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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Judgment Reserved on : 08 . 02 .202 3

Judgment Pronounced on : 22 . 02 .202 3

[Arising out of judgment dated 03.03.2022, passed in Special

Sessions (POCSO) Case No.08 of 2020 (State of Chhattisgarh v.

Kishan Lal @ Champa Yadav), by the Court of Additional Sessions

Judge (FTSC), District Rajnandgaon(C.G.)]

Criminal Appeal No. 565 of 2022

Kishan Lal @ Champa Yadav , Son of Shri Mahruram, aged

about 23 years, Resident of Village Botepar, Police Station

Ghumka, District Rajnandgaon (Chhattisgarh)

---- Appellant

Versus

State of Chhattisgarh, through Police Station Ghumka, District

Rajnandgaon (Chhattisgarh)

---- Respondent

----------------------------------------------------------------------------------------

For Appellant : Mr. P. Chetan Kumar, Advocate

and Mr. Pramod Ramteke, Advocate

For Respondent-State :Mr. Animesh Tiwari, Deputy A.G.,

Mr. Sudeep Verma, Deputy Govt. Adv.

and Mr. Soumya Rai, Panel Lawyer

For Victim :None though served.

-----------------------------------------------------------------------------------------

Division Bench

Hon'ble Shri Justice Sanjay K. Agrawal and

Hon'ble Shri Justice Radhakishan Agrawal

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C.A.V. Judgment

Sanjay K. Agrawal, J

(1)This criminal appeal preferred by the appellant-accused

herein under Section 374(2) of Cr.P.C. is directed against the

impugned judgment of conviction and order of sentence dated

03.03.2022, passed by the learned Additional Sessions Judge

(FTSC), Rajnandgaon (Chhattisgarh) in Special Sessions

(POCSO) Case No.08 of 2020 (State of Chhattisgarh vs. Kishan

Lal @ Champa Yadav ), whereby he has been convicted for

offence under Section 376(3) of Indian Penal Code (IPC) and

sentenced to undergo rigorous imprisonment for 20 years with

fine of Rs.2,000/- and, in default of payment of fine, additional

rigorous imprisonment for one year.

(2)The case of the prosecution, in short, is that between

03.08.2018, at or about 04:00 AM in the morning, to

08.08.2018, at or about 01:00 AM in the night, in the house of

the complainant, namely, Roman Lal Verma (PW-01), within the

ambit of Police Station Ghumka, the accused-appellant herein

abducted minor victim from lawful custody of her father on the

pretext of doing marriage and, further on and before

09.08.2018, at Nagpur, committed sexual intercourse with the

victim, aged about 15 years 01 month and 14 days,

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continuously, due to which she became pregnant and delivered

a girl child (baby) and, thereby, committed offences under

Sections 366, 376(2)(g) & 376(3) of IPC and also under Section

06 of the Protection of Children from Sexual Offences Act, 2012

(for short the “POCSO Act, 2012”).

(3)The further case of the prosecution is that on 08.08.2018,

father of the victim, namely, Roman Lal Verma (PW-01)

appeared before the police of Police Station Ghumka and

submitted a written complaint (Ex.P/01) alleging that on

03.08.2018 the appellant abducted her minor daughter (victim)

and, thereafter, on 04.08.2018, Roman Lal Verma (PW-01)

alongwith co-villagers, namely, Janak and Narottam brought the

victim (PW-02) alongwith the appellant back. Again, on

08.08.2018, at about 01:00 AM in the night, while Roman Lal

Verma (PW-01) alongwith other family members were sleeping,

his daughter (victim) went missing and upon inquiry he came to

know that appellant is also missing from the said date and time.

Pursuant to lodging of said report, FIR (Ex.P/02) under Sections

363 & 366 of IPC was registered against the appellant by the

police. During the course of investigation, birth certificate of the

victim (PW-02) was seized vide Ex.P/07. On 17.01.2020 at about

09:50 AM, the victim (PW-02) was recovered from the possession

of the appellant vide recovery panchanam (Ex.P/14) and, on the

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same day, victim (PW-02) was sent for medical examination to

the District Hospital, Rajnandgaon vide Ex.P/16, which was

conducted by Dr. Sweta Kaumarya (PW-05). As per medical

report of the victim (Ex.P/12), victim knew accused-appellant

and having relationship with him from past 03-04 years. She on

her own will and volition had gone to Nagpur with the appellant

from 008.08.2018 till 15.01.2020 and, between said period, the

appellant and the victim developed consensual sexual

relationship with each other, due to which she became pregnant

and having a baby girl of about 12 days.

(4)Thereafter, spot map was prepared vide Ex.P/24 and

statement of victim under Section 164 of CrPC was recorded

vide Ex.P/18. On 21.01.2020, the victim (PW-12) was referred to

radiologist for determination of her age, which was conducted

Dr. C.N. Sidar (PW-03), who gave its report vide Ex.P/11 and as

per x-ray of age verification report (Ex.P/11), the age of the

victim is between 16 to 17 years. The accused-appellant was

arrested vide Ex.P/19 and sent for medical examination vide

Ex.P/13. On 12.02.2020, blood samples of the appellant, the

victim and that of her baby girl were taken in sealed covered

packet vide Ex.P/06 and by marking it as Article- 1, 2 & 3

respectively the same were handed over to the constable who

brought the appellant and the victim alongwith her baby girl

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child. Thereafter, on the same day (i.e. on 12.02.2020), the said

blood samples were submitted in the the Office of

Superintendent of Police, Rajnandgaon for the purpose of DNA

test and, ultimately, on the same day, the office of

Superintendent of Police, Rajnandgaon sent for aforesaid seized

blood samples of the appellant, the victim and that of her baby

girl child for DNA profiling/test to the State Forensic Science

Laboratory (DNA Unit), Raipur vide Ex.P/21 by marking it as A,

B, & C respectively, which was received on 13.02.2020. As per

DNA report dated 25.02.2020 (Ex.P/23), it has been opined that

the appellant and the victim are biological father and mother of

the girl child. Thereafter, statements of witnesses were recorded

and, after due investigation, the police filed charge-sheet in the

competent court jurisdiction and, thereafter, the case was

committed to the Court of Sessions. The appellant/accused

abjured his guilt and entered into defence by submitting that he

is innocent and has been falsely implicated.

(5)The prosecution in order to prove its case examined as

many as 09 witnesses and exhibited 24 documents alongwith 07

articles, whereas the appellant-accused in support of his defence

has neither examined any witness nor exhibited any document.

(6)The learned trial Court after appreciating the oral and

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documentary evidence available on record proceeded to convict

the appellant for offence under Section 376(3) of IPC and

sentenced him as mentioned herein-above, against which this

appeal has been preferred by the appellant-accused questioning

the impugned judgment of conviction and order of sentence.

(7)Mr. P. Chetan Kumar and Mr. Pramod Ramteke , learned

counsel appearing for the appellant submit that the learned trial

Court is absolutely unjustified in convicting the appellant for

offence under Section 376(3) of IPC, as the prosecution has

failed to prove the offence beyond reasonable doubt. He further

submits that the complainant/father of the victim, namely,

Roman Lal Verma (PW-01), who is witness to seizure memo

(Ex.P/06) by which blood samples of the appellant, the victim

and that of her baby girl child were seized/collected, have

turned hostile by stating that no blood sample has been

collected in front of him. Further, there are various

discrepancies in collecting and depositing the blood samples. As

per medical report (Ex.P/12), it is clearly evident that the victim

was the consenting party. She on her own will and volition had

gone with the appellant and developed consensual sexual

intercourse with him. Victim and her father had not given their

consent for medical examination of the private parts of the

victim. There is no other evidence available on record to connect

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the appellant with the offence in question. As such, merely on

the basis of DNA report (Ex.P/23) the appellant cannot be

convicted in light of recent decision rendered by the Supreme

Court in the matter of Rahul v. State of Delhi, Ministry of

Home Affairs and another

1

. Hence, the present appeal deserves

to be allowed in full or in part.

(8)Per-contra, Mr. Sudeep Verma, learned State counsel

supported the impugned judgment of conviction and order of

sentence and submits that the prosecution has proved the

offence beyond reasonable doubt by leading evidence of

clinching nature. The victim was minor on the date of offence.

Admittedly, as per the report of radiologist (Ex.P/11), which is

duly proved by Dr. C.N. Sidar (PW-03), on 21.01.2020 when

victim was examined, she was aged about between 16-17 years.

In view of statement of Dr. Sweta Kaumarya (PW-05), who has

conducted medical examination of the victim and gave medical

report (Ex.P/12), the victim delivered girl child 12 days prior to

her examination. Furthermore, as per DNA report (Ex.P/23), it is

clear that the appellant and the victim are biological father and

mother of the girl child delivered by the victim. Therefore, the

learned trial Court has rightly convicted the appellant for offence

under Section 376(3) of IPC and the present appeal deserves to

1(2023) 1 SCC 83

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be dismissed.

(9)We have heard learned counsel for the parties, considered

their rival submissions made herein-above and went through

the records with utmost circumspection.

(10)In the instant case, admittedly, complainant/father of the

victim- Roman Lal Verma (PW-01) has turned hostile and has

not supported the case of the prosecution at all. In his

statement before the Court, during the course of cross-

examination, he has clearly refuted that blood samples of his

daughter (victim) and that of her baby girl child were not taken

in his presence. Further, Roman Lal Verma has also refused to

give consent for medical examination of the private parts of her

daughter (victim). Similarly, victim (PW-02) has not given her

consent for medical examination of her private parts, which is

clear from medical report (Ex.P/12). She in her statement before

the Court has denied that any incident having taken place with

her and even she has stated that she has not given any

statement that accused-appellant abducted her and committed

sexual intercourse with her on the pretext of marriage and had

refuted her statement recorded under Section 161 of CrPC

before the police vide Ex.P/10. She has also denied that any

such blood sample has been taken from her and that of her

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baby girl child by the police. Further, the victim, in medical

report (Ex.P/12), has clearly stated that she wants to stay

alongwith the appellant, as her daughter belongs to him. As

such, the father of the victim (PW-01) and victim herself (PW-01)

has not supported the case of the prosecution and thus, the

conviction of the appellant is totally based on the DNA report

(Ex.P/23).

(11)Now the question for consideration would be whether the

learned trial Court is justified in convicting the accused-

appellant here only on the basis of DNA profiling report

(Ex.P/23), in which it has been opined that the appellant and

the victim are the biological father and mother of the baby girl

child, as there is no other piece of evidence available on record

to connect the appellant with the offence in question.

(12)At this stage, it would be appropriate to notice Section 53A

of CrPC, which relates to examination of a person accused of

rape by medical practitioner as also Section 164A of CrPC,

which relates to medical examination of the victim of rape. The

legislature, in its wisdom, has inserted Section 53A and Section

164A of the CrPC by the Act 25 of 2005 w.e.f. 23.06.2006 and

same are reproduced as under:-

“53A. Examination of a person accused of rape by

medical practitioner.- (1) When a person is arrested

on a charge of committing an offence of rape or an

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attempt to commit rape and there are reasonable

grounds for believing that an examination of his person

will afford evidence as to the commission of such

offence, it shall be lawful for a registered medical

practitioner employed in a hospital run by the

Government or by a local authority and in the absence

of such a practitioner within the radius of sixteen

kilometers from the place where the offence has been

committed by any other registered medical practitioner,

acting at the request of a police officer not below the

rank of a sub-inspector, and for any person acting in

good faith in his aid and under his direction, to make

such an examination of the arrested person and to use

such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such

examination shall, without delay, examine such person

and prepare a report of his examination giving the

following particulars, namely;-

(i) the name and address of the accused and of the

person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the

accused,

(iv) the description of material taken from the person of

the accused for DNA profiling, and".

(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each

conclusion arrived at.

(4) The exact time of commencement and completion of

the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without

delay, forward the report of the investigating officer,

who shall forward it to the Magistrate referred to in

Section 173 as part of the documents referred to in

clause (a) of Sub-Section (5) of that section.

164A. Medical examination of the victim of rape. -

(1) Where, during the stage when an offence of

committing rape or attempt to commit rape is under

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investigation, it is proposed to get the person of the

woman with whom rape is alleged or attempted to have

been committed or attempted, examined by a medical

expert, such examination shall be conducted by a

registered medical practitioner employed in a hospital

run by the Government or a local authority and in the

absence of such a practitioner, by any other registered

medical practitioner, with the consent of such woman

or of a person competent to give such consent on her

behalf and such woman shall be sent to such

registered medical practitioner within twenty-four

hours from the time of receiving the information

relating to the commission of such offence.

(2) The registered medical practitioner, to whom such

woman is sent shall, without delay, examine her

person and prepare a report of his examination giving

the following particulars, namely:-

(i) the name and address of the woman and of the

person by whom she was brought;

(ii) the age of the woman;

(iii) the description of material taken from the person of

the woman for DNA profiling;

(iv) marks of injury, if any, on the person of the

woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail, (3)

The report shall state precisely the reasons for each

conclusion arrived at.

(4) The report shall specifically record that the consent

of the woman or of the person competent, to give such

consent on her behalf to such examination had been

obtained.

(5) The exact time of commencement and completion of

the examination shall also be noted in the report.

(6) The registered medical practitioner shall, without

delay forward the report to the investigating officer who

shall forward it to the Magistrate referred to in Section

173 as part of the documents referred to in clause (a)

of Sub-Section (5) of that section. (7) Nothing in this

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section shall be construed as rendering lawful any

examination without the consent of the woman or of

any person competent to give such consent on her

behalf.”

(13)The scope of DNA test has elaborately been discussed by

their Lordships of the Supreme Court in the matter of Anil alias

Anthony Arikswamy Joseph v. State of Maharashtra

2

and it

has been held in Para- 8 as under:-

"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 DNA profile

of the suspect, it can generally be concluded that both

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.”

(14)Similarly, in the matter of Mukesh and another v. State

(NCT of Delhi) and others

3

the procedure to be adopted for

collecting the samples as well as the precautions which are to be

taken for conducting the DNA test has elaborately been

discussed by their Lordships of Supreme Court in Para-221 to

228 of the judgment, are are reproduced herein for the sake of

convenience.

2(2014) 4 SCC 69

3(2017) 6 SCC 1

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“211.DNA is the abbreviation of Deoxyribo Nucleic

Acid. It is the basic genetic material in all human body

cells. It is not contained in red blood corpuscles. It is,

however, present in white corpuscles. It carries the

genetic code. DNA structure determines human

character, behaviour and body characteristics. DNA

profiles are encrypted sets of numbers that reflect a

person's DNA makeup which, in forensics, is used to

identify human beings. DNA is a complex molecule. It

has a double helix structure which can be compared

with a twisted rope 'ladder'.

212.The nature and characteristics of DNA had

been succinctly explained by Lord Justice Phillips in

Regina v. Alan James Doheny & Gary Adams, (1997) 1

Cr App R 369 (CA). In the above case, the accused were

convicted relying on results obtained by comparing

DNA profiles obtained from a stain left at the scene of

the crime with DNA profiles obtained from a sample of

blood provided by the appellant. In the above context,

with regard to DNA, the following was stated by Lord

Justice Phillips:

"Deoxyribonucleic acid, or DNA, consists of

long ribbon-like molecules, the chromosomes, 46 of

which lie tightly coiled in nearly every cell of the

body. These chromosomes - 23 provided from the

mother and 23 from the father at conception, form

the genetic blueprint of the body. Different sections

of DNA have different identifiable and discrete

characteristics. When a criminal leaves a stain of

blood or semen at the scene of the crime it may

prove possible to extract from that crime stain

sufficient sections of DNA to enable a comparison to

be made with the same sections extracted from a

sample of blood provided by the suspect. This

process is complex and we could not hope to

describe it more clearly or succintly than did Lord

Taylor C.J. in R. v. Deen, The Times, 10-01-1994

(transcript: 21-121993), so we shall gratefully adopt

his description:

"The process of DNA profiling starts with

DNA being extracted from the crime stain and

also from a sample taken from the suspect. In

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each case the DNA is cut into smaller lengths

by specific enzymes. The fragments produced

are sorted according to size by a process of

electrophoresis. This involves placing the

fragments in a gel and drawing them

electromagnetically along a track through the

gel. The fragments with smaller molecular

weight travel further than the heavier ones.

The pattern thus created is transferred from

the gel onto a membrane. Radioactive DNA

probes, taken from elsewhere, which bind with

the sequences of most interest in the sample

DNA are then applied. After the excess of the

DNA probe is washed off, an X-ray film is

placed over the membrane to record the band

pattern. This produces an auto radiograph

which can be photographed. When the crime

stain DNA and the sample DNA from the

suspect have been run in separate tracks

through the gel, the resultant auto-radiographs

can be compared. The two DNA profiles can

then be said either to match or not.""

213.In the United States, in an early case Frye v.

United States, 54 App DC 46 : 293 F 10103 (1923), it

was laid down that scientific evidence is admissible

only if the principle on which it is based is

substantially established to have general acceptance in

the field to which it belonged. The US Supreme Court

reversed the above formulation in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 1993 SCC Online US SC 104

stating thus:

"Although the Frye (supra) decision itself

focused exclusively on "novel" scientific techniques,

we do not read the requirements of Rule 702 to

apply specially or exclusively to unconventional

evidence. Of course, well- established propositions

are less likely to be challenged than those that are

novel, and they are more handily defended. Indeed,

theories that are so firmly established as to have

attained the status of scientific law, such as the laws

of thermodynamics, properly are subject to judicial

notice under Federal Rule of Evidence 201.

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* * *

This is not to say that judicial interpretation, as

opposed to adjudicative fact finding, does not share

basic characteristics of the scientific endeavor:

"The work of a judge is in one sense enduring

and in another ephemeral... In the endless

process of testing and retesting, there is a

constant rejection of the dross and a constant

retention of whatever is pure and sound and

fine." B.Cardozo, The nature of the Judicial

Process at pp.178, 179 (1921)."

214.The principle was summarized by Blackmun,

J., as follows: [Daubet (supra)]

"To summarize: "general acceptance" is not a

necessary precondition to the admissibility of

scientific evidence under the Federal Rules of

Evidence, but the Rules of Evidence--especially Rule

702--do assign to the trial judge the task of ensuring

that an expert's testimony both rests on a reliable

foundation and is relevant to the task at hand.

Pertinent evidence based on scientifically valid

principles will satisfy those demands.

The inquiries of the District Court and the

Court of Appeals focused almost exclusively on

"general acceptance," as gauged by publication and

the decisions of other courts. Accordingly, the

judgment of the Court of Appeals is vacated and the

case is remanded for further proceedings consistent

with this opinion."

After the above judgment, the DNA Test has been

frequently applied in the United States of America.

215.In District Attorney's Office for the Third Judicial

District v. Osborne, 2009 SCC Online US SC 73,

Roberts, C.J. of the Supreme Court of United States,

while referring to the DNA Test, stated as follows:

"DNA testing has an unparalleled ability both

to exonerate the wrongly convicted and to identify

the guilty. It has the potential to significantly

improve both the criminal justice system and police

investigative practices. The Federal Government and

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the States have recognized this, and have developed

special approaches to ensure that this evidentiary

tool can be effectively incorporated into established

criminal procedure-usually but not always through

legislation.

* * *

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."

216.DNA technology as a part of Forensic Science

and scientific discipline not only provides guidance to

investigation but also supplies the Court accrued

information about the tending features of identification

of criminals. The recent advancement in modern

biological research has regularized Forensic Science

resulting in radical help in the administration of

justice. In our country also like several other developed

and developing countries, DNA evidence is being

increasingly relied upon by courts. After the

amendment in the Criminal Procedure Code by the

insertion of Section 53A by Act 25 of 2005, DNA

profiling has now become a part of the statutory

scheme. Section 53A relates to the examination of a

person accused of rape by a medical practitioner.

217.Similarly, under Section 164A inserted by Act

25 of 2005, for medical examination of the victim of

rape, the description of material taken from the person

of the woman for DNA profiling is must. Section 53A

sub-section (2) as well as Section 164(A) sub-section (2)

are to the following effect:

"Section 53A. Examination of person

accused of rape by Medical Practitioner .-

(1) ... ... ... …

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(2) The registered medical practitioner

conducting such examination shall, without delay,

examine such person and prepare a report of his

examination giving the following particulars,

namely:-

(i) the name and address of the accused and of the

person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the

accused,

(iv) the description of material taken from the person

of the accused for DNA profiling, and

(v) other material particulars in reasonable detail.

Section 164A. Medical Examination of the

victim of rape.- (1) ... ... ... …

(2) The registered medical practitioner, to whom

such woman is sent, shall, without delay, examine

her person and prepare a report of his examination

giving the following particulars, namely:-

(i) the name and address of the woman and of the

person by whom she was brought;

(ii) the age of the woman;

(iii) the description of material taken from the person

of the woman for DNA profiling;

(iv) marks of injury, if any, on the person of the

woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail."

218.This Court had the occasion to consider

various aspects of DNA profiling and DNA reports. K.T.

Thomas, J. in Kamti Devi (Smt.) and another v. Poshi

Ram, (2001) 5 SCC 311 observed: (SCC p. 316, para10)

"10. We may remember that Section 112 of the

Evidence Act was enacted at a time when the

modern scientific advancements with

deoxyribonucleic acid (DNA) as well as ribonucleic

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acid (RNA) tests were not even in contemplation of

the legislature. The result of a genuine DNA test is

said to be scientifically accurate. …"

219.In Pantangi Balarama Venkata Ganesh v. State

of Andhra Pradesh, (2009) 14 SCC 607, a two-Judge

Bench had explained as to what is DNA in the following

manner:

"41. Submission of Mr Sachar that the report

of DNA should not be relied upon, cannot be

accepted. What is DNA? It means:

"Deoxyribonucleic acid, which is found in

the chromosomes of the cells of living beings is

the blueprint of an individual. DNA decides the

characteristics of the person such as the colour

of the skin, type of hair, nails and so on. Using

this genetic fingerprinting, identification of an

individual is done like in the traditional

method of identifying fingerprints of offenders.

The identification is hundred per cent precise,

experts opine."

There cannot be any doubt whatsoever that there is

a need of quality control. Precautions are required to

be taken to ensure preparation of high molecular

weight DNA, complete digestion of the samples with

appropriate enzymes, and perfect transfer and

hybridization of the blot to obtain distinct bands

with appropriate control. (See article of Lalji Singh,

Centre for Cellular and Molecular Biology,

Hyderabad in DNA profiling and its applications.)

But in this case there is nothing to show that such

precautions were not taken.

42. Indisputably, the evidence of the experts is

admissible in evidence in terms of Section 45 of the

Evidence Act, 1872. In cross-examination, PW 46

had stated as under:

"If the DNA fingerprint of a person

matches with that of a sample, it means that

the sample has come from that person only.

The probability of two persons except identical

twins having the same DNA fingerprint is

around 1 in 30 billion world population."

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220.In Santosh Kumar Singh v. State Through CBI,

(2010) 9 SCC 747, which was a case of a young girl who

was raped and murdered, the DNA reports were relied

upon by the High Court which were approved by this

Court and it was held thus:

"71. We feel that the trial court was not

justified in rejecting the DNA report, as nothing

adverse could be pointed out against the two experts

who had submitted it. We must, therefore, accept

the DNA report as being scientifically accurate and

an exact science as held by this Court in Kamti Devi

v. Poshi Ram (supra). In arriving at its conclusions

the trial court was also influenced by the fact that

the semen swabs and slides and the blood samples

of the appellant had not been kept in proper custody

and had been tampered with, as already indicated

above. We are of the opinion that the trial court was

in error on this score. We, accordingly, endorse the

conclusions of the High Court on Circumstance 9."

221.In Inspector of Police, Tamil Nadu v. John David,

(2011) 5 SCC 509 a young boy studying in MBBS

Course was brutally murdered by his senior. The torso

and head were recovered from different places which

were identified by the father of the deceased. For

confirming the said facts, the blood samples of the

father and mother of the deceased were taken which

were subject to DNA test. From the DNA, the

identification of the deceased was proved. Paragraph

60 of the decision is reproduced below:

"60. ... The said fact was also proved from the

DNA test conducted by PW 77. PW 77 had compared

the tissues taken from the severed head, torso and

limbs and on scientific analysis he has found that

the same gene found in the blood of PW1 and Baby

Ponnusamy was found in the recovered parts of the

body and that therefore they should belong to the

only missing son of PW1."

222.In Krishan Kumar Malik v. State of Haryana,

(2011) 7 SCC 130, in a gang rape case when the

prosecution did not conduct DNA test or analysis and

matching of semen of the appellant-accused with that

found on the undergarments of the prosecutrix, this

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Court held that after the incorporation of Section 53- A

in CrPC, it has become necessary for the prosecution to

go in for DNA test in such type of cases. The relevant

paragraph is reproduced below:

"44. Now, after the incorporation of Section 53-

A in the Cr.P.C w.e.f 23.06.2006, brought to our

notice by the learned counsel for the respondent

State, it has become necessary for the prosecution to

go in for DNA test in such type of cases, facilitating

the prosecution to prove its case against the

accused. Prior to 2006, even without the aforesaid

specific provision in CrPC the prosecution could

have still restored to this procedure of getting the

DNA test or analysis and matching of semen of the

appellant with that found on the undergarments of

the prosecutrix to make it a foolproof case, but they

did not do so, thus they must face the

consequences."

223.In Surendra Koli v. State of Uttar Pradesh and

others, (2011) 4 SCC 80 the appellant, a serial killer,

was awarded death sentence which was confirmed by

the High Court. While confirming the death sentence,

this Court relied on the result of the DNA test

conducted on the part of the body of the deceased girl.

Para 12 is reproduced below:-

"12. The DNA test of Rimpa by CDFD, a

pioneer institute in Hyderabad matched with that of

blood of her parents and brother. The doctors at

AIIMS have put the parts of the deceased girls which

have been recovered by the doctors of AIIMS

together. These bodies have been recovered in the

presence of the doctors of AIIMS at the pointing out

by the accused Surendra Koli. Thus, recovery is

admissible under Section 27 of the Evidence Act."

224.In Mohammed Ajmal Mohammad Amir Kasab

alias Abu Mujahid v. State of Maharashtra, (2012) 9

SCC 1, the accused was awarded death sentence on

charges of killing large number of innocent persons on

26th November, 2008 at Bombay. The accused with

others had come from Pakistan using a boat 'Kuber'

and several articles were recovered from 'Kuber'. The

stains of sweat, saliva and other bodily secretions on

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those articles were subjected to DNA test and the DNA

test matched with several accused. The Court

observed:

"333. It is seen above that among the articles

recovered from Kuber were a number of blankets,

shawls and many other items of clothing. The stains

of sweat, saliva and other bodily secretions on those

articles were subjected to DNA profiling and,

excepting Imran Babar (deceased Accused 2), Abdul

Rahman Bada (deceased Accused 5), Fahadullah

(deceased Accused 7) and Shoaib (deceased Accused

9), the rest of six accused were connected with

various articles found and recovered from the Kuber.

The appellant's DNA matched the DNA profile from a

sweat stain detected on one of the jackets. A chart

showing the matching of the DNA of the different

accused with DNA profiles from stains on different

articles found and recovered from the Kuber is

annexed at the end of the judgment as Schedule III."

225.In Sandeep v. State of Uttar Pradesh, (2012) 6

SCC 107, the facts related to the murder of pregnant

paramour/girlfriend and unborn child of the accused.

The DNA report confirmed that the appellant was the

father of the unborn child. The Court, relying on the

DNA report, stated as follows:

"67. In the light of the said expert evidence of

the Junior Scientific Officer it is too late in the day

for the appellant Sandeep to contend that improper

preservation of the foetus would have resulted in a

wrong report to the effect that the accused Sandeep

was found to be the biological father of the foetus

received from the deceased Jyoti. As the said

submission is not supported by any relevant

material on record and as the appellant was not able

to substantiate the said argument with any other

supporting material, we do not find any substance in

the said submission. The circumstance, namely, the

report of DNA in having concluded that accused

Sandeep was the biological father of the recovered

foetus of Jyoti was one other relevant circumstance

to prove the guilt of the said accused."

226.In Rajkumar v. State of Madhya Pradesh ,

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(2014) 5 SCC 353 the Court was dealing with a case of

rape and murder of a 14 year old girl. The DNA report

established the presence of semen of the appellant in

the vaginal swab of the prosecutrix. The conviction was

recorded relying on the DNA report. In the said context,

the following was stated:

"8. The deceased was 14 years of age and a

student in VIth standard which was proved from the

school register and the statement of her father Iknis

Jojo (PW1). Her age has also been mentioned in the

FIR as 14 years. So far as medical evidence is

concerned, it was mentioned that the deceased

prosecutrix was about 16 years of age. So far as the

analysis report of the material sent and the DNA

report is concerned, it revealed that semen of the

appellant was found on the vaginal swab of the

deceased. The clothes of the deceased were also

found having appellant's semen spots. The hair

which were found near the place of occurrence were

found to be that of the appellant."

227.In Nandlal Wasudeo Badwaik v. Lata Nandlal

Badwaik, (2014) 2 SCC 576 the appellant, father of the

child born to his wife, questioned the paternity of the

child on the ground that she did not stay with him for

the last two years. The Court directed for DNA test. The

DNA result opined that the appellant was not the

biological father of the child. The Court also had the

occasion to consider Section 112 of the Evidence Act

which raises a presumption that birth during marriage

is conclusive proof of legitimacy. The Court relied on

the DNA test holding the DNA test to be scientifically

accurate. The pertinent observations are extracted

below:

"19. The husband's plea that he had no access

to the wife when the child was begotten stands

proved by the DNA test report and in the face of it,

we cannot compel the appellant to bear the

fatherhood of a child, when the scientific reports

prove to the contrary. We are conscious that an

innocent child may not be bastardised as the

marriage between her mother and father was

subsisting at the time of her birth, but in view of the

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DNA test reports and what we have observed above,

we cannot forestall the consequence. It is denying

the truth. "Truth must triumph" is the hallmark of

justice.

20. As regards the authority of this Court in

Kamti Devi, this Court on appreciation of evidence

came to the conclusion that the husband had no

opportunity whatsoever to have liaison with the wife.

There was no DNA test held in the case. In the said

background i.e. non-access of the husband to the

wife, this Court held that the result of DNA test "is

not enough to escape from the conclusiveness of

Section 112of the Act." The judgment has to be

understood in the factual scenario of the said case.

The said judgment has not held that DNA test is to

be ignored. In fact, this Court has taken note of the

fact that DNA test is scientifically accurate. We

hasten to add that in none of the cases referred to

above, this Court confronted with a situation in

which a DNA test report, in fact, was available and

was in conflict with the presumption of conclusive

proof of legitimacy of the child under Section 112 of

the Evidence Act. In view of what we have observed

above, these judgments in no way advance the case

of the respondents."

228.From the aforesaid authorities, it is quite clear

that DNA report deserves to be accepted unless it is

absolutely dented and for non- acceptance 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.”

(15) The Supreme Court again in the matter of Pattu Rajan v.

State of Tamil Nadu

4

considered the evidentiary value of DNA

test in light of the provisions contained in Section 45 of the

Indian Evidence Act, 1872 and held in Para-49 & 50 as under:

4(2019) 4 SCC 771

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“49. One cannot lose sight of the fact that DNA

evidence is also in the nature of opinion evidence as

envisaged in Section 45 of the Indian Evidence Act.

Undoubtedly, an expert giving evidence before the

Court plays a crucial role, especially since the entire

purpose and object of opinion evidence is to aid the

Court in forming its opinion on questions concerning

foreign law, science, art, etc., on which the Court might

not have the technical expertise to form an opinion on

its own. In criminal cases, such questions may pertain

to aspects such as ballistics, fingerprint matching,

handwriting comparison, and even DNA testing or

superimposition techniques, as seen in the instant

case.

50. The role of an expert witness rendering opinion

evidence before the Court may be explained by

referring to the following observations of this Court in

Ramesh Chandra Agrawal v. Regency Hospital Limited

& Ors:

"16. The law of evidence is designed to ensure that

the court considers only that evidence which will

enable it to reach a reliable conclusion. The first and

foremost requirement for an expert evidence to be

admissible is that it is necessary to hear the expert

evidence. The test is that the matter is outside the

knowledge and experience of the lay person.

Thus, there is a need to hear an expert opinion

where there is a medical issue to be settled. The

scientific question involved is assumed to be not

within the court's knowledge.

Thus cases where the science involved, is highly

specialized and perhaps even esoteric, the central

role of an expert cannot be disputed…”

(16)Recently, in the matter of Manoj and others vs. State of

Madhya Pradesh

5

their Lordships of the Supreme Court while

highlighting the need to ensure quality testing and lesser

5(2023) (2) SCC 353 : 2002 SCC Online SC 677

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possibility of tempering of evidence has elaborately discussed

the evidentiary value of the DNA report and laid down the law

with regard to DNA Profiling Methodology, Statistical Analysis

and Collection & Preservation of Evidence and held in Paras-151

to 158 as under:

“151. During the hearing, an article published by the

Central Forensic Science Laboratory, Kolkata

6

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 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

6DNA Profiling in Justice Delivery System, Central Forensic Science Laboratory,

Directorate of Forensic Science, Kolkata (2007).

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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.

.............................................…

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

vasectomized" male. Cases In which DNA had

undergone 40 DNA profiling in Justice Delivery

System, Central Forensic Science Laboratory,

Directorate of Forensic Science, Kolkata (2007).

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

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laboratory. The analysis 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 mt DNA 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 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 of Maternity Indices and

Likelihood Ratios are calculated further to support

the match.

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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.

152. In an earlier judgment, R v. Dohoney & Adams,

(1997) 1 Crl App Rep 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 41 1997

(1) Crl App Rep 369 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 185

th

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

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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 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 100,000: This is described as the

'random occurrence ratio' (Phipson 1999).

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 UP, (2014) 5

SCC 509 this Court discussed the reliability of DNA

evidence in a criminal trial, and held as follows:

"36.The DNA stands for deoxyribonucleic

acid, which is the biological blueprint of every life.

DNA is made-up of a double standard 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. 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." 42 185th Report, on Review of the

Indian Evidence Act, 2003 43 (2015) 5 SCC 509.

155. The US Supreme Court, in District Attorney's

Office for the Third Judicial District v. Osborne (supra)

dealt with a post- conviction claim to access evidence, at

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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

"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 convicted people, and has

confirmed the convictions of many others."

156. Several decisions of this Court - Pantangi Balarama

Venkata Ganesh v. State of Andhra Pradesh , (2009) 14

SCC 607; Santosh Kumar Singh v. State; (2010) 9 SCC

747; State of Tamil Nadu v. John David, (2011) 5 SCC 509;

Krishan Kumar Malik v. State of Haryana; (2011) 7 SCC

130; Surendra Koli v. State of Uttar Pradesh; (2011) 4 SCC

80; Sandeep v. State of Uttar Pradesh, (2012) 6 SCC 107;

Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353;

and Mukesh (supra) have dealt with the increasing

importance of DNA evidence. This court has also

emphasized the need for assuring quality control, about

the samples, as well as the technique for testing- in Anil

v. State of Maharashtra, (2014) 4 SCC 69:

"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 DNA profile of the suspect, it can generally be

concluded that both samples have the same

biological origin. DNA profile is valid and reliable,

but variance in a particular result depends on the

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quality control and quality procedure in the

laboratory."

157. This court, in one of its recent decisions- Pattu

Rajan v. The State of Tamil Nadu, considered the value

and weight to be attached to a DNA report:

"52. Like all other opinion evidence, the

probative value accorded to DNA evidence also varies

from case to case, depending on facts and

circumstances and the weight accorded to other

evidence on record, whether contrary or

corroborative. This is all the more important to

remember, given that even though the accuracy of

DNA evidence may be increasing with the

advancement of science and technology with every

passing day, thereby making it more and more

reliable, we have not yet reached a juncture where it

may be said to be infallible. Thus, it cannot be said

that the absence of DNA evidence would lead to an

adverse inference against a party, especially in the

presence of other cogent and reliable evidence on

record in favour of such party."

158. This court, therefore, has relied on DNA reports, in

the past, where the guilt of an accused was sought to be

established. Notably, the reliance, was to corroborate.

This court highlighted the need to ensure quality in the

testing and eliminate the possibility of contamination of

evidence; it also held that being an opinion, the probative

value of such evidence has to vary from case to case.”

(17)Very recently and finally, in the matter of Rahul (supra),

their Lordships of the Supreme Court (three-Judges Bench),

while considering the evidentiary value of DNA evidence and

taking note of decision of Manoj (supra) held that the DNA

evidence is in the nature of opinion evidence like any other

opinion evidence, its probative value varies from case to case

and held in Para-38 as under:

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“38. It is true that PW 23 Dr B.K. Mohapatra,

Senior Scientific Officer (Biology) of CFSL, New Delhi

had stepped into the winess box and his report

regarding DNA profiling was exhibited as Ext. PW

23/A, however mere exhibiting a document, would not

prove its contents. The record shows that all the

samples relating to the accused and relating to the

deceased were seized by the investigating officer on

14.02.2012 and 16.02.2012; and they were sent to

CFSL for examination on 27.02.2012. During the

period, they remained in the malkhana of the police

station. Under the circumstances, the possibility of

tampering with the samples collected also could not be

ruled out. Neither the trial Court nor the High Court

has examined the underlying basis of the findings in

the DNA reports nor have they examined the fact

whether the techniques were reliably applied by the

expert. In the absence of such evidence on record, all

the reports with regard to DNA profiling become highly

vulnerable, more particularly when the collection and

sealing of the samples sent for examination were also

not free from suspicion.”

(18)In view of aforesaid legal position qua DNA profiling report

and its probative value, the prosecution is duty bound to prove

the guilt of the accused beyond reasonable doubt and burden is

always upon the prosecution to lead evidence by taking all the

precautions for proving DNA evidence. It is necessary for the

prosecution as the entire process of collecting the blood samples

for DNA profiling is controlled and done by the human agencies

i.e. doctors and the investigating officers. Every step to preserve

the sample from manipulation/contamination has to be proved,

as absence of those steps may cause prejudice to the accused.

The prosecution is required to put all the positive evidence

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regarding the fact that all the precautions have been taken by

the doctors as well as by the police officials regarding the

preservation of the DNA samples. As held in the matter of Pattu

Rajan (supra) DNA report is “an opinion” and its probative value

varies from case to case. The science of DNA is at a developing

stage, as such, it will be risky to solely rely upon the DNA report

in absence of any substantive piece of evidence.

(19)In the matter of Santa Singh v. State of Punjab

7

, the

Supreme Court has held that if there exists a suspicious delay

in sending the sealed parcel to the expert, the result is vitiated.

(20)Similarly, in the matter of Amarjit Singh alias Babbu v.

State of Punjab

8

, the Supreme Court has held that non-sealing

of the revolver at the spot was a serious infirmity as the

possibility of tampering could not be ruled out and observed in

paragraph 7 as under: -

“7. The entire prosecution case, thus, is clouded

with number of infirmities which compel this Court not

to accept such an unworthy evidence. These

infirmities have been brushed aside by the Designated

Court by observing that since the model number of the

revolver was noted down, the non-sealing of the

revolver or the handing over of the same to some other

police official or a private person, who has not been

examined are of no consequence. We are unable to

agree and subscribe to this view in a case of this

7AIR 1956 SC 526

81995 Supp (3) SCC 217

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nature. The non-sealing of the revolver at the spot is a

serious infirmity because the possibility of tampering

with the weapon cannot be ruled out. The report of PW

4 that the weapon is capable of being fired is

insignificant since it cannot be said with certainty as to

what was the condition of the weapon at the time of the

recovery, apart from the evidence of PW 4 that he did

not test-fire the revolver.”

(21)Thereafter, in the matter of Mahmood v. State of U.P.

9

,

their Lordships of the Supreme Court have emphasized the need

for fair and cautious investigation by holding that there should

be fair and cautious investigation and Investigating Officer

should rule out possibility of fabrication and his conduct should

dispel suspicion. It has been observed in paragraphs 15 & 18 of

the report as under: -

“15. Further, the investigator did not take all the

necessary precautions which could be taken to

eliminate the possibility of fabrication of this evidence,

or to dispel suspicion as to its genuineness.

Admittedly, he sealed the box with his own seal which

thereafter remained with him throughout. He did not

take the signatures of the witnesses on the parcel

containing the gandasa. He did not after sealing the

parcel entrust his seal to the Sarpanch or any other

respectable person of the village. According to the

prosecution the fingerprints found on the gandasa

could possibly be bloodprints and that the blade of the

gandasa was all smeared with human blood. But this

gandasa was never sent to the Chemical Examiner or

the Serologist. No explanation of the same is

forthcoming. This being the case, the contention of Mr.

R.K. Garg at the Bar, that the gandasa, Ex. 1, or smear

of the alleged blood on it was not sent to the Chemical

9(1976) 1 SCC 542

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Examiner for fear of the fabrication being detected and

exposed, cannot be rejected outright.

18. Secondly, even if it is assumed that the handle

of this gandasa bore the fingerprints of the appellant,

then also it would not inexorably and unmistakably

lead to the conclusion that the appellant, and none else

was the murderer of Dwarka, unless it was firmly

proved further that the fatal injury to the deceased was

caused with this weapon. Definite proof of this link

was lacking in this case. The missing link could be

best supplied by showing that there was blood on this

gandasa, and that blood was of human origin. But this

was not done.”

(22)A Division of the M.P. High Court in the matter of Vijay

Singh v. State of M.P.

10

held that there is no explanation

regarding the period of ten days during which articles were

available with the prosecution and due to lack of evidence

regarding sealing of the articles in a proper manner and its

identification, the seizure of material and consequential report

regarding the said article/material cannot be believed.

(23)Now, in light of the aforesaid principles of law laid down by

their Lordships of the Supreme Court to ensure handling/safety

of samples drawn qua the facts of the present case, the question

for consideration by us is whether DNA samples were drawn by

the investigating agency during the course of investigation in

accordance with law ?

10(2004) 4 MPLJ 543

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(24)In the instant case, Complainant/father of the victim,

namely, Roman Lal Verma (PW-01), in his statement before the

Court, firstly in his examination-in-chief has stated that blood

samples of the appellant, the victim and her baby girl child were

collected and seized vide Ex.P/06 in his presence and,

thereafter, in Para-04 of his cross-examination clearly denied

that any such blood samples were taken from her daughter

(victim) and her baby girl child for DNA profiling and seized vide

Ex.P/06 by stating that he has no knowledge about the

proceedings with regard to seizure memo (Ex.P/06) and no blood

samples were collected and seized vide Ex.P/06 in his presence.

Similarly, victim (PW-02) has also denied that any such blood

sample was taken from her and her baby girl child. As such,

collection of blood samples of the appellant, the victim and her

baby girl child vide Ex.P/06 for DNA profiling/test itself has

been refused/denied by the father of the victim, namely, Roman

Lal Verma (PW-01) and also by victim (PW-02).

(25)It also appears from the record that as per the statement of

Investigating Officer, namely, Rajesh Kumar Sahu (PW-08), he

submitted application before the learned trial Court on

10.02.2020 (Article-4) seeking permission for DNA test of the

appellant, the victim and her baby girl child, which permission

was granted by the learned trial Court on the same date. Article-

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4 does not show that any opportunity of hearing was granted to

the victim before taking their blood samples for DNA test. The

Medical Officer, namely, Dr. Amit Kumar Tiwari (PW-06) has

also stated before the Court that the blood samples of the victim

and her baby girl child, as per the identification forms i.e.

Articles- 2 & 3, were handed over to the Constable of Police

Station Ghumka. However, the said Constable has not been

examined by the prosecution for the reasons best known to

them. Further, though Articles- 1, 2 & 3 reflect that

Investigating Officer, namely, Rajesh Kumar Sahu (PW-08) is

one of the witness to the proceeding of collection of blood

samples for DNA test, but in Para-17 of his cross-examination

before the Court he has stated that the blood samples were not

taken in his presence and he had not gone for conducting DNA

profiling/test, but blood samples were produced before him in

sealed condition. Further in Para-18 of his cross-examination he

stated that he himself gone to Raipur for DNA test. The blood

samples were said to have been seized by Rajesh Kumar Sahu

(PW-08) on 12.02.2020 at about 12:10 PM on being produced by

Constable No.519, namely, Surnedra Ramteke, but said seizure

memo does not bear any sample seal, as per the requirement of

Para-12 & 13 of the seizure memo (Ex.P/06). Thereafter, on

13.02.2020, the blood samples so collected/seized were

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deposited with the FSL, Raipur by the Office of Superintendent

of Police, Rajnandgaon by Ex.P/21 and receipt thereof is

Ex.P/22. But, there is no document or any other material

available on record to show that where the said blood samples

were lying/kept for a period of one day i.e. from 12.02.2020 to

13.02.2020 (from collection till depositing with FSL, Raipur) and

whether the samples were kept in safe/sealed condition during

that period or not, as no documents/no copy of malkhana

register has been produced to demonstrate safe custody of

seized sample.

(26)Further, the letter of Senior Superintendent of Police,

Rajnandgaon (Ex.P/21) would show that the seized blood

samples, which were marked as Exhibits- “A”, “B” & “C”, in

sealed conditions were forwarded to the FSL, Raipur through

Surendra Ramteke, Constable No.519 for DNA test, but the

seizure memo (Ex.P/06) did not bear any such marking on the

blood samples (like A, B, & C etc.). As per DNA report (Ex.P/23),

the blood samples of the appellant, victim and her baby girl

child were seized on 12.02.2020 on being produced by

Constable No.519, namely, Surendra Ramteke from District

Hospital, Rajnandgaon which were subsequently received by

FSL, Raipur through the Investigating Officer- Rajesh Kumar

Sahu (PW-08). The DNA report (Ex.P/23) also shows that the

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blood samples marked as Articles- A, B & C bore seal of Medial

Officer, Government Medical College Hospital, Rajnandgaon,

which was intact. However, as observed, there is no sample of

seal available on the seizure memo (Ex.P/06).

(27)Keeping in view the aforesaid facts emerging from the

procedure of sampling and the oral and documentary evidence

available on record, it is quite vivid that first of all the victim

(PW-02) and her father/complainant (PW-01) have denied that

any such blood samples were taken from the victim and her

baby girl child for DNA profiling and it was seized vide Ex.P/06

and, the sample seal, as mentioned in the seizure memo

(Ex.P/06), is also missing. As per Ex.P/21, blood samples were

forwarded in sealed condition to FSL, Raipur by Superintendent

of Police, Rajnandgaon through Constable No.519- Surendra

Ramteke, but FSL report (Ex.P/23) would show that the same

were received at the laboratory (i.e. FSL, Raipur) by Investigating

Officer- Rajesh Kumar Sahu (PW-08) and for the reasons best

known to the prosecution, Constable No.519- Surendra Ramteke

was not examined. The blood samples were collected on

12.02.2020 vide Ex.P/06, but the same were produced before

the FSL, Raipur on 13.02.2020 and there is no

document/evidence available on record to show that where the

said blood samples were lying/kept for a period of one day i.e.

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from 12.02.2020 to 13.02.2020 (from collection till depositing

with FSL, Raipur) or whether the samples were kept in safe

custody during said period or not and no ‘malkhana’ register

has also been brought on record to substantiate the said aspect.

Further, the accused-appellant also in his statement recorded

under Section 313 of CrPC before the Court has denied that any

such blood sample has been taken from him by the police. As

such, the possibility of tampering with the blood samples cannot

be ruled out, as the investigator did not take all necessary

precautions which could be taken to eliminate the possibility of

fabrication and to dispel suspicion as to its genuineness.

(28)Concludingly, it is clearly established after careful analysis

of the material available on record that the victim (PW-02) has

denied that any sexual assault has been made to her by the

appellant herein on the date of offence and the conviction of the

appellant is solely based on the DNA evidence, whereas taking of

blood samples has been denied by the victim (PW-02), her father

(PW-01) and also by the appellant in his statement recorded

under Section 313 of CrPC. Furthermore, the seizure memo

(Ex.P/06) by which the blood samples were collected and seized

does not have any sample seal and, the Constable of Police

Station Ghumka, to whom the blood samples were handed over

by Dr. Amit Kumar Tiwari (PW-06), has not been examined by

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the prosecution nor he has been cited as a prosecution witness.

Moreover, as per DNA report (Ex.P/24), the blood samples were

produced by Surendra Ramteke (Constable No.519) from the

District Hospital, Rajnandgaon, which were subsequently

received by the FSL, Raipur from Investigating Officer- Rajesh

Kumar Sahu (PW-08). However, the blood samples, marked as

Article- “A”, “B” & “C” bore seal of Medical Officer, Government

Medical College Hospital, Rajnandgaon and there is no

‘malkhana’ register brought on record by the prosecution to

show that the blood samples were kept in safe custody from

12.02.2020 till 13.02.2020. As such, the prosecution has failed

to establish that appropriate and proper procedure, which is

required to be followed for collection of blood sample till

depositing, was followed. Therefore, DNA report (Ex.P/24) comes

under the cloud of suspicion and, in absence of any other piece

of legal evidence on record, it would be absolutely unsafe to

convict the appellant herein by relying upon the said DNA report

(Ex.P/24) and the learned trial Court is fully unjustified in

convicting the appellant herein on the basis of DNA report

(Ex.P/24). Thus, in our considered opinion, the conviction of the

appellant deserves to be set aside.

(29)Accordingly, the conviction of the appellant herein passed

by the leaned trial Court by impugned judgment of conviction

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and order of sentence dated 03.03.2022 for offence punishable

under Section 376(3) of IPC as well as the sentence imposed

upon him are hereby set aside. He is acquitted of the said

charge. Since, the appellant is reported to be in jail since

03.03.2022, we direct he shall be released from jail forthwith, if

his custody is not required in any other offence (s).

(30)This criminal appeal is allowed to the extent indicated

herein-above.

Sd/- Sd/-

(Sanjay K. Agrawal) (Radhakishan Agrawal)

Judge Judge

s@if

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HEAD NOTE

The prosecution has to establish that appropriate and

proper procedure has been followed for collection of blood

sample for DNA profiling by leading evidence/material on record.

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