Even in the statement of the appellant recorded under
Section 313 of the Code by the learned Trial Court, the appellant
could not say anything except that he has been falsely involved in
this crime. This is also an additional circumstance in the chain of
circumstances established by the prosecution against the appellant.
(See: Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10
SCC 681). {Para 40}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Criminal Appeal No.493/2018
Mithun @ Dhananjay Khamban Nisad, C Vs State of Maharashtra
CORAM : M.S. SONAK &
PUSHPA V. GANEDIWALA, JJ.
DATE : 29-11-2021.
(Per: Pushpa V. Ganediwala, J.)
The appellant Mithun @ Dhananjay Khamban Nisad
has faced the trial for the offences punishable under Sections 363,
366-A, 376 (2)(i)(j) of the Indian Penal Code (IPC) and Section 6 of
the Protection of Children from Sexual Offences Act, 2012 ( for
short POCSO Act ) in Special Case Child Prot.No.153/2015,
wherein he found guilty of the offence of aggravated penetrative
sexual assault and allied offences and sentenced to suffer rigorous
imprisonment for life on two counts with fine and other sentences
on different counts vide judgment and order dated 06-10-2017
which is challenged in this appeal.
2. We have heard learned Advocate Ms. Neerja Chaubey,
appointed by High Court Legal Aid Services Sub Committed,
Nagpur, to appear on behalf of the appellant and learned APP Mr.
Doifode, appearing on behalf of the respondent-State.
3. PW-1, the father of the victim lodged a report on 25-04-
2015 stating therein that on 24-04-2015, at about 8.00 pm, the
appellant/accused, who is residing near his house, kidnapped his 18
months daughter with the intention to rape her, took her to the
forest area and raped her. Based on his report, Crime No.88/2015
came to be registered against the appellant/accused for the offences
punishable under Sections 363, 366-A, 376(2)(i)(j) of the IPC and
Section 6 of the POCSO Act. The investigation in this crime was
handed over to PSI Shri. Narendra Shamrao Tayade (PW-12). PSI
Shri. Tayade, looking at the critical condition of the victim, referred
the victim to PHC Mouda and from there she was referred to Mayo
Hospital, Nagpur through WPC Nalini (PW-5) with requisition
letter (Exhibit-50).
4. PSI Shri. Tayade initiated the proceedings for spot
panchanama (Exhibit-45). The place where the incident occurred
was at a distance of 300 mtrs from the site of bricks factory (place of
residence of the complainant and the appellant) and it was
surrounded by trees. In the presence of spot panch-Jaigopal (PW-
11) PSI Shri. Tayde seized from the spot articles like simple earth
(mud), earth mixed with blood, grass with blood stains and one
nicker. On the same day PSI Shri. Tayde arrested the accused and
sent him for the medical examination. Medical officer collected
samples of blood, nail clippings and other necessary samples from
the accused, sealed and handed it over to the police constable who
escorted the accused to the hospital for medical examination. PSI
Shri. Tayde seized and sealed the same from the police constable
through (Exhibit-46) in the presence of panchas and deposited the
same in Muddemal room. PSI Shri. Tayde also seized the clothes of
the victim (Exhibit-47), the clothes of the appellant (Exhibit-48),
the blood and vaginal swab sample of the victim (Exhibit-28) and
deposited the same in Muddemal room. On 07-05-2015 PSI Shri.
Tayde sent the seized muddemal to the Chemical Analyzer's office
through NPC Manoj Jaiswal B.No.1425 (PW-8).
5. Thereafter, PSI Shri. Tayde availed the sketch map of
the spot of the incident from Tahsildar (Exhibit-56). PSI Shri.
Tayde also recorded statements of witnesses and after investigation
filed chargesheet before the Special Court for the trial of the
offences under POCSO Act, 2012, Nagpur. The learned Judge of
the Special Court framed the charge against the appellant for the
offences punishable under Sections 363, 366A, 376(2)(i)(j) of IPC
and Section 6 of the POCSO Act, 2012. The charge was read over
and explained to the appellant in his vernacular. The appellant
denied the charge and claimed to be tried. The learned Judge
recorded the plea of the appellant.
6. The prosecution examined in all 12 witnesses in
support of its case. The learned Special Judge recorded the
evidence of the prosecution witnesses and marked the documents
and articles produced and proved by the prosecution. Based on the
incriminating evidence brought on record by the prosecution, the
learned Judge put questions to the appellant and recorded his
answers under Section 313 of the Code of Criminal Procedure, 1973.
The defence of the appellant is of total denial and false implication.
The learned Special Judge also called upon the appellant to enter
upon his defence, which he refused. The learned Special Judge after
hearing the arguments on both the sides and having regard to the
evidence brought on record by the prosecution, recorded the finding
that the prosecution proved the charge against the
appellant/accused beyond reasonable doubt and sentenced him as
under :-
"For the offence punishable under Section 363 of the
IPC the appellant is sentenced to suffer RI for 5 years and fine
of Rs. 2000/-, default sentence SI for 3 months.
For the offence punishable under Section 366-A of the
IPC the appellant is sentenced to suffer RI for 7 years and fine
of Rs. 3000/-, default sentence SI for 3 months.
For the offence punishable under Section 376 (2)(i)(j)
of the IPC the appellant is sentenced to suffer life
imprisonment and fine of Rs. 5000/-, default sentence SI for
1 year.
For the offence punishable under Section 6 of the
Protection of Children from Sexual Offences Act, the
appellant is sentenced to suffer life imprisonment and fine of
Rs. 5000/- in default SI for 4 months."
7. It is also directed by the learned Special Judge that the
substantive sentences imposed for the offences punishable under
Sections 363 and 363-A of the IPC shall run concurrently and first
the appellant has to undergo the said sentences and after its
completion, the appellant has to undergo the sentence for the
offences punishable under Sections 376(2)(i)(j) of the IPC and
Section 6 of the POCSO Act, concurrently. The learned Special
Judge also directed the State to recommend the case of the victim
for compensation and rehabilitation. The learned Special Judge
further directed that fine of Rs. 15000/- if paid by the appellant,
shall be remitted to the victim towards compensation. This
judgment is impugned in this appeal.
8. Learned Counsel Ms. Neerja Chaubey appearing for
the appellant/accused submitted that the learned Sessions Judge has
misconstrued the prosecution evidence led during trial. The learned
Special Judge failed to appreciate the fact that the medical report of
the victim does not corroborate the fact of sexual intercourse
committed by the appellant with the victim. She further states that
the learned Special Judge failed to appreciate the evidence on record
as there was no eye witness to the incident and the prosecution
could not prove its case beyond reasonable doubt. The prosecution
also failed to examine Ganesh who first time noticed the victim in
the jungle. His evidence could have been the best evidence. Nonexamination
of Ganesh creates doubt in the prosecution story which
incompletes and breaks the chain of circumstances. The learned
Counsel Ms. Chaubay urged to acquit the appellant/accused.
9. On the contrary, learned APP Shri. Doifode appearing
on behalf of the State while supporting the impugned judgment and
order submitted that the prosecution has proved the guilt against the
accused through cogent, clinching and convincing evidence. Shri.
Doifode, learned APP took this Court through the oral testimony of
material witnesses and the medical findings of the victim and the
accused so also DNA findings. The learned APP states that the
crime committed in this case is of a heinous nature as the girl of 18
months was taken to forest area and rape was committed on her and
thereafter she was left unattended and in the morning she was found
in the jungle when one neighboring boy had gone to ease himself.
The learned APP Shri. Doifode submits the prosecution could prove
each and every link in the chain of circumstances, which unerringly
points finger to the appellant only and no one else. Shri. Doifode
urged to dismiss the appeal being devoid of any merits.
10. The rival contentions fall for consideration of this
Court. We have perused the record with the assistance of the
learned counsel for both the parties.
11. At the outset, to establish the charge against the
accused, the prosecution examined in all 12 witnesses and also
brought on record the necessary documents and the articles. There
is no eye witness to the incident. The case is based on the
circumstantial evidence. On circumstantial evidence, the Hon’ble
Apex Court in a series of decisions has consistently held that when a
case rests upon circumstantial evidence such evidence must satisfy
the following tests:
(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a
chain so complete that there is no escape from the conclusion
that within all human probability the crime was committed by
the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence. (See:
Padala Veera Reddy v. State of Andhra Pradesh, AIR 1990 SC
79, Sharad Birdhichand Sarda v. State of Maharashtra, AIR
1984 SC 1622).
12. In this case, the victim being of 18 months’ age, there is
no question to examine the victim. However, the testimony of the
child witness (PW-2), brother of the victim is crucial. It is
worthwhile to note that in terms of Section 33(7) of the POCSO
Act, 2012, the names of some of the witnesses related to the victim
are not disclosed to ensure that the identity of the victim remains
undisclosed. PW-2 is examined on the point that he had seen the
appellant lifting the girl and taking her away towards the heap of
bricks. Immediately he informed about the same to his parents.
The appellant was known to this child witness as he was residing
near his house. Evidently, the father of the victim and the appellant
were working in the same brick’s factory and residing in hutments
with their respective families on the site of the factory. Evidently,
around 50 families of the labour class were residing on the site of the
factory.
13. To assess the competency of PW-2, the child witness of
age 10 years, the learned Special Judge asked him certain
preliminary questions regarding his age, education, value of oath
etc. On his satisfaction about the competency of the child witness,
his ability to understand and answer rationally and to understand
the sanctity of oath, the learned judge administered oath to him.
14. PW-2 testified that on the day of incident at around
8.00 pm while he along with his brother and sister was playing in the
courtyard, appellant came there and took the victim towards the
heap of bricks. He further deposed that he was knowing the accused
as the accused was residing near his house. He (PW-2) immediately
informed his parents, who were inside the house. The testimony of
this witness is relevant only on the aspect of last seen theory. A
perusal of his cross examination with the assistance of learned
counsel for the defence, we could not find anything to doubt the
credibility of this witness. In his cross examination, he has admitted
that he did not make hue and cry when the accused took the victim.
However, spontaneously he volunteered that he informed about it to
his parents. He also admitted that the accused had been to their
house 2-3 times prior to the incident. This suggestion in the cross
examination would, infact, suggest that the accused was not a
stranger to this witness. It has further come in his cross examination
that within one minute he informed his parents. All other adverse
suggestions put to him in cross examination have been flatly denied
by the witness, being incorrect.
15. We found the testimony of this witness trustworthy.
There is no reason to doubt his testimony. Why should have he
taken the name of the accused, if the accused would not have lifted
the victim. The accused was not stranger to him. He was knowing
the accused as the accused had been their house 2-3 times prior to
the incident. PW-2, even though a child of age 10 years , stuck to his
version and withstood the searching cross examination. He denied
the suggestion that he has been tutored by his parents. There is no
reason not to consider his testimony which is further corroborated
with the testimony of his father (PW-1) and other connecting
evidences.
16. PW-1, the father of the victim deposed that he was
working as a labour in a bricks’ factory and staying in the factory
premises with his family consisting of wife and three small children.
He further deposed that he was knowing the accused as the accused
was residing near his house and working at the same site. He
testified that on getting information from his son (PW-2), they
searched the victim for 2/3 hours but could not trace the girl.
Thereafter, he went to the manager of the factory Shri. Chaware
(PW- 3) and narrated the incident. He further deposed that he along
with the manager Shri. Chaware searched the victim for the entire
night. In these wee hours, one Ganesh brought the victim to their
house and informed them that when he went to answer nature's call,
he saw the victim lying there and therefore he had brought her in the
house. (PW-1) father of the victim noticed that the clothes of the
Victim stained with blood and blood was also oozing from her
private part. (PW-1) along with the Manager-Chaware (PW-3) and
other persons went to Police Station Mouda and lodged report
against the appellant.
17. In his cross examination, he has admitted that he did
not go to the house of the accused in search of the victim. However,
he spontaneously volunteered that brother of the appellant himself
came there in search of the accused. PW-1 also admitted that his
children did not make hue and cry when appellant lifted the victim.
However, he said his son narrated the incident to him. We found the
testimony of this witness consistent with the testimony of his son
PW-2 and Shri. Chaware PW-3, the manager of the factory. Nothing
substantive could be brought in his cross examination to doubt the
veracity of his testimony. There is no reason for this witness to
depose false against the appellant when admittedly, there was no
enmity between the two.
18. The testimony of PW-1 is further corroborated with the
testimony of PW-3. Shri. Chaware, the manager of the bricks
factory. With regard to the incident, PW-3 deposed that on that day
i.e 24.04.2015, there was a weekly off to the factory. Shri. Chaware
deposed that the complainant came to him at about 8.30 pm and
informed him about missing of his daughter and further informed
that the appellant had taken her daughter. They searched for the
appellant and he was found in his house. This witness noticed blood
stains on the clothes of the appellant. Interestingly, PW-1 does not
say that they searched the appellant in his house and he was found
there. In any case, the learned counsel for the defence could not
bring on record that this fact in the testimony of PW-3 is an
omission. This would suggest that this fact is not an embellishment
on the part of this witness. Furthermore, considering the other
clinching evidence against the appellant, we do not find it as a
material contradiction worthy of causing any dent to the prosecution
story.
19. Shri. Chaware further deposed that in the morning
hours, the daughter of the complainant was found to one Ganesh.
Thereafter, they went to the spot of the incident. They saw that the
victim was in unconscious condition. They took the victim to the
police station. This witness also denied all the adverse suggestions
put to this witness during cross examination.
20. PW-10, PI Shri. Gaibole is the witness who took report
of the complainant and registered crime against the appellant. This
witness deposed that on the basis of the report of PW-1, the father
of the victim, he registered crime at No.88/2015 (Exhibit-9). PI
Gaibole (PW-10) in his cross examination has deposed that there
were 4 to 5 persons along with the complainant, who came for filing
the complaint. This fact is corroborated with the testimony of the
informant PW-1.
21. PSI Shri. Tayde (PW-12), the investigation officer,
deposed that on 25-04-2015 the investigation in Crime No.88/2015
was marked to him. He deposed that as the victim was in critical
condition, he shifted her to PHC Mouda, from there she was
referred to Mayo Hospital, Nagpur through WPC Nalini B.No.1714.
PSI Shri. Tayde further deposed that thereafter he proceeded to the
spot and seized simple earth, blood mixed earth, grass having
blood stains and nicker of the victim vide seizure panchanama
(Exhibit-52). Spot panch Shri Jaigopal (Exhibit-11) fully supports
the version of PSI Tayde with regard to visit to the spot and seizure
of the articles from the spot. Spot panch Shri. Jaigopal (PW-7) also
acted as a panch for seizure of other articles during investigation i.e.
samples collected from the appellant, clothes of the victim and the
appellant. (Exh. 46 to 48).
22. The further connecting link in the chain of
circumstances is that the Chemical Analyzer's Report (Exhibit-18)
confirms the human blood stains on the earth and grass which were
seized from the spot of the incident. C.A. Report further confirms
two semen stains ranging from about 0.1 to 1 cm in diameter spread
at front portion to the nicker which was seized from the spot and
semen detected on the nicker is of human.
23. PSI Shri. Tayde deposed that he arrested the accused
on 25-04-2015 and referred him to the Mayo Hospital for medical
examination on 27-04-2015 through PC-Manjur Ahmed B.No.2021
through forwarding letter (Exhibit-53). PSI Shri. Tayde further
deposed to have seized and sealed the blood sample, pubic hair, nail
clippings, swab of glans penis, swab of shaft of penis collected by the
Medical Officer in the presence of panchas and sent the same for
Chemical Analyzer's analysis in a sealed condition. Chemical
Analyzer's report (Exhibit-21) does not show detection of semen or
blood on the above articles. The learned counsel Ms. Nirja Chaubey
for the appellant raised doubt on the prosecution story considering
the negative C. A. report regarding the samples of the appellant.
The doubt raised by the learned counsel, according to us, is
misplaced. Admittedly, the appellant was sent for medical
examination on the third day of the date of the incident and
therefore there is every possibility that he must have taken bath
during this period. Be that as it may, considering the other
connecting links in the chain of circumstances, much weightage can
not be given to this part of the evidence. The most crucial is the
positive DNA profile report against the appellant, which we propose
to discuss in the forthcoming paragraphs.
24. PSI Shri. Tayde further deposed to have seized and
sealed the clothes of victim in the presence of panch vide
panchanama (Exhibit-47) and deposited the same in Malkhana and
thereafter sent the same for Chemical Analyzer's analysis. C. A
report (Exh.21) shows the moderate number of human blood stains
ranging from about 0.1 to 5 cm in diameter spread at places. This is
another circumstance to indicate the commission of the offence
alleged.
25. PSI Tayade further deposed that he has also seized and
sealed the clothes of the accused in the presence of panch vide
Exhibit-48 and deposited the same in Malkhana and sent the same
for Chemical Analyzer's analysis. C. A. report shows moderate
number of blood stains ranging from about 0.1 to 3 cm in diameter
spread at places on the full pant of the appellant, so also few blood
stains ranging from about 01. to 1 cm in diameter spread at places
on shirt of the appellant and moderate number of blood stains
ranging from about 01. to 10 cm in diameter spread at places to the
nicker of the appellant. The blood found on these articles is human.
The appellant failed to explain the circumstance as to how human
blood is found on his clothes.
26. PSI Shri. Tayde further deposed that on 26-04-2015 he
has seized and sealed the blood, vaginal swab samples etc. of the
victim vide panchanama (Exhibit-28) and deposited the same in
Malkhana and thereafter sent the same for Chemical Analyzer's
analysis. He further deposed that he got the sketch map of the spot
of incident drawn through Tahsilder, Mouda.
27. In his cross examination PSI Shri. Tayde admitted that
during investigation he had inquired as to whether there is any
enmity between the appellant and the complainant and he did not
find any dispute between them. He has denied all other adverse
suggestions in toto. The testimony of this witness is important for
connecting the links in the chain with regard to seizure of articles at
various stages, sealing it, depositing it in malkhana, sending it for
chemical analyzer’s report, and collecting the reports etc.
Evidently, the reports of clothes of the accused and the victim,
various samples collected from the person of the victim, articles
collected from the spot are positive, connecting the accused for the
commission of the crime.
28. In the instant case, which is based on circumstantial
evidence, the forensic evidence played a major role and for that
matter the purity in the procedure from the stage of collection of the
samples till the collection of the reports is to be established beyond
doubt. The defence could not point out any lacunae in the
procedure followed during the investigation.
29. Now we turn to the medical evidence of the victim.
With regard to medical examination of the victim, Dr. Damodhar
Saliwkar (PW-9) deposed that on 25-04-2015 victim aged 18 months
was brought to him by WPC Nalini for medical examination. She
was accompanied by her parents and on examination he found that
the general condition of the victim was moderate, she was febrile.
He suspected victim was raped therefore he advised to consult
senior physician and gynaecologist and referred her to Government
Medical College and Hospital at Nagpur for management, relevant
investigation and opinion. He accordingly issued certificate
(Exhibits-39 and 40). He denied all the adverse suggestions in his
cross examination. In fact, there is no effective cross examination of
this witness. The evidence of this witness can be said to be one of
the links in the chain of circumstances.
30. Dr. Madhuri Patil (PW-4) deposed that on 24-04-2015
she was working as an Assistant Professor at Indira Gandhi General
Hospital, Nagpur. Victim was brought by WPC Nalini of Police
Station Mouda. The mother of the victim accompanied her. The
age of the victim was 18 months. She deposed that after obtaining
consent of the mother she examined the victim in the presence of
Dr. S.S. Giri. She found that victim was semi conscious, her pulse
rate was high 100/111. On general examination she found that
blood stains present in pubic area and buttock. Dr. Maduri Patil
(PW-4) noticed the following injuries on her person :
"1] contused abrasion on left knee about 1cm x 1cm.
2] contused abrasion on left side scapular region about
4 cm x 2 cm.
3] linear abrasion on anterior surface of left thigh,
lower 1/3rd of size 1.3 cm."
31. Dr. Madhuri Patil (PW-40) further deposed that on
local examination of genital she found that there was redness and
induration over libia minora, inflammed on clitoris, tears extended
to rectum on fourchette and introitus/vagina, hymen injury present,
bleeding and edma present, position of tears posteriorly, perineal
tear extended upto anal camal and rectum, urethral opening
edematore, anus spinctel injury present extended upto rectum.
32. Dr. Madhuri Patil (PW-40) further deposed that as the
victim was not cooperating due to pain, anesthesia was applied to
her. In her examination she found severe perennial tear involving
annul canal and rectum up to 5 cm, bilateral vaginal well tear
present, periurethal area conjested and edematous.
33. Dr. Madhuri Patil (PW-40) further deposed that she
has collected blood, vaginal swab, finger nail clippings and rectal
swab of victim. He has sealed and labelled and handed over the
same to the WPC on duty. She noticed all the injuries on the person
of the victim were fresh. In the opinion of Dr. Madhuri Patil the
evidence of sexual intercourse cannot be ruled out. After going
through the Chemical Analyzer's report filed at Exhibits-18 to 21 Dr.
Madhuri Patil opined that there is evidence of sexual intercourse
with the victim accordingly, she prepared Medical Examination
Report (Exhibit-23). In her cross examination she has denied each
and every suggestion put to her by the learned defence counsel. She
admitted that victim was admitted in their hospital for one day and
thereafter she was referred to Government Medical College and
Hospital, Nagpur for further treatment. Chemical Analyzer's
Report (Exhibit-19) reflects that the aforesaid samples which were
collected by Dr. Madhuri Patil were referred for DNA analysis.
WPC Nalini Uike (PW-5) supports the testimony of Dr. Madhuri
Patil with regard to her role in taking the victim for medical
examination and collecting aforesaid samples from Dr. Madhuri
Patil and handing it over to PSI Shri. Tayde. The evidence of Dr.
Madhuri Patil with regard to the injuries she noticed on the person
of the victim and her opinion about sexual assault on the victim is
another crucial link in the chain of circumstances.
34. Prosecution examined Dr. Vaishali Mahajan (PW-6)
from the forensic department. Dr. Mahajan deposed that on 07-05-
2015 she was attached to C.A. Office at Nagpur. That on the
requisition from P.S. Mouda, she received the medical samples and
clothes of the victim and the accused. They were marked as BN-
1748/15, penal swab of accused were sealed as per specimen sent
and marked as BN-1751/15. Medical samples of victim were
marked as BN-1749/2015 and medical samples of accused were
marked as BN-1750/15.
35. Dr. Vaishali Mahajan (PW-6) further deposed that all
these cases were analyzed by U.M. Sarate, Astt. C.A. She further
deposed that on 31-08-2015, Dr. Sarate sent positive blood stain
cutting, semen stain cutting from clothes of victim and accused,
blood mixed earth and grass and prepared blood stained of victim
and accused alongwith vaginal swab and rectal swab of victim to
DNA Department.
36. With regard to the DNA analysis, para 3 of the
deposition of Dr. Vaishali Mahajan (PW-6) is important, which is
reproduced below :
"I abstracted the DNA from all these samples. It was
amplified by using polymerase chain reaction. STR Geno
typing was done by me. I got DNA profile from Exh.1 frock.
Exh.2 necker, Exh.3 full pant, Exh.5 necker in PN
No.1748/15. Similarly I got DNA profile from Exh.1 prepared
blood stained of victim, Exh.3 vaginal swab, Exh.4 rectal swab
in BN 1749/15 and DNA profile from Exh.1 prepared blood
stained of accused in BN-1750/15. I tallied all these DNA
profiles. Accordingly in my opinion DNA profiles obtained
from blood detected on Exh.1 frock, Exh.3 full pant, Exh.5
necker in BN-1748/15, Exh.3 vaginal swab, Exh.4 rectal swab
in BN-1749/15, they were found to be identical and from one
and the same source of female origin and these profiles
matched with DNA profile of victim. Similarly, DNA profile
obtained from semen detected on Exh.2 necker of victim in
BN-1748/15 is of male origin and matched with DNA profile
of accused. Accordingly I generated my report and marked as
DNAn-518/15 of P.S.Mouda in Crime no.88/2015. The
report now shown to me is the same. The contents are true
and correct. It bears my signature. It is at Exh.30."
37. In the opinion of Dr. Vaishali Mahajan, DNA profiles
obtained from blood detected on the clothes and vaginal and rectal
swabs of the victim girl found to be identical and from one and the
same source of female origin and these profiles matched with DNA
profile of victim. She further opined that similarly, DNA profile
obtained from semen detected on knicker of victim is of male origin
and matched with DNA profile of accused. Accordingly she
generated her report handed over to P.S.Mouda in Crime
no.88/2015. This is the crucial evidence against the appellant
pointing finger towards him and no other person for the commission
of the crime.
38. Interestingly, it has been brought in the cross
examination of this witness that DNA profile of each person is
unique and is not similar to each other except mono zygotic twins.
This expert witness further admits that DNA test is 100% full proof
test and she has given report as per the samples provided to her.
The Hon’ble Apex Court has considered in depth the aspect of
DNA evidence in criminal trials in Mukesh v. State (NCT of
Delhi), (2017) 6 SCC 1. Hon’ble Smt. Justice Bhanumati in the
concurring judgment, after referring to the various literature on the
subject, noted that DNA evidence is now a predominant forensic
technique for identifying criminals when biological tissues are left at
the scene of crime or for identifying the source of blood found on
any articles or clothes, etc. recovered from the accused or from the
witnesses. DNA testing on samples such as saliva, skin, blood, hair
or semen not only helps to convict the accused but also serves to
exonerate. The sophisticated technology of DNA fingerprinting
makes it possible to obtain conclusive results. With regard to the
infallibility of identification by DNA profiling and its accuracy with
certainty, the Hon’ble Court noted that 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..
39. To rule out the incapability of the appellant to perform
sexual intercourse, the prosecution examined Dr. Mohd. Jafar Iqbal
(PW-7). This witness medically examined the appellant on 27-04-
2015 and opined in his reports (Exhibits-32 and 33) that there was
nothing to suggest that the appellant is incapable to perform sexual
intercourse. He denied each and every suggestion put to him by the
learned Counsel appearing for the appellant/accused. The evidence
of Dr. Mohd. Iqbal completes the chain of circumstances against the
appellant. The non-examination of Ganesh who had first time
noticed the victim in the forest area, we do not think that it caused
any serious dent to the otherwise well-established edifice of the
prosecution story.
40. Even in the statement of the appellant recorded under
Section 313 of the Code by the learned Trial Court, the appellant
could not say anything except that he has been falsely involved in
this crime. This is also an additional circumstance in the chain of
circumstances established by the prosecution against the appellant.
(See: Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10
SCC 681).
41. Furthermore, the appellant has failed to rebut the
reverse presumption under Sections 29 & 30 of the POCSO Act,
2012 both in relation to the commission of the offence of aggravated
penetrative sexual assault on the minor child in terms of Section 3
read with Section 5(m) of the POCSO Act, 2012, and to the
presumption to his culpable mental state has essentially to be drawn
in as much as the child was only of 18 months at the time of the
commission of the offence.
42. Considering the overwhelming eyewitness account,
circumstantial evidence, medical evidence and DNA analysis which
has been brought on record by the prosecution, we have no
hesitation to hold that the prosecution has conclusively proves that
it is the appellant and he alone, who is guilty of committing the
horrendous crime in this case. Each and every link in the chain of
circumstances have been firmly established by the prosecution
pointing towards the appellant that he is the only person and no
other person than the appellant has committed rape on the victim of
age 18 months. The defense could not raise any probable doubt
through the searching cross examination of the prosecution
witnesses and could not give even a single dent to the prosecution
story. The learned trial Court has appreciated the evidence in its
correct prospective. No error can be found to have committed by
the learned trial Court. The prosecution could prove that the
appellant lifted the victim of 18 months, who was playing in the
courtyard along with her siblings, took her in the isolated forest
area, committed heinous crime of rape and left her there at her fate.
The DNA profile of the appellant with the victim has been matched.
The integrity and genuineness in the procedure for DNA sampling
is also remained unquestionable and indubitable. No interference is
warranted in the impugned judgment of conviction.
43. However, with regard to sentences which the appellant
is directed to undergo, it is worthwhile to note here that the learned
Special Judge has imposed sentence upon the appellant for the
offence punishable u/s 376(2)(i)(j) of Indian Penal Code (now 376
(2)(i) is omitted w.e.f. 21-04-2018) so also for the offence punishable
u/s 6 of POCSO Act 2012 and for both the offences awarded
sentence of imprisonment for life and fine separately. Evidently, the
proved act of the appellant constitutes offences defined under both
these provisions. In this context, Section 42 of the POCSOA
provides for the alternate punishment. In terms of Section 42, the
appellant shall be liable for punishment which is greater in degree.
For the offence of aggravated penetrative sexual assault which is
punishable under section 6 of the Act, the punishment prescribed
(as on the date of commission of offence i.e. 24.4.2015) is rigorous
imprisonment for a term which shall not be less than 10 years but
which may extend to imprisonment for life, while the punishment
prescribed for the offence punishable under section 376(2)(i)(j) is
for a term which shall not be less than ten years, but which may
extend to imprisonment for life, which shall mean imprisonment for
the remainder of that person’s natural life and shall also be liable to
fine.
44. Comparing the aforesaid two sentences, the sentence
punishable under Section 376(2)(i)(j) is greater in degree, and
therefore, the appellant is liable to undergo sentence of life
imprisonment as contemplated under this provision with fine of
Rs.5,000/-, in default, to suffer further imprisonment for a period of
one year. Therefore, the separate sentence for life imprisonment and
fine of Rs. 5000/- for the offence punishable u/Section 6 of the
POCSO Act, 2012, is set aside. In the circumstances, all the
sentences shall run concurrently. The operative part of the
impugned judgment is modified to the above extent.
45. The State to report the compliance of the direction of
the learned Special Judge under Section 33(8) of the POCSO Act.
The appeal therefore, stands disposed of in the above terms.
46. We appreciate the valuable assistance rendered by the
learned counsel Ms. Nirja Chaubey, appointed by the High Court
Legal Aid Sub-Committee to appear on behalf of the appellant. We
quantified her fees as per rules.
(Pushpa V. Ganediwala, J.) (M.S. Sonak, J.)
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