The need for substantive evidence to establish guilt beyond reasonable doubt, especially when relying on DNA evidence as the primary basis for conviction.

JUDGMENT :

This is an appeal against the conviction. The appellant has been convicted for the offence punishable under Section 376(2)(f), (i), (n) of the Indian Penal Code and Section 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 and, therefore, sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 25,000/-, in default to suffer rigorous imprisonment for six months. The appellant is also convicted for the offence punishable under Section 506 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1000/-, in default to suffer rigorous imprisonment for one month.

2. The facts are unusual. The appellant is the real brother of the victim (prosecutrix), a 17 year old girl at the relevant time. It is the case of the prosecution that, the appellant had put the prosecutrix in fear of her life and sexually exploited her many a times. As a result, the prosecutrix conceived and delivered a child. The prosecutrix, therefore, lodged the First Information Report (F.I.R.) - Exh.8 on 8-3-2017 with Loni Kalbhor Police Station, District Pune. Since the offence took place within the limits of Shiradhon Police Station, the crime came to be transferred to it for investigation. It appears that, the prosecutrix delivered a child in Sassoon Hospital, Pune. Blood samples of the prosecutrix and the new born were obtained at Sassoon Hospital itself.

3. The investigation took place. The prosecutrix gave a supplementary statement, exonerating the appellant herein and putting a blame on one Gajanan Gaikwad (since acquitted). On arrest of both the appellant and Gajanan, their blood samples were obtained for D.N.A. profiling. The blood samples were analysed at Forensic Science Laboratory, Pune. The D.N.A. reports ruled out involvement of Gajanan. The D.N.A. report concludes the appellant to be the biological father of the new born of the prosecutrix. Both appellant and Gajanan were proceeded against by filing the charge sheet.

4. The learned Additional Sessions Judge framed the charge (Exh.3) against both the appellant and Gajanan. Both of them pleaded not guilty. Their defence is of false implication.

5. To establish the charge, the prosecution examined in all four witnesses and placed on record certain documentary evidence. On appreciation of the evidence in the case, learned Additional Sessions Judge acquitted Gajanan. The appellant came to be convicted as stated above.

6. Learned counsel for the appellant would submit that, there is no substantive evidence pointing towards the involvement of the appellant. The prosecutrix and her parents did not state anything incriminating against the appellant. The doctors who did obtain the blood samples of the prosecutrix, appellant and the new born for D.N.A. profiling, have not been examined. The carrier who carried the blood samples to Forensic Science Laboratory has also not been examined. As such, although the D.N.A. report is against the appellant herein, the same ought not to have been relied on by the trial Court as there was no substantive evidence against the appellant. According to the learned counsel, the prosecutrix gave incriminating evidence against the acquitted accused – Gajanan. According to learned counsel, the appellant was just 21 years of age at the relevant time. He has been behind the bars close to five years. The prosecutrix has got married and is happy at her marital place. She has filed on record her affidavit, urging for the appellant’s release. The learned counsel representing the prosecutrix reiterated the same.

7. The learned A.P.P. would, on the other hand, submit that, the D.N.A. report is conclusive proof of paternity. The prosecutrix stated in her examination-in-chief that the averments in the F.I.R. were true and correct. The blood sample of the appellant was obtained in the presence of investigating officer. The same was immediately dispatched to Forensic Science Laboratory. According to lea