w w w . L a w y e r S e r v i c e s . i n



Salim Ahmed v/s The State of Maharashtra

    Criminal Appeal No. 463 of 2017

    Decided On, 24 July 2018

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE MANISH PITALE

    For the Appellant: Amit Choube, Advocate. For the Respondent: Swati Kolhe, A.P.P.



Judgment Text

1. The question that arises for consideration in this appeal is whether the trial Court was justified in convicting and sentencing the appellant for an offence punishable under Section 376 (2), (f), (i) (n) of the Indian Penal Code (IPC) and Section 5 (j) (l) (n) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for the rape of his own daughter, when the material witnesses had turned hostile and the conviction was recorded on the basis of scientific evidence in the form of Deoxyribonucleic Acid (DNA) report.

2. The appellant has been sentenced by the Court of Special Judge under the POCSO Act, Nagpur for the offence stated above, to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/-. The case of the prosecution was that the prosecutrix was the daughter of the appellant and his wife (complainant) and that they were residing with other members of the family in their house at Sangam Nagar, Nagpur. About a month prior to lodging of report, in the present case, the prosecutrix fell ill and when she was taken to the hospital, the Doctor informed the complainant-Shafikunnisa Salim Ahmed Ansari (PW3) that her daughter i.e. the prosecutrix was pregnant. When complainant-Shafikunnisa (PW3) inquired from her daughter-prosecutrix as to what had happened, she stated that the appellant i.e. her father had taken her to the house of Nilima Meshram (PW5) in March2014 and that he had forcibly committed sexual intercourse with her. She further revealed that, thereafter on several occasions, the appellant committed the said act with her. On that basis, on 28.08.2014, the report was lodged with police by complainant-Shafikunnisa (PW3), when the prosecutrix was already five months pregnant. On this basis, a First

Please Login To View The Full Judgment!

Information Report (FIR) was registered against the appellant and investigation was undertaken by the investigating officer-Rajesh Thakur (PW7).

3. During the course of investigation, statements of witnesses were recorded and the prosecutrix was sent for medical examination. After the prosecutrix delivered a girl child, blood samples of the appellant, the prosecutrix and the girl child were sent for DNA analysis. Report of the DNA test revealed that the appellant and the prosecutrix were indeed biological father and mother of the girl child. On the basis of such material, the prosecution examined 13 witnesses, in support of its case. These witnesses included; mother of the prosecutrix, her brother, prosecutrix herself, the Doctors and the Chemical Analyser, who had conducted the DNA text. The prosecutrix (PW6), her mother complainant-Shafikunnisa (PW3), neighbor-Maya Patel (PW2), brother of the prosecutrix-Salman Ansari (PW4), employer of the appellant in whose house the appellant first sexually assaulted the prosecutrix-Nilima Meshram (PW5) and the pancha witness-Pawan Kolte (PW1), all turned hostile. Therefore, it was evidence of only Doctors, investigating officer and other police officer and the Chemical Analyser that supported the prosecution case.

4. By the impugned judgment and order, the trial Court found that the prosecutrix, her mother and her brother had turned hostile because the appellant was the only bread winner of the house. The trial Court also found that evidence on record, particularly DNA report read with the documentary evidence on record, proved the prosecution case beyond reasonable doubt. On this basis, the appellant stood convicted and sentenced in the aforesaid manner.

5. Mr. Amit Choube, Advocate, learned counsel appointed to appear on behalf of the appellant, submitted that when the prosecutrix herself and other material prosecution witnesses had disowned the prosecution and they had turned hostile, the trial Court was not justified in convicting and sentencing the appellant. It was submitted that even if the DNA test was to be accepted as proved, if there was lack of evidence and material to show that blood samples were collected in a proper manner, it could not be the sole basis of conviction of the appellant.

6. Per contra, Mrs. Swati Kolhe, learned A.P.P. appearing for the respondentState, submitted that the trial Court had correctly analysed the evidence of the prosecution witnesses as the hostile witnesses had stated in crossexamination that they wanted the appellant to be acquitted since he was the only bread winner of the family. It was further submitted that DNA test was a conclusive test, demonstrating the guilt of the appellant and that no fault could be found with the finding rendered by the trial Court against the appellant.

7. Heard counsel for the parties and perused the record. In the present case, where serious allegation of rape committed by the appellant against his own daughter has been made, the daughter (prosecutrix) has turned hostile. The mother of complainant-Shafikunnisa (PW3) has also turned hostile. A perusal of evidence of these two witnesses reveals that the prosecutrix (PW6), on being cross-xamined by the Public Prosecutrix, has stated as follows:

'3. My birth date is 27.06.2000. It is true that after my delivery, my blood sample and blood sample of my child was taken. It is true that on 29.08.2014, my sonography was done. It is true that my father is the only earning member in our family. It is true that as such, it is my desire that my father is to be acquitted.'

Mother of the prosecutrix Shafikunnisa (PW3), upon being declared hostile, in cross-examination by the Public Prosecutor stated as follows:

'It is true that the accused is the only earning member in my family. It is true that it is my desire that accused is to be acquitted.'

Thus, it becomes evident that both these material prosecution witnesses have turned hostile in order to ensure that the only earning member of their family i.e. the appellant, escapes conviction. They have not supported the prosecution case and the statements they had made to the police during investigation.

8. Other prosecution witnesses i.e. brother of prosecutrix-Salman Ansari (PW4), pancha witness for spot panchanama-Pawan (PW1), neighbor-Maya (PW2) and owner of the house where the appellant was employed as watchmanNilima (PW5), have turned hostile. In this situation, the only evidence in support of the prosecution case is in the form of deposition of the investigating officer, other police officials, Doctors and the Chemical Analyser, who conducted the DNA test. The whole basis of conviction rendered by the trial Court against the appellant is the report of the DNA test, supported by the evidence of the said witnesses who did not turn hostile.

9. DNA test is an effective tool of investigation and proof of guilt of the accused and it has now been accepted with the advancement of scientific technology, due to accuracy of the test. The question, as to whether DNA test report can be relied upon for proving case of the prosecution, has engaged attention of the Courts for some time. The Hon'ble Supreme Court has considered and pronounced upon the said question in number of judgments. In recent judgment in the case of Mukesh and anr. Vs. State (NCT of Delhi), and others; reported in (2017) 6 SCC; the Hon'ble Supreme Court took into consideration series of its earlier judgments on the said question as also judgments of foreign jurisdiction. The Hon'ble Supreme Court also took note of amendment of the Code of Criminal Procedure by insertion of Section 53A therein, which provides for DNA Profiling, where a person is accused of having committed rape. It has been noted that DNA test has an unparalleled ability, both for exonerating the wrongly convicted and to identify the guilty.Upon noticing various judgments, the Hon'ble Supreme Court has found as follows:

'228. From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for nonacceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted.'

It has been further held in the said judgment as follows:

'455. Before considering the above findings of DNA analysis contained in tabular form, let me first refer to what is DNA, the infallibility of identification by DNA profiling and its accuracy with certainty. DNA – Deoxyribonucleic acid, which is found in the chromosomes of the cells of living beings, is the blueprint of an individual. DNA is the genetic blue print for life and is virtually contained in every cell. No two persons, except identical twins have ever had identical DNA. DNA profiling is an extremely accurate way to compare a suspect’s DNA with crime scene specimens, victim’s DNA on the bloodstained clothes of the accused or other articles recovered, DNA testing can make a virtually positive identification when the two samples match. A DNA finger print is identical for every part of the body, whether it is the blood, saliva, brain, kidney or foot on any part of the body. It cannot be changed; it will be identical no matter what is done to a body. Even relatively minute quantities of blood, saliva or semen at a crime scene or on clothes can yield sufficient material for analysis. The Experts opine that the identification is almost hundred per cent precise. Using this i.e. chemical structure of genetic information by generating DNA profile of the individual, identification of an individual is done like in the traditional method of identifying finger prints of offenders. Finger prints are only on the fingers and at times may be altered. Burning or cutting a finger can change the make of the finger print. But DNA cannot be changed for an individual no matter whatever happens to a body.'

10. The aforesaid position of law pertaining to reliability of DNA tests, shows that it can be the basis of conviction of accused. The only requirement being that sampling of the blood samples has to be proper and there should be no material indicating any tampering of samples. Therefore, it becomes extremely important that there is evidence on record to show that collection of blood samples of the accused, the prosecutrix and the girl child in the present case, has been proper and that there is no evidence of tampering of the same.

11. In this context, not only the oral evidence of the investigating officer-Rajesh (PW7), Dr. Samata (PW8), Dr.Dharmendra (PW9) and Chemical AnalyserSau. Vaishali (PW11), assumes significance, but documentary evidence pertaining to collection of blood samples also becomes crucial. The material on record shows that on 02.09.2014, a requisition was sent by investigating officerRajesh (PW7) at Exh.58 to the Chief Medical Officer of the hospital requesting for a DNA kit for collecting blood sample of the appellant. The evidence of Dr. Samata (PW8) shows that the said requisition at Exh.58 was indeed received by her and that she collected the blood sample of the appellant in the DNA kit which was sealed and handed over for further action. At Exh.59 is the letter dated 02.09.2014, sent by the investigating officer (PW7) to the Deputy Director of Regional Scientific Laboratory, forwarding blood sample of the appellant in sealed DNA kit for analysis. At Exh.60 is the invoice challan issued by the Regional Scientific Laboratory about receipt of said sealed DNA kit with blood sample.

12. On 27.10.2014, the investigating officer-Rajesh (PW7) issued a requisition for DNA Kits for conducting DNA tests of the prosecutrix and the girl child. At Exh.103 and at Exh.104 is the endorsement dated 27.10.2014 regarding receipt of the DNA kits. At Exh.63 is the requisition sent by the investigating officer-Rajesh (PW7) to the Medical Officer of the hospital for collection of blood samples of the prosecutrix and girl child for DNA analysis. At Exh.64 is the requisition sent by the investigating officer (PW7) to the Regional Scientific Laboratory for conducting DNA analysis of the blood samples collected from the prosecutrix and the girl child. At Exh.65 is the invoice challan regarding receipt of two sealed plastic containers containing blood samples for DNA analysis. All these documents at Exhs.63, 64 and 65 are dated 29.10.2014. At Exh.105 and 106 are the documents showing collection of blood samples of the prosecutrix and the girl child by Medical Officer, in presence of the investigating officer (PW7) and two others.

13. The DNA report in the present case is at Exhs.68 and 69, given by Chemical Analyser-Sau. Vaishali (PW11) who was examined by the prosecution. A perusal of the evidence of the said witness shows that she has deposed in detail about the manner in which the scientific test was conducted. She has also deposed about the manner in which blood samples were received in sealed plastic container-kits and she has supported the findings of the said DNA report. In cross-examination, nothing of significance has been brought out.

14. In this context, the learned counsel appearing on behalf of the appellant, submitted that while Dr. Samata (PW8) who collected the blood sample of the appellant has been examined by the prosecution, the Doctor, who collected the blood sample of the prosecutrix and the girl child, was not examined by the prosecution. According to the learned counsel, this was fatal for the prosecution case as there was absence of cogent evidence to show that the blood samples of the prosecutrix and the girl child were collected in proper manner and that they were not tampered with. But, a perusal of the Exhs. 105 and 106 i.e. documents showing collection of blood samples of the prosecutrix and the girl child, shows that the blood samples were collected in presence of three witnesses, including the investigating officer (PW7). A perusal of the evidence of the investigating officer (PW7) shows that he has fully supported the entire process of requisitioning of DNA kits for collection of blood samples and actual collection of blood samples of the prosecutrix and the girl child. A specific assertion of the said witness that he had collected the blood samples and sent them for chemical analysis, has not been discredited in cross-examination. Although, the prosecutrix (PW6) has turned hostile, in the above quoted portion of her statement in cross-examination, she has specifically admitted that after delivery, her blood samples and that of the girl child were indeed collected.

15. Thus, a perusal of the documents at Exhs.105, 106, 103, 63, 64 and 65 read with the evidence of the prosecutrix and that of investigating officer (PW7) shows without any doubt that there was no tampering with the procedure of collection of blood samples of the prosecutrix and the girl child as also delivery of the said samples to the Chemical Analyser (PW11) to prepare DNA report. Similarly, the documents at Exhs.58, 59 and 60 read with the evidence of Dr. Samata (PW8), as also the investigating officer (PW7), demonstrates that there was indeed no material to show any tampering with collection and delivery of blood sample of the appellant to the Chemical Analyser (PW11). The contention raised on behalf of the appellant that failure of the prosecution to examine the Doctor, who collected the blood sample of the prosecutrix and the girl child, was fatal for the prosecution case, is wholly unsustainable in the face of the aforesaid documentary and oral evidence on record.

16. Once it is found that the procedure of collection of blood samples and their submission to the laboratory for analysis was absolutely proper and there was no evidence as to tampering of the same, the DNA report needs to be accepted. The Chemical Analyser (PW11) entered the witness box and proved the DNA test report and in her cross-examination, her evidence remained steadfast. In this situation, it becomes clear that report of the DNA test clearly indicated that it was the appellant who had committed the act of sexual intercourse against his own daughter, the prosecutrix (PW6) and that he was rightly convicted and sentenced by the trial Court.

17. Merely because the material prosecution witnesses, particularly the prosecutrix (PW6) herself and her mother complainant-Shafikunnisa (PW3) had turned hostile, it cannot lead to acquittal of the appellant, in the facts of the present case. It is indeed sad and poignant that despite such a reprehensible act committed by the appellant against his own daughter (prosecutrix), his wife complainant-Shafikunnisa (PW3) and the very same daughter-prosecutrix (PW6) have chosen not to support the prosecution case and they have turned hostile. But the scientific evidence in the form of DNA test report on record has nailed the guilt of the appellant. As noted by the Hon'ble Supreme Court in the case of Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and Ors., reported in AIR 2014 SC 932, to deny the DNA test report would be to deny the truth. It is further observed by the Hon'ble Supreme Court in the said judgment that the hallmark of justice is 'Truth must triumph.'

18. The evidence and material on record clearly demonstrates that despite the material prosecution witnesses turning hostile, the prosecution has conclusively proved its case beyond reasonable doubt against the appellant and that the trial Court was justified in convicting and sentencing the appellant under the provisions of the Indian Penal Code and the Protection of Children from Sexual Offences Act for having committed rape of his own daughter, prosecutrix (PW6). Therefore, this appeal is dismissed and the judgment and order passed by the trial Court is confirmed.

Professional charges of Mr. Amit Choube, learned counsel appointed for the appellant, are quantified at Rs.5,000/-.
O R