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2024 Supreme(Online)(Bom) 7493
2024:BHC-NAG:8701
APEAL 181.19 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 181 OF 2019
APPELLANT : Bhaiyya S/o Vijay Chakre,
Aged about 50 years,
R/o Takarkheda, Tq. Chandur Bazar,
Dist. Amravati.
VERSUS
RESPONDENTS : 1] State of Maharashtra,
through the Police Station Officer,
Police Station, Asegaon, Tq. Achalpur,
Dist. Amravati.
2] X Y Z (Victim in Crime No. 5/2017)
Police Station Officer, Police Station,
Asegaon, Tq. Achalpur, Dist. Amravati.
Mr. R. M. Daga, Advocate with Mr. P. R. Agrawal, Advocate for the appellant.
Mrs. M. R. Kavimandan, A. P. P. for respondent no.1/State.
Ms. Mohini Sharma, Advocate appointed for Resp.no.2/victim is absent.
CORAM : G. A. SANAP, J.
DATED : JULY 23, 2024.
Forensic DNA evidence that exculpates the accused creates a reasonable doubt that overrides oral testimony. This scientific certainty is determinative when the prosecution’s foundational case is further weakened by inordinate, unexplained reporting delays and the questionable reliability of tutored witness statements.
Headnote:(A) Indian Penal Code, 1860 - Section 376(2)(f)(l) - Protection of Children from Sexual Offences Act, 2012 - Section 6 - Sexual assault on minor - Presumption under Section 29 - Nature and application - Presumption is rebuttable and triggered only when foundational facts are proved beyond reasonable doubt - Where the prosecution's foundational case is doubtful, such presumption does not automatically apply. (Para 23)
(B) Evidence - DNA Profiling - Admissibility and evidentiary value - DNA report as a vital piece of evidence - Where DNA report is exculpatory, it cannot be kept out of consideration - Contradiction between forensic DNA findings and oral testimony creates fatal doubt regarding the guilt of the accused. (Paras 11, 12, 13)
(C) First Information Report - Delay in lodging - Impact - Unexplained, inordinate delay in reporting, when coupled with allegations of tutoring, warrants deep suspicion regarding the spontaneity of the prosecution's case. (Paras 14, 15, 19)
Facts of the case:
The appellant was convicted for the sexual assault of a minor girl living with disabilities. The report to the police was filed after an unexplained delay of several days. While medical examination was conducted later, subsequent DNA analysis of samples obtained from the victim and the crime scene did not correspond with the DNA profile of the appellant. The testimony of the minor witness was challenged on the grounds of being tutored.
Findings of Court:
The DNA analysis is conclusive in excluding the appellant as the perpetrator of the crime. The foundational facts of the alleged incident are weakened by the unexplained delay, the doubtful nature of testimonial evidence, and the lack of support from other witnesses, thereby rendering the conviction unsustainable.
Issues: Whether the conviction can be sustained when forensic DNA evidence contradicts the prosecution's witnesses; whether unexplained delay in reporting and the alleged tutoring of a minor witness render the prosecution's case unsafe for conviction.
Ratio Decidendi: When forensic scientific evidence specifically excludes the identity of an accused as the perpetrator, it creates a reasonable doubt that overrides oral testimony, especially when the prosecution's case is compromised by delayed reporting and issues concerning witness credibility.
Result: Appeal allowed; conviction and sentence set aside; appellant acquitted.
ORAL JUDGMENT
1. In this appeal, challenge is to the judgment and order dated 22.01.2019, passed by learned Additional Sessions Judge-1 and Special Judge, Achalpur, whereby the appellant/accused has held the accused guilty for the offence punishable under Section 376(2)(f)(l) of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act” for short) and sentenced to suffer rigorous imprisonment for 14 years and to pay fine of Rs.30,000/- and in default of payment of fine to undergo rigorous imprisonment for one year for the offence under Section 376(2)(f)(l) of the IPC. Learned Judge has not awarded separate sentence for the proved offence under Section 6 of the POCSO Act.
2. BACKGROUND FACTS :-
The wheels of investigation were put into motion on the report dated 09.01.2017, lodged by PW1, who is the mother of the victim girl (PW3). The case of the prosecution, which can be discerned from the report and charge-sheet, is that the appellant at the relevant time was a Teacher at residential Deaf and Dumb School, Asegaon-Purna. The acquitted accused no.2 was the Head Mistress of the said school. PW3 (hereinafter referred to as ‘the victim’) is a minor, partially mentally retarded deaf and dumb girl of around 12 years of age. The victim was studying in the said school at Asegaon-Purna. The appellant and the victim are residents of village Takarkheda, Tah. Achalpur, Dist. Amravati. It is the case of the prosecution that the victim girl would accompany the accused everyday to the school on his motorcycle. The accused would take the victim from his house to the school and drop her back at her house. The incident occurred on 05.01.2017. According to the prosecution, on 05.01.2017, as usual, the victim went to the house of the accused to go to the school. The accused was alone at his house. He was taking meal. The accused called the victim inside his house. The accused asked the victim to lie down on ‘diwan’ (cot). It is stated that thereafter, the accused committed sexual intercourse with her on three occasions. He inserted his private part in her mouth. After this act, the accused washed the private part and face of the victim and cleaned it with towel. The accused cleaned his private part as well. The accused carried the victim on motorcycle to the school. The victim and the accused returned home from the school at 5.00 p.m.
3. On 05.01.2017, the victim did not disclose the incident to anybody. It is further the case of the prosecution that on the next day morning when the mother (PW1) prepared the victim for school, she was reluctant to go to the school. The mother of the victim, therefore, took the victim along with her to the field. In the afternoon, the victim narrated the entire incident to her mother. In the evening, after returning home, the informant (PW1) disclosed the incident to her husband. On the next day, the husband of the informant went to the accused and questioned him about his act. The accused denied the allegations. On 09.01.2017, the mother of the victim went to Asegaon police station and reported the matter to the police. On the basis of the report (Exh.35), a crime bearing No. 05/2017 was registered against the appellant and the Head Mistress of the school.
4. PW8 is the Investigating Officer. PW8 forwarded the victim to the Civil Hospital, Amravati for medical examination. The victim was medically examined. The Investigating Officer drew the spot panchanama (Exh.137). PW8 seized the clothes of the victim as well as the clothes of the accused. She seized the bedsheet and towel, which was used by the accused to clean the face and private part of the victim. The samples were collected and forwarded to the Chemical Analyser for analysis. The Investigating Officer collected the documentary evidence with regard to the birth date of the victim. On completion of the investigation, charge-sheet was filed against the accused.
