Criminal Appeal No. 889 of 2023 · Bombaybench High Court · 2024
Case Details
2024:BHC-AUG:23219-DB 1 Criappeal-889-2023.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD.CRIMINAL APPEAL NO. 889 OF 2023Nivrutti S/o Nagorao Hange,Age: 43 years, Occu: Labourar,At Present R/o Prakashnagar,Lane No.3, Kukundwadi,Permanent R/o Hangewadi, Post Kingaon,Tq. Ahmedpur, District Latur.… AppellantVERSUS1. The State of MaharashtraThrough Police Offcer,Kukundwadi Police Station,Aurangabad2. X.Y.Z..… Respondents.....Appearance :-Mr. Deoda Mohit Lalit and Mr. Pavan M. Salunke, Advocate forthe Appellant Mr. Govind A. Kulkarni, APP for the Respondent No.1 / StateMs. Vinaya Dharurkar, Advocate for Respondent No.2[Appointed]..…CORAM : R. G. AVACHAT & NEERAJ P. DHOTE, JJ.Reserved On : 22/08/2024Pronounced On : 25/09/2024JUDGMENT : [PER NEERAJ P. DHOTE, J.]1.This Criminal Appeal, fled under Section 374[2] of theCriminal Procedure Code, 1973 [hereinafter referred to as‘Cr.PC’] challenges the Appellant’s conviction and sentenceawarded by the learned Additional Sessions Judge,Aurangabad, vide Judgment and Order dated 03/03/2022, inSpecial [POCSO] Case No.43/2016, as under :- 2 Criappeal-889-2023.doc“(i) The accused – Nivrutti Nagorao Hange is convicted under Section 235 of Cr.PC for the commission of offence under Section 3(a) punishable under section 4, and the offences under Sections 5(j) (ii), 5(l), 5(n), 5(p) punishable under Section 6 of the POCSO Act. (ii) The accused – Nivrutti Nagorao Hange is convicted under Section 235 of Cr.PC for the charge of commission of offence punishable under Section 376 (2)(i) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life, which shall mean imprisonment for the remainder of his natural life and to pay fne Rs.3000/-; in default of payment of fne the accused to undergo simple imprisonment for six months.(iii) The accused – Nivrutti Nagorao Hange is convicted under Section 235 of Cr.PC for the charge of commission of offence punishable under Section 376(2) of the Indian Penal Code andsentenced to suffer an imprisonment for life which shall mean imprisonment for the remainder of his natural life and to pay fne Rs.3000/-; in default of payment of fne the accused to undergo simple imprisonment for six months.(iv) All the substantive sentences shall run concurrently.”2.The Prosecution’s case as revealed from the Police Report is as under :-[I]The Prosecutrix, hail from Village Martandwadi, TalukaPalam, District Parbhani. For education purpose she had cometo reside at Aurangabad with her eldest married sister, from theyear 2009. The Appellant was her brother-in-law [husband ofsister]. At the relevant time, she was taking education in 8thstandard. Her sister was a working woman and her sister hadschool going children. The Appellant, taking disadvantage ofthe situation, committed sexual intercourse with theProsecutrix. The Appellant threatened the Prosecutrix withthe consequence that, he will discontinue her education and killher sister. Due to the threat, the Prosecutrix did not disclosethe repeated sexual intercourse by the Appellant on her. Aftersome months, the Prosecutrix had stomach ache and vomiting,therefore, her sister took her for medical examination.
Legal Reasoning
3 Criappeal-889-2023.docSonography was advised by the Doctor. The medicalexamination revealed that the Prosecutrix was pregnant. Oninquiry by the sister, the Prosecutrix disclosed her the sexualact by the Appellant on her. The Prosecutrix was admitted tothe Hospital. She aborted naturally a non-viable foetus. On thestatement of the Prosecutrix, the criminal law was set in motionand Crime bearing No.275/2013 came to be registered againstthe Appellant for the offences punishable under Sections 3(a),4, 5(j)(2), 5(l), 5(n), 5(p), 5(q) and 6 of the Protection ofChildren From Sexual Offences Act, 2012 [hereinafter referredto as ‘the POCSO Act’][II]The Investigating Machinery recorded supplementarystatement of the Prosecutrix, statements of the witnesses,conducted the Spot Panchnama, collected the medical papers,referred the Prosecutrix for radio-logical test, collected thedocuments relating to her age from the school, got the bloodsamples of Prosecutrix and samples of foetus collected andreferred for Chemical Analysis. Since the Appellant was nottraceable, Charge-sheet came to be submitted on 18/02/2016under Section 299 of Cr.PC. Subsequently, the Appellant cameto be arrested on 11/04/2017. The Appellant was medicallyexamined. His blood samples were collected and the same werereferred for Chemical Analysis. Supplementary Charge-sheetcame to be fled against the Appellant. The reports from theChemical Analyser were received which were submitted beforethe trial Court.3.After committal, the learned Additional Sessions Judgeframed the Charge against the Appellant at Exhibit – 178, towhich, the Appellant did not plead guilty and claimed to betried. To prove the Charge, the Prosecution examined in all 4 Criappeal-889-2023.docseventeen [17] witnesses and brought on record the relevantdocuments. On completion of the Prosecution’s evidence, thelearned Trial Court recorded the statement of Appellant underSection 313[1][b] of Cr.PC. The Appellant denied the case andevidence of Prosecution. After hearing both the sides andappreciating the evidence on record, the learned Trial Courtpassed the impugned Judgment and Order.4.Heard the learned Advocates Mr. Deoda Mohit Lalit andMr. Pavan M. Salunke for the Appellant, learned APPMr. Kulkarni for Respondent No.1 - State, assisted by learnedAdvocate Ms. Vinaya Dharurkar for Respondent No.2.Scrutinized the evidence. 5.It is submitted by the learned Advocate for the Appellantthat the Prosecutrix did not support the case of Prosecution.There is ambiguity regarding the date of birth of Prosecutrix.There was delay in registering the FIR. The requirement ofSection 164-A of Cr.PC was not complied. The Prosecution failedto establish the chain of custody of samples of foetus and bloodsamples. There was delay in result of DNA analysis. Therefore,the evidence in the nature of DNA report cannot form the basisto convict the Appellant. There are discrepancies in the reportsof DNA analysis. The learned Trial Court recorded theconviction only on the basis of DNA report, which isunsustainable in the eye of law and the Appeal be allowed. TheJudgments cited are considered in later part of this Judgment.6.It is submitted by the learned APP that though theProsecutrix did not support the Prosecution, the medicalevidence supports the Charge. The Prosecutrix was minor andher age was proved. Since the Prosecutrix was minor, there 5 Criappeal-889-2023.docwas no question of her consent. The sister of Prosecutrixsupported the Prosecution. The Appellant was absconding.There was proper handling of the DNA in sealed condition. TheDNA report concluded that the Appellant and Prosecutrix werethe biological parents of the baby [foetus]. The learned TrialCourt has properly appreciated the evidence on record andpassed the impugned Judgment and Order. Hence, the Appealbe dismissed. The Judgments cited are considered in later partof this Judgment.7.The learned Advocate for the Prosecutrix [assisting theProsecution] adopted the submissions made by the learned APPand additionally submitted that the conduct of the Appellantbecomes relevant by virtue of Section 8 of the Indian EvidenceAct, 1872 [hereinafter referred to as ‘the Evidence Act’]. Thesister of Prosecutrix deposed in respect of the age ofProsecutrix and the school record was brought in evidence toestablish her date of birth. The DNA report was conclusive innature. Hence, the Appeal be dismissed.8.From the evidence available on record, following aspectsare not in dispute ;[i]The Prosecutrix was the younger sister of PW – 2 [Meena Nivrutti Hange] ;[ii]The Appellant / Accused is the husband of PW – 2 [Meena Nivrutti Hange] ;[iii]The Prosecutrix was residing in the house of Appellant and PW – 2 [Meena Nivrutti Hange] for her education ;[iv]The Prosecutrix got pregnant for which she was hospitalized and she aborted ; 6 Criappeal-889-2023.doc9.The Charge and the conviction is for sexual offencesagainst a child. The term child as defned under Section 2(1)(d)of the POCSO Act means any person below the age of eighteen[18] years. Thus, it becomes necessary for the Prosecution toprove that, the Prosecutrix was a child. The learned Trial Courthas dealt with the evidence on record and held the Prosecutrixto be a child at the relevant time. The learned Trial Courtconsidered and accepted the medical record of Radiologist fordetermination of age, which is brought on record in theevidence of PW-15 (Asha Pandurang Bhange). The Radiologistis not examined, thus, the said record is kept out ofconsideration. 10.Though the Prosecutrix, who is examined as PW – 1,deposed her date of birth as 25/05/1999, it would be hearsay innature. The Prosecution examined the Teacher of Zilla ParishadPrimary School, Martandwadi, District Parbhani as PW – 9[Dilip Motiram Bhingole], where the Prosecutrix was studying.He appeared before the learned Trial Court pursuant to thewitness summons in respect of the date of birth of Prosecutrix.The original register was brought by him. The Prosecutrix hadtaken admission in the said school in frst [1st] standard on16/06/2005 and as per the school record, her date of birth was25/05/1999. The said register contained the information inrespect of the date of birth, date of admission and date ofissuing school leaving certifcate. The relevant extract from thesaid register was brought on record at Exhibit – 86. Though hewas working in the said school since one and half years [1 ]½from his date of evidence and he had no personal knowledgeabout the entries made in the said register, the said documentwas the school record and had come from proper custody. His 7 Criappeal-889-2023.docfurther evidence shows that the Prosecutrix was givenadmission in the school on the basis of extract of register of theAnganwadi which was received from the Anganwadi Sevika.There is nothing in the cross-examination to doubt thetestimony of this witness. The extract brought on recordcorroborate his testimony. By examining this witness, theProsecution has successfully proved the date of birth of theProsecutrix as 25/05/1999 from the school record where shewas studying from standard 1st.11.The evidence of PW – 1 Prosecutrix, shows that the reportdated 17/07/2013, which was treated as FIR, was confronted toher and she only identifed her signature on the same, whichwas marked as Exhibit – 31 [signature]. The evidence of PW – 2[Meena Nivrutti Hange], who was the elder sister of PW – 1Prosecutrix, shows that on 04/07/2013, when she along withPW – 1 Prosecutrix, her daughter and friends had gone to theTemple in the morning, PW – 1 Prosecutrix, was not feeling welland she was feeling giddiness and vomited. She took PW – 1Prosecutrix to the Doctor, who advised a Sonography. Theresult of Sonography was that PW – 1 Prosecutrix waspregnant for four [4] months. On 13/07/2013, PW – 1Prosecutrix was admitted to the Ghati Hospital and during themedical examination, it was found that the foetus was dead andabortion was carried. This evidence remained undiluted incross-examination. The evidence of PW – 10 [Dr. Anjali SureshDarekar] shows that on 13/07/2013, she was working asLecturer in Gynaecology Department in Ghati Hospital. On thatday, PW – 1 Prosecutrix was admitted to the Ghati Hospital andher Sonography showed that she was pregnant for twenty [20]to twenty one [21] weeks. On 16/07/2013, PW – 1 Prosecutrixaborted naturally. Her evidence remained unchallenged. 8 Criappeal-889-2023.doc12.The above evidence in respect of date of birth of PW – 1Prosecutrix and her admission to the Hospital and her abortion,which led to the non-viable foetus, establishes that at therelevant time, PW – 1 Prosecutrix was a child. Her date of birth,her admission to the Hospital and her date of abortion clearlyshows that at the relevant time, she was aged fourteen [14]years, one [1] month, twenty one [21] days. The learned TrialCourt has rightly held that PW – 1 Prosecutrix was belowsixteen [16] years in age and a child.13.For proving the Charge, the star witness of Prosecutionwas the Prosecutrix herself, who is examined as PW – 1. Shedid not support the case of Prosecution. She denied the contentsof the report, which was treated as FIR. She further deniedgiving of supplementary statement to the Police. TheProsecution cross-examined her, however, nothing came in herevidence towards establishing the Charge, even remotely. Herevidence that at the relevant time, she told her sister PW – 2[Meena Nivrutti Hange] that the Appellant had sexualintercourse with her, cannot take the place of substantiveevidence. It was a previous oral statement made to her sister.According to her, she was unable to say as to how she conceived.Though in her re-examination done by the Prosecution, sheadmitted of recording her statement in the Ghati Hospital,Aurangabad, which was recorded in presence of two - threeladies, which was narrated by her without any pressure, thatcannot take the place of substantive evidence. All in all, theevidence of PW – 1 Prosecutrix is of no assistance to theProsecution in establishing the Charge.14.The learned APP relied on two Judgments. In SelvamaniVs. The State Rep. By the Inspector of Police, in Criminal Appeal 9 Criappeal-889-2023.docNo.906/2023, delivered on May 08, 2024, wherein, theProsecutrix as well as her mother and her aunt had fullysupported the Prosecution, which is not so in the case in hand.In Imran Shamim Khan Vs. State of Maharashtra ; 2019 DGLS[Bom] 366, wherein, the conviction recorded by the learnedTrial Court was upheld, as the Prosecution examined theMagistrate, who recorded the statement of the Prosecutrixunder Section 164 of Cr.PC. In catena of Judgments of theHon’ble Supreme Court of India, it is well settled position in lawthat the statement recorded under Section 164 of Cr.PC is notthe substantive evidence. 15.PW -2 [Meena Nivrutti Hange] was admittedly not the eyewitness to any of the incidents, for which, the Crime wasregistered. Her evidence that, on detection of pregnancy, PW –1 Prosecutrix told her that, it was because of the Appellant, ishearsay in nature and not substantive evidence. Her evidenceshows that her marriage with the Appellant was at the instanceof her parents and she was not happy with the marriage. Herevidence shows that once she was hospitalized for consumingpoison. Of course, this is not the issue in question, it shows thatthe relations between PW – 2 and the Appellant were notharmonious. It is, thus, clear that the evidence of PW – 2[Meena Nivrutti Hange] do not take the case of Prosecutionany further to prove the Charge.16.The evidence of PW – 3 [Dnyaneshwar RamkrushnaSonar], shows that he video-graphed the statement ofProsecutrix. The evidence of PW – 4 [Durga Mangilal Bhati]shows that the statement of Prosecutrix was recorded in herpresence. Her evidence as to what the Prosecutrix stated, ishearsay in nature. The evidence of PW – 5 [Sandhya 10 Criappeal-889-2023.docRamchandra Jadhav] shows that the DVD was seized in herpresence. The evidence of PW – 6 [Girish ChidambarmurtiRinge] shows that he was the panch for the Spot Panchnama i.e.the room, which was on the frst foor of the house. His evidencedo not show that anything was seized from the said spot.Evidence of these witnesses have no potency to prove theCharge.17.Another evidence, upon which, the Prosecution laidemphasis and which weighed heavily with the learned TrialCourt to convict the Appellant, is the scientifc evidence in thenature of DNA reports. Following Judgments are relied upon bythe learned Advocates for the Appellant on this aspect.[I]In Pattu Rajan Vs. The State of Tamil Nadu;MANU/SC/0439/2019, it is observed as follows :-“31. Shri Sushil Kumar also argued that a DNA test should havebeen conducted in order to identify the dead body, andidentification merely on the basis of a superimposition test, whichis not a tangible piece of evidence, may not be proper.One cannot lose sight of the fact that DNA evidence is also in thenature of opinion evidence as envisaged in Section 45 of theIndian Evidence Act. Undoubtedly, an expert giving evidencebefore the Court plays a crucial role, especially since the entirepurpose and object of opinion evidence is to aid the Court informing its opinion on questions concerning foreign law, science,art, etc., on which the Court might not have the technicalexpertise to form an opinion on its own. In criminal cases, suchquestions may pertain to aspects such as ballistics, fingerprintmatching, handwriting comparison, and even DNA testing orsuperimposition techniques, as seen in the instant case.32. The role of an expert witness rendering opinion evidencebefore the Court may be explained by referring to the followingobservations of this Court in Ramesh Chandra Agrawal v. RegencyHospital Limited and Ors., MANU/SC/1641/2009 : (2009) 9 SCC709 :16. The law of evidence is designed to ensure that the courtconsiders only that evidence which will enable it to reach areliable conclusion. The first and foremost requirement for an 11 Criappeal-889-2023.docexpert evidence to be admissible is that it is necessary to hearthe expert evidence. The test is that the matter is outside theknowledge and experience of the lay person. Thus, there is aneed to hear an expert opinion where there is a medical issueto be settled. The scientific question involved is assumed tobe not within the court's knowledge. Thus cases where thescience involved, is highly specialized and perhaps evenesoteric, the central role of an expert cannot be disputed....Undoubtedly, it is the duty of an expert witness to assist the Courteffectively by furnishing it with the relevant report based on hisexpertise along with his reasons, so that the Court may form itsindependent judgment by assessing such materials and reasonsfurnished by the expert for coming to an appropriate conclusion.Be that as it may, it cannot be forgotten that opinion evidence isadvisory in nature, and the Court is not bound by the evidence ofthe experts. (See The State (Delhi Administration) v. Pali Ram,MANU/SC/0189/1978 : (1979) 2 SCC 158; State of H.P. v. Jai Laland Ors., MANU/SC/0557/1999 : (1999) 7 SCC 280; Baso Prasadand Ors. v. State of Bihar, MANU/SC/8723/2006 : (2006) 13SCC 65; Ramesh Chandra Agrawal v. Regency Hospital Ltd. andOrs. (supra); Malay Kumar Ganguly v. Dr. Sukumar Mukherjeeand Ors., MANU/SC/1416/2009 : (2010) 2 SCC (Cri.) 299).33. Like all other opinion evidence, the probative value accordedto DNA evidence also varies from case to case, depending on factsand circumstances and the weight accorded to other evidence onrecord, whether contrary or corroborative. This is all the moreimportant to remember, given that even though the accuracy ofDNA evidence may be increasing with the advancement of scienceand technology with every passing day, thereby making it moreand more reliable, we have not yet reached a juncture where itmay be said to be infallible. Thus, it cannot be said that theabsence of DNA evidence would lead to an adverse inferenceagainst a party, especially in the presence of other cogent andreliable evidence on record in favour of such party”.[II]In Manoj and Others Vs. State of Madhya Pradesh; MANU/SC/0711/2022, it is observed as follows :-“134. During the hearing, an Article published by the CentralForensic Science Laboratory, Kolkata was relied upon. The relevantextracts of the Article are reproduced below:….…..…..…..……….…..…..…..……….…..…..…..……….…..…..…..……….…..…..…..…… 12 Criappeal-889-2023.doc….…..…..…..……….…..…..…..…... Collection and Preservation of Evidence If DNA evidence is not properly documented, collected,packaged, and preserved, It will not meet the legal andscientific requirements for admissibility in a court of law.Because extremely small samples of DNA can be used asevidence, greater attention to contamination issues isnecessary while locating, collecting, and preserving DNAevidence can be contaminated when DNA from anothersource gets mixed with DNA relevant to the case. This canhappen when someone sneezes or coughs over the evidenceor touches his/her mouth, nose, or other part of the faceand then touches area that may contain the DNA to betested. The exhibits having biological specimen, which canestablish link among victim(s), suspect(s), scene of crimefor solving the case should be Identified, preserved, packedand sent for DNA Profiling.….…..…..…..……….…..…..…..……136. The Law Commission of India in its report, observed asfollows : DNA evidence involves comparison between geneticmaterial thought to come from the person whose identity isin issue and a sample of genetic material from a knownperson. If the samples do not 'match', then this will prove alack of identity between the known person and the personfrom whom the unknown sample originated. If the samplesmatch, that does not mean the identity is conclusivelyproved. Rather, an expert will be able to derive from adatabase of DNA samples, an approximate number reflectinghow often a similar DNA "profile" or "fingerprint" is found. Itmay be, for example, that the relevant profile is found in 1person in every 100,000. This is described as the 'randomoccurrence ratio' (Phipson 1999). Thus, DNA may be more useful for purposes of investigation butnot for raising any presumption of identity in a court of law.….…..…..…..……….…..…..…..……….…..…..…..……141. 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 highlightedthe need to ensure quality in the testing and eliminate thepossibility of contamination of evidence; it also held that being an 13 Criappeal-889-2023.docopinion, the probative value of such evidence has to vary from caseto case”.[III]In Naveen Vs. The State of Madhya Pradesh;MANU/SC/1167/2023, it is observed as follows:“18. The issue concerning evidentiary value of DNA report hasbeen considered by this Court in a recent judgment reported in thecase of Rahul v. State of Delhi, Ministry of Home Affairs and Anr.MANU/SC/1455/2022 : (2023) 1 SCC 83 wherein the followinghas been held in Paragraphs 36 and 38 as under:36. The learned Amicus Curiae has also assailed the forensicevidence i.e. the report regarding the DNA profiling dated18-4-2012 (Ext. P-23/1) giving incriminating findings. Shevehemently submitted that apart from the fact that thecollection of the samples sent for examination itself was verydoubtful, the said forensic evidence was neither scientificallynor legally proved and could not have been used as acircumstance against the Appellant-Accused. The Court findssubstance in the said submissions made by the AmicusCuriae. The DNA evidence is in the nature of opinionevidence as envisaged Under Section 45 and like any otheropinion evidence, its probative value varies from case tocase.38. It is true that PW 23 Dr B.K. Mohapatra, Senior ScientificOfficer (Biology) of CFSL, New Delhi had stepped into thewitness box and his report regarding DNA profiling wasexhibited as Ext. PW 23/A, however mere exhibiting adocument, would not prove its contents. The record showsthat all the samples relating to the Accused and relating tothe deceased were seized by the investigating officer on 14-2-2012 and 16-2-2012; and they were sent to CFSL forexamination on 27-2-2012. During this period, theyremained in the malkhana of the police station. Under thecircumstances, the possibility of tampering with the samplescollected also could not be ruled out. Neither the trial courtnor the High Court has examined the underlying basis of thefindings in the DNA reports nor have they examined the factwhether the techniques were reliably applied by the expert.In the absence of such evidence on record, all the reportswith regard to the DNA profiling become highly vulnerable,more particularly when the collection and sealing of thesamples sent for examination were also not free fromsuspicion. (Emphasis supplied)
Legal Reasoning
14 Criappeal-889-2023.doc19. In the case of Manoj and Ors. v. State of M.P.MANU/SC/0711/2022 :(2023) 2 SCC 353, it was held that if DNAevidence is not properly documented, collected, packaged, andpreserved, it will not meet the legal and scientific requirements foradmissibility in a court of law. Because extremely small samples ofDNA can be used as evidence, greater attention to contaminationissues is necessary while locating, collecting, and preserving DNAevidence as it can be contaminated when DNA from anothersource gets mixed with DNA relevant to the case. This can happeneven when someone sneezes or coughs over the evidence ortouches his/her mouth, nose, or other part of the face and thentouches the area that may contain the DNA to be tested. Theexhibits having biological specimen, which can establish linkamong victim(s), suspect(s), scene of crime for solving the caseshould be identified, preserved, packed, and sent for DNAProfiling.20. In the case of Anil @ Anthony Arikswamy Joseph v. State ofMaharashtra MANU/SC/0124/2014 : (2014) 4 SCC 69, thefollowing has been held in paragraph 18 as under:18. Deoxyribonucleic acid, or DNA, is a molecule thatencodes the genetic information in all living organisms. DNAgenotype can be obtained from any biological material suchas bone, blood, semen, saliva, hair, skin, etc. Now, for severalyears, DNA profile has also shown a tremendous impact onforensic investigation. Generally, when DNA profile of asample found at the scene of crime matches with the DNAprofile of the suspect, it can generally be concluded that boththe samples have the same biological origin. DNA profile isvalid and reliable, but variance in a particular result dependson the quality control and quality procedure in thelaboratory”. (Emphasis supplied)[IV]In Prakash Nishad Vs. State of Maharashtra;MANU/SC/0613/2023, one of the issue for consideration waswhether DNA evidence can form the solitary basis indetermining the guilt of the Appellant therein and it observedas follows :-“60. We may observe that the Maharashtra Police Manual1, whenspeaking of the integrity of scientific evidence in Appendix XXIVstates -The integrity of exhibits and control samples must besafeguarded from the moment of seizure upto the completionof examination in the laboratory. This is best done byimmediately packing, sealing and labeling and to prove the 15 Criappeal-889-2023.doccontinuity of the integrity of the samples, the messenger orbearer will have to testify in Court that what he had receivedwas sealed and delivered in the same condition in thelaboratory. The laboratory must certify that they havecompared the seals and found them to be correct. Articlesshould always be kept apart from one another after packingthem separately and contact be scrupulously avoided intransport also.61. In the present case, the delay in sending the samples isunexplained and therefore, the possibility of contamination andthe concomitant prospect of diminishment in value cannot bereasonably ruled out. On the need for expedition in ensuring thatsamples when collected are sent to the concerned laboratory assoon as possible, we may refer to "Guidelines for collection,storage and transportation of Crime Scene DNA samples ForInvestigating Officers - Central Forensic Science LaboratoryDirectorate Of Forensic Sciences Services Ministry Of Home Affairs,Govt. of India"2 which in particular reference to blood and semen,irrespective of its form, i.e. liquid or dry (crust/stain or spatter)records the sample so taken "Must be submitted in the laboratorywithout any delay."62. The document also lays emphasis on the 'chain of custody'being maintained. Chain of custody implies that right from thetime of taking of the sample, to the time its role in theinvestigation and processes subsequent, is complete, each personhandling said piece of evidence must duly be acknowledged in thedocumentation, so as to ensure that the integrity isuncompromised. It is recommended that a document be dulymaintained cataloguing the custody. A chain of custody documentin other words is a document, "which should include name orinitials of the individual collecting the evidence, each person orentity subsequently having custody of it, dated the items werecollected or transferred, agency and case number, victim's orsuspect's name and the brief description of the item."[V]In Mukesh and Others Vs. State of NCT of Delhi and Ors.;MANU/SC/0575/2017, it is observed as follows :-“216 In Pantangi Balarama Venkata Ganesh v. State of AndhraPradesh MANU/SC/1306/2009 : (2009) 14 SCC 607, a two-JudgeBench had explained as to what is DNA in the following manner: 41. Submission of Mr. Sachar that the report of DNA should not be reliedupon, cannot be accepted. What is DNA? It means: 16 Criappeal-889-2023.docDeoxyribonucleic acid, which is found in the chromosomesof the cells of living beings is the blueprint of an individual.DNA decides the characteristics of the person such as thecolour of the skin, type of hair, nails and so on. Using thisgenetic fingerprinting, identification of an individual is donelike in the traditional method of identifying fingerprints ofoffenders. The identification is hundred per cent precise,experts opine.There cannot be any doubt whatsoever that there is a need ofquality control. Precautions are required to be taken to ensurepreparation of high molecular weight DNA, complete digestion ofthe samples with appropriate enzymes, and perfect transfer andhybridization of the blot to obtain distinct bands with appropriatecontrol. (See article of Lalji Singh, Centre for Cellular and MolecularBiology, Hyderabad in DNA profiling and its applications.) But inthis case there is nothing to show that such precautions were nottaken”.[VI]In Ananda Vs. The State of Maharashtra;MANU/MH/3781/2024, one of the evidence was in the nature ofDNA reports and it is observed as under : “39. The question is, based on the DNA reports, whether theconviction and/or sentence passed by the trial court would besustainable. We have gone through the impugned judgment. Thetrial court has relied on the evidence of each and every witness. Italso relied on the evidence of the medical officer who collected bloodof the appellant for DNA analysis, even in breach of protocol in thatregard. The reason assigned for relying on the said evidence is thatthe said witness is uninterested and independent one. Beforeappreciating the evidence relating to DNA, we must have a look atthe guidelines for collection, storage and transportation of the crime-scene DNA samples. Those have been placed on record by learnedcounsel for the appellant. Item No.10 therein speaks of maintainingthe chain of custody. It describes what chain of custody means.Same reads as under:- 10. Maintaining the chain of custody:• Chain of custody is a process used to maintain anddocument the chronological history of the evidence.• A `chain of custody’ document should be maintainedwhich should include name or initials of the individualcollecting the evidence, each person or entity subsequentlyhaving custody of it, dated the items were collected ortransferred, agency and case number, victim’s or suspect’sname and the brief description of the item. 17 Criappeal-889-2023.docThose were the guidelines issued by The Central Forensic ScienceLaboratory, Chandigarh. PW 18 – Vaishali admitted in cross-examination that the C.F.S.L., Chandigarh and Hyderabad are best inIndia.”18.From the above observations, it is clear that, there isprotocol for selecting and preserving the samples for DNAanalysis. Necessary precautions are necessary, right fromtaking samples for DNA till the fnal results of its analysis. Even,the chain of custody of samples is required to be established soas to rule out the possibility of contamination or tampering.Further, the said exercise is required to be taken up andcompleted without any delay. What can be gathered from theabove observations made by the Hon’ble Supreme Court is thatthe evidence in the nature of DNA report can only be relied oraccepted provided the Prosecution establishes that integrity ofthe samples remain uncompromised right from the beginningtill end and the chain of handling the samples is established andall the possibility of contamination or tampering of the samplesis completely ruled out. Further, it leads that DNA could not besaid to be infallible, as after all it is an opinion evidence. 19.Coming to the case in hand, the evidence of PW – 8 [Dr.Sushilkumar Narayanrao Pundge] shows that he was theMedical Offcer at G.M.C.H, Aurangabad and Prosecutrix hadcome along with her sister on 13/07/2011. He recorded herMLC and informed the Police and referred her to the OBGYDepartment for further expert opinion, investigation andmanagement. The evidence of PW – 10 [Dr. Anjali SureshDarekar], who was attached to the Gynaecology Department inGhati Hospital, Aurangabad, shows that the Prosecutrix waspregnant for twenty [20] weeks and complained of abdomenache and was hospitalized on 13/07/2013. On 16/04/2013, at 18 Criappeal-889-2023.docabout 6.15 a.m., she aborted naturally. Her evidence shows thatthe aborted foetus was preserved by on duty Doctor for DNAtest. However, who was the said Doctor is not known. The saidon duty Doctor to whom this witness had handed over thefoetus is not examined. The evidence of PW – 10 [Dr. AnjaliSuresh Darekar] is completely silent as to how the foetus waspreserved.20.The evidence of PW – 7 [Dr. Nitin Subhash Ninal] showsthat on 17/07/2013, he was attached as the resident Doctor atGovernment Medical College, Aurangabad and on that day, PSI -V. A. Tandale, [PW – 16] brought the foetus [dead] forpostmortem and on postmortem, he opined that the foetus was‘non-viable fetus of gestational age 5 - 6 months’ andaccordingly, he prepared the postmortem report at Exhibit –64. The samples femur and sternum were packed, sealed,labeled and handed over to the Police on duty for DNA analysis.Who was that Policemen to whom the said samples were handedover is not known.21.The evidence of PW – 16 [Vishnu Arjun Tandale], the PSIof Mukundwadi Police Station, shows that, he conducted theinquiry of ADR, which was registered for the dead foetus. Hisevidence nowhere show that he had carried the foetus with himto PW – 7 [ Dr. Nitin Subhash Ninal] for postmortem andthereafter the samples were handed over to him. His evidenceonly shows that he issued letter to the C.M.O with request toconduct the postmortem and collection of DNA vide Exhibit –150. There is no inter-se corroboration in the evidence of PW –7 [Dr. Nitin Subhash Ninal] and PW – 16 [Vishnu ArjunTandale]. 19 Criappeal-889-2023.doc22.The evidence of PW – 16 [Vishnu Arjun Tandale] nowhereshows as to from where and from whose custody the foetus wastaken in his custody for sending it to the postmortem. Hefurther deposed of handling over the medical muddemal to PHCAhire on 17/07/2013. It is not clear from his evidence as towhat the said medical muddemal contained. Even if, it is takenthat it was the sample of foetus, the said PHC Ahire is notexamined.23.The evidence of PW – 13 [Dr. Kanarjuman MohammadIbrahim] shows that on 15/08/2013, he was working asCasualty Medical Offcer in Ghati Hospital, Aurangabad andProsecutrix was brought by Lady Police Constable [LPC] BatchNo.156, H. A. Chincholkar for drawing her blood samples alongwith the communication at Exhibit – 124. He accordingly tookthe blood samples of the Prosecutrix after flling up theidentifcation form and handed over the blood samples to thePolice for taking it to the Forensic Science Laboratory. Thecross-examination shows that the blood samples of Prosecutrixwere not collected in presence of third party. The column, ‘Theblood is collected, labeled and sealed in presence of followingwitnesses’ in Exhibit – 125, which is the identifcation formreferred by this witness in her evidence, is blank. There are nonames of witnesses and their signatures in the said Exhibit-125.It is worth to note that, at the bottom of the said identifcationform at Exhibit – 125, there is a Note as ‘No column should beleft empty’. This evidence on record establishes that theprotocol required for collecting the blood samples was notfollowed. Admittedly, this witness had not given the name ofPolice to whom the blood samples were handed over for taking itto Forensic Laboratory. Even for the sake of argument, it is 20 Criappeal-889-2023.doctaken that the said blood samples were handed over to the saidLPC - H. A. Chincholkar, she is not examined. 24.The evidence of PW – 15 [Asha Pandurang Bhange], thePolice Offcer, who investigated the Crime, shows that the bloodsamples were sent for DNA examination to Laboratory Kalina,Mumbai vide Exhibit - 94. However, her cross-examinationshows that the Doctor handed over the blood samples forsending to Chemical Analysis and she did not remember theperiod for which the samples were lying with her. Her evidencenowhere shows as to where the blood samples were kept duringthat intervening period.25.The evidence of PW – 11 [Vaijinath Eknath Phalke] showsthat on 15/08/2013 when he was present at Mukunwadi PoliceStation, PSI – Bhange [PW – 15] handed over the blood samplesof Prosecutrix for being taken to Mumbai and handed over aletter with sealed thermacol box and sealed envelop.Accordingly, he deposited the same at Mumbai. His cross-examination shows that the box and envelop were not sealed inhis presence.26.The evidence of PW – 12 [Madhuri Haibati Narwane]shows that she was attached to the Mukundwadi Police Stationas Police Constable and on direction by PW – 17 [DipaliBhagwat Nikam], she carried and deposited the DNA sample kitwith one sealed envelop to the Forensic Laboratory, Kalina,Mumbai and took the acknowledgment in that regard. She hadno reason to know the articles in the kit.27.The evidence of PW – 14 [Dr. Archana Nivrutti Parsewar],who was the CMO at Ghati Hospital, Aurangabad, shows that on 21 Criappeal-889-2023.doc16/04/2017, the Accused was brought for drawing his bloodsamples and accordingly, she took his blood samples for DNAafter flling the identifcation form and the blood samples weretaken in presence of the witnesses, whereas, as seen earlier, theblood samples of Prosecutrix were not drawn in the presence ofwitnesses. There is no explanation as to why the blood samplesof Prosecutrix were not collected in the presence of witnesses,as is done while collecting the blood samples of the Appellant.28.The above discussed evidence clearly shows that, thechain of custody of the non-viable foetus, which was aborted bythe Prosecutrix, is not at all established. There is completeabsence of evidence to show as to in what condition the saidnon-viable foetus was preserved. There is complete absence ofevidence to show that the foetus was handled as required by themedical protocol so as to maintain its integrity. This defciencyin the Prosecution’s case, examined in the light of the abovelegal position, is fatal for the Prosecution. As the chain ofcustody of the samples of foetus and blood is not established,the possibility of contamination or tampering or diminishmentof its value cannot be ruled out. 29.The CA report at Exhibit – 161 is in respect of results ofanalysis of DNA extracted from blood samples of theProsecutrix and samples of the foetus. The opinion after theanalysis was that, the Prosecutrix was concluded to be thebiological mother of the foetus. For clear understanding, chartgiven in the said report is re-produced below :STR LOCUSGENOTYPEDNA ex1 femur bone ofF.S.L. ML. Case No. DNA-DNAProsecutrix 22 Criappeal-889-2023.doc817/13D8S117910, 1212, 13D21S1127, 32, 227, 30D7S82011, 129, 12CSF1PO10, 1111, 12D3S135817, 1717, 17THO16, 98, 9D13S31711, 1310, 11D16S53911, 119, 11D2S133818, 1919, 23D19S43314, 14.214.2, 14.28VWA16, 1716, 17TPOX8, 118, 11D18S5113, 1615, 16AMEROGENINX,X X,XD5S81814, 1413, 14FGA23, 2423, 2630.The CA report at Exhibit – 162 shows that the Appellantand Prosecutrix were concluded to be the biological parents ofthe baby [foetus] of the Prosecutrix. A chart shown in the saidreport is re-produced below for better understanding :STR LociGENOTYPEDNA-992/13DNA-817/13DNA-553/17Ex. ProsecutrixEx. 1 femur boneof baby ofProsecutrixEx. 1 NivruttiNagoraoHangeD8S117912, 1310, 1210, 14D21S1127, 3027, 32, 231.2, 32.2D7S8209, 1211, 1211, 11CSF1PO11, 1210, 1110, 11D3S135817, 1717, 1716, 17TH018, 96, 96, 8 23 Criappeal-889-2023.docD13S31710, 1111, 1312, 13D16S5399, 1111, 119, 11D2S133819, 2318, 1918, 23D19S43314.2, 14.214.2, 1513, 15vWA16, 1716, 1715, 16TPOX8, 118, 118, 11D18S5115, 1613, 1613, 14AMELOGENINXXXXX, YD5S81813, 1414, 1411, 14FGA23, 2623, 2424, 2631.On close scrutiny of the above charts, we fnd merit in thecontention of the learned Advocate for the Appellant that thereading in the vertical column styled as ‘STR locus / Loci’ forD19S433, in both the reports, in respect of femur bone of baby[foetus] is different. No doubt, the CA reports are admissible byvirtue of Section 293 of Cr.PC. However, the said ambiguity isnot cleared by the Prosecution. The CA report at Exhibit – 162opining that the Appellant, Prosecutrix were the biologicalparents of baby [foetus], is dated 26/10/2018. True it is thatthe blood samples of the Appellants were taken on 16/04/2017after his arrest, the said CA report shows that the analysis wasstarted on 16/05/2018. Admittedly, there is no evidence toshow as to in what condition the samples received by theLaboratory were preserved. This long delay in respect of resultof analysis of DNA is not explained. The possibility of thesamples getting contaminated cannot be ruled out. Under suchcircumstances, we do not fnd it safe to accept and rely on thesaid CA reports.32.There is one more aspect to the matter. The evidence ofPW – 7 [Dr. Nitin Subhash Ninal], who performed the 24 Criappeal-889-2023.docpostmortem on the foetus shows that the sex of foetus wasMale, whereas, AMELOGENIN, in the CA report at Exhibits- 161and 162 shows the DNA of foetus as X, X, which is indicative ofFemale foetus. This inconsistency in the evidence of the Doctorand the CA reports is signifcant and gives severe dent to theProsecution’s case.33.PW – 17 [Dipali Bhagwat Nikam] was the Police Offcer,who investigated the Crime, after initial investigation was doneby PSI Asha Pandurang Bhange [PW – 15]. She fled Charge-sheet against the Accused under Section 299 of Cr.PC as theAppellant was at large. Thereafter, she arrested the Appellant,got blood sample of the Appellant, which was forwarded to theForensic Laboratory, Kalina, Mumbai and fled supplementaryCharge-sheet against the Appellant. The abscondance of theAppellant, though may be relevant, cannot form the sole basisto hold him guilty, in absence of substantive evidence to provethe Charge. 34.The above discussed evidence leads us to hold that thereport of Chemical Analysis in respect of DNA cannot form thebasis to affrm the conviction recorded by the learned TrialCourt. The evidence as discussed above shows number ofshortcomings. There is no evidence to show that the sampleswere collected and preserved as prescribed by the medicalprotocol. The delay in respect of the analysis of the samples isalso signifcant. This gives rise to reasonable possibility of thesamples getting contaminated or tampered. Thus, the medical /scientifc evidence in respect of DNA reports is liable to bediscarded. This being so, there is no evidence to prove theCharge. The other evidence, as discussed above, takes the case 25 Criappeal-889-2023.docof Prosecution no further in proving the Charge. In thebackdrop of the above discussion, it is not possible to uphold theconviction and sentence awarded by the learned Trial Courtagainst the Appellant. Hence, the following order:ORDER[a] Criminal Appeal is allowed.[b]The Judgment and Order dated 03/03/2022, passed by the learned Additional Sessions Judge, Aurangabad, inSpecial [POCSO] Case No.43/2016, convicting theAppellant for the offences punishable under Sections 3(a),4, 5(j) (ii), 5(l), 5(n), 5(p) and Section 6 of the POCSO Act and for the offences punishable under Sections 376(2) (i) and 376 (2)(n) of IPC, is quashed and set aside. [c] The Appellant stands acquitted for the offencespunishable under Sections 3 (a), 4, 5(j) (ii), 5(l), 5(n),5(p) and Section 6 of the POCSO Act and for the offencespunishable under Sections 376(2)(i) and 376(2)(n) of IPC. [d] The fne amount, if paid by the Appellant, berefunded to him.[e]The Appellant be released, if not required in any othercase.[f] The Record and Proceedings be sent back to the learnedTrial Court.[g]Criminal Appeal stands disposed of accordingly. 35.The fees of appointed Advocate Ms. Vinaya Dharurkar forRespondent No.2 is quantifed at Rs.10,000/- [Rupees TenThousand Only], to be paid by the High Court Legal ServicesSub - Committee, Aurangabad. [NEERAJ P. DHOTE, J.] [R. G. AVACHAT, J.]Sameer