Cr. Appeal No.620 of 2015

16th March, 2018.

Petitioner Counsel: Mr. RAJNISH K. LAL
Respondent Counsel: Mr. VINOD THAKUR and Mr. SUDHIR BHATNAGAR, Addl. Advs. General, with Mr. BHUPINDER THAKUR

Cases Cited:
State of Haryana Vs. Bhagirath & others, (1999) 5 SCC 96 [Para 23,24]
Krishnan & another Vs. State Represented by Inspector of Police, 2003 ALL MR (Cri) 2643 (S.C.)=(2003) 7 SCC 56 [Para 23,25]
T. Subramanian Vs. State of T.N., 2006 ALL MR (Cri) 620 (S.C.)=(2006) 1 SCC 401 [Para 23,26]
Premjibhai Bachubai Khasiya Vs. State of Gujarat & another, 2009 ALL MR (Cri) JOURNAL 296=2009 Cri. L. J. 2888 [Para 23,27]

JUDGMENT

Chander Bhusan Barowalia, J. :- The present appeal is maintained by the appellant/accused/convict (hereinafter referred to as "the accused"), laying challenge to judgment dated 04.08.2015, passed by learned Special Judge, Mandi, District Mandi, H.P., in Sessions Trial No. 39 of 2013, whereby the accused was convicted for the commission of offence punishable under Section 5(m) of The Protection of Children from Sexual Offences (POCSO) Act, 2012, read with Section 376(2)(i) of Indian Penal Code, 1860 (IPC).

2. The background facts which gave rise to the prosecution of the accused can tersely be portrayed as under:

The complainant, mother of the prosecutrix (name withheld), has three daughters and a son and the prosecutrix was studying in 5th standard. On 20.07.2013, the complainant went alongwith her husband to village Larda and they returned during midnight. At that time grandmother of the prosecutrix was sleeping in a room and the children were watching TV in another room. On the subsequent morning the complainant went to Gram Panchayat for attending a meeting and returned around 04:30 p.m. It was told to the complainant by her elder daughter that prosecutrix is having Rs. 82/- and on being asked, the prosecutrix started crying and divulged that during the last night the accused committed sexual intercourse with her and he gave money to her. The prosecutrix also complained pain in her private part and the complainant found redness around her private part. The matter was reported to the police and statement of the complainant formed basis for registration of FIR. The prosecutrix was got medically examined and her medico legal certificate opined that she was subjected to sexual intercourse. Scientific samples were also preserved for forensic analysis. Human semen was found on shirt and slacks (pyjami) of the prosecutrix, thus the clothes were preserved in a sealed cover for scientific analysis. Police investigation ensued and recoveries of shawl, currency notes and bed sheet were made. The accused was arrested, medically examined and was found capable of performing sexual intercourse. Blood sample of the accused was also obtained. Statement of the prosecutrix was recorded before the concerned Magistrate under Section 164 Cr.P.C. The prosecutrix was produced before Dr. Ritu Sharma, who filled the identification form and obtained her blood sample for DNA profiling. Record qua date of birth of the prosecutrix was also obtained. After conclusion of investigation, challan was presented in the Court.

3. The prosecution, in order to prove its case, examined as many as twenty witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded not guilty. The accused did not lead any evidence in his defence.

4. The learned Trial Court, vide impugned judgment dated 04.08.2015, convicted the accused for the offence punishable under Section 5(m) of POCSO Act read with Section 376(2)(i) IPC and ordered him to undergo rigorous imprisonment for ten years and to pay fine of Rs.10,000/- and in default of payment of fine he was further ordered to undergo simple imprisonment for six months, hence the present appeal preferred by the accused.

5. The learned Legal Aid Counsel for the appellant has argued that the medical report nowhere suggests that sexual intercourse took place. He has further argued that the presence of grandmother and siblings of the prosecutrix in the home also suggests that no sexual assault took place. He has argued that as per the mother of the prosecutrix, the prosecutrix was wearing 'salwar', but the police recovered pyjami/slacks and this creates a serious doubt in the prosecution story. He has further argued that the prosecutrix, her mother (complainant) and grandmother have gone hostile, thus in these circumstances there is no case against the appellant and he be acquitted. Conversely, the learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. He has argued that the prosecutrix, her mother (complainant) and grandmother had been won over by the accused, so their statements cannot be made basis for acquitting the appellant. The scientific evidence clearly proves the guilt of the accused beyond the shadow of reasonable doubt, so the appeal be dismissed.

6. In rebuttal, the learned Legal Aid Counsel for the appellant has argued that where two views are possible, the view favouring the accused must be adopted and the benefit of doubt be given to the accused. He has argued that the present is a fit case where the accused is required to be acquitted.

7. In order to appreciate the rival contentions of the parties we have gone through the record carefully.

8. Indisputably, in the present case, the key prosecution witnesses have resiled from their previous statements given to the police, even the prosecutrix also did not support the prosecution case. However, in the wake of facts and circumstances of the case, it would be apt to firstly discuss the medical and forensic evidence.

9. PW-2, Dr. Sarla Chand, deposed that on application, Ex. PW-2/A, the police brought the prosecutrix before her and on examination she issued medico legal certificate, Ex. PW-2/B. This witness had also handed over sample of vaginal swab, vaginal slide, and clothes in a sealed cover to the police alongwith sample seal. She has opined as under:

"P/S: The hymen was torned. Tages were present at 2, 6 and 10 O'clock position, swollen, tender and bleeding was present on touch, foul smell was present.

P/V: Little finger inserted with pain. Vaginal swabs wee taken and preserved. Vaginal slides were also prepared. The victim had not taken bath and not changed her clothes. The clothes were preserved and handed over to the police. As per my opinion the victim was exposed sexually and time was between 36 to 48 hours. After perusal of the reports of the R.F.S.L. Mandi, Ex. PW-2/C and Ex. PW-2/D, I give my final opinion human semen was found on the shirt and slacks of victim......."

This witness, in her cross-examination, has deposed that hymen can be ruptured in cycling, running and due to other reasons as well.

10. PW-5, Dr. Suneesh Sharma, on 26.07.2013 took blood sample of the accused on F.T.A and handed over the same to the police. On 29.07.2013 the prosecutrix was produced before PW-14, Dr. Ritu Sharma. PW-14 filled the identification form, Ex. PW-11/F, and also obtained blood sample of the prosecutrix. The blood sample was sealed in a vial and handed over to the police. PW-20, Dr. Mahender Singh Rana, medically examined the accused and issued medico legal certificate, Ex. PW-20/A. In his opinion the accused was found capable to perform sexual act.

11. Now, the scientific evidence, which is in the form of forensic analysis reports, needs to be discussed. The result of forensic analysis conducted in RFSL, Mandi, report whereof is Ex. PW-2/C, is as under:

"Exhibits/cuttings were subjected to biological and serological analyses in the laboratory. 'Benzidine test' was performed to detect the presence of blood. Species of origin was determined by 'geldiffusion technique'. 'Acid phosphatese test' and 'microscopic examination' were carried out for detection of semen. On the basis of aforesaid examinations, results were as under:

1. Blood and semen could not be detected on exhibit-1 (vaginal swab of the prosecutrix), exhibit-2 (vaginal slide of the prosecutrix), exhibit-5 (pubic hair of the accused), exhibit-6a (pants of the accused), exhibit-6b *underwear of the accused) and exhibit-7 (shawl).

2. Blood could not be detected on exhibit-3a (shirt of the prosecutrix) and exhibit-3b (slacks of the prosecutrix), but human semen was detected on these exhibits.

3. Human blood was detected on exhibit-4 (blood sample of the accused)."

The result of forensic analysis conducted in SFSL, Junga, report whereof is Ex. PW-2/D, is as under:

"Amplification Kit. The amplified products along with controls were run on automated DNA sequencer (ABI 3130). DNA profiles were prepared and analysis was carried out using Gene Mapper ID Software v 3.2.

OBSERVATIONS:

i) Exhibit-1 (blood sample of the accused on FTA card) and Exhibit-2 (blood sample of the victim on FTA card) yielded good quality DNA and it was possible to amplify all the fifteen autosomal STR loci and amelogenin with AmpF/STR Identifiler Plus ® PCR Amplification Kit.

ii) Exhibit-3a (shirt of the victim) yielded highly degraded DNA which did not show amplification with AmpF/STR Identifiler Plus ® PCR Amplification Kit.

iii) Exhibit-3b (slacks of the victim), yielded slightly degraded DNA, however it was possible to amplify all the fifteen autosomal STR loci and amelogenin with AmpF/STR Identifiler Plus ® PCR Amplification Kit.

iv) The DNA profile obtained from exhibit-3b (slacks of the victim) matches completely with the DNA profile obtained from exhibit-1 (blood sample of the accused on FTA card)

CONCLUSIONS:

On the basis of the above analysis performed on the aforesaid exhibits, it is concluded that:-

i) Exhibit-3a (shirt of the victim) yielded highly degraded DNA which did not show amplification with AmpF/STR Identifiler Plus ® PCR Amplification kit, hence no DNA profile was obtained.

ii) The DNA profile obtained from Exhibit-3b (slacks of the victim) matches completely with the DNA profile obtained from exhibit-1 (blood sample of the accused on FTA card)."

So, the conclusion (ii), as extracted hereinabove, clearly shows that the semen of the accused was found on the slacks of the prosecutrix. PW-2, Dr. Sarla Chand, categorically deposed that she has taken the clothes of the prosecutrix and handed over the same to the police. She has identified these clothes in the Court.

12. Now, the statements of complainant (PW-3), grand mother of the prosecutrix (PW-4) and the prosecutrix (PW-6) need to be looked into. The mother of the prosecutrix, who is also the complainant, was examined as PW-3. She has deposed that nothing had happened to her daughter (prosecutrix). This witness was declared hostile and was subjected to exhaustive cross-examination. She, in her cross-examination, has deposed that statement, Ex. PW-3/A, bears her signature, which is encircled in red. She has also deposed that MLC, Ex. PW-2/B, also bears her signature, which is encircled in red. She has deposed that on 23.07.2013 she alongwith the prosecutrix and her husband appeared before the learned Judicial Magistrate 1st Class, Gohar. PW-4, Smt. Tulsi Devi, grandmother of the prosecutrix, has also deposed that nothing has happened to her grand daughter. This witness was also declared hostile, as she has resiled from her previous statement made to the police.

13. The prosecutrix was examined as PW-6. Being a minor witness, her awareness was verified by the learned Trial Court by putting questions of different nature and after satisfaction oath was administered to her. The prosecutrix deposed that on 20.07.2013 the accused did not come to their house. She was also declared hostile and subjected to exhaustive cross-examination. The prosecutrix, in her cross-examination, has deposed that she was medically examined by a doctor. She also admitted that she was produced before the learned Judicial Magistrate 1st Class, Gohar. She has deposed that when she was taken to the doctor and to the Magistrate, her parents accompanied her.

14. As discussed above, the key prosecution witnesses, including the prosecutrix turned hostile and their statements are not valuable for the prosecution case. Now the statements of the official prosecution witnesses need discussion. PW-1, LC Dayawanti, remained associated in the investigation of the case. On 25.07.2013, PW-3, Smt. Uma Devi, produced a bed sheet of cream colour having flowers pattern and currency notes and coins of Rs. 82/-. The bed sheet was put in a parcel and the same was sealed with seal impression 'N' at nine places and the currency notes alongwith the coins were also sealed in a parcel having seal impression 'N' at five places. As per this witness, seal after its use was handed over to Tule Ram and the specimen of seal impression 'N' was taken on a separate piece of cloth, which is Ex.PW-1/B. PW-7, Constable Suresh Kumar, deposed that on 28.07.2013, vide RC, Ex. PW-7/A, MHC, Police Station, Gohar, gave him seven parcels in a sealed cover and a seal. He has deposited the same in RFSL Gutkar, Mandi. This witness on his re-examination has deposed that on 24.10.2013, vide RC No. 119/13, Ex. PW-7/B, some articles, details whereof were mentioned in the road certificate, were given to him by MHC and he safely deposited the same in SFSL, Junga and on return, receipt was handed over by him to the MHC.

15. PW-8, HC Vijay Kumar, deposed that on 22.07.2013 LC Geeta Devi deposited with him three parcels, a sample seal and a letter to RFSL, Mandi. He made entry in the malkhana register at Sr. No. 449. He has further deposed that on 23.07.2013 HHC Bihari Lal deposited with him three parcels alongwith sample seal and a letter to RFSL, Mandi and he made entry in the malkhana register at Sr. No. 450. On 25.07.2013 SI/SHO Naveen Jhalta deposited with him two parcels, qua which he made entry at Sr. No. 452. On 26.07.2013 Rajinder Kumar deposited a parcel alongwith letter to RFSL, Gutkar, qua which entry at Sr. No. 453 was made in malkhana register. The abstract of malkhana register is Ex. PW-8/A. He has further deposed that on 29.07.2013 the case property was sent, vide RC Ex. PW-7/A, through Constable Suresh Kumar, to RFSL, Gutkar. On 07.10.2013 LC Savitri Devi deposited with him a parcel and a sample seal, qua which he made entry at Sr. No. 490. On 24.10.2013, vide RC No. 19 of 2013, he sent three samples to FSL, Junga, through Constable Suresh Kumar. PW-9, Shri Chaman Lal, Panchayat Secretary, deposed that he was associated in the investigation by the police. He issued date of birth certificate of the prosecutrix, which is Ex. PW-9/A. As per his records, the date of birth of the prosecutrix is 15.06.2004. This witness, in his cross-examination, has deposed that there is overwriting in the year mentioned against the entry and the entry was made in the register on the oral information of adult member of the family. PW-10, Smt. Kamla Devi (Retired Inspector), deposed that under the directions of Superintendent of Police, Mandi, she visited Zonal Hospital, Mandi, and recorded the statement of the complainant (mother of the prosecutrix), which is Ex. PW-3/A. As per this witness, after recording her statement the same was explained to her and the complainant put her signatures thereon. HHC Balbir Singh took rukka to the police station for registration of FIR and FIR, Ex. PW-10/A, was registered. She also recorded the statement of the prosecutrix under Section 161 Cr.P.C. She has further deposed that she also recorded the statement of Shri Tula Ram (father of the prosecutrix), which is Ex. PW-10/C. On 23.07.2013, the prosecutrix, when she was accompanied by her parents, produced before the learned Judicial Magistrate 1st Class, Gohar, and her statement under Section 164 Cr.P.C. was recorded.

16. PW-11, Inspector Naveen Jhalta, deposed that upon receipt of rukka, FIR, Ex. PW-10/A, was registered and endorsement on the rukka was made. He prepared the spot map, Ex.PW-11/A and took into possession bed sheet, Ex P-2, and currency notes, Ex. P-4, vide seizure memo, Ex.PW-1/A, and were sealed in separate parcels and sample seal, Ex. PW-1/B, was drawn. As per this witness, the case property was subsequently deposited with MHC. He recorded the statements of the witnesses, including the prosecutrix, Ex. PW-11/B, Smt. Tulsi Devi (PW-4), Ex. PW-11/C, Smt. Uma Devi (PW-3), Ex. PW-11/D, and Shri Tule Ram (father of the prosecutrix), Ex. PW-11/E. He has further deposed that he procured the date of birth certificate of the prosecutrix, Ex. PW-9/A. The accused was medically examined and his blood sample on FTA card was obtained. As per this witness, identification form, Ex. PW-5/A, bears his signatures. After filling identification form, Ex. PW-11/F, blood sample of the prosecutrix was obtained. He, after completion of the investigation, prepared the challan and presented the same in the Court. This witness, in his cross-examination, has deposed that medical examination of the accused was done on different date and his blood sample was taken on different date, as he forgot to obtain blood sample of the accused, when the accused was being examined by the doctor.

17. PW-12, HC Balbir Singh, deposed that on 22.07.2013 Inspector Kamla Devi gave him rukka, which he submitted in Police Station, Gohar, which formed basis for the FIR. PW-13, Constable Ajit Singh, only brought the summoned record, which are rapats No. 26, 46, 16, 7 and 30, Ex. PW-13/A to Ex. PW-13/E, respectively. PW-15, LC Geeta Devi, deposed that she produced the prosecutrix before the doctor for medical examination and the doctor gave her MLC, three parcels, which were duly sealed, and a sample seal. She has deposited the same with MHC. As per this witness, the doctor, in her presence, obtained clothes of the prosecutrix. PW-16, Shri Ram Krishan, deposed that he wrote application, Ex. PW-2/A, on 22.07.2013, for production of the prosecutrix before the doctor for her medical examination. PW-17, HHC Bihari Lal, deposed that he produced the accused for medical examination before the doctor and after examination, the doctor handed over to him a cloth parcel, which contained pants and underwear of the accused. As per this witness, a vial containing pubic hair of the accused and another vial containing blood sample of the accused were also handed over to him. He has further deposed that he safely deposited all the articles with MHC. PW-18, Shri Mohit Bansal, Judicial Magistrate 1st Class, deposed that on 23.07.2013, when he was posted at Gohar, prosecutrix was produced before him and he, after asking searching questions, recorded her statement, which is Ex. PW-18/A. PW-19, HC Rajesh Kumar, deposed that he recorded the statements of MHC Vijay Kumar, Constable Suresh Kumar and Constable Balbir Singh.

18. The prosecutrix (PW-6), her mother (PW-3) and grand mother (PW-4) were won over, as is clear from their statements. However, they did not deny their signatures on exhibits and recovery memos in the police record. As per these witnesses, their signatures were taken on a blank paper, but this is unbelievable. The only conclusion is that they are deposing falsely in the Court, as they are won over by the accused.

19. It has come on record that PW-4, Smt. Tulsi Devi (grand mother of the prosecutrix) is hard of hearing, as she herself has admitted that she was sleeping and hard of hearing. Moreover, a suggestion had also come from the defence that she was hard of hearing. Thus, in the wake of established fact that PW-4 was sleeping and hard of hearing, it can be safely presumed that she did not hear anything. Another fact which needs to be looked closely is that the prosecutrix was minor and paid money by the accused, therefore, she did not object and raise alarm. As per the statement of PW-2, Dr. Sarla Chand, hymen was torn and tenderness and bleeding was found on the private part of the prosecutrix, this also proves that the prosecutrix was sexually assaulted. It was ruled out by PW-2 that in every case of sexual assault injuries are found on the private part of the victim. Thus, non-existence of injuries on the private part of the prosecutrix is not helpful to the accused and he, in the facts and circumstances of the case, cannot reap the benefit of the same.

20. PW-2, Dr. Sarla Chand, categorically deposed that she has sealed the clothes of the prosecutrix in a cloth parcel and the same were handed over to the police. PW-15, LC Geeta Devi, testified the testimony of PW-2 and deposed that aforesaid articles/documents were handed over to her by the doctor and she safely deposited the same with MHC. PW-8, HC Vijay Kumar (MHC), through his statement, fortified the statement of PW-8. PW-7, Constable Suresh Kumar, proved that he took these articles safely to Forensic Science Laboratory. Lastly, report of forensic science laboratory stands corroborated with the statements of PW-7 and PW-8 that these articles were safely deposited in the Forensic Science Laboratory.

21. After scrutiny of Forensic Report, Ex. PW-2/C, it is revealed that human semen was found on shirt and slacks (pyjami) of the prosecutrix. In DNA profiling report, Ex. PW-2/D, human semen, which was there on the slacks (pyjami) of the prosecutrix, completely matched with the DNA profile of the accused. The accused did not give any explanation, while his statement under Section 313 Cr.P.C. was being recorded. Firstly, DNA report, Ex. PW-2/D, proves the presence of semen on the slacks (pyjami) of the prosecutrix and secondly the accused failed to give any explanation qua the presence of his semen on the slacks of the prosecutrix. This is a strong circumstance and in any case this Court cannot overlook or ignore the same. In fact, statement of PW-3, Smt. Uma Devi (mother of the prosecutrix), if read in totality and the statement of the prosecutrix given to the police fully corroborate with the scientific evidence. PW-18, the learned Magistrate proves that statement of prosecutrix, Ex. PW-18/A, was recorded by him. Certainly, the conviction of the accused cannot be solely based upon the statement of the prosecutrix, but the same has corroborative value. As discussed hereinabove, the statement of the prosecutrix, Ex. PW-18/A, and also the statement of her mother fully corroborate with the scientific evidence. Thus, the scientific evidence, which is to be read alongwith the statements of the prosecutrix and her mother, clearly establishes the guilt of the accused beyond all reasonable doubts.

22. Now, as we are of the opinion that scientific evidence clearly and without any doubt proves the guilt of the accused and the same stands fortified with the statements of the complainant and statement of the prosecutrix, recorded under Section 164 Cr.P.C. The grand mother deposed that she is hard of hearing, so she could not hear what had happened that night. Thus, the statements of these witnesses clearly portray the incident and this portrayal completely matches with the DNA report. Therefore, it cannot be said that DNA report lacks other positive support.

23. The learned counsel for the accused has mainly tried to create doubt on the DNA report, which clearly establishes presence of semen on the slacks of the prosecutrix. In order to fortify his arguments, he has placed reliance on the following judicial pronouncements:

1. State of Haryana vs. Bhagirath & others, (1999) 5 SCC 96;

2. Krishnan & another vs. State Represented by Inspector of Police, (2003) 7 SCC 56 : [2003 ALL MR (Cri) 2643 (S.C.)];

3. T. Subramanian vs. State of T.N., (2006) 1 SCC 401 : [2006 ALL MR (Cri) 620 (S.C.)]; &

4. Premjibhai Bachubai Khasiya v. State of Gujarat & another, 2009 Criminal Law Journal, 2888 : [2009 ALL MR (Cri) JOURNAL 296].

24. The Hon'ble Supreme Court in State of Haryana vs. Bhagirath & others, (1999) 5 SCC 96, has held as under:

"15. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, Court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the Court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject."

The medical evidence cannot be made sole basis for convicting the accused, especially where divergent medical opinions emerge from different medical experts and also in cases where medical evidence lack lateral support from statements of witnesses. In the case in hand, DNA report conclusively proves the presence of semen on the slacks of the prosecutrix and there is no evidence that slacks, which was sent for DNA analysis, was tampered with. Lastly, the statements of the prosecutrix (PW-6), her mother, Smt. Uma Devi (PW-3) and grandmother, Smt. Tulsi Devi (PW-4), if read completely, corroborate with the medical evidence. Therefore, the medical evidence cannot be said to be the sole basis for convicting the accused and there is only one medical opinion, so the judgment (supra) is not applicable to the facts of the present case.

25. The learned counsel for the accused has placed reliance on another judgment of Hon'ble Supreme Court rendered in Krishnan & another vs. State Represented by Inspector of Police, (2003) 7 SCC 56 : [2003 ALL MR (Cri) 2643 (S.C.)], wherein it has been held as under:

"18. The evidence of Dr. Muthuswamy (P.W. 7) and Dr. Abbas Ali (P.W.8) do not in any way run contrary to the ocular evidence. In any event, the ocular evidence being cogent, credible and trustworthy, minor variance, if any, with the medical evidence are not of any consequence.

... ... ... ... ... ... ...

20. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant."

21. It is trite that where the eye-witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of the trial process. Eye-witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."

In the case in hand, statements of PW-3, PW-4 and PW-6, completely corroborate the medical evidence (DNA analysis report) and these witnesses have, no doubt, turned hostile, however, their statements, if read in totality, they completely fortify the medical evidence. Thus, the judgment (supra) is also not applicable to the facts of the present case.

26. The learned counsel for the accused has also placed reliance on a judgment of Hon'ble Supreme Court rendered in T. Subramanian vs. State of T.N., (2006) 1 SCC 401 : [2006 ALL MR (Cri) 620 (S.C.)], wherein it has been held as under:

"17. The evidence throws out a clear alternative that the accused was falsely implicated at the instance of PWs 1, 2 and 6. If two views were possible from the very same evidence, it cannot be said that the prosecution had proved beyond reasonable doubt that the appellant had received the sum of Rs 200 as illegal gratification. We are, therefore, of the considered view that the trial court was right in holding that the charge against the appellant was not proved and the High Court was not justified in interfering with the same."

In the case in hand, after elaborately discussing the prosecution evidence, it cannot be said that two views are possible. Certainly, where two views are possible, view favouring the accused must be adhered to, but here the medical evidence, if conjunctively read with the statements of PW-3, PW-4 and PW-6, the same corroborates with each other. Therefore, in the case in hand, two views are not possible. The judgment (supra) is not applicable to the facts of the present case.

27. The learned counsel for the accused has relied upon another judgment of Hon'ble High Court of Gujarat rendered in Premjibhai Bachubhai Khasiya vs. State of Gujarat & another, 2009 Criminal Law Journal 2888 : [2009 ALL MR (Cri) JOURNAL 296], it has been held as under:

"14. It is thus clear that positive DNA report can be of great significance, where there is supporting evidence, depending of course on the strength and quality of that evidence. If the DNA report is the sole piece of evidence, even if it is positive, it cannot conclusively fix the identity of the miscreant, but if the report if negative, it would conclusively exonerate the accused from the involvement or charge.

15. The science of DNA is at a developing stage and when the Random Occurrence Ratio is not available for Indian Society, it would be risky to act solely on a positive DNA report, because only if the DNA profile of the accused matches with the foetus, it cannot be considered as a conclusive proof of paternity. Contrarily, if it is solitary piece of evidence with negative result, it would conclusively exclude the possibility of involvement of the accused in the offence.

... ... ... ... ... ... ...

16.1 But, when it is found that the DNA profiles are not consistent or do not match they conclusively rule out the possibility of involvement of the accused and can be used for recording an acquittal in a criminal case.

17. In the case on hand, considering the peculiar facts and circumstances and evidence on record, the positive DNA Report should not have been accepted by the trial Court in isolation, i.e. as sole piece of evidence to record the conviction.

18. The appeal is allowed. Conviction recorded by the Additional Sessions judge, Fast Track Court No. 6, Bhavnagar in Sessions Case No. 123 of 2007 dated 15-11-2007 for the offences punishable under Sections 363, 366, 376, 506(2) read with Section 144 of the Indian Penal Code is set-aside. Appellant-accused person is set at liberty forthwith, if not required in any other case."

In the present case, conclusion No. (ii) of DNA report, Ex. PW-2/D, says that "the DNA profile obtained from Exhibit-3b (slacks of ..... (prosecutrix)) matches completely with the DNA profile obtained from Exhibit-1 (blood sample of accused Kishan Chand on FTA card)". Moreover, this abovementioned conclusion stands corroborated by the statement of PW-3, Smt. Uma Devi (mother of the prosecutrix) PW-4, Smt. Tulsi Devi (grand mother of the prosecutrix) and PW-6 (prosecutrix) and official witnesses. In this case, the positive DNA report stands corroborated with other circumstances, so the DNA report and other corroborative circumstances are sufficient to convict the accused. Thus, the judgment (supra) is not applicable to the facts of the present case.

28. After discussing the evidence and the law, as cited by the learned counsel for the accused, it would be apt to deal with the arguments advanced by the learned counsel for the accused. One of the arguments is that the accused did not run away and if he had done something then he would have definitely fled away from the spot, but it has come on record that he gave money to the prosecutrix and there is also a probability that he might be expecting that prosecutrix will not tell anyone with regard to the occurrence. In all cases, it gives no presumption in favour of the accused that he was innocent, as he remained in the house after committing the offence. As far as age of the prosecutrix is concerned, even though ossification test was not conducted, but from the evidence on record it is definitely in between 10-12 years and by no stretch of imagination the age can be extended beyond 12 years, as the record shows that she was studying in 5th class and 10 years of age.

29. In view of what has been discussed hereinabove, the only conclusion is that the learned Trial Court has rightly appreciated the evidence to its true and correct perspective and has rightly convicted the accused. This Court finds no reason to reverse the findings rendered by the learned Trial Court. The appeal, which sans merits, deserves dismissal and is accordingly dismissed.

30. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of.

Appeal dismissed.