Kalyan Chand & Ors vs State Of Himachal Pradesh (2024)

Himachal Pradesh High Court

Kalyan Chand & Ors vs State Of Himachal Pradesh on 1 July, 2024

Bench: Tarlok Singh Chauhan, Sushil Kukreja

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 587/2019 Reserved on: 26.6.2024 Decided on : 1.7.2024

Kalyan Chand & ors. ....Appellants

Versus

State of Himachal Pradesh ....Respondent

Coram:

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.The Hon'ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting?1 No

For the Appellants: Mr. N. S. Chandel, Sr. Advocate with Mr. Vinod Gupta and Mr. Kshitij Thakur, Advocates.

For the Respondent: Mr. I.N. Mehta & Mr. Y. W. Chauhan, Sr. Additional Advocate Generals with Ms. Sharmila Patial, Addl. A.G. and Mr. J. S. Guleria, Dy.A.G.__________________________________________________________________ Justice Tarlok Singh Chauhan, Judge

The appellants/convicts have filed the instant

appeal against the judgment and order, dated 30.9.2019 and

1.10.2019 respectively passed by the learned Additional

Sessions Judge-II Kangra at Dharamshala, whereby the

1 Whether reporters of the local papers may be allowed to see the judgment? Yes.

2

appellants/convicts have been convicted and sentenced to

undergo rigorous imprisonment for life and to pay a fine of

Rs.10,000/- each and in default of payment of fine, rigorous

imprisonment for one year each under Section 302 read with

Section 149 of the Indian Penal Code (for short, "IPC"). The

substantive sentences of imprisonment, as imposed against

each of the convicts, were ordered to run concurrently.

2 The case of the prosecution, in brief, is that on

1.5.2017, Dr. Shiv Kumar, posted at Ayurvedic Hospital

Paprola, made a telephonic call to the police informing that one

person, in serious and injured condition has come to hospital.

On receipt of such information PW30 SI Naresh Kumar

alongwith other police officials visited the Ayurvedic Hospital

Paprola, where PW1 Vipin Kumar got recorded his statement

under section 154 Cr.P.C stating therein that he used to run

carpenter's shop at place Tarhel. Ashok Kumar, who was son

of his uncle and his cousin brother, was driving the tipper of

Piyare Lal Sharma. He received a call from his younger uncle's

son Kapil Dev at about 8:50 P.M. that Ashok Kumar was lying

near Mani Ram Chicken tea stall in an injured and

unconscious condition. On this information, he alongwith 3

other relatives went there and saw Ashok Kumar in an injured

condition and blood was oozing out from his nose, forehead,

ear, mouth and deep injuries were also noticed near the eyes.

He alongwith his relatives Sunil, Kapil, Vinod and mother of

Ashok Kumar took him to Ayurvedic Hospital Paprola in Alto

Car bearing registration No. HP-53-6994 being driven by Desh

Raj from Gharnot and the doctor at Hospital Paprola checked

Ashok Kumar and declared him dead. He further stated that

he came to know from his personal source that the convicts

had taken wine near the shop of Mani Ram and quarrelled

with Ashok Kumar and caused grievous injuries to him and

ultimately he succumbed to injuries at Paprola Hospital and

thereby they committed murder of Ashok Kumar.

3 On the basis of aforesaid statement, formal FIR

under section 302 read with section 34 of Indian Penal Code

came to be registered. Spot map was prepared. Photographs of

the spot as well as the dead body were taken. The forensic

team collected the physical evidence from the spot and took

into possession two bamboo sticks blood stained vide memo

which were separately sealed in a cloth parcel with seal

impression 'A'. The Investigating Officer filled up the inquest 4

form and submitted an application to Medical Officer for

conducting post-mortem of the deceased. However, the Medical

Officer referred the dead body to Tanda Medical College

through HHC Surjeet Kumar, where post-mortem was done

and doctor gave an opinion that his cranial trauma leading to

fracture of cranial and injury to the brain was sufficient to

cause death. Viscera and blood samples were sent for RFSL,

Dharamshala, to rule out intoxication and final opinion was

reserved.

4 On 2.5.2017 the convicts were arrested and their

'Chappals' were also taken into possession through separate

parcel and they were got medically examined and their blood

samples were also got preserved.

5 On 6.5.2017, the convicts, while in custody, made

statements under section 27 of Indian Evidence Act and got

identified the place of occurrence. Convicts, Kalyan Singh and

Anil Kumar made a joint statement under Section 27 of Indian

Evidence Act that in order to commit the offence, they had

come in a motorcycle to the place of occurrence and after the

occurrence they hid motorcycle bearing No.HP-53-5469 in the

bushes and they could get recovered the same, which 5

disclosure, led the police to the bushes and recovered

motorcycle and also prepared the spot map.

6 The RFSL team took physical evidence from the

spot and the 'Chappals' worn by the convicts, viscera of the

deceased and the blood samples of the convicts alongwith FTA

cards were sent to the RFSL Dharamshala and FSL Junga. In

the viscera of deceased and blood samples of the convicts, it

was found that they had taken the wine. The doctor had also

given the same opinion by adding that Ethyl alcohol was

detected in the viscera and blood of the deceased and its

concentration quantity in the blood was 71.54 mg%.

7 Оn 25.7.2017 PW7 Subhash Chand was also

associated in the investigation, who was owner of the

motorcycle which was used by the convict Anil Kumar for

reaching the spot. According to PW7 in the year 2013 he had

sold the aforesaid motorcycle to one Abhishek Narayan and

thereafter, Abhishek Narayan sold it to convict Anil Kumar

and from the last two years the motorcycle was being used by

convict Anil Kumar.

8 During investigation, it was found that the convicts

due to enmity after taking wine near the shop of Mani Ram 6

quarrelled with the deceased and caused serious and grievous

injuries to him, owing to which he succumbed.

9 The forensic team also collected blood stains, two

'dandas' having length 32 and 40 inches, broken white

coloured chain, one empty bottle of 1019 inches, English

Liquor marka "MC Dowell' with cap and another of same

marka without cap, two branches of grass, pieces of 'Is beedies'

alongwith 8 empty match boxes as well as soil from the spot

for chemical analysis.

10 After receipt of the DNA report and recording the

statements of witnesses, charge sheet was filed and the matter

was committed to the Court of Sessions, where the convicts,

Kalyan Chand, Kamal Kumar, Anil Kumar, Shubham Kumar,

Harbans Lal, were charge sheeted under Sections 302, 149,

435 & 109 IPC, whereas, their co-accused Titu and Mani Ram

were charge-sheeted under sections 435 & 109 IPC, to which

they pleaded not guilty and claimed trial.

11 The prosecution examined as many as 31 witnesses

in support of its case. Thereafter, the convicts were examined

under Section 313 Cr.P.C. wherein they pleaded not guilty and 7

claimed trial. They were also called upon to enter into their

defence but they did not lead any evidence in their defence.

12 The learned trial court, after evaluating the oral as

well as documentary evidence convicted and sentenced the

convicts, Kalyan Chand, Kamal Kumar, Anil Kumar,

Shubham Kumar, Harbans Lal, and acquitted co-accused Titu

and Mani Ram under sections 435 & 109 of IPC, as aforesaid

and hence, the instant appeal.

13 It is vehemently contended by the learned senior

counsel for the convicts that the findings recorded by the

learned trial court are perverse and, therefore, deserve to be

set aside. On the other hand, the learned Deputy Advocate

General would vehemently argue that the findings recorded by

the learned trial court are based on correct appreciation of oral

as well as documentary evidence and cannot be faulted with,

therefore, call for no interference.

14 We have heard the learned counsel for the parties

and have also gone through the records of the case carefully.

15 The cardinal principle of criminal jurisprudence

has remained impassive. The prosecution has to prove its case

beyond all reasonable doubts. Appearance of serious doubt in 8

the prosecution case only helps the case of accused. More

serious the offence, more arduous is the duty cast upon

prosecution to discharge its burden strictly in accordance with

law. In absence of direct evidence, circumstances relied upon

by the prosecution have to satisfy the same standard of proof

i.e. beyond all reasonable doubts. Once this barrier is

successfully crossed, it is to be shown that all the

circumstances form a complete chain of facts suggesting only

one hypothesis i.e. the guilt of the accused.

16 In Anjan Kumar Sarma v. State of Assam,

(2017) 14 SCC 359 the Hon'ble Supreme Court held as

under:-

"14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

9

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

17 In Ramanand @ Nandlal Bharti Vs State of

Uttar Pradesh, 2022 SCC Online SC 1396, the legal position

has further been reiterated as under:-

PRINCIPLES OF LAW RELATING TO APPRECIATION OF CIRCUMSTANTIAL EVIDENCE

45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:

a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; &

b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).

10

46. Although there can be no straight jacket formula forappreciation of circumstantial evidence, yet to convict anaccused on the basis of circumstantial evidence, theCourt must follow certain tests which are broadly asfollows:

1. Circumstances from which an inference of guilt issought to be drawn must be cogently and firmlyestablished;

2. Those circumstances must be of a definite tendencyunerringly pointing towards guilt of the accused andmust be conclusive in nature;

3. The circumstances, if taken cumulatively, should forma chain so complete that there is no escape from theconclusion that within all human probability the crimewas committed by the accused and none else; and

4. The circumstantial evidence in order to sustainconviction must be complete and incapable of explanationof any other hypothesis than that of the guilt of theaccused but should be inconsistent with his innocence. Inother words, the circumstances should exclude everypossible hypothesis except the one to be proved.

50. Thus, in view of the above, the Court must consider acase of circumstantial evidence in light of the aforesaidsettled legal propositions. In a case of circumstantialevidence, the judgment remains essentially inferential.

The inference is drawn from the established facts as thecircumstances lead to particular inferences. The Courthas to draw an inference with respect to whether thechain of circumstances is complete, and when the 11

circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.

18 It will also be gainful to reproduce following extract

from the judgment passed by the Hon'ble Supreme Court in

Ramesh Bahi and another vs. State of Rajashtan (2009)

12 SCC 603:-

"7. In support of the appeal learned counsel for the appellants submitted that the circumstances highlighted do not establish the accusations. Learned counsel for the respondent-State on the other hand supported the judgment.

8. "10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The 12

circumstances from which an inference as to the guilt ofthe accused is drawn have to be proved beyondreasonable doubt and have to be shown to be closelyconnected with the principal fact sought to be inferredfrom those circumstances. In Bhagat Ram v. State ofPunjab (AIR 1954 SC 621), it was laid down that wherethe case depends upon the conclusion drawn fromcircumstances the cumulative effect of the circumstancesmust be such as to negative the innocence of the accusedand bring the offences home beyond any reasonabledoubt.

11. We may also make a reference to a decision of thisCourt in C. Chenga Reddy and Ors. v. State of A.P.(1996) 10 SCC 193, wherein it has been observed thus:

21. In a case based on circumstantial evidence, the settledlaw is that the circumstances from which the conclusion ofguilt is drawn should be fully proved and such circumstancesmust be conclusive in nature. Moreover, all the circumstancesshould be complete and there should be no gap left in thechain of evidence. Further the proved circumstances must beconsistent only with the hypothesis of the guilt of the accusedand totally inconsistent with his innocence'.

12. In Padala Veera Reddy v. State of A.P. and Ors. (AIR1990 SC 79), it was laid down that when a case restsupon circumstantial evidence, such evidence must satisfythe following tests:

(1) the circumstances from which an inference of guilt issought to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendencyunerringly pointing towards guilt of the accused;

13

(3) the circumstances, taken cumulatively should form a chainso complete that there is no escape from the conclusion thatwithin all human probability the crime was committed by theaccused and none else; and (4) the circumstantial evidence inorder to sustain conviction must be complete and incapable ofexplanation of any other hypothesis than that of the guilt ofthe accused and such evidence should not only be consistentwith the guilt of the accused but should be inconsistent withhis innocence.'

13. In State of U.P. v. Ashok Kumar Srivastava, (1992)2SCC 86, it was pointed out that great care must be takenin evaluating circumstantial evidence and if the evidencerelied on is reasonably capable of two inferences, the onein favour of the accused must be accepted. It was alsopointed out that the circumstances relied upon must befound to have been fully established and the cumulativeeffect of all the facts so established must be consistentonly with the hypothesis of guilt.

14. Sir Alfred Wills in his admirable book "Wills'Circumstantial Evidence" (Chapter VI) lays down thefollowing rules specially to be observed in the case ofcircumstantial evidence: (1) the facts alleged as the basisof any legal inference must be clearly proved and beyondreasonable doubt connected with the factum probandum;(2) the burden of proof is always on the party whoasserts the existence of any fact, which infers legalaccountability; (3) in all cases, whether of direct orcircumstantial evidence the best evidence must beadduced which the nature of the case admits; (4) in orderto justify the inference of guilt, the inculpatory facts must 14

be incompatible with the innocence of the accused andincapable of explanation, upon any other reasonablehypothesis than that of his guilt, (5) if there be anyreasonable doubt of the guilt of the accused, he isentitled as of right to be acquitted.

15. There is no doubt that conviction can be based solelyon circumstantial evidence but it should be tested by thetouch-stone of law relating to circumstantial evidence laiddown by the this Court as far back as in 1952.

16. In Hanumant Govind Nargundkar and Anr. V. Stateof Madhya Pradesh, (AIR 1952 SC 343), wherein it wasobserved thus:

'10. ....It is well to remember that in cases where the evidenceis of a circumstantial nature, the circumstances from which theconclusion of guilt is to be drawn should be in the firstinstance be fully established and all the facts so establishedshould be consistent only with the hypothesis of the guilt ofthe accused. Again, the circumstances should be of aconclusive nature and tendency and they should be such as toexclude every hypothesis but the one proposed to be proved.In other words, there must be a chain of evidence so farcomplete as not to leave any reasonable ground for aconclusion consistent with the innocence of the accused and itmust be such as to show that within all human probability theact must have been done by the accused.'

17. A reference may be made to a later decision inSharad Birdhichand Sarda v. State of Maharashtra, (AIR1984 SC 1622). Therein, while dealing withcircumstantial evidence, it has been held that onus wason the prosecution to prove that the chain is complete andthe infirmity of lacuna in prosecution cannot be cured by 15

false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261) and in State of U.P. v. Ram Balak & Anr. [2008 (13) SCALE"

19 We are governed by rule of law. No conviction can

be recorded on assumption. Prosecution has to discharge its

burden by proving the guilt of accused beyond all reasonable

doubts and for such purposes, it has to prove the fact in issue 16

on the basis of relevant and admissible evidence. Merely,

because police get knowledge about the culprit either from

illegal confession extracted from him or from any other source

will not absolve the prosecution from its duty to prove the guilt

of the accused in accordance with law.

Presence of blood on the clothes of the convicts

20 The first circumstance taken against the convicts

by the learned trial court is the alleged presence of blood on

the clothes of the convicts.

21 In order to prove this fact, the prosecution has

examined PW16, Sunil Kumar, who is stated to be doing

private job and has further relied on the testimony of PW30 SI

Naresh Kumar, Investigating Officer, who categorically stated

that all the convicts, present in the court, were arrested.

22 In this backdrop, if statement of PW16 is analyzed,

he, in his cross-examination, states that he had gone to

Police Station Baijnath along with PW1 Vipin Kumar, meaning

thereby that at the time of recovery, this witness was in the

police station.

23 This is further evident from perusal of recovery

memos, Ext. PW16/A and Ext. PW16/B, which indicate that 17

not only recovery was effected, but even memos were prepared

in the Police Station.

24 If that be so, obviously, story of the prosecution

becomes highly improbable. After all, the convicts could not

have been so naive so as to be carrying clothes worn by them

at the time of alleged incident and then handing over the same

to the police in presence of PW16. For it is not the case of

the prosecution that these clothes were worn by the convicts

at the time of their arrest.

25 It is the specific case of the prosecution that these

clothes were produced by the convicts one by one in the police

station. This assumes importance because all the convicts

were promptly arrested on the date of registration of FIR itself

i.e. on 2.5.2017.

26 Furthermore, PW16, in his statement before the

court, has nowhere stated that there was blood on the clothes

that were handed over by the convicts and even for that

matter, the Investigating Officer does not state that there was

blood on the clothes.

18

D.N.A. Examination

27 The case of the prosecution, as stated by PW30, is

that on 5.5.2017, all the convicts were again taken to Civil

Hospital, Baijnath, where Medical Officer, took their blood

samples. However, there is no evidence on record that the

blood samples so taken on 5.5.2017 were sealed as the

Doctor, who is alleged to have taken blood samples, has not

been examined. Furthermore, even PW30 Investigating Officer

does not state so.

28 In such circumstances, in absence of there being

any evidence with respect to sealing of the blood samples,

possibility cannot be ruled out that the clothes of the convicts

were tampered with in order to show presence of blood over

the clothes of the convicts.

The deceased having blood group B positive.

29 The learned trial court has simply observed that

the deceased was having B positive blood group, which

matched blood group of the convicts Kalyan, Kamal Kumar

and Shubham Kumar and termed it to be an incriminating

circumstance. However, record reveals that PW30

Investigating Officer or investigating agency made no 19

endeavour whatsoever to subject the clothes of the appellants

for DNA examination and in such circumstances, adverse

inference has to be drawn against the prosecution because had

these clothes been subjected to DNA examination, possibility

cannot be ruled out that those would not have matched with

DNA of the deceased.

30 Further, this question assumes importance

because PW16 in his statement, who is witness to recovery of

the blood stained clothes, has admitted that he had not seen

convicts wearing those clothes.

31 Lastly and more importantly, much credence

cannot be given to the theory propounded by the prosecution

for the simple reason that the clothes remained in Police

Station for 10 days and were sent only on 11.5.2017. No

explanation whatsoever has been furnished by the prosecution

as to why clothes were retained in the police station for such a

long period, as such the possibility of tampering with the same

cannot be ruled out coupled with the fact that the

Investigating Officer already had blood vials in his possession.

20

Recovery of beedi and cigarette butts from the alleged place of occurrence.

32 As per the prosecution case, PW24 Dr. Meenakshi

Mahajan, the then Deputy Director, Northern Range, RFSL,

Dharamshala, had visited the alleged site of occurrence on

2.5.2017 and prepared report, Ext. PW24/A.

33 As per the report Ext. PW24/A, she observed that

approximately 150 feet away from the spot, some smoked beedi

and cigarette butts, bamboo sticks etc. were lying there.

However, nowhere in the report or in her statement has this

witness stated that the evidence so seen by her was also

collected by her. Rather in her report as well as in her

statement, she states that the Investigating Officer was

advised to collect physical evidence. Being an expert, it was

incumbent upon PW24 to have collected the evidence, which

she felt was important and necessary in this case.

34 This assumes importance given the fact that she

had observed various things on the spot as is evident from the

observations made in her report, relevant portion whereof

reads as under:-

21

1. The steel shutter of the shops painted with blue colourpaint was down. On standing in front of the shop, somebamboo poles were observed on left side. Some of thebamboo poles were in partially burnt condition.

2. Right extremity of link road leading to T junction hadbamboo poles in vertical and horizontal rows. Brownishstains were seen below the bamboo poles sticks andtested positive with Benzidine reagent indicatingpresence of blood and could be attributed blood from thebody.

3. One bamboo stick/danda had brown stains was seenlying in the weeds/lamb plants (vernacular name) atabout 55 feet away from the spot and tested positivewith Benzidine reagent indicating presence of blood. Thebamboo stick/danda measured about 103 cm.

4. Another bamboo stick/danda with three nails affixedwas seen lying in the weeds lamb plants at about 59feet away from the spot and showed brown stains,which were tested positive with Benzidine reagentindicating presence of blood. The bamboo stick/dandameasured about 81 cm.

5. A piece of silver coloured metallic broken chain wasseen on the path at about 49 feet away from the spotand tested negative with Benzidine reagent indicatingabsence of blood.

6. piece of broken silver coloured metallic chain was onthe path at about 66 feet away from the spot. Themetallic chain was tested negative with Benzidinereagent indicating absence of blood.

22

7. A concrete water storage tank protected with barbed wire fence had an entrance through blue-white colour steel gate and the distance of the gate was about 150 feet from the spot. Near to the entrance. there was small path and drainage along the path. A plastic jug without lid was seen in drainage. The rear end of the tank could be reached by walking through the path.

8. There was a small cemented slab surrounded by bushes/Lamb plant at rear end beyond barbed fence One red colour pve lid (jug) was seen near slab on the soil. One empty liquor bottle Mc Dowells No- 1 without cork/lid, disposable glasses were found in the bushes beyond cemented slab. Some peelings of fruits, and different liquor bottle lids and smoked beedis and cigarette butts were found on the cemented slab. The liquor bottle, peelings of fruits and cemented slab were tested negative with Benzidine reagent indicating absence of blood.

9. Front lower extremity of water storage tank had one empty liquor bottle Mc Dowells No-1 with cork/lid in the bushes of weeds/lamb plants. The liquor bottle was tested negative with Benzidine reagent indicating absence of blood.

35 Importantly, it is not the case of the prosecution

that all the physical evidence, as mentioned above, was

collected by the Investigating Officer. After all, physical

evidence is too far-fetched and too vague a term even for the 23

Investigating Officer to understand. If it was for the

Investigating Officer to collect physical evidence, then what

was the purpose of PW24 Dr. Meenaskhi Mahajan having

visited the spot given the fact that her testimony as well as her

report in the instant case is nothing but a waste paper for

prosecution. Being a forensic expert, it was her duty to have

collected physical evidence, which she felt was important and

relevant to the case.

36 As against what has been stated by PW24 Dr.

Meenakshi Mahajan, interestingly PW20 HHC Shakti Chand

and Investigating Officer PW30 would state on oath that "RFSL

team also lifted beedis and cigarette butts from the spot", which

is falsified by the statement of PW24 Dr. Meenakshi Mahajan.

That apart, PW24 nowhere in her statement or report has

stated regarding quantity of beedi and cigarette butts, which

were found and recovered from the spot.

37 All these facts, when taken cumulatively, do create

a dent in the prosecution case, when admittedly, the seal, that

is stated to have been handed over, after use, to PW21

Kashmir Singh, was never produced by him before the Court.

24

38 There is no explanation whatsoever why beedi and

cigarettes butts were not sent to FSL promptly, but were sent

after delay of 24 days on 26.5.2017 and in such

circumstances, possibility cannot be ruled out that these bidi

and cigarette butts were tampered with.

FTA card

39 As per the prosecution case, PW28 Dr. Raj Kumar

had taken blood samples of the convicts on FTA card(s). PW30

Investigating Officer had taken the convicts to PW28 Dr. Raj

Kumar. However, both these witnesses nowhere state that

after taking blood samples on FTA card(s), the same were

sealed and even identification forms of the convicts have no

FTA card number.

40 As per PW30, it was the Investigating Officer, who

had filled in DNA identification froms, which itself is in

violation of the guidelines as it is for the the Doctor to fill up

the identification forms and not the Investigating Officer.

Furthermore, the prosecution has failed to prove on record

that the DNA guidelines have been followed.

41 This aspect of the matter has been considered in a

judgment rendered by learned Division Bench of this Court in 25

Cr. A. No. 322/2019, titled as State of H.P. vs. Partap

Singh, decided on 17.11.2023 {authored by one of us

(Justice Tarlok Singh Chauhan)}, wherein it was observed as

under:-

43. Even the FTA Card, on the basis of which the convict has been convicted and sentenced, for want of identification form is of no avail to the prosecution. After-

all, it was for the prosecution to have proved on record the identification form and only thereafter credence, if any, could have been led to the FTA Card. In absence of identification form, FTA Card alone had no value whatsoever much less could have been made basis of convicting the convict.

(v) Guidelines of DNA not followed.

44. As regards DNA guidelines, there is nothing on record to prove that these infact have been scrupulously followed by the prosecution and further the issue whether conviction can be based on DNA report alone has been elaborately discussed by the Division Bench of this Court of which one of us (Justice Tarlok Singh Chauhan) was a member in Criminal Appeal No. 321 of 2021 titled Mukesh Kumar vs. State of H.P., decided on 27.12.2022, wherein it was observed as under:

"50.The legislature, in its wisdom, has inserted Section 53A and Section 164A of the Cr.P.C by the Act 25 of 26

2005 w.e.f. 23.06.2006. Sections 53A and Section 164Aof the Cr.P.C are reproduced as under:-

"[53A. Examination of a person accused of rape by medicalpractitioner.- (1) When a person is arrested on a charge ofcommitting an offence of rape or an attempt to commit rapeand there are reasonable grounds for believing that anexamination of his person will afford evidence as to thecommission of such offence, it shall be lawful for a registeredmedical practitioner employed in a hospital run by theGovernment or by a local authority and in the absence of sucha practitioner within the radius of sixteen kilometers from theplace where the offence has been committed by any otherregistered medical practitioner, acting at the request of apolice officer not below the rank of a sub-inspector, and forany person acting in good faith in his aid and under hisdirection, to make such an examination of the arrested personand to use such force as is reasonably necessary for thatpurpose.

(2) The registered medical practitioner conducting suchexamination shall, without delay, examine such person andprepare a report of his examination giving the followingparticulars, namely;-

(i) the name and address of the accused and of the person by whom he was brought,(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and".

(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.(5) The registered medical practitioner shall, withoutdelay, forward the report of the investigating officer, whoshall forward it to the Magistrate referred to in section 173as part of the documents referred to in clause (a) of Sub-Section (5) of that section.]"

"[164A. Medical examination of the victim of rape.-(1) Where,during the stage when an offence of committing rape orattempt to commit rape is under investigation, it is proposed toget the person of the woman with whom rape is alleged orattempted to have been committed or attempted, examined bya medical expert, such examination shall be conducted by a 27

registered medical practitioner employed in a hospital run bythe Government or a local authority and in the absence ofsuch a practitioner, by any other registered medicalpractitioner, with the consent of such woman or of a personcompetent to give such consent on her behalf and suchwoman shall be sent to such registered medical practitionerwithin twenty-four hours from the time of receiving theinformation relating to the commission of such offence.(2) The registered medical practitioner, to whom such womanis sent shall, without delay, examine her person and preparea report of his examination giving the following particulars,namely:-

 (i) the name and address of the woman and of the person by whom she was brought;(ii) the age of the woman;

(iii) the description of material taken from the person of the woman for DNA profiling;

(iv) marks of injury, if any, on the person of the woman;

(v) general mental condition of the woman;

and

(vi) other material particulars in reasonable detail,(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent, to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the report.(6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf."

51. Apart from collecting the other physical evidence,as referred above, the police, during the investigationhad also collected the blood samples for DNA profiling.The DNA report is Ext. P-Y. 28

52. The scope of DNA test has elaborately beendiscussed by the Hon'ble Apex Court in case titled asAnil alias Anthony Arikswamy Joseph vs. State ofMaharashtra (2014) 4 SCC 69. The relevant paragraph18 of the same is reproduced as under:-

"18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory.

(self emphasis supplied)

53. The procedure, which is to be adopted forcollecting the samples as well as the precautions, whichare to be taken for conducting the DNA test haselaborately been discussed by the Hon'ble Apex Court incase titled as Mukesh and another vs. State (NCT ofDelhi) and others, (2017) 6 SCC 1. The relevantparagraphs No. 211 to 228 of the same are reproducedas under:-

"211. DNA is the abbreviation of Deoxyribo Nucleic Acid. It isthe basic genetic material in all human body cells. It is notcontained in red blood corpuscles. It is, however, present inwhite corpuscles. It carries the genetic code. DNA structuredetermines human character, behaviour and bodycharacteristics. DNA profiles are encrypted sets of numbers 29

that reflect a person's DNA makeup which, in forensics, isused to identify human beings. DNA is a complex molecule. Ithas a double helix structure which can be compared with atwisted rope 'ladder'.

212. The nature and characteristics of DNA had beensuccinctly explained by Lord Justice Phillips in Regina v. AlanJames Doheny & Gary Adams[83]. In the above case, theaccused were convicted relying on results obtained bycomparing DNA profiles obtained from a stain left at the sceneof the crime with DNA profiles obtained from a sample of bloodprovided by the appellant. In the above context, with regard toDNA, the following was stated by Lord Justice Phillips:"Deoxyribonucleic acid, or DNA, consists of long ribbon-likemolecules, the chromosomes, 46 of which lie tightly coiled innearly every cell of the body. These chromosomes - 23provided from the mother and 23 from the father atconception, form the genetic blueprint of the body. Differentsections of DNA have different identifiable and discretecharacteristics. When a criminal leaves a stain of blood orsemen at the scene of the crime it may prove possible toextract from that crime stain sufficient sections of DNA toenable a comparison to be made with the same sectionsextracted from a sample of blood provided by the suspect.This process is complex and we could not hope to describe itmore clearly or succinctly than did Lord Taylor C.J. in the caseof Deen (transcript: December 21, 1993), so we shall gratefullyadopt his description.

"The process of DNA profiling starts with DNA being extractedfrom the crime stain and also from a sample taken from thesuspect. In each case the DNA is cut into smaller lengths byspecific enzymes. The fragments produced are sortedaccording to size by a process of electrophoresis. This involvesplacing the fragments in a gel and drawing themelectromagnetically along a track through the gel. Thefragments with smaller molecular weight travel further thanthe heavier ones. The pattern thus created is transferred fromthe gel onto a membrane. Radioactive DNA probes, taken fromelsewhere, which bind with the sequences of most interest inthe sample DNA are then applied. After the excess of the DNAprobe is washed off, an X-ray film is placed over themembrane to record the band pattern. This produces an autoradiograph which can be photographed. When the crime stainDNA and the sample DNA from the suspect have been run inseparate tracks through the gel, the resultant auto-radiographs can be compared. The two DNA profiles can thenbe said either to match or not.""

213. In the United States, in an early case Frye v. UnitedStates[84], it was laid down that scientific evidence is 30

admissible only if the principle on which it is based issubstantially established to have general acceptance in thefield to which it belonged. The US Supreme Court reversed theabove formulation in Daubert v. Merrell Dow Pharmaceuticals,Inc.[85] stating thus:

"Although the Frye decision itself focused exclusively on"novel" scientific techniques, we do not read the requirementsof Rule 702 to apply specially or exclusively to unconventionalevidence. Of course, well- established propositions are lesslikely to be challenged than those that are novel, and they aremore handily defended. Indeed, theories that are so firmlyestablished as to have attained the status of scientific law,such as the laws of thermodynamics, properly are subject tojudicial notice under Fed.Rule Evid. 201.This is not to say that judicial interpretation, as opposed toadjudicative fact finding, does not share basic characteristicsof the scientific endeavor: "The work of a judge is in one senseenduring and in another ephemeral... In the endless processof testing and retesting, there is a constant rejection of thedross and a constant retention of whatever is pure and soundand fine." B.Cardozo, The nature of the Judicial Process 178,179 (1921)."

214.The principle was summarized by Blackmun, J., asfollows: "To summarize: "general acceptance" is not anecessary precondition to the admissibility of scientificevidence under the Federal Rules of Evidence, but the Rules ofEvidence--especially Rule 702--do assign to the trial judgethe task of ensuring that an expert's testimony both rests on areliable foundation and is relevant to the task at hand.Pertinent evidence based on scientifically valid principles willsatisfy those demands.

The inquiries of the District Court and the Court of Appealsfocused almost exclusively on "general acceptance," asgauged by publication and the decisions of other courts.Accordingly, the judgment of the Court of Appeals is vacatedand the case is remanded for further proceedings consistentwith this opinion."

After the above judgment, the DNA Test has been frequentlyapplied in the United States of America.

215. In District Attorney's Office for the Third Judicial Districtet al. v. William G. Osborne[86], Chief Justice Roberts of theSupreme Court of United States, while referring to the DNATest, stated as follows:

"DNA testing has an unparalleled ability both to exonerate thewrongly convicted and to identify the guilty. It has thepotential to significantly improve both the criminal justicesystem and police investigative practices. The FederalGovernment and the States have recognized this, and have 31

developed special approaches to ensure that this evidentiarytool can be effectively incorporated into established criminalprocedure-usually but not always through legislation.Modern DNA testing can provide powerful new evidenceunlike anything known before. Since its first use in criminalinvestigations in the mid- 1980s, there have been severalmajor advances in DNA technology, culminating in STRtechnology. It is now often possible to determine whether abiological tissue matches a suspect with near certainty. Whileof course many criminal trials proceed without any forensicand scientific testing at all, there is no technology comparableto DNA testing for matching tissues when such evidence is atissue."

216. DNA technology as a part of Forensic Science andscientific discipline not only provides guidance to investigationbut also supplies the Court accrued information about thetending features of identification of criminals. The recentadvancement in modern biological research has regularizedForensic Science resulting in radical help in the administrationof justice. In our country also like several other developed anddeveloping countries, DNA evidence is being increasinglyrelied upon by courts. After the amendment in the CriminalProcedure Code by the insertion of Section 53A by Act 25 of2005, DNA profiling has now become a part of the statutoryscheme. Section 53A relates to the examination of a personaccused of rape by a medical practitioner.

217. Similarly, under Section 164A inserted by Act 25 of2005, for medical examination of the victim of rape, thedescription of material taken from the person of the woman forDNA profiling is must. Section 53A sub-section (2) as wellas Section 164(A) sub-section (2) are to the following effect:

"Section 53A. Examination of person accused of rape byMedical Practitioner.-(1) ... ... ...

(2) The registered medical practitioner conducting suchexamination shall, without delay, examine such person andprepare a report of his examination giving the followingparticulars, namely:-

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and

(v) other material particulars in reasonable detail.Section 164A. Medical Examination of the victim of rape.-(1) ... ... ... ...

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(2) The registered medical practitioner, to whom such womanis sent, shall, without delay, examine her person and preparea report of his examination giving the following particulars,namely:-

(i) the name and address of the woman and of the person bywhom she was brought;

(ii) the age of the woman;

(iii)the description of material taken from the person of thewoman for DNA profiling;

(iv)marks of injury, if any, on the person of the woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail."

218. This Court had the occasion to consider various aspectsof DNA profiling and DNA reports. K.T. Thomas, J. in KamtiDevi (Smt.) and another v. Poshi Ram[87], observed:

"10. We may remember that Section 112 of the Evidence Actwas enacted at a time when the modern scientificadvancements with deoxyribonucleic acid (DNA) as well asribonucleic acid (RNA) tests were not even in contemplation ofthe legislature. The result of a genuine DNA test is said to bescientifically accurate. ..."

219. In Pantangi Balarama Venkata Ganesh v. State ofAndhra Pradesh[88], a two-Judge Bench had explained as towhat is DNA in the following manner:

"41. Submission of Mr Sachar that the report of DNA shouldnot be relied upon, cannot be accepted. What is DNA? Itmeans:

"Deoxyribonucleic acid, which is found in the chromosomes ofthe cells of living beings is the blueprint of an individual. DNAdecides the characteristics of the person such as the colour ofthe skin, type of hair, nails and so on. Using this geneticfingerprinting, identification of an individual is done like in thetraditional method of identifying fingerprints of offenders. Theidentification 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 digestionof the samples with appropriate enzymes, and perfect transferand hybridization of the blot to obtain distinct bands withappropriate control. (See article of Lalji Singh, Centre forCellular and Molecular Biology, Hyderabad in DNA profilingand its applications.) But in this case there is nothing to showthat such precautions were not taken.

42. Indisputably, the evidence of the experts is admissible inevidence in terms of Section 45 of the Evidence Act, 1872. Incross-examination, PW 46 had stated as under:

33

"If the DNA fingerprint of a person matches with that of asample, it means that the sample has come from that persononly. The probability of two persons except identical twinshaving the same DNA fingerprint is around 1 in 30 billionworld population."

220. In Santosh Kumar Singh v. State Through CBI[89], whichwas a case of a young girl who was raped and murdered, theDNA reports were relied upon by the High Court which wereapproved by this Court and it was held thus:

"71. We feel that the trial court was not justified in rejectingthe DNA report, as nothing adverse could be pointed outagainst the two experts who had submitted it. We must,therefore, accept the DNA report as being scientificallyaccurate and an exact science as held by this Court in KamtiDevi v. Poshi Ram (supra). In arriving at its conclusions thetrial court was also influenced by the fact that the semenswabs and slides and the blood samples of the appellant hadnot been kept in proper custody and had been tampered with,as already indicated above. We are of the opinion that thetrial court was in error on this score. We, accordingly, endorsethe conclusions of the High Court on Circumstance 9."

221. In Inspector of Police, Tamil Nadu v. John David[90], ayoung boy studying in MBBS Course was brutally murderedby his senior. The torso and head were recovered fromdifferent places which were identified by the father of thedeceased. For confirming the said facts, the blood samples ofthe father and mother of the deceased were taken which weresubject to DNA test. From the DNA, the identification of thedeceased was proved. Paragraph 60 of the decision isreproduced below:

"60. ... The said fact was also proved from the DNA testconducted by PW 77. PW 77 had compared the tissues takenfrom the severed head, torso and limbs and on scientificanalysis he has found that the same gene found in the bloodof PW1 and Baby Ponnusamy was found in the recoveredparts of the body and that therefore they should belong to theonly missing son of PW1."

222. In Krishan Kumar Malik v. State of Haryana[91], in agang rape case when the prosecution did not conduct DNAtest or analysis and matching of semen of the appellant-accused with that found on the undergarments of theprosecutrix, this Court held that after the incorporation ofSection 53- A in CrPC, it has become necessary for theprosecution to go in for DNA test in such type of cases. Therelevant paragraph is reproduced below:

"44. Now, after the incorporation of Section 53-A inthe Cr.P.C w.e.f 23.06.2006, brought to our notice by the 34

learned counsel for the respondent State, it has becomenecessary for the prosecution to go in for DNA test in suchtype of cases, facilitating the prosecution to prove its caseagainst the accused. Prior to 2006, even without the aforesaidspecific provision in CrPC the prosecution could have stillrestored to this procedure of getting the DNA test or analysisand matching of semen of the appellant with that found on theundergarments of the prosecutrix to make it a foolproof case,but they did not do so, thus they must face theconsequences."

223. In Surendra Koli v. State of Uttar Pradesh and others[92],the appellant, a serial killer, was awarded death sentencewhich was confirmed by the High Court. While confirming thedeath sentence, this Court relied on the result of the DNA testconducted on the part of the body of the deceased girl. Para12 is reproduced below:-

"12. The DNA test of Rimpa by CDFD, a pioneer institute inHyderabad matched with that of blood of her parents andbrother. The doctors at AIIMS have put the parts of thedeceased girls which have been recovered by the doctors ofAIIMS together. These bodies have been recovered in thepresence of the doctors of AIIMS at the pointing out by theaccused Surendra Koli. Thus, recovery is admissibleunder Section 27 of the Evidence Act."

224. In Mohammed Ajmal Mohammad Amir Kasab alias AbuMujahid v. State of Maharashtra[93], the accused wasawarded death sentence on charges of killing large number ofinnocent persons on 26th November, 2008 at Bombay. Theaccused with others had come from Pakistan using a boat'Kuber' and several articles were recovered from 'Kuber'. Thestains of sweat, saliva and other bodily secretions on thosearticles were subjected to DNA test and the DNA test matchedwith several accused. The Court observed:

"333. It is seen above that among the articles recovered fromKuber were a number of blankets, shawls and many otheritems of clothing. The stains of sweat, saliva and other bodilysecretions on those articles were subjected to DNA profilingand, excepting Imran Babar (deceased Accused 2), AbdulRahman Bada (deceased Accused 5), Fahadullah (deceasedAccused 7) and Shoaib (deceased Accused 9), the rest of sixaccused were connected with various articles found andrecovered from the Kuber. The appellant's DNA matched theDNA profile from a sweat stain detected on one of the jackets.A chart showing the matching of the DNA of the differentaccused with DNA profiles from stains on different articlesfound and recovered from the Kuber is annexed at the end ofthe judgment as Schedule III."

35

225. In Sandeep v. State of Uttar Pradesh[94], the factsrelated to the murder of pregnant paramour/girlfriend andunborn child of the accused. The DNA report confirmed thatthe appellant was the father of the unborn child. The Court,relying on the DNA report, stated as follows:

"67. In the light of the said expert evidence of the JuniorScientific Officer it is too late in the day for the appellantSandeep to contend that improper preservation of the foetuswould have resulted in a wrong report to the effect that theaccused Sandeep was found to be the biological father of thefoetus received from the deceased Jyoti. As the saidsubmission is not supported by any relevant material onrecord and as the appellant was not able to substantiate thesaid argument with any other supporting material, we do notfind any substance in the said submission. The circumstance,namely, the report of DNA in having concluded that accusedSandeep was the biological father of the recovered foetus ofJyoti was one other relevant circumstance to prove the guilt ofthe said accused."

226. In Rajkumar v. State of Madhya Pradesh[95], the Courtwas dealing with a case of rape and murder of a 14 year oldgirl. The DNA report established the presence of semen of theappellant in the vaginal swab of the prosecutrix. Theconviction was recorded relying on the DNA report. In the saidcontext, the following was stated:

"8. The deceased was 14 years of age and a student in VIthstandard which was proved from the school register and thestatement of her father Iknis Jojo (PW1). Her age has alsobeen mentioned in the FIR as 14 years. So far as medicalevidence is concerned, it was mentioned that the deceasedprosecutrix was about 16 years of age. So far as the analysisreport of the material sent and the DNA report is concerned, itrevealed that semen of the appellant was found on thevaginal swab of the deceased. The clothes of the deceasedwere also found having appellant's semen spots. The hairwhich were found near the place of occurrence were found tobe that of the appellant."

227. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaikand another[96], the appellant, father of the child born to hiswife, questioned the paternity of the child on the ground thatshe did not stay with him for the last two years. The Courtdirected for DNA test. The DNA result opined that theappellant was not the biological father of the child. The Courtalso had the occasion to consider Section 112 of the EvidenceAct which raises a presumption that birth during marriage isconclusive proof of legitimacy. The Court relied on the DNA 36

test holding the DNA test to be scientifically accurate. Thepertinent observations are extracted below:

"19. The husband's plea that he had no access to the wifewhen the child was begotten stands proved by the DNA testreport and in the face of it, we cannot compel the appellant tobear the fatherhood of a child, when the scientific reportsprove to the contrary. We are conscious that an innocent childmay not be bastardised as the marriage between her motherand father was subsisting at the time of her birth, but in viewof the DNA test reports and what we have observed above, wecannot forestall the consequence. It is denying the truth."Truth must triumph" is the hallmark of justice.

20. As regards the authority of this Court in Kamti Devi, thisCourt on appreciation of evidence came to the conclusion thatthe husband had no opportunity whatsoever to have liaisonwith the wife. There was no DNA test held in the case. In thesaid background i.e. non-access of the husband to the wife,this Court held that the result of DNA test "is not enough toescape from the conclusiveness of Section 112 of the Act." Thejudgment has to be understood in the factual scenario of thesaid case. The said judgment has not held that DNA test is tobe ignored. In fact, this Court has taken note of the fact thatDNA test is scientifically accurate. We hasten to add that innone of the cases referred to above, this Court confronted witha situation in which a DNA test report, in fact, was availableand was in conflict with the presumption of conclusive proof oflegitimacy of the child under Section 112 of the Evidence Act.In view of what we have observed above, these judgments inno way advance the case of the respondents."

228. From the aforesaid authorities, it is quite clear that DNAreport deserves to be accepted unless it is absolutely dentedand for non- acceptance of the same, it is to be establishedthat there had been no quality control or quality assurance. Ifthe sampling is proper and if there is no evidence as totampering of samples, the DNA test report is to be accepted."

(self emphasis supplied)

54. The Hon'ble Apex Court, in a recent decision in casetitled as Pattu Rajan vs. State of Tamilnadu (2019) 4SCC 771 has again discussed the evidentiary value ofthe DNA report, in the light of the provisions of Section 45of the Evidence Act. The relevant paragraphs No. 49 to52 of the same are reproduced as under:-

37

"49. One cannot lose sight of the fact that DNA evidence isalso in the nature of opinion evidence as envisaged in Section45 of the Indian Evidence Act. Undoubtedly, an expert givingevidence before the Court plays a crucial role, especially sincethe entire purpose and object of opinion evidence is to aid theCourt in forming its opinion on questions concerning foreignlaw, science, art, etc., on which the Court might not have thetechnical expertise to form an opinion on its own. In criminalcases, such questions may pertain to aspects such asballistics, fingerprint matching, handwriting comparison, andeven DNA testing or superimposition techniques, as seen inthe instant case.

50. 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.Regency Hospital Limited & Ors:

"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 anexpert 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 to benot 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..."

(emphasis supplied)

51. Undoubtedly, it is the duty of an expert witness to assistthe Court effectively by furnishing it with the relevant reportbased on his expertise along with his reasons, so that theCourt may form its independent judgment by assessing suchmaterials and reasons furnished by the expert for coming toan appropriate conclusion. Be that as it may, it cannot beforgotten that opinion evidence is advisory in nature, and theCourt is not bound by the evidence of the experts. (See TheState (Delhi Adminstration) v. Pali Ram, (1979) 2 SCC 158;State of H.P. v. Jai Lal & Ors., (1999) 7 SCC 280; BasoPrasad & Ors. v. State of Bihar, (2006) 13 SCC 65; Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors.(supra); Malay Kumar Ganguly v. Dr. Sukumar Mukherjee &Ors., (2010) 2 SCC (Cri) 299).

52. Like all other opinion evidence, the probative valueaccorded to DNA evidence also varies from case to case,depending on facts and circumstances and the weightaccorded to other evidence on record, whether contrary orcorroborative. This is all the more important to remember,given that even though the accuracy of DNA evidence may be 38

increasing with the advancement of science and technologywith every passing day, thereby making it more and morereliable, we have not yet reached a juncture where it maybe 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."

(self emphasis supplied)

55. The Hon'ble Apex Court in a recent decision in a casetitled as Manoj and others vs. State of Madhya Pradesh2022(9) scale has elaborately discussed the evidentiaryvalue of the DNA report and the procedure for collectingthe samples. The relevant paragraphs No. 134 to 141 ofthe same are reproduced as under:-

134. During the hearing, an article published by the CentralForensic Science Laboratory, Kolkata40 was relied upon. Therelevant extracts of the article are reproduced below:

"Deoxyribonucleic acid (DNA} is genetic material present in thenuclei of cells of living organisms. An average human body iscomposed of about 100 trillion of cells. DNA is present in thenucleus of cell as double helix, supercoiled to formchromosomes along with Intercalated proteins. Twenty- threepairs of chromosomes present In each nucleated cells and anindividual Inherits 23 chromosomes from mother and 23 fromfather transmitted through the ova and sperm respectively. Atthe time of each cell division, chromosomes replicate and oneset goes to each daughter cell. All Information about Internalorganisation, physical characteristics, and physiologicalfunctions of the body is encoded in DNA molecules in alanguage (sequence) of alphabets of four nucleotides or bases:Adenine (A), Guanine (G}, Thymine (T} and Cytosine (C) alongwith sugar- phosphate backbone. A human haploid cellcontains 3 billion bases approx. All cells of the body haveexactly same DNA but it varies from individual to Individual inthe sequence of nucleotides. Mitochondrial DNA (mtDNA}found in large number of copies in the mitochondria is circular,double stranded, 16,569 base pair in length and showsmaternal inheritance. It is particularly useful in the study ofpeople related through the maternal line. Also being in largenumber of copies than nuclear DNA, it can be used in theanalysis of degraded samples. Similarly, the Y chromosomeshows paternal inheritance and is employed to trace the malelineage and resolve DNA from males in sexual assault 39

mixtures. Only 0.1 % of DNA (about 3 million bases} differsfrom one person to another. Forensic DNA Scientists analyseonly few variable regions to generate a DNA profile of anindividual to compare with biological clue materials or controlsamples.

................................................DNA Profiling MethodologyDNA profile is generated from the body fluids, stains, andother biological specimen recovered from evidence and theresults are compared with the results obtained from referencesamples. Thus, a link among victim(s) and/or suspect(s) withone another or with crime scene can be established. DNAProfiling Is a complex process of analyses of some highlyvariable regions of DNA. The variable areas of DNA aretermed Genetic Markers. The current genetic markers of choicefor forensic purposes are Short Tandem Repeats (STRs).Analysis of a set of 15 STRs employing Automated DNASequencer gives a DNA Profile unique to an Individual (exceptmonozygotic twin). Similarly, STRs present on Y chromosome(Y- STR) can also be used in sexual assault cases ordetermining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in detection of male profile even in thepresence of high level of female portion or in case ofazoo11permic or vasectomized" male. Cases In which DNAhad undergone 40 DNA profiling in Justice Delivery System,Central Forensic Science Laboratory, Directorate of ForensicScience, Kolkata (2007). environmental stress and biochemicaldegradation, min lSTRs can be used for over routine STRbecause of shorter amplicon size.

DNA Profiling is a complicated process and each sequentialstep involved in generating a profile can vary depending onthe facilities available In the laboratory. The analysisprinciples, however, remain similar, which include:

1. isolation, purification & quantitation of DNA

2. amplification of selected genetic markers

3. visualising the fragments and genotyping

4. statistical analysis & interpretation.In mt DNA analysis, variations in Hypervariable Region I & II(HVR I & II) are detected by sequencing and comparing resultswith control samples:....

Statistical AnalysisAtypical DNA case involves comparison of evidence samples,such as semen from a rape, and known or reference samples,such as a blood sample from a suspect. Generally, there arethree possible outcomes of profile comparison:

40

1)Match: If the DNA profiles obtained from the two samplesare indistinguishable, they are said to have matched.

2) Exclusion: If the comparison of profiles shows differences, itcan only be explained by the two samples originating fromdifferent sources.

3) Inconclusive: The data does not support a conclusion Of thethree possible outcomes, only the "match" between samplesneeds to be supported by statistical calculation. Statisticsattempt to provide meaning to the match. The match statisticsare usually provided as an estimate of the Random MatchProbability (RMP) or in other words, the frequency of theparticular DNA profile in a population.

In case of paternity/maternity testing, exclusion at more thantwo loci is considered exclusion. An allowance of 1 or 2 locipossible mutations should be taken Into consideration whilereporting a match. Paternity of Maternity Indices andLikelihood Ratios are calculated further to support the match.

Collection and Preservation of EvidenceIf 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 another sourcegets mixed with DNA relevant to the case. This can happenwhen someone sneezes or coughs over the evidence ortouches his/her mouth, nose, or other part of the face andthen touches 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." (self emphasis supplied)

135. In an earlier judgment, R v Dohoney & Adams41 the UKCourt of Appeal laid down the following guidelines concerningthe procedure for introducing DNA evidence in trials: (1) thescientist should adduce the evidence of the DNA 41 1997 (1)Crl App Rep 369 comparisons together with his calculations ofthe random occurrence ratio; (2) whenever such evidence is tobe adduced, the Crown (prosecution) should serve upon thedefence details as to how the calculations have been carriedout, which are sufficient for the defence to scrutinise the basisof the calculations; (3) the Forensic Science Service shouldmake available to a defence expert, if requested, thedatabases upon which the calculations have been based.

41

136. The Law Commission of India in its report42, observedas follows:

"DNA evidence involves comparison between genetic materialthought to come from the person whose identity is in issueand a sample of genetic material from a known person. If thesamples do not 'match', then this will prove a lack of identitybetween the known person and the person from whom theunknown sample originated. If the samples match, that doesnot mean the identity is conclusively proved. Rather, an expertwill be able to derive from a database of DNA samples, anapproximate number reflecting how often a similar DNA"profile" or "fingerprint" is found. It may be, for example, thatthe relevant profile is found in 1 person in every 100,000: Thisis described as the 'random occurrence ratio' (Phipson 1999).Thus, DNA may be more useful for purposes of investigationbut not for raising any presumption of identity in a court oflaw."

137. In Dharam Deo Yadav v. State of UP43 this courtdiscussed the reliability of DNA evidence in a criminal trial,and held as follows:

"The DNA stands for deoxyribonucleic acid, which is thebiological blueprint of every life. DNA is made-up of a doublestandard structure consisting of a deoxyribose sugar andphosphate backbone, cross-linked with two types of nucleicacids referred to as adenine and guanine, purines andthymine and cytosine pyrimidines.....DNA usually can beobtained from any biological material such as blood, semen,saliva, hair, skin, bones, etc. The question as to whether DNAtests are virtually infallible may be a moot question, but thefact remains that such test has come to stay and is beingused extensively in the investigation of crimes and the Courtoften accepts the views of the experts, especially when casesrest on circumstantial evidence. More than half a century,samples of human DNA began to be used in the criminaljustice system. Of course, debate lingers over the safeguardsthat should be required in testing samples and in presentingthe evidence in Court. DNA profile, however, is consistentlyheld to be valid and reliable, but of course, it depends on thequality control and quality assurance procedures in thelaboratory." 42 185th Report, on Review of the IndianEvidence Act, 2003 43 (2015) 5 SCC 509.

138. The US Supreme Court, in District Attorney's Office forthe Third Judicial District v. Osborne, 44 dealt with a post-conviction claim to access evidence, at the behest of theconvict, who wished to prove his innocence, through new DNAtechniques. It was observed, in the context of the facts, that"Modern DNA testing can provide powerful new evidenceunlike anything known before. Since its first use in criminal 42

investigations in the mid-1980s, there have been severalmajor advances in DNA technology, culminating in STRtechnology. It is now often possible to determine whether abiological tissue matches a suspect with near certainty. Whileof course many criminal trials proceed without any forensicand scientific testing at all, there is no technology comparableto DNA testing for matching tissues when such evidence is atissue. DNA testing has exonerated wrongly convicted people,and has confirmed the convictions of many others."

139. Several decisions of this court - Pantangi BalaramaVenkata Ganesh v. State of Andhra Pradesh, Santosh KumarSingh v. State Through CBI 46, Inspector of Police, Tamil Naduv. John David , Krishan Kumar Malik v. State ofHaryana, Surendra Koli v. State of Uttar Pradesh & Ors ,and Sandeep v. State of Uttar Pradesh, Rajkumar v. State ofMadhya Pradesh and Mukesh & Ors. v. State for NCT of Delhi& Ors. have dealt with the increasing importance of DNAevidence. This court has also emphasized the need forassuring quality control, about the samples, as well as thetechnique for testing- in Anil v. State of Maharashtra "7. Deoxyribonucleic acid, or DNA, is a molecule that encodesthe genetic information in all living organisms. DNA genotypecan be obtained from any biological material such as bone,blood, semen, saliva, hair, skin, etc. Now, for several years,DNA profile has also shown a tremendous impact on forensicinvestigation. Generally, when DNA profile of a sample foundat the scene of crime matches with DNA profile of the suspect,it can generally be concluded that both samples have thesame biological origin. DNA profile is valid and reliable, 44557 U.S. 52 (2009) 45 (2009) 14 SCC 607 46 (2010) 9 SCC747 47 (2011) 5 SCC 509 48 (2011) 7 SCC 130 49 (2011) 4SCC 80 50 (2012) 6 SCC 107 51 (2014) 5 SCC 353 52 (2017)6 SCC 1 53 (2014) 4 SCC 69 but variance in a particularresult depends on the quality control and quality procedure inthe laboratory."

140. This court, in one of its recent decisions - Pattu Rajan v.The State of Tamil Nadu54, considered the value and weightto be attached to a DNA report:

"33. Like all other opinion evidence, the probative valueaccorded to DNA evidence also varies from case to case,depending on facts and circumstances and the weightaccorded to other evidence on record, whether contrary orcorroborative. This is all the more important to remember,given that even though the accuracy of DNA evidence may beincreasing with the advancement of science and technologywith every passing day, thereby making it more and morereliable, we have not yet reached a juncture where it may besaid to be infallible. Thus, it cannot be said that the absence 43

of DNA evidence would lead to an adverse inference against aparty, especially in the presence of other cogent and reliableevidence on record in favour of such party."

141. This court, therefore, has relied on DNA reports, in thepast, where the guilt of an accused was sought to beestablished. Notably, the reliance, was to corroborate. Thiscourt highlighted the need to ensure quality in the testing andeliminate the possibility of contamination of evidence; it alsoheld that being an opinion, the probative value of suchevidence has to vary from case to case." (Self emphasissupplied).

56. It is the basic principle of criminal jurisprudence thatthe accused is presumed to be innocent until and unlesshis guilt is proved by the prosecution by leading thecogent and convincing evidence. The prosecution is dutybound to prove the guilt of the accused beyond anyshadow of doubt. In other words, it can be said that theonus to prove the guilt of the accused beyond anyshadow of doubt is always upon the prosecution.

58. The prosecution, in the present case, has to prove theguilt of the accused by leading oral as well as scientificevidence. The learned trial Court has convicted theaccused on the basis of the DNA report as well as the onthe basis of presumption under Section 29 of the POCSO.The report of DNA Ext. P-Y has simply been tendered inevidence. It has been held by the Hon'ble Apex Court inPattu Rajan's case supra (para 49) that the DNAevidence, is in the nature of opinion evidence as perSection 45 of the Indian Evidence Act. This view hasagain been reiterated in the Manoj's case cited supra,wherein, it has been held that the evidence in the shapeof DNA report is "an opinion" and also held that theprobative value of such evidence has to vary from case to 44

case. The science of DNA is at a developing stage, as such, it will be risky to solely rely upon the DNA report Ext. P-Y in the absence of any substantive piece of evidence. The positive evidence regarding the fact that all the precautions have been taken by the doctors as well as by the police officials regarding the preservations of the DNA samples."

42 As observed above, the prosecution has miserably

failed to prove anything regarding FTA card(s), its number,

and the same being kept in safe custody right from drawing

blood samples till the same having been submitted to

concerned authority for DNA profiling.

43 The learned Court below has completely over-

looked and mis-appreciated all the aforesaid material and

serious contradictions and infirmities in the investigation,

wherein it has failed to prove all the infirmities in the

prosecution case little realizing that the accused person(s)

cannot be convicted on pure moral conviction.

44 False explanation cannot be used as an additional

link to fortify the prosecution case. Suspicion, howsoever

strong, it may be, cannot take the place of proof. A moral

conviction, however, strong or genuine cannot amount to a 45

legal conviction supportable in law. The cardinal principle of

criminal jurisprudence in a case can be stated to be proved

only when there is certain and explicit evidence and no person

can be convicted on pure moral conviction.

45 In this regard, it shall be apt to refer to the

judgment of the Hon'ble Supreme Court in Rahul vs. State of

Delhi, Ministry of Home Affairs and another (2023) 1 SCC

83 wherein it has been observed as under:

"42. It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise."

46 The principle for basing a conviction on the basis of

circumstantial evidence has been indicated in a number of

decisions of the Hon'ble Supreme Court and the law is well

settled that each and every incriminating circumstance must 46

be clearly established by reliable and clinching evidence and

the circumstances so proved must form a chain of events from

which the only irresistible conclusion about the guilt of the

accused can be safely drawn and no other hypothesis against

the guilt is possible.

47 The Hon'ble Supreme Court has clearly sounded a

note of caution that in a case depending largely upon

circumstantial evidence, there is always a danger that

conjecture or suspicion may take the place of legal proof. The

Court must satisfy itself that various circumstances in the

chain of events have been established clearly and such

complete chain of events must be such as to rule out a

reasonable likelihood of the innocence of the accused. It has

also been indicated that when the important link goes, the

chain of circumstances gets snapped and the other

circumstances cannot, in any manner, establish the guilt of

the accused beyond all reasonable doubts.

48 It has further been held that the Court has to be

watchful and avoid the danger of allowing the suspicion to take

the place of legal proof for sometimes, unconsciously it may

happen to be a short step between moral certainty and legal 47

proof. It has also been indicated by the Hon'ble Supreme Court

that there is a long mental distance between "may be true" and

"must be true" and the same divides conjectures from sure

conclusions.

49 As observed above, it is no more res-intergra that if

the prosecution case rests on circumstantial evidence, the

circumstances from which an inference of guilt is sought to be

drawn must be cogently and firmly established and that those

circumstances must be conclusive in nature unerringly

pointing towards the guilt of the accused. Moreover, all the

circumstances taken cumulatively should form a complete

chain and there should be no gap left in the chain of events.

50 Further, the proved circumstances must be

consistent only with the hypothesis of the guilt of the accused

and totally inconsistent with his innocence. We find from the

record that the findings recorded by the learned trial Court are

perverse and do not in any manner re-concile with the

evidence on record.

51 In view of the aforesaid discussion and for the

reasons stated above, we find merit in the instant appeal and

the same is accordingly allowed. Consequently, the judgment 48

of conviction and sentence as passed by the learned trial court

is accordingly set aside. The convicts are ordered to be set free

forthwith, if not required in any other case.

52 The Registry is directed to prepare release warrant

of the appellants. In view of the provisions of Section 437A

Cr.P.C., each of the appellants is directed to furnish personal

bond in the sum of Rs.25,000/- with one surety each of the

like amount to the satisfaction of the learned trial court, which

shall be effective for a period of six months with a stipulation

that in an event of an SLP being filed against this judgment or

on grant of the leave, the appellants on receipt of notice

thereof shall appear before the Hon'ble Supreme Court.

53 Send down the records.

Digitally signed by KHEM RAJ THAKUR

 KHEM DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=b3bb0330a36091c417dc6aa42212c1 (Tarlok Singh Chauhan) RAJ 4caec7825ba4158459325bd600d273f58b,

PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=6aa9db3b3e85e608387fb Judge 6f0fa0bb2ddacd2e1b82f232ca3c0adea331da 33983, CN=KHEM RAJ THAKUR

THAKUR Reason: I am approving this document Location:

Date: 2024-07-01 16:50:14

(Sushil Kukreja) 1.7.2024 Judge (pankaj)

Kalyan Chand & Ors vs State Of Himachal Pradesh (2024)
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