fact, and

evidence on record. He submitted that the complaint dated

08.09.2019 lodged by PW-1 does not indicate any specific

allegation or motive attributed to the revision petitioner,

rather, it reveals that the victim had taken the extreme step of

suicide due to admonishment by her own parents. He placed

emphasis on the failure with regard to properly appreciating

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the material contradictions in the evidence of PW-1 regarding

the motive for the suicide committed by deceased. He lamented

that even the testimonies of other prosecution witnesses

suggest that the victim consumed pesticide following

reprimands from PW-1, and not due to any conduct of the

petitioner. He highlighted that several witnesses were unaware

of the circumstances leading to the suicide and therefore the

attribution of motive to the petitioner is legally unsustainable.

8. Additionally, learned counsel for revision petitioner

submitted that PW-6, the brother of victim, did not implicate

the petitioner in any clear or unequivocal terms, thereby,

failing to establish the involvement of petitioner beyond

reasonable doubt. He pointed out that PW-11 is a hearsay

witness and the alleged confession forming part of his evidence

cannot be treated as substantive proof. He averred that the

certificate under Section 65-B of the Indian Evidence Act, along

with the associated exhibits, did not conform to statutory

requirements. Further, that PW-14 allegedly deposed regarding

call records without producing requisite legal authorization,

rendering such evidence inadmissible. He raised doubts over

the credibility of PW-11, described as a Government servant

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and a stock witness, whose testimony was relied upon to

convict the petitioner.

9. That apart, learned counsel for revision petitioner

vehemently challenged the finding that the revision petitioner

was the biological father of the fetus, asserting that such a

conclusion was reached without any legally sustainable or

corroborative proof, and reiterated that the allegations of

repeated sexual acts and aggravated penetrative assault were

unsupported by cogent and reliable evidence. Therefore, he

prayed this Court to allow the revision case, setting aside the

judgment and conviction dated 10.12.2024 in Crl.A.No.3 of

2023, confirming the trial Court's finding in JCC No.31 of

2020.

10. On the other hand, the learned Assistant Public

Prosecutor, vehemently opposed the submissions made by

learned counsel for revision petitioner, and contended that over

the phone used by victim, they found five numbers that were

contacted repeatedly, on which they secured the presence of

the said persons, whose DNA samples were collected by the

expert and the said samples were sent to FSL. He submitted

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that the FSL report revealed CCL responsible for the said

offence, and thereafter, his confession was also recorded,

basing on which material objects were recovered. Therefore,

while advocating that there are no infirmities or illegalities in

the sentence and conviction of petitioner/accused, he prayed

this Court to dismiss the Criminal Revision Case.

11. Having regard to the rival submissions made, and on

going through the material placed on record, it is noted that

the contention of revision petitioner is that except the DNA

report, there is no other evidence on record to connect the CCL

with the offences as alleged. It is seen that the prosecution

examined PW.1 to PW.17, out of which, PWs.1 and 2 are

parents of the victim, according to whom the victim consumed

pesticide as they asked her to concentrate on studies and later

they came to know from one Swaroopa and Suvarna that the

victim used to talk to Mallesh, Srikanth, Wadde Srinu and

Shiva Naik, and used to move closely with CCL.

12. PW.3 is a circumstantial witness whose evidence is only

with regard to the revelation that victim consumed pesticide as

her parents admonished her for not working properly in their

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agricultural lands, and except this there is no other

incriminating material on record in the evidence of PW.3. The

version of PW.4 states that on hearing hues and cries of PW.3,

he went to her and found the victim lying on the ground and

when PW.3 informed him that victim consumed pesticide, they

shifted the victim to hospital. He stated that he does not know

the reason of commitment of suicide. The version of PW.5 is

similar to that of PW.4.

13. PW.6 is the brother of victim who was twelve years old

back then. He stated that victim returned to house and went

into her room and closed doors. He stated that he heard her

taking the name of CCL and then she consumed pesticide and

was later shifted to hospital, where they came to know that she

was pregnant, whereas, in his cross examination he admitted

that he was present at school when his sister committed

suicide. Therefore, the evidence of PW.6 is no way helpful to

the prosecution. PWs.7 and 8 are the classmates of victim who

did not support the case of prosecution. PW.9 is the

headmistress at Primary School, Midjil, whose evidence is only

to the extent of ascertaining age of victim on the date of

incident. PW.10 is the panch witness for inquest and his

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evidence is only with regard to conducting inquest panchnama.

The evidence of PW.11 is in relation to seizure of material

objects 1 and 2. PW.12 conducted autopsy which stated that

the victim was six months pregnant. She stated that she

conducted potency test over CCL and opined that there is

nothing to suggest that individual examined is not capable of

performing the act of sexual intercourse, and that Ex.P11 is the

report issued by her.

14. PW.13 is the headmaster of ZPHS Boys, at Kalwalurthy,

who issued bonafide certificate of CCL on 28.01.2020, wherein,

the date of birth of CCL was mentioned as 12.06.2002 which

clearly reveals that on the date of offence, he was juvenile.

PW.14 is Officer whose evidence is with regard to call data.

PW.15 is the investigating Officer who deposed about the

investigation done by him and also with regard to DNA report

marked through him. PW.16 is the owner of mobile phone

which was used by the victim, and PW.17 is the second

investigating Officer who sent questionnaire to PW.12 regarding

age of victim and description of genital organs.

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15. As seen from the evidence recorded on behalf of

prosecution, it is noted that except the evidence of Investigating

Officer and medical evidence put on record through DNA

report, there is absolutely no other evidence on record against

the CCL that corroborates with the case of prosecution. That

being so, at this stage, it is evident to determine whether DNA

report can be a sole basis for conviction of accused. According

to appellate Court, the DNA report is a conclusive proof which

is sufficient to show that CCL had sexual intercourse with

victim due to which she became pregnant.

16. Though DNA report is a scientific evidence, it can be

believed if there is any corroborative evidence to prove the

accusation against the accused. In the present case, though

there is no such corroborative evidence against the CCL, it is

also to be noted that while the DNA reports are highly accurate

and clear in establishing facts, they are not always to be

considered unless there is other evidence in support of

allegations. At this juncture, it is relevant to note the principle

laid down by the Hon'ble Supreme Court in the case of Rahul

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vs. State of Delhi, Ministry of Home Affairs 1 , wherein, in

paragraph No.37 it was held as under:

"37. In this regard very pertinent observations made by this Court in Manoj v. State of M.P. [Manoj v. State of M.P., (2023) 2 SCC 353 :

2022 SCC OnLine SC 677] deserve to be made. This Court has in detail dealt with the issue of DNA profiling methodology and statistical analysis, as also the collection and preservation of DNA evidence. The relevant paragraphs read as under : (SCC paras 151-

56)

"151. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata [ DNA profiling in Justice Delivery System, Central Forensic Science Laboratory, Directorate of Forensic Science, Kolkata (2007)] was relied upon. The relevant extracts of the article are reproduced below:

'Deoxyribonucleic acid (DNA) is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with intercalated proteins. Twenty-three pairs of chromosomes present in each nucleated cells and an individual inherits 23 chromosomes from mother and 23 from father transmitted

2023 1 SCC 83

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through the ova and sperm respectively. At the time of each cell division, chromosomes replicate and one set goes to each daughter cell. All information about internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases :

Adenine (A), Guanine (G), Thymine (T) and Cytosine (C) along with sugar-phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have exactly same DNA but it varies from individual to individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA) found in large number of copies in the mitochondria is circular, double stranded, 16,569 base pair in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also being in large number of copies than nuclear DNA, it can be used in the analysis of degraded samples. Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures.

Only 0.1 % of DNA (about 3 million bases) differs from one person to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples.

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*** DNA Profiling Methodology DNA profile is generated from the body fluids, stains, and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be established. DNA profiling is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed genetic markers. The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs). Analysis of a set of 15 STRs employing Automated DNA Sequencer gives a DNA profile unique to an individual (except monozygotic twin).

Similarly, STRs present on Y chromosome (Y- STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of azoo11permic or vasectomised" male. Cases In which DNA had undergone environmental stress and biochemical degradation, min lSTRs can be used for over routine STR because of shorter amplicon size.

DNA profiling is a complicated process and each sequential step involved in generating a profile can vary depending on the facilities available in the laboratory. The analysis

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principles, however, remain similar, which include:

1. isolation, purification & quantitation of DNA

2. amplification of selected genetic markers

3. visualising the fragments and genotyping

4. statistical analysis & interpretation.

In mtDNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples:....

Statistical Analysis Atypical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison:

(1) Match : If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched.

(2) Exclusion : If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources.

(3) Inconclusive : The data does not support a conclusion of the three possible outcomes, only the "match" between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The

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match statistics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA profile in a population.

In case of paternity/maternity testing, exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci possible mutations should be taken into consideration while reporting a match. Paternity or Maternity Indices and Likelihood Ratios are calculated further to support the match.

Collection and Preservation of Evidence

If DNA evidence is not properly documented, collected, packaged, and preserved, It will not meet the legal and scientific requirements for admissibility in a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be identified, preserved, packed and sent for DNA profiling.'

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152. In an earlier judgment, R v. Doheny [R v. Doheny, (1997) 1 Cri App R 369 (CA)] the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials : (1) the scientist should adduce the evidence of the DNA comparisons together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.

153. The Law Commission of India in its report [ 185th Report on Review of the Indian Evidence Act, 2003] , observed as follows:

'DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not "match", then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting

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how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 1,00,000 : This is described as the "random occurrence ratio" (Phipson 1999, 15th Edn., para 14.32).

Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law.'

154. In Dharam Deo Yadav v. State of U.P. [Dharam Deo Yadav v. State of U.P., (2014) 5 SCC 509 : (2014) 2 SCC (Cri) 626] this Court discussed the reliability of DNA evidence in a criminal trial, and held as follows : (SCC pp. 528-29, para 36)

'36. The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made up of a double stranded structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. ... DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence.

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More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory.'

155. The US Supreme Court in District Attorney's Office for the Third Judicial District v. Osborne [District Attorney's Office for the Third Judicial District v. Osborne, 2009 SCC OnLine US SC 73 : 557 US 52 (2009)] , dealt with a post-conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that : (SCC OnLine US SC)

'Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. ... DNA testing has exonerated wrongly

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convicted people, and has confirmed the convictions of many others.'

156. Several decisions of this court -- Pantangi Balarama Venkata Ganesh v. State of A.P. [Pantangi Balarama Venkata Ganesh v. State of A.P., (2009) 14 SCC 607 : (2010) 2 SCC (Cri) 190] , Santosh Kumar Singh v.

State [Santosh Kumar Singh v. State, (2010) 9 SCC 747 : (2010) 3 SCC (Cri) 1469] , Inspector of Police v. John David [Inspector of Police v. John David, (2011) 5 SCC 509 :

(2011) 2 SCC (Cri) 647] , Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 :

(2011) 3 SCC (Cri) 61] , Surendra Koli v. State of U.P. [Surendra Koli v. State of U.P., (2011) 4 SCC 80 : (2011) 2 SCC (Cri) 92] , and Sandeep v. State of U.P. [Sandeep v. State of U.P., (2012) 6 SCC 107 : (2012) 3 SCC (Cri) 18] , Rajkumar v. State of M.P. [Rajkumar v.

State of M.P., (2014) 5 SCC 353 : (2014) 2 SCC (Cri) 570] and Mukesh v. State (NCT of Delhi) [Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673] have dealt with the increasing importance of DNA evidence. This Court has also emphasised the need for assuring quality control, about the samples, as well as the technique for testing

-- in Anil v. State of Maharashtra [Anil v. State of Maharashtra, (2014) 4 SCC 69 :

(2014) 2 SCC (Cri) 266] : (Anil case [Anil v. State of Maharashtra, (2014) 4 SCC 69 :

(2014) 2 SCC (Cri) 266] , SCC p. 81, para 18)

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'18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with the DNA profile of the suspect, it can generally be concluded that both the samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory.'"

(emphasis in original)"

17. Further, the Bombay High Court recently held that DNA

test report cannot be solely relied on for conviction when the

ocular evidence does not support it. A division Bench sitting at

Aurangabad set aside a man's rape conviction observing that

the victim changed her testimony and the DNA evidence was

not reliable. It was concluded that the victim's testimony

cannot be trusted as she changed her statements. Therefore,

the conviction should not have been based only on the DNA

test report. Furthermore, in Criminal Appeal No. 306 of 2016

the Calcutta High Court held that a DNA report is not

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conclusive evidence to establish rape, refusing to discharge a

man in a rape case despite the DNA report indicating he was

not the biological father of the child born to the victim.

18. There are several precedents that stated DNA analysis

report cannot be considered conclusive evidence regarding rape

and can only serve as corroborative evidence during the trial; it

is not definitive evidence. An accused cannot be discharged

based solely on a scientific report when direct evidence is

present in the Case Diary. Allegations of rape may be

substantiated by substantive evidence, which requires evidence

from both sides.

19. Reverting to the facts of the case on hand, it can be said

that CCL cannot be convicted solely on the basis of DNA report,

as the DNA report cannot be considered as conclusive evidence

when there is no corroborative evidence. That being so, it can

be opined that the trial Court committed grave error in

convicting the CCL/revision petitioner, treating the DNA report

as conclusive proof, and subsequently, the appellate Court also

committed grave error in confirming the sentence and

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conviction of CCL/revision petitioner, warranting interference

of this Court.

20. Having regard to the facts and circumstances of the case,

this Criminal Revision Case is allowed, acquitting the revision

petitioner and setting aside the sentence and conviction passed

in JCC.No.31 of 2020 dated 10.02.2023 before the Court of the

Child Justice Board cum Judicial Magistrate of First Class,

Mahabubnagar, and the sentence and conviction confirmed in

Crl.A.No.3 of 2023 dated 10.12.2024 on the file of the I

Additional District and Sessions Judge, at Mahabubnagar.

Miscellaneous applications, if any pending, shall also

stand closed.

_______________ K. SUJANA, J

Date:26.06.2025 PT

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THE HONOURABLE SMT JUSTICE K. SUJANA

CRIMINAL REVISION CASE No.17 of 2025

Date:26.06.2025

PT