High Court of Bombay

Jitendra and Ors. Vs. The State of Maharashtra

MANU/MH/2312/2017

04.10.2017

Criminal

Conviction cannot be based on a DNA report when it is established that there has been no quality control or quality assurance and the sampling has been improper

By the impugned judgment and order, the Sessions Court held four Accused persons guilty under Sections 363 and 376(D) read with 34 of the Indian Penal Code, 1860 (IPC), while acquitting them for offences under the SC and ST (Prevention of Atrocities) Act, 1989 and under Section 6 of the Protection of Children from Sexual Offences Act. Present four appeals have been filed by the four Accused persons challenging the said judgment and order of the Sessions Court. Appellant submitted that, there were contradictions in the evidences and that entire story of the prosecutrix was false.

The medical examination of the prosecutrix shows that, there are no injuries found on her body, there is absence of injury on the hymen and no injuries on the genitals. The case of the prosecutrix is that, the four accused persons one after the other forcibly had sexual intercourse with her and yet there is no physical injury on her body or her genitals. This factor also raises some doubt about the story of the prosecution.

Even if some doubts arise in the story of the prosecution due to inconsistencies in the oral evidence and the result of the medical examination, the strongest incriminating circumstance against the accused persons is the DNA report. The presence of DNA of all the accused persons on clothes of the prosecutrix is a highly incriminating circumstance pointing towards their guilt. The significance of the said DNA report is obvious when DNA analysis has been accepted as a reliable scientific method of investigation for proving involvement of the accused. It has been held by Supreme Court in its judgment in the case of Mukesh and another v. State (NCT of Delhi) and others 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.

The clinching nature of the evidence in the form of DNA analysis report is undeniable and it has to be accepted as a very strong proof of the involvement of the accused in the crime. But, as observed by the Supreme Court in the above mentioned judgment, if the DNA report is absolutely dented and it is established that there has been no quality control or quality assurance and if the sampling has been improper and that there is evidence to show tampering of the samples, the DNA test report would be unsafe to be made a basis for convicting the accused.

The material on record, therefore, shows that, there has been lack of quality control in maintaining the sealed condition of the clothes while sending them for chemical analysis and DNA report. There is also lack of evidence on collection of fresh blood samples of the accused. On the second aspect, a feeble attempt was made on behalf of the Respondent-State by filing an application under Section 391 of the Code of Criminal Procedure, 1973 (Cr.P.C.), placing on record certain documents, claiming that, such documents proved that, the fresh blood samples of the four accused persons were indeed collected in the presence of witnesses on 14th September, 2015, in pursuance of the order passed by the Sessions Court. It was submitted that, this Court may allow the application for additional evidence in the interest of justice.

The power under Section 391 of the Cr.P.C. can be exercised for ascertaining the truth and for removing an irregularity in the evidence. But, in the facts of the present case, even if the said application is allowed and the prosecution is permitted to lead additional evidence to prove collection of fresh blood samples on 14th September, 2015, it would still not help the prosecution beyond a certain point. Even if it is held that, fresh blood samples were indeed collected on 14th September, 2015 and those were the very samples received on 15th September, 2015 by the Chemical Analyser, the DNA report and analysis cannot be held to be free from doubt. This is essentially because the evidence on seizure and proper sealing of the clothes of the prosecutrix is not on record. In fact, the evidence indicates that, there was every possibility of tampering with the clothes of the prosecutrix because the seal put by the Medical Officer was opened in the Police Station as per seizure panchanama and there is no evidence on record to show, when the cuttings of the knicker and jeans of the prosecutrix were made and when such cuttings were forwarded to the Chemical Analyser for DNA analysis. In the face of such material showing lack of evidence of proper sealing and sampling as also quality control in the clothes and cuttings of the clothes of the prosecutrix, even if the evidence regarding fresh samples sought to be brought on record by the prosecution is accepted, the serious doubt about the DNA report and its interpretation is not taken away.

In order to convict the accused persons on the basis of DNA analysis and report, it is an absolute necessity that, the collection of samples and quality control as regards testing is of the highest standard. This is because DNA evidence has been accepted as conclusive proof. Any material on record creating doubt about the sampling being proper and showing that, there has not been adequate quality control and further that possibility of tampering of samples cannot be ruled out, creates serious doubt about the veracity of the DNA report and its analysis. In the instant case, the evidence of Assistant Chemical Analyser, read with other material evidence on record shows that, quality control and proper sampling of the expected standard has not been maintained, thereby rendering the DNA report doubtful.

The entire oral, documentary, medical and expert evidence on record, creates serious doubts about the prosecution story and the claims of the prosecutrix. Any doubt must necessarily ensure to the benefit of the accused. As cogent and clinching evidence is not on record to prove the guilt of the accused, it would not be safe to uphold the conviction and sentence awarded by the Sessions Court. The appeals filed by the four accused persons are allowed. Accordingly, judgment and order of the Sessions Court are set aside.

Relevant

Mukesh and another v. State (NCT of Delhi) and others -MANU/SC/0575/2017
: (2017)

Tags : Conviction Evidence Credibility

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