Criminal Appeal No.514 of 2018

20th December, 2018.

Petitioner Counsel: Mr. C.R. THAKUR
Respondent Counsel: Mrs. S.V. KOLHE

Cases Cited:
Mukesh and anr. Vs. State (NCT of Delhi) and ors., 2017 ALL MR (Cri) 2448 (S.C.)=(2017) 6 SCC 1 [Para 17,18]

JUDGMENT

JUDGMENT :- The present appeal is an example how science and the scientific investigation not only facilitate the Court to reach to correct conclusion to punish the perpetrator of a crime but such scientific evidence also saved three young boys from languishing in jail for about 10 years.

2. By the present appeal, the appellant, who is stepfather of the victim, is challenging the judgment and order of conviction passed by learned Designated Judge, POCSO Act and Additional Sessions Judge-2 Nagpur dated 08.08.2018 in Special Case Child Protection No.226/2015. The appellant is convicted for an offence punishable under Sections 376 (2) (f), (i) (j) of the Indian Penal Code (IPC) and is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six moths. He is further convicted for an offence punishable under Section 6 of the Protection of Children From Sexual Offences Act, 2012 (POCSO Act) and is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six months. Both sentences are directed to run concurrently.

(I) FACTS:

3. The prosecution case is as under:

(i) Sunita (DW1), natural mother of victim approached to Police Station, M.I.D.C. Nagpur on 03.03.2015. She lodged a report. By the report, it was disclosed that she resides in Hiranwar Layout in the house of one Kormude as a tenant which falls within jurisdiction of Police Station, M.I.D.C. Nagpur. Her husband is a Carpenter. She is having two sons and one daughter. Her daughter, the victim is taking education at Jaitala Corporation School in 9th standard and since 2014, she is having regular menses. It is further stated in the FIR that on 19.01.2015, on 11.30 a.m., the victim went to her school and at 3.00 O'clock in recess. When she was approaching towards urinal and since all her other friends went inside the urinal, victim waited outside. At that time, one unknown schoolmate came to her and offered her snack (chiwda). Though the victim initially refused, on the request of said unknown girl, she ate the same. After eating the same, headache started to her. It is also stated in the FIR that the girl, who offered snack, asked victim that one Sameer, her friend is standing outside the school and victim should bring some articles from him. According to the FIR on this, victim went behind the school in bushes. That time, Sameer aged about 22 years, r/o Jaitala was standing along with his friends. He gave victim a sweet (Pedha). After eating the said, victim felt like fainting. At that time, said Sameer and his friends dragged her inside the bushes and after removing her clothes, committed forcible sexual intercourse. All the three persons committed sexual intercourse with the victim. Thereafter, though victim came to the house, she did not disclose anything to her mother, the first informant. It is also stated in the FIR that victim was having regular menses but till 27.02.2015, her menstrual cycle was stopped. Therefore, first informant took victim to Dr. Rashmi Shende (PW6). She advised for sonography. Therefore, victim was taken to the hospital of Dr. Rupal Kothekar (PW2). On 28.02.2015, in sonography report, it was noticed that victim is pregnant. As per the report, after sonography the first informant asked who is responsible for her pregnancy. At that time, victim disclosed the incident dated 19.01.2015.

(ii) On the basis of the FIR, crime was registered vide Crime No.68/2015 for the offence punishable under Section 376 (D), 506 and 34 of the IPC and Section 4 of POCSO Act.

(iii) API Vinod Dadaji Godbole (PW7) was attached to M.I.D.C. Police Station, Nagpur. On 03.03.2015, Crime No.68/2015 was entrusted to him for investigation along with case papers. He referred victim for her medical examination to Government Medical College and Hospital, Nagpur. After medical examination, he recorded statement of victim. During the recording of statement of victim on 05.03.2015, she stated that one Rahul had committed forcible intercourse with her and names stated in the FIR were written under pressure. The investigating officer asked the Medical Officer to collect blood sample of victim for DNA analysis. Accordingly, the Medical Officer extracted DNA samples of the victim. From the inquiry, it was transpired that victim was having love affair with Rahul. Therefore, the investigating officer made inquiry from victim and her mother about Rahul. Upon that, victim narrated that she herself had forced Rahul for sexual intercourse. Therefore, she had not disclosed name of Rahul.

(iv) On 09.03.2015, DNA samples of victim were collected by the Medical officer. On 13.03.2015, investigating officer gave written intimation to victim and the complainant for recording their statements under Section 164 of the Code of Criminal Procedure (Cr.P.C.) before the Judicial Magistrate First Class. However, on the day i.e. on 16.03.2015, none of them turned before the Court. On inquiry, investigating officer found that victim, complainant and her husband (appellant) fled away. On 15.04.2015, investigating officer affixed a notice Exh.-54 on the dwelling house of victim for appearing in the Court for recording statement under Section 164 of the Cr.P.C. The investigating officer made detailed search for victim and her mother and on 26.07.2015, he brought victim, complainant and her stepfather (appellant) from Champi Basti, Jharkhand State. During the inquiry, victim narrated that in fact offence is committed by her stepfather (appellant). Therefore, the investigating officer arrested the appellant-stepfather under arrest memo Exh.-39. On 28.07.2015, the investigating officer sent appellant to Medical College and Hospital, Nagpur for collecting his sample for DNA analysis. After receipt of DNA samples, he sent the samples for DNA analysis vide Exh.-10.

(v) In the meanwhile, statement of victim was recorded. The investigating officer visited the spot of incident and drawn spot panchanama, Exh.-57. After completion of investigation, charge-sheet was filed against the accused person.

(vi) Before making appellant as an accused, investigating officer, on the basis of FIR arrested Sameer Vaidya, Kuldip Date and Rahul Rokade. On 06.04.2015, M.I.D.C. police sent a requisition to Amulya Amul Pande (PW5), Assistant Chemical Analyser at RFSL, Nagpur demanding three DNA kits for collecting blood samples of those three boys. Accordingly, Amulya Pande (PW5) provided three DNA kits. On 07.04.2015, he received DNA kits with blood samples of those three accused persons along with their identification forms. Thereafter, he analysed blood samples of those three boys so also blood samples of victim and product of conception of hers. He gave report, Exh.-19. According to the report and the opinion, these three boys were excluded to be the biological father of the product of conception of victim. Needless to mention, thereafter prosecution filed appropriate summary for these three boys.

(vii) Be that as it may. After filing of the charge-sheet, the Special Court framed charge against the appellant for an offence punishable under Sections 376 (2) (f) (i) (j) (n), 506-B of the IPC and Sections 3 (a) read with Section 4 and Section 6 of POCSO Act. The appellant abjured his guilt and claimed for his trial.

(viii) In order to bring its case, the prosecution has examined in all 8 witnesses. The appellant also examined his wife Sunita, first informant as defence witness.

(ix) After appreciating the prosecution case, the learned Special Judge found that the appellant is perpetrator of the crime of committing sexual intercourse with his minor stepdaughter and therefore passed the impugned judgment.

(II) SUBMISSIONS:

4. I have heard Mr. Thakur, learned counsel for the appellant and Mrs. Kolhe, learned A.P.P. for the State. According to the learned counsel for the appellant, in view of the fact that the victim and first informant have turned hostile, in absence of any positive evidence on record that appellant established sexual intercourse with his minor stepdaughter, the Court below has committed error in convicting him. He, therefore, prayed that appeal be allowed. Except this submission, no other submission was advanced before this Court.

5. Per contra, Mrs. Kolhe, learned A.P.P. vehemently submitted that the scientific evidence clinches the issue in favour of the prosecution. The Court below has properly evaluated and appreciated the medical evidence and has rightly convicted the appellant, though the victim and her mother turned hostile. She, therefore, submitted that the appeal be dismissed.

(III) CRITICAL EXAMINATION OF PROSECUTION CASE:

6. Exh.-60 is school leaving certificate. The said document shows the date of birth of victim as 29.07.2001. The said document is admitted by the defence in trial. During the course of investigation, the investigating officer API Vinod Godbole (PW7) found that the victim was giving irrelevant answers and was saying that no action should be taken against her father. During the course of investigation, it was revealed that the accused is her stepfather. According to the evidence of Sunita (DW1), her marriage with the appellant took place 6-7 years ago and her first marriage was solemnized with one Gahane in the year 1995. Her evidence would show that before divorce, from her first husband she was blessed with two sons and one daughter i.e. victim.

7. The prosecution has examined Sanjay Lakhekar (PW8) as Senior Clerk at Daga Hospital, Nagpur. His office received summons from the Court. Accordingly, he brought original register of birth date entries maintained by the hospital. It is known as "Mother Book". This record is kept in the record room and the said witness is a custodian. As per his evidence, the entry in register at Sr.No. 5321 dated 29.07.2001 shows that Sunita Gahane (DW1) gave birth to a female child on the said date at about 8.25 a.m. The learned Judge of the Court below, after tallying with the original register, gave exhibit number to the photocopy as Exh.-79 before handing over the original register to Sanjay (PW8). As per the evidence of Sanjay (PW8), on the basis of entries in Birth Register, birth report in Form No.1 and statistical information form was issued, which is at Exh.-80 and the entries made therein are as per the birth register.

8. In view of this, there is no obstacle in recording a finding that the date of birth of the victim is 29.07.2001 and not of the year 1997 as tried to be deposed by Sunita (DW1). It is clear that Sunita is purposefully giving incorrect year of birth of the victim so as to save her husband from the clutches of the provisions of the POCSO Act and also under the relevant provisions of the IPC. According to the FIR, the incident has occurred on 19.01.2015. Looking to the date of birth as proved by the prosecution, I have no hesitation in my mind to record a finding that the victim was a "Child" on the date of the incident within the meaning of Section 2 (d) of the POCSO Act.

9. As per the FIR, initially Sunita (DW1) took the victim to Dr. Rupal Kothekar (PW2). The evidence of Dr. Rupal would reveal that she is M.B.B.S., D.G.O. and her clinic is situated at Abhyankar Nagar, Nagpur. On 27.02.2015, victim and her mother came for medical check up of victim. She medically examined victim and according to Dr. Rupal, her age was found to be 14 years and victim came to her with a history of irregular menstruation cycle with nausea. During examination, she advised her for sonography. She referred her for sonography to Dr.Rashmi Shende (PW6).

10. Evidence of Dr. Rashmi Shende shows that she is having a clinic in the name and style as Shende Sonography Clinic at Laxmi Nagar, Nagpur. Her qualification is M.B.B.S., M.D. (Radiologist). Her evidence further shows that on 28.02.2015, victim was referred to her by Dr. Rupal Kothekar (PW2) for USG examination. Accordingly, she did sonography on victim. She had taken her examination images by way of sonography. Her evidence would show that in her opinion, there were two embryos as she was pregnant about 6 to 8 weeks. Accordingly, she prepared medical examination report, which is at Exh.-25 and images are at Article "A". Exh.-25 shows the following observations.

"Twin intra-uterine gestational sacs are seen.

Two Fetal pole noted.

Two Yolk sacs are seen.

CRL 1-10.04mm corresponding to 7 wks 1 d

FHB: 136 bpm.

CRL 2-6.3 mm corresponding to 6 wks 3 d

FHB: 111 bpm.

Good trophoblastic reaction is seen.

Bilateral ovaries appear normal.

Cervix appears normal. Cervical Length is approx. 3.2 cm. Internal OS is closed.

IMPRESSION:4

Diamniotic dichorionic live twin gestation of mean gestational age 6 to 7 weeks."

Sonography report was brought to Dr. Rupal Kothekar. Her evidence shows that as per sonography, victim was pregnant about 6 to 7 weeks. She suggested further treatment. However, according to the evidence of Dr. Rupal, they did not turn up to her clinic.

11. Ranjana Dadanje (PW3) is Woman Police Constable. She was attached to M.I.D.C. Police Station. On 03.03.2015, she took the victim for medical examination with her mother at Government Medical College and Hospital, Nagpur. Her evidence shows that Medical Officer had examined her daughter, the victim in the hospital.

12. Exh.-26 is Forensic Medical Examination Report of Alleged Victim of Sexual Assault duly maintained by G.M.C., Nagpur. This document is admitted during the course of trial by the defence. It shows that victim was brought to medical college on 03.03.2015 by WPC Ranjana of M.I.D.C. Police Station. It is signed not only by victim but also by her mother Sunita (DW1). As per history recorded in the said document, victim narrated that she was ravished by Sameer and others as it is stated in the FIR. On her examination, no external injuries were noticed. However, her hymen was found to be torn. As per the report, overall findings are consistent with the sexual intercourse. It was also found that the victim is pregnant. The report shows that the victim was admitted in the hospital for medical abortion and was discharged on 13.03.2015. After completion of abortion, follow up was also explained to her.

13. Dr. Namita Korwate (PW4) stated on oath that on 28.07.2015, PSO M.I.D.C. Nagpur sent a letter along with accused-appellant for collecting his blood sample for DNA purpose. She collected the blood of Govind Deoulkar, the appellant and filled the identification form of appellant. She collected blood of appellant and preserved the blood in DNA kit provided by the investigating officer. She sealed the same and handed over the DNA kit of the appellant to the concerned police along with identification form, Exh.-15.

14. Evidence of Amulya Pande (PW5), Assistant Chemical Analyser at RFSL, Nagpur shows that on 06.04.2015, MIDC police sent a requisition in Crime No.68/2015 demanding 3 DNA kits for collecting blood samples of Sameer Vaidya, Kuldeep Date and Rahul Rokade and he provided 3 DNA kits. On 07.04.2015, he received DNA kits having blood samples therein. After analysis it is found that the blood samples of all these three persons and blood samples of victim and product of conception of victim are different. It is the opinion of Amulya Pande (PW5) that all the three persons excluded to be the biological father of product of conception of the victim. Said report was exhibited as Exh.19.

15. The evidence of Amulya Pande further reveals that on 28.07.2015, he received letter along with DNA kit of blood sample of the appellant from Police Station, M.I.D.C. Thereafter, analysis of blood sample of the appellant along with blood samples and product of conception of victim are done. According to the analysis, appellant and victim are concluded to be biological parents of the product of conception of the victim. The report is at Exh.-20. Thus, Exh.-20 DNA report is the conclusive proof that the appellant had sexual intercourse with his minor stepdaughter, resulting into her pregnancy, which was medically terminated.

16. Deoxyribonucleic Acid (DNA) is a most reliable test to prove about fact of sexual intercourse. Science has given its invention as a tool which can be used very effectively by investigators while investigating the crime of sexual offences on minor children or even on the major woman, if she alleges that the sexual intercourse occurred with her against her wish and without her consent.

17. In one of the recent case in Mukesh and anr. Vs. State (NCT of Delhi) and ors; reported in (2017) 6 SCC 1 : [2017 ALL MR (Cri) 2448 (S.C.)], the Hon'ble Apex Court makes survey of its earlier judgments and also judgment of various Courts.

Insertion of Section 53-A of Cr.P.C., provides for DNA profiling where a person is accused of having committed rape. The Hon'ble Apex Court in Mukesh's case in paragraph 228 observed as under:

"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."

In paragraph 455, it is further found as follows:

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

18. There cannot be any doubt now in anyone's mind that in view of the authoritative pronouncement of the Hon'ble Apex Court in Mukesh's case [2017 ALL MR (Cri) 2448 (S.C.)], cited supra that the DNA can be a basis for conviction of the accused. The only caveat is that sample of blood has to be proper and it should rule out slightest possibility of tampering.

19. Evidence of doctor namely; Dr. Namita Korwate (PW4) shows that she has taken blood sample of appellant when he was referred to her. Thus, while discharging her duties as Chief Medical officer at G.M.C., Nagpur, she has obtained blood sample of the appellant. Unless contrary is proved, when a Chief Medical Officer discharges her duty, it has to be ruled that she has followed the procedure and has taken precaution for collecting the blood samples. Her evidence is not at all challenged on the ground that she has followed the procedure and/or committed any mistake while collecting the sample. The only challenge to her evidence is that she had not personally sent the sample to Chemical Analyser but it was sent through police personnel. Though suggestion was given to her that she has not collected the sample in proper manner, she has stoutly denied the same. Except giving this suggestion, nothing is brought on record in her cross-examination to disbelieve her testimony. In my view, cross-examination of Dr. Korwate is half-hearted and her evidence can safely be relied on.

During the course of trial or even before this Court, it is not the case of the appellant that at any point of time, his blood sample was tampered by anybody at any stage.

20. Similar is the case in respect of Amulya Pande (PW5) Assistant Chemical Analyser, RFSL, Nagpur. In absence of any serious challenge to Exh.-20 and the evidence of Chemical Analyser, there cannot be any doubt that the appellant and the victim were biological parents of the product conception of victim.

21. The appellant is charged for an offence punishable under Section 3(a) read with 4 and 6 of the POCSO Act. The incident in question was reported on 19.01.2015. In view of the amendment brought in the statute in 2013, Section 375 reads as under:

375. A man is said to commit "rape" if he-

a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-

First.-Against her will.

Secondly.-Without her consent.

Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.-With or without her consent, when she is under eighteen years of age.

Seventhly.-When she is unable to communicate consent.

Explanation 1.-For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2.-Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.-A medical procedure or intervention shall not constitute rape.

Exception 2.-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.'.

Section 3 of the POCSO Act reads as under:

3. Penetrative sexual assault.-

A person is said to commit "penetrative sexual assault" if-

a. he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

b. he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

c. he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

d. he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

22. In view of the admitted document Exh.-60 and proved documents Exh.-79 and Exh.-80 by Sanjay Lakhekar (PW8) the date of birth of the victim is 29.07.2001. Thus, the appellant, in view of definition of Section 375 IPC and Section 3 of the POCSO Act, can be held responsible for committing sexual intercourse with his minor stepdaughter, which is one of the most heinous crime which shakes the belief of society about pious relations between father and daughter, though step one.

23. Reappreciation of the entire prosecution case does not leave any doubt in my mind that the learned Judge of the Court below has correctly recorded a finding of guilt against the appellant and has imposed appropriate punishment on the appellant, warranting no interference from this Court. The conspectus of the discussion, leads me to pass the following order.

ORDER

(i) The appeal is dismissed.

(ii) The appellant is in jail. He shall serve out the remainder of his jail sentence.

Appeal dismissed.