Kalyan Chand Vs State of Hp

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.

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Justice Tarlok Singh Chauhan, Judge

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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

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

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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.

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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

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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.

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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

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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.

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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.

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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

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disclosure, led the police to the bushes and recovered motorcycle and also prepared the spot map.

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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%.

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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.

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8 During investigation, it was found that the convicts

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

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quarrelled with the deceased and caused serious and grievous injuries to him, owing to which he succumbed.

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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.

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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.

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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

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claimed trial. They were also called upon to enter into their defence but they did not lead any evidence in their defence.

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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.

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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.

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14 We have heard the learned counsel for the parties and have also gone through the records of the case carefully.

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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

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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.

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16 In Anjan Kumar Sarma v. State of Assam, (2017) 14 SCC 359 the Hon’ble Supreme Court held as

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under:-

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“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;

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(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;

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

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(4) they should exclude every possible hypothesis except the one to be proved; and

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(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.”

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17 In Ramanand @ Nandlal Bharti Vs State of

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

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has further been reiterated as under:-

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PRINCIPLES OF LAW RELATING TO APPRECIATION OF CIRCUMSTANTIAL EVIDENCE

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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:

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

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

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46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:

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1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

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2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;

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3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

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4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.

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50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the

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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.

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18 It will also be gainful to reproduce following extract from the judgment passed by the Hon'ble Supreme Court in

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

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12 SCC 603 :-

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“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.

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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

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circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

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11. We may also make a reference to a decision of this Court 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 settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence'.

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12. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

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

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(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.'

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13. In State of U.P. v. Ashok Kumar Srivastava, (1992)2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

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14. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must

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be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.

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

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16. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:

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'10. ….It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.'

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17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by

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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:

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(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;

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(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;

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

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(4) they should exclude every possible hypothesis except the one to be proved; and

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(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.

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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”

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

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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

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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.

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Presence of blood on the clothes of the convicts

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20 The first circumstance taken against the convicts

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by the learned trial court is the alleged presence of blood on the clothes of the convicts.

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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.

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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.

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23 This is further evident from perusal of recovery memos, Ext. PW16/A and Ext. PW16/B, which indicate that

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not only recovery was effected, but even memos were prepared in the Police Station.

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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.

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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.

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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.

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D.N.A. Examination

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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.

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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.

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The deceased having blood group B positive .

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29 The learned trial court has simply observed that

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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

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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.

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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.

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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.

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

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32 As per the prosecution case, PW24 Dr. Meenakshi

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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.

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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.

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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:-

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

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2. Right extremity of link road leading to T junction had bamboo poles in vertical and horizontal rows. Brownish stains were seen below the bamboo poles sticks and tested positive with Benzidine reagent indicating presence of blood and could be attributed blood from the body.

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3. One bamboo stick/danda had brown stains was seen lying in the weeds/lamb plants (vernacular name) at about 55 feet away from the spot and tested positive with Benzidine reagent indicating presence of blood. The bamboo stick/danda measured about 103 cm.

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

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5. A piece of silver coloured metallic broken chain was seen on the path at about 49 feet away from the spot and tested negative with Benzidine reagent indicating absence of blood.

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6. piece of broken silver coloured metallic chain was on the path at about 66 feet away from the spot. The metallic chain was tested negative with Benzidine reagent indicating absence of blood.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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FTA card

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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.

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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.

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41 This aspect of the matter has been considered in a judgment rendered by learned Division Bench of this Court in

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

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Singh, decided on 17.11.2023 {authored by one of us (Justice Tarlok Singh Chauhan)}, wherein it was observed as

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under:-

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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. Afterall, 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.

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(v) Guidelines of DNA not followed.

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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:

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

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

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“[53A. Examination of a person accused of rape by medical practitioner.- (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

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(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely;-

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(i) the name and address of the accused and

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of the person by whom he was brought,

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(ii) the age of the accused,

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

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accused,

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(iv) the description of material taken from the

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person of the accused for DNA profiling, and”.

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(v) other material particulars in reasonable

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detail.

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(3) The report shall state precisely the reasons

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for each conclusion arrived at.

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(4) The exact time of commencement and completion

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of the examination shall also be noted in the report.

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(5) The registered medical practitioner shall, without delay, forward the report of 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 SubSection (5) of that section.]”

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

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

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(i) the name and address of the woman and of

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the person by whom she was brought;

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(ii) the age of the woman;

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(iii) the description of material taken from the

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person of the woman for DNA profiling;

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

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woman;

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(v) general mental condition of the woman; and

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(vi) other material particulars in reasonable

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detail,

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(3) The report shall state precisely the reasons for

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each conclusion arrived at.

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(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.

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(5) The exact time of commencement and completion of the examination shall also be noted in the report.

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(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.

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(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.”

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

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52. The scope of DNA test has elaborately been discussed by the Hon’ble Apex Court in case titled as Anil alias Anthony Arikswamy Joseph vs. State of Maharashtra (2014) 4 SCC 69. The relevant paragraph 18 of the same is reproduced as under:-

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“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.

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(self emphasis supplied)

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53. The procedure, which is to be adopted for collecting the samples as well as the precautions, which are to be taken for conducting the DNA test has elaborately been discussed by the Hon’ble Apex Court in case titled as Mukesh and another vs. State (NCT of Delhi) and others, (2017) 6 SCC 1. The relevant paragraphs No. 211 to 228 of the same are reproduced as under:-

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“211. DNA is the abbreviation of Deoxyribo Nucleic Acid. It is the basic genetic material in all human body cells. It is not contained in red blood corpuscles. It is, however, present in white corpuscles. It carries the genetic code. DNA structure determines human character, behaviour and body characteristics. DNA profiles are encrypted sets of numbers

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that reflect a person’s DNA makeup which, in forensics, is used to identify human beings. DNA is a complex molecule. It has a double helix structure which can be compared with a twisted rope ‘ladder’.

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212. The nature and characteristics of DNA had been succinctly explained by Lord Justice Phillips in Regina v. Alan James Doheny & Gary Adams[83]. In the above case, the accused were convicted relying on results obtained by comparing DNA profiles obtained from a stain left at the scene of the crime with DNA profiles obtained from a sample of blood provided by the appellant. In the above context, with regard to DNA, the following was stated by Lord Justice Phillips:

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“Deoxyribonucleic acid, or DNA, consists of long ribbon-like molecules, the chromosomes, 46 of which lie tightly coiled in nearly every cell of the body. These chromosomes – 23 provided from the mother and 23 from the father at conception, form the genetic blueprint of the body. Different sections of DNA have different identifiable and discrete characteristics. When a criminal leaves a stain of blood or semen at the scene of the crime it may prove possible to extract from that crime stain sufficient sections of DNA to enable a comparison to be made with the same sections extracted from a sample of blood provided by the suspect. This process is complex and we could not hope to describe it more clearly or succinctly than did Lord Taylor C.J. in the case of Deen (transcript: December 21, 1993), so we shall gratefully adopt his description.

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"The process of DNA profiling starts with DNA being extracted from the crime stain and also from a sample taken from the suspect. In each case the DNA is cut into smaller lengths by specific enzymes. The fragments produced are sorted according to size by a process of electrophoresis. This involves placing the fragments in a gel and drawing them electromagnetically along a track through the gel. The fragments with smaller molecular weight travel further than the heavier ones. The pattern thus created is transferred from the gel onto a membrane. Radioactive DNA probes, taken from elsewhere, which bind with the sequences of most interest in the sample DNA are then applied. After the excess of the DNA probe is washed off, an X-ray film is placed over the membrane to record the band pattern. This produces an auto radiograph which can be photographed. When the crime stain DNA and the sample DNA from the suspect have been run in separate tracks through the gel, the resultant autoradiographs can be compared. The two DNA profiles can then be said either to match or not.””

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

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

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“Although the Frye decision itself focused exclusively on “novel” scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence. Of course, well- established propositions are less likely to be challenged than those that are novel, and they are more handily defended. Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Fed.Rule Evid. 201.

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This is not to say that judicial interpretation, as opposed to adjudicative fact finding, does not share basic characteristics of the scientific endeavor: “The work of a judge is in one sense enduring and in another ephemeral… In the endless process of testing and retesting, there is a constant rejection of the dross and a constant retention of whatever is pure and sound and fine.” B.Cardozo, The nature of the Judicial Process 178, 179 (1921).”

¶211

214.The principle was summarized by Blackmun, J., as follows: “To summarize: “general acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence—especially Rule 702—do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

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The inquiries of the District Court and the Court of Appeals focused almost exclusively on “general acceptance,” as gauged by publication and the decisions of other courts. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion.”

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

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215. In District Attorney’s Office for the Third Judicial District et al. v. William G. Osborne[86], Chief Justice Roberts of the Supreme Court of United States, while referring to the DNA Test, stated as follows:

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“DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices. The Federal Government and the States have recognized this, and have

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developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure-usually but not always through legislation. Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid- 1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue.”

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216. DNA technology as a part of Forensic Science and scientific discipline not only provides guidance to investigation but also supplies the Court accrued information about the tending features of identification of criminals. The recent advancement in modern biological research has regularized Forensic Science resulting in radical help in the administration of justice. In our country also like several other developed and developing countries, DNA evidence is being increasingly relied upon by courts. After the amendment in the Criminal Procedure Code by the insertion of Section 53A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme. Section 53A relates to the examination of a person accused of rape by a medical practitioner.

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217. Similarly, under Section 164A inserted by Act 25 of 2005, for medical examination of the victim of rape, the description of material taken from the person of the woman for DNA profiling is must. Section 53A sub-section (2) as well as Section 164(A) sub-section (2) are to the following effect: “Section 53A. Examination of person accused of rape by Medical Practitioner.-(1) … … …

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(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-

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(i) the name and address of the accused and of the

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person by whom he was brought,

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(ii) the age of the accused,

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

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

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(v) other material particulars in reasonable detail.

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Section 164A. Medical Examination of the victim of rape.-

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(1) … … … …

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

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

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(ii) the age of the woman;

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

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

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(v) general mental condition of the woman; and

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(vi) other material particulars in reasonable detail.”

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

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“10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. …”

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

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“41. Submission of Mr Sachar that the report of DNA should not be relied upon, cannot be accepted. What is DNA? It means:

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“Deoxyribonucleic acid, which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting, identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred per cent precise, experts opine.” There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high molecular weight DNA, complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See article of Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA profiling and its applications.) But in this case there is nothing to show that such precautions were not taken.

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

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“If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population.”

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

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“71. We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out against the two experts who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Devi v. Poshi Ram (supra). In arriving at its conclusions the trial court was also influenced by the fact that the semen swabs and slides and the blood samples of the appellant had not been kept in proper custody and had been tampered with, as already indicated above. We are of the opinion that the trial court was in error on this score. We, accordingly, endorse the conclusions of the High Court on Circumstance 9.” 221. In Inspector of Police, Tamil Nadu v. John David[90], a young boy studying in MBBS Course was brutally murdered by his senior. The torso and head were recovered from different places which were identified by the father of the deceased. For confirming the said facts, the blood samples of the father and mother of the deceased were taken which were subject to DNA test. From the DNA, the identification of the deceased was proved. Paragraph 60 of the decision is reproduced below:

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“60. … The said fact was also proved from the DNA test conducted by PW 77. PW 77 had compared the tissues taken from the severed head, torso and limbs and on scientific analysis he has found that the same gene found in the blood of PW1 and Baby Ponnusamy was found in the recovered parts of the body and that therefore they should belong to the only missing son of PW1.”

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222. In Krishan Kumar Malik v. State of Haryana[91], in a gang rape case when the prosecution did not conduct DNA test or analysis and matching of semen of the appellantaccused with that found on the undergarments of the prosecutrix, this Court held that after the incorporation of Section 53- A in CrPC, it has become necessary for the prosecution to go in for DNA test in such type of cases. The relevant paragraph is reproduced below:

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

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learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in CrPC the prosecution could have still restored to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences.”

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223. In Surendra Koli v. State of Uttar Pradesh and others[92], the appellant, a serial killer, was awarded death sentence which was confirmed by the High Court. While confirming the death sentence, this Court relied on the result of the DNA test conducted on the part of the body of the deceased girl. Para 12 is reproduced below:-

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“12. The DNA test of Rimpa by CDFD, a pioneer institute in Hyderabad matched with that of blood of her parents and brother. The doctors at AIIMS have put the parts of the deceased girls which have been recovered by the doctors of AIIMS together. These bodies have been recovered in the presence of the doctors of AIIMS at the pointing out by the accused Surendra Koli. Thus, recovery is admissible under Section 27 of the Evidence Act.”

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224. In Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State of Maharashtra[93], the accused was awarded death sentence on charges of killing large number of innocent persons on 26th November, 2008 at Bombay. The accused with others had come from Pakistan using a boat ‘Kuber’ and several articles were recovered from ‘Kuber’. The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA test and the DNA test matched with several accused. The Court observed:

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“333. It is seen above that among the articles recovered from Kuber were a number of blankets, shawls and many other items of clothing. The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA profiling and, excepting Imran Babar (deceased Accused 2), Abdul Rahman Bada (deceased Accused 5), Fahadullah (deceased Accused 7) and Shoaib (deceased Accused 9), the rest of six accused were connected with various articles found and recovered from the Kuber. The appellant’s DNA matched the DNA profile from a sweat stain detected on one of the jackets. A chart showing the matching of the DNA of the different accused with DNA profiles from stains on different articles found and recovered from the Kuber is annexed at the end of the judgment as Schedule III.”

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

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“67. In the light of the said expert evidence of the Junior Scientific Officer it is too late in the day for the appellant Sandeep to contend that improper preservation of the foetus would have resulted in a wrong report to the effect that the accused Sandeep was found to be the biological father of the foetus received from the deceased Jyoti. As the said submission is not supported by any relevant material on record and as the appellant was not able to substantiate the said argument with any other supporting material, we do not find any substance in the said submission. The circumstance, namely, the report of DNA in having concluded that accused Sandeep was the biological father of the recovered foetus of Jyoti was one other relevant circumstance to prove the guilt of the said accused.”

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226. In Rajkumar v. State of Madhya Pradesh[95], the Court was dealing with a case of rape and murder of a 14 year old girl. The DNA report established the presence of semen of the appellant in the vaginal swab of the prosecutrix. The conviction was recorded relying on the DNA report. In the said context, the following was stated:

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“8. The deceased was 14 years of age and a student in VIth standard which was proved from the school register and the statement of her father Iknis Jojo (PW1). Her age has also been mentioned in the FIR as 14 years. So far as medical evidence is concerned, it was mentioned that the deceased prosecutrix was about 16 years of age. So far as the analysis report of the material sent and the DNA report is concerned, it revealed that semen of the appellant was found on the vaginal swab of the deceased. The clothes of the deceased were also found having appellant’s semen spots. The hair which were found near the place of occurrence were found to be that of the appellant.”

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227. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another[96], the appellant, father of the child born to his wife, questioned the paternity of the child on the ground that she did not stay with him for the last two years. The Court directed for DNA test. The DNA result opined that the appellant was not the biological father of the child. The Court also had the occasion to consider Section 112 of the Evidence Act which raises a presumption that birth during marriage is conclusive proof of legitimacy. The Court relied on the DNA

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

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“19. The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardised as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.

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20. As regards the authority of this Court in Kamti Devi, this Court on appreciation of evidence came to the conclusion that the husband had no opportunity whatsoever to have liaison with the wife. There was no DNA test held in the case. In the said background i.e. non-access of the husband to the wife, this Court held that the result of DNA test “is not enough to escape from the conclusiveness of Section 112 of the Act.” The judgment has to be understood in the factual scenario of the said case. The said judgment has not held that DNA test is to be ignored. In fact, this Court has taken note of the fact that DNA test is scientifically accurate. We hasten to add that in none of the cases referred to above, this Court confronted with a situation in which a DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act. In view of what we have observed above, these judgments in no way advance the case of the respondents.”

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228. From the aforesaid authorities, it is quite clear 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.” (self emphasis supplied)

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54. The Hon’ble Apex Court, in a recent decision in case titled as Pattu Rajan vs. State of Tamilnadu (2019) 4 SCC 771 has again discussed the evidentiary value of the DNA report, in the light of the provisions of Section 45 of the Evidence Act. The relevant paragraphs No. 49 to 52 of the same are reproduced as under:-

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“49. One cannot lose sight of the fact that DNA evidence is also in the nature of opinion evidence as envisaged in Section 45 of the Indian Evidence Act. Undoubtedly, an expert giving evidence before the Court plays a crucial role, especially since the entire purpose and object of opinion evidence is to aid the Court in forming its opinion on questions concerning foreign law, science, art, etc., on which the Court might not have the technical expertise to form an opinion on its own. In criminal cases, such questions may pertain to aspects such as ballistics, fingerprint matching, handwriting comparison, and even DNA testing or superimposition techniques, as seen in the instant case.

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50. The role of an expert witness rendering opinion evidence before the Court may be explained by referring to the following observations of this Court in Ramesh Chandra Agrawal v. Regency Hospital Limited & Ors:

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“16. The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of an expert cannot be disputed…”

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(emphasis supplied)

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51. Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts. (See The State (Delhi Adminstration) v. Pali Ram, (1979) 2 SCC 158; State of H.P. v. Jai Lal & Ors., (1999) 7 SCC 280; Baso Prasad & 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).

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

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increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party.”

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(self emphasis supplied)

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55. The Hon’ble Apex Court in a recent decision in a case titled as Manoj and others vs. State of Madhya Pradesh 2022(9) scale has elaborately discussed the evidentiary value of the DNA report and the procedure for collecting the samples. The relevant paragraphs No. 134 to 141 of the same are reproduced as under:-

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134. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata40 was relied upon. The relevant extracts of the article are reproduced below:

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“Deoxyribonucleic acid (DNA} is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with Intercalated proteins. Twenty- three pairs of chromosomes present In each nucleated cells and an individual Inherits 23 chromosomes from mother and 23 from father transmitted through the ova and sperm respectively. At the time of each cell division, chromosomes replicate and one set goes to each daughter cell. All Information about Internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases: Adenine (A), Guanine (G}, Thymine (T} and Cytosine (C) along with sugar- phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have exactly same DNA but it varies from individual to Individual in the 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 shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also being in large number of copies than nuclear DNA, it can be used in the analysis of degraded samples. Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault

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mixtures. Only 0.1 % of DNA (about 3 million bases} differs from one person to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples.

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DNA Profiling Methodology

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DNA profile is generated from the body fluids, stains, and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be established. DNA Profiling Is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed Genetic Markers. The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs). Analysis of a set of 15 STRs employing Automated DNA Sequencer gives a DNA Profile unique to an Individual (except monozygotic twin). Similarly, STRs present on Y chromosome (Y- STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y- STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of azoo11permic or vasectomized" male. Cases In which DNA had undergone 40 DNA profiling in Justice Delivery System, Central Forensic Science Laboratory, Directorate of Forensic Science, Kolkata (2007). environmental stress and biochemical degradation, min lSTRs can be used for over routine STR because of shorter amplicon size.

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DNA Profiling is a complicated process and each sequential step involved in generating a profile can vary depending on the facilities available In the laboratory. The analysis principles, however, remain similar, which include:

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1. isolation, purification & quantitation of DNA 2. amplification of selected genetic markers

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3. visualising the fragments and genotyping 4. statistical analysis & interpretation.

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In mt DNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples:….

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Statistical Analysis

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Atypical 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 are three possible outcomes of profile comparison:

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1)Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched. 2) Exclusion: If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources.

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3) Inconclusive: The data does not support a conclusion Of the three possible outcomes, only the "match" between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA profile in a population.

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In case of paternity/maternity testing, exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci possible mutations should be taken Into consideration while reporting a match. Paternity of Maternity Indices and Likelihood Ratios are calculated further to support the match.

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Collection and Preservation of Evidence

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If DNA evidence is not properly documented, collected, packaged, and preserved, It will not meet the legal and scientific requirements for admissibility in. a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be Identified, preserved, packed and sent for DNA Profiling.” (self emphasis supplied)

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135. In an earlier judgment, R v Dohoney & Adams41 the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials: (1) the scientist should adduce the evidence of the DNA 41 1997 (1) Crl App Rep 369 comparisons together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.

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

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“DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not 'match', then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 100,000: This is described as the 'random occurrence ratio' (Phipson 1999). Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law.”

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

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“The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made-up of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines…..DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory.” 42 185th Report, on Review of the Indian Evidence Act, 2003 43 (2015) 5 SCC 509.

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138. The US Supreme Court, in District Attorney's Office for the Third Judicial District v. Osborne, 44 dealt with a postconviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that “Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal

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42

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investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others.” 139. Several decisions of this court - Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh, Santosh Kumar Singh v. State Through CBI 46, Inspector of Police, Tamil Nadu v. John David , Krishan Kumar Malik v. State of Haryana, Surendra Koli v. State of Uttar Pradesh & Ors , and Sandeep v. State of Uttar Pradesh, Rajkumar v. State of Madhya Pradesh and Mukesh & Ors. v. State for NCT of Delhi & Ors. have dealt with the increasing importance of DNA evidence. This court has also emphasized the need for assuring quality control, about the samples, as well as the technique for testing- in Anil v. State of Maharashtra

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“7. 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, 44 557 U.S. 52 (2009) 45 (2009) 14 SCC 607 46 (2010) 9 SCC 747 47 (2011) 5 SCC 509 48 (2011) 7 SCC 130 49 (2011) 4 SCC 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 particular result depends on the quality control and quality procedure in the laboratory.”

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

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“33. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence

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43

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

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141. This court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance, was to corroborate. This court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case.” (Self emphasis supplied).

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56. It is the basic principle of criminal jurisprudence that the accused is presumed to be innocent until and unless his guilt is proved by the prosecution by leading the cogent and convincing evidence. The prosecution is duty bound to prove the guilt of the accused beyond any shadow of doubt. In other words, it can be said that the onus to prove the guilt of the accused beyond any shadow of doubt is always upon the prosecution.

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58. The prosecution, in the present case, has to prove the guilt of the accused by leading oral as well as scientific evidence. The learned trial Court has convicted the accused on the basis of the DNA report as well as the on the basis of presumption under Section 29 of the POCSO. The report of DNA Ext. P-Y has simply been tendered in evidence. It has been held by the Hon’ble Apex Court in Pattu Rajan’s case supra (para 49) that the DNA evidence, is in the nature of opinion evidence as per Section 45 of the Indian Evidence Act. This view has again been reiterated in the Manoj’s case cited supra, wherein, it has been held that the evidence in the shape of DNA report is “an opinion” and also held that the probative value of such evidence has to vary from case to

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44

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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.”

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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.

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43 The learned Court below has completely overlooked 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.

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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

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45

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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.

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45 In this regard, it shall be apt to refer to the judgment of the Hon’ble Supreme Court in Rahul vs. State of

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

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83 wherein it has been observed as under:

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“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.”

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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

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46

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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.

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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.

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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

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47

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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.

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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.

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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.

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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

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48

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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.

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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.

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53 Send down the records.

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Digitally signed by KHEM RAJ THAKUR DN: C=IN, O=HIGH COURT OF HIMACHAL KHEM PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=b3bb0330a36091c417dc6aa42212c1 4caec7825ba4158459325bd600d273f58b, PostalCode=171001, S=Himachal Pradesh, RAJ SERIALNUMBER=6aa9db3b3e85e608387fb 6f0fa0bb2ddacd2e1b82f232ca3c0adea331da 33983, CN=KHEM RAJ THAKUR Reason: I am approving this document THAKUR Location: Date: 2024-07-01 16:50:14

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(Tarlok Singh Chauhan)

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Judge

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(Sushil Kukreja)

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1.7.2024 Judge (pankaj)

Kalyan Chand v. State of Hp

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Kalyan Chand v. State of Hp

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