Allowed

Samsen Hansda v. the State of Jharkhand

Jharkhand HC2 Mar 2020Cr.A(DB)/19/2015

Case brief

AI extract

What is this about?

Four jail staff were convicted of gang rape and murder of a woman labourer at the Jail Superintendent's residential campus. On appeal, the High Court found no eye-witness, a hostile prosecutrix, medical evidence showing no signs of rape, and the DNA report unreliable for want of proof of sealing and custody of samples; convictions set aside.

What did the court decide?

Conviction and sentences under sections 302/34 and 376(2)(g) IPC set aside; all four appellants acquitted; Bansia Siddhu to be released forthwith if not required in any other case; bail bonds of the o

Samsen Hansda Vs the State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Criminal Appellate Jurisdiction)

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Criminal Appeal (D.B.) No.20 of 2015 with Criminal Appeal (D.B.) No.19 of 2015 with Criminal Appeal (D.B.) No. 43 of 2015 with Criminal Appeal (D.B.) No. 78 of 2015

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(Against the judgment of conviction dated 15.09.2014 and the order of sentence dated 16.09.2014 passed by the learned Additional Sessions Judge-III, Dumka in Sessions Trial No.159 of 2010)

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Bansia Siddhu, son of late Chakra Siddhu, resident of village, P.O & P.SMasanjore, Distrtict-Dumka, Jharkhand …....... Appellant

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[ in Criminal Appeal (D.B.) No.20 of 2015]

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Samsen Hansda, son of late Bidh Hansda, resident of Rajapokhar, P.O & P.SBounsi, District-Banka, Bihar …........ Appellant

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[ in Criminal Appeal (D.B.) No.19 of 2015]

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Lorence Marandi @ Lowrence Marandi, s/o-Late Somay Marandi, resident of Village +P.O-Sarwa, P.S-Dumka Mufasil, District-Dumka ..... Appellant

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[ in Criminal Appeal (D.B.) No.43 of 2015]

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Bishnu Kumar Mandal, son of Bhuneshwar Mandal, resident of villageNarendrapur, P.O + P.S :Mahadeo Math, District-Madhubani(Bihar)

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[ in Criminal Appeal (D.B.) No.78 of 2015]

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Versus

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The State of Jharkhand …... Respondent (in all cases)

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PRESENT

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HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant(s) : Mr. R.S Mazumdar, Sr. Advocate Mr. Ankit Kumar, Advocate Mr. Rohan Mazumdar, Advocate [in Criminal Appeal (D.B.) Nos.19/2015 & 20/2015] Mr. A.K. Kashyap, Sr. Advocate Mr. Anurag Kashyap, Advocate Mr. Abhilash Kumar, Advocate [in Criminal Appeal (D.B.) No.78/2015] Mr. Mithilesh Singh, Advocate [in Criminal Appeal (D.B.) No.43/2015]

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For the State : Mrs. Priya Shreshtra, A.P.P (in all cases)

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------------------

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JUDGMENT

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Per, Shree Chandrashekhar, J. Dated: 2nd March, 2020 Oral

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Four persons, namely, Bansia Siddhu, Samsen Hansda, Lorence Marandi @ Lowrence Marandi and Bishnu Kumar Mandal were named as accused in the written report dated 12.03.2010 given to the police by Upanand Gupta, who was posted as Jailor at Central Jail, Dumka. On the basis of his written report, Dumka (Town) P.S Case No.37 of 2010 was lodged against the above-named accused persons under section 376 (2) (g) and section 302/34 of the Indian Penal Code. In Sessions Trial No.159 of 2010, the appellants have faced the trial on the charge under section 376 (2) (g) of the Indian Penal Code for committing gang rape with 'L' and 'S' and under section 302/34 of the Indian Penal Code for committing murder of 'L' . The appellants have been convicted and sentenced to R.I for life and fine of Rs.10,000/- under section 302/34 of the Indian Penal Code and R.I for ten years and fine of Rs.10,000/- under section 376 (2) (g) of the Indian Penal Code. 2. During the trial the prosecution has examined 17 witnesses; 'S' who is a victim has been examined as P.W.6. 3. The case of the prosecution is unfolded in the written report of the Jailor-P.W.2 which according to him was typed by Lallan Kumar Bharti-P.W.3. In the written report dated 12.03.2010, P.W.2 has stated that at about 5:00 p.m. on 12.03.2010 he received a secret information that in the kitchen of barracks which are situated inside the residential campus of the Jail Superintendent dead body of a female mazdoor has been concealed. To verify this information he has gone to the house of the Jail Superintendent with P.W.3 where he has found in the kitchen of barracks dead body of a female aged about 32 years covered with a bed-sheet. He has seen blood and injury on her head. On enquiry, he was told that at about 7:00 p.m.

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the last evening Samsen Hansda and Bansia Siddhu had brought one lady for enjoyment and after sexually assaulting killed her and concealed her dead body in the kitchen. Md. Belkasim-P.W. 11 who was working as a labour in the quarter of the jailor has identified the dead body of the deceased 'L' who according to him was engaged in the work of the under-construction garage.

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P.W.1 is the Jail Warden. He has stated that no incident has happened inside the jail premises and police has not recorded his statement. In his examination-in-chief he has stated that he has not seen the dead body of a women and therefore he has been declared hostile. He is the inquest witness and to a court question he has stated that his signature was taken by the police the next day and when his signature was taken at that time he did not see the dead body. P.W. 2 is author of the written report dated 12.03.2010. He is not an eye-witness. He has narrated in the court the manner in which he has detected the occurrence, made enquiries and information to the police. He has deposed in the court that he had received an information that Samsen Hansda and Bansia Siddhu had brought a women the last night for enjoyment and they have committed the crime. P.W.3 is also not an eye-witness. He has deposed in the court that P.W.2 had called at his residence at about 5:00 p.m. on 12.03.2010 and he alongwith P.W. 2 had gone to the residence of the Jail Superintendent where they have found dead body of a female mazdoor. He has further stated that on enquiry he was told about involvement of Samsen Hansda, Lorence Marandi @ Lowrence Marandi and Bishnu Kumar Mandal in the occurrence. P.W. 4 is the Warden who has also turned hostile. P.W.6 is the surviving victim but she has failed to identify the appellants in the dock and therefore she has been declared hostile. P.W.9 is son and P.W.10 is daughter of 'L'. P.W.11 is the Mason, who has identified 'L', the victim. P.W.13 and P.W. 14 are the seizure witnesses. P.W. 12 is the Assistant in the Civil Court, Dumka who has taken down statement of 'S' recorded under section 164 of the Code of Criminal Procedure

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and P.W. 17 is the Hawaldar who has produced material exhibits in the court.

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The victim 'L' has died a homicidal death is proved by the medical evidence. Dr. Anand Mohan Soren who has been examined as P.W.5 has conducted the post-mortem examination on 13.03.2010 and found one lacerated wound, size 1” x 1/4”, skin deep, redish brown, over left side of forehead of 'L'. On desection her frontal bone was found fractured. He has found 3 other injuries which were primarily abrasions on the elbow, left knee and forearm of 'L'. On examination of external and internal genital organ no injury was seen by him. In his opinion 'L' has died due to shock and hemorrhage as a result of the injury no.1 as well as asphyxia due to smothering. In the opinion of P.W.5, injury no. 1 was possible from fall on a hard substance and injury nos. 2, 3 and 4 which were simple in nature could have also been caused by fall on hard surface. During his cross-examination he has admitted that he did not find any sign of rape and there was no injury on neck and chest of 'L'. He has also stated that he did not find any sign of sexual violence on 'L'.

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'S' who had claimed before the police that she was also ravished by the appellants was examined by Dr. Aruna Chaterjee-P.W 7 on 14.03.2010. The doctor has not found any external or internal injury on her private parts and her hymen showed old rupture. The pathological examination of the vaginal swab reported no spermatozoa. The doctor has deposed in the court that no definite opinion whether rape was committed upon 'S' can be given and in her cross-examination she has stated that there was absolutely no sign of rape on 'S'.

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In a prosecution under section 376 of the Indian Penal Code it is statement of the prosecutrix which may alone form the basis for conviction of an accused for the offence of rape and many a time absence of injury on the external or internal part of the victim lady may not be decisive. Therefore, absence of spermatozoa

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is not a conclusive factor and penetration is not sine qua non to complete the offence under section 376 of the Indian Penal Code. It is a common view that normally a women would not falsely implicate someone for the offence of rape, for the incident brings stigma to the women. But then, testimony of the prosecutrix is not like a gospel truth. In “Raja Vs. State of Karnataka” reported in ( 2016) 10 SCC 506 , the Supreme Court has observed thus :

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“34. This Court in Raju, while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114-A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113-A and 113-B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged.”

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The doctors, P.W 5 and P.W 7, have not found any sign of rape either on 'L' or 'S'. 'L' is dead and 'S' has denied that she was sexually assaulted by any one in the evening of 11.03.2010. On such evidence we would have plainly held that the offence under section 376 (2) (g) of the Indian Penal Code is not proved, but there is evidence of scientific expert which is considered very accurate. The prosecution has tendered in evidence report of the Forensic Science Laboratory, Ranchi and, therefore, much may turn on this report whether the victims were subjected to sexual assault by the appellants.

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On the application moved by the prosecution on 15.03.2010 a direction was issued by the Chief Judicial Magistrate to the Civil Surgeon, Dumka for taking seminal fluid and blood samples of the appellants and the same evening Dr. Rajiv Sharma and Lab. Assistant-Nageshwar Prasad have collected seminal fluid and blood samples of the appellants. At that time Santosh Kumar and Pappu Kumar Choudhary, Junior Lab. Technician were with them. The records would reveal that on the format for taking samples photographs of the appellants have been taken and they have signed the format. A certification by the Chief Judicial Magistrate has also been obtained by the investigating officer.

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In medical science it is now well-established that Deoxyribonucleic acid which is commonly called as DNA is the basic generic material found in all human body cells and DNA profiles are used to identify human beings. It is a set of 46 chromosomes which is found in every cell of the body – 23 chromosomes come from the mother and other 23 from the father at conception. In “R Vs. Deen” reference-The Times 10.01.1994 , (transcript-21.12.1993) Lord Taylor-C.J has described the process of DNA profiling thus:

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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

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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 auto-radiographs can be compared. The two DNA profiles can then be said either to match or not.”

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The report received from the Forensic Science Laboratory, Ranchi has described in detail the method adopted by the experts for DNA profiling in this case. It reads as under:

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The exhibit marked A (source: blood stained gauze piece of Samsen Hansda), B (source: blood stained gauze piece of Lorence Marandi), C (source: blood stained gauze piece of Basiya Sidhu), D (source: blood stained gauze piece of Bishnu Kumar Mandal), A2 (source: seminal fluid of Lorence Marandi), A3(seminal fluid of Samsen Hansda) A4 (source: seminal fluid of Basiya Sidhu) were subjected to DNA extraction using Organic extraction method.

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The exhibit marked A 1 (source: semen positive vaginal swab on a glass slide of the deceased Lakhi Devi) and the exhibit marked 1 (source: semen positive saya of the deceased Lakhi Devi) we are subjected to DNA extraction using Differential Organic extraction method.

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The sources of the exhibits A((source:blood stained gauze piece of Samsen Hansda). B (source:blood stained gauze piece of Lorence Marandi), C (source:blood stained gauze piece of Basiya Sidhu), D(source:blood stained gauze piece of Bishnu Kumar Mandal), A2 (source: seminal fluid of Lorence Marandi),

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A3(seminal fluid of Samsen Hansda) A4 (source: seminal fluid of Basiya Sidhu), exhibit marked A1 (source: semen positive vaginal swab on a glass slide of the deceased Lakhi Devi) and the exhibit marked 1 (source: semen positive saya of the deceased Lakhi Devi) yielded DNA which was found suitable for DNA analysis.

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The DNA extracted from the above sources were subjected for quantification with, 7500 Real Time PCR system using Quantified ® human DNA Quantification Kit. The quality of the DNA was checked by Agarose gel method.

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The DNA extracted from the above mentio0ned exhibits were subjected to multiplex PCR reaction (ABI-9700) for co-amplification of 15 Micro satellite loci of Autosomal STR and Amelogenin marker using AmpFISTR® Identifier^TM PCR Amplification Kit.

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The male DNA recovered from the exhibit marked A1 (source: semen positive vaginal swab on a glass slide of the deceased Lakhi Devi) and the exhibit marked 1(source: semen positive saya of the deceased Lakhi Devi) were subjected to co-amplification of 08 autosomal STR microsatellite loci and Amlogenin using AmpFISTR®)Minifiler^TM Kit.

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The male DNA extracted from the exhibit marked A1 (source: semen positive vaginal swab on a glass slide of the deceased Lakhi Devi) and the exhibit marked 1(source: semen positive saya of the deceased Lakhi Devi) along with the DNA extracted from the exhibits marked A (source: blood stained gauze piece of Samsen Hansda). B (source: blood stained gauze piece of Lorence Marandi), C(source: blood stained gauze piece of Basiya Sidhu), D(source: blood stained gauze piece of Bishnu Kumar Mandal) were subjected to co-amplification of 17 Y-STRs microsatellite loci using AmpFISTR(R®)Yfiler^TM Kit.

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The amplified products along with controls were run for electrophoresis on the Automated DNA Sequencer. The sizing of fragments were carried out using Gene Mapper®ID software V 3.2 with respect to gene Scan 500 Liz Size Standard. The resultant allelic distributions (genotypes) for the studied loci in the different exhibits are shown in the table as under:

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The courts are not the experts and all that we need to see is whether the standard procedure for DNA profiling has been adopted or not, and if not, what would be the effect of such deviation. No deviation from the standard procedure in carrying out DNA profiling in the present case has been shown to us and, therefore, we would now extract observation and conclusions of the experts:

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The autosomal STRs DNA profile generated from the DNA extracted from the exhibit marked-A (source:blood stained gauze piece of Samsen Hansda), B (source:blood stained gauze piece of Lorence Marandi), C(source:blood stained gauze piece of Basiya Sidhu), D (source: blood stained gauze piece of Bishnu Kumar Mandal) are from four different human male source of origin.

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The autosomal STRs DNA profile generated from the DNA extracted from the exhibit marked- A1 (source: vaginal swab on a glass slide of the deceased Lakhi Devi) belong to a human female source along with two human male source of origin.

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The autosomal STRs DNA profile generated from the DNA extracted from the exhibit marked-I (source:semen positive saya of the deceased Lakhi Devi) is from more than one human male source of origin.

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All the alleles observed in the autosomal STRs and Y STRs DNA profile of the exhibits marked-C(source: blood stained gauze piece of Basiya Sidhu) and exhibit makred-D (source: blood stained gauze piece of Bishnu Kumar Mandal) are accounted in the autosomal STRs and Y-STRs DNA profile of the biological fluid (semen) present on the source of the exhibit marked-A1 (source: semen positive vaginal swab on a glass slide of the deceased Lakhi Devi).

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All the alleles observed in the sutosomal STRs and Y-STRs DNA profile of the exhibit marked-C(source:blood stained gauze piece of Basiya Sidhu) are accounted in the STRs autosomal and Y-STRs DNA profile of the biological fluid (semen) present on the source of the exhibit marked-I (source: semen positive saya of the deceased Lakhi Devi).

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The autosomal STRs and Y-STRs profile from the source of exhibit marked-A (source: blood stained gauze piece of Samsen Hansda), and exhibit marked B (source: blood stained gauze piece of Lorence Marandi) did not match with the autosomal STRs and Y-STRs profile of the exhibit marked-A 1 (source: semen positive vaginal swab on a glass slide of the deceased Lakhi Devi) and the exhibit marked-I(source: semen positive saya of the deceased Lakhi Devi).

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The report concludes that the biological fluid on vaginal swab of 'L' was from the source Exhibits-C and D; Exhibit-C is blood stains on a gauze piece belonging to Bansia Siddhu and Exhibit-D is blood stained gauze piece of Bishnu Kumar Mandal. The biological fluid (semen) present on the undergarment (Petikot) of 'L' was from two human male sources but it matched only with DNA profile of blood sample of Bansia Siddhu vide Exhibit-C and the blood samples of Samsen Hansda, Laurence Marandi and Bishnu Kumar Mandal did not match with the DNA profile of the second male source found in the DNA profile of semen positive on undergarment of 'L'. On the aforesaid findings, blood sample of Samsen Hansda vide Exhibit-A and blood sample of Laurence Marandi vide Exhibit-B as a source of biological fluid (semen) on vaginal swab of 'L' have been excluded.

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Conclusion:

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The biological fluid (semen) present in the source of the exhibit marked-A1(source: semen positive vaginal swab on a glass slide of the deceased Lakhi Devi) is from the source of the exhibit marked-C (source: blood stained gauze piece of Basiya Sidhu) and exhibit marked-D(source: blood stained gauze piece of Bishnu Kumar Mandal).

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The biological fluid (semen) present on the source of the exhibit marked-I (source: semen positive saya of the deceased Lakhi Devi) is from at least two human male sources. Out of which one DNA profile matches with the source of exhibit marked-C (source: blood stained gauze piece of Basiya Sidhu). However, none of the reference samples marked A (source: blood

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stained gauze piece of Samsen Hansda), B (source: blood stained gauze piece of Lorence Marandi), and D (source: blood stained gauze piece of Bishnu Kumar Mandal) matched with the DNA profile of the second individual present in the DNA profile of the exhibit marked I (source:semen positive saya of the deceased Lakhi Devi).

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The exhibits marked-A(source: blood stained gauze piece of Samsen Hansda) and exhibit marked-B (source:blood stained gauze piece of Lorence Marandi) are excluded as a source of the biological fluid (semen) of the exhibits marked-A1(source: semen positive vaginal swab on a glass slide of the deceased Lakhi Devi) and exhibit marked I (source: semen positive saya of the deceased Lakhi Devi).

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The F.S.L report implicates only two persons and it indicates presence of a third person but excludes Laurence Marandi and Samsen Hansda.

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The samples which were taken on 15.03.2010 were kept in the Malkhana but it is not on record under what condition samples were preserved in Malkhana. There is however one indication in deposition of the investigating officer which would reveal that the samples were kept in a paper carton filled with cottons. Sri A.K. Kashyap, the learned Senior counsel for the appellant, namely, Bishnu Kumar Mandal has taken us to the letter dated 19.05.2010 written by the Director, Forensic Science Laboratory, Ranchi addressed to the Chief Judicial Magistrate stating that quantity of fluid on vaginal swab of 'L' was not sufficient and, therefore, if available more sample should be sent along with blood sample of the parents of 'L'. On such facts, a plea has been raised on behalf of the appellants that since the samples were not kept under the prescribed condition no reliance can be placed on the report dated 03.07.2010. However, we are not inclined to accept this submission for the reason that in case of contamination or deterioration of the samples DNA profiling is not possible. The report dated 03.07.2010 has disclosed the procedure adopted by the experts for DNA

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profiling and no error in the method adopted by the expert has been shown by the learned Senior counsels appearing for the appellants. 16. Non-examination of the expert who has prepared FSL report dated 03.07.2010 is also not fatal for the prosecution. Under section 293 of the Code of Criminal Procedure it is not necessary that in every case the expert must himself prove the report. Under sub-section 2 to section 293 of the Code of Criminal Procedure if the court is of the opinion that the expert should be called for evidence the person who has prepared the report or any other person authorized on his behalf who is well-conversant with the procedures may be examined by the prosecution [(refer, “Rajesh Kumar and Anr. Vs. State Government of NCT of Delhi” reported in (2008) 4 SCC 493 ]. We are also not convinced that there are chances of replacing samples of blood and seminal fluid of the appellants for the simple reason that DNA profiling of each individual is unique and DNA profiling of two individuals can never be identical. In “Kamti Devi (Smt) and Anr. Vs. Poshi Ram” reported in (2001) 5 SCC 311, the Supreme Court has held that DNA profiling is scientifically accurate. In “Patangi Balarama Venkata Ganesh Vs. State of Andhra Pradesh” reported in (2009) 14 SCC 607 , the Supreme Court has observed that; “the identification is hundred per cent precise, experts opine”.

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But what makes a serious dent in the case of the prosecution is sealing of the samples, particularly, of the victim - vaginal swab and undergarment (Petikot) of 'L'. Dr. Rajiv Sharma, Nageshwar Prasad, Santosh Kumar and Pappu Kumar Choudhary who were involved in taking samples of the appellants were not examined during the trial. On 17.03.2010 samples were sent to State Forensic Science Laboratory, Ranchi through J.M Singh, A.S.I, but he has also not been examined by the prosecution. There is no evidence on record to show that the vaginal swab and the piece of undergarment of 'L' which contained male seminal fluid belonged to 'L'. P.W 13 and P.W 14 are the seizure

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witnesses. They have deposed in the court that their signature was taken on plain papers. No witness has been examined by the prosecution in whose presence these two samples were taken out and sealed. We find that a plain paper signed by P.W 8 and Dr. V.K. Sinha is the only evidence on the sample of undergarment of the victim. On this paper the following is written :

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nqedk uxj Fkkuk dkaM la0 37@10 fnukad 12@03@10 /kkjk 376 ¼2½ ¼g½@302@34 Hkk0 n0 fo0

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e`frdk l[kh nsoh ifr jktsUnz nkl xzke y[khdq.Mh Fkkuk eqQfly ftyk nqedk dk isVhdksV ¼lk;k½

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laxzfgr

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There is no evidence on sealing of the blood and seminal fluid samples of the appellants as the persons involved in the process have not been examined by the prosecution. There is no remark in FSL report dated 03.07.2010 with regard to seal on the samples whether those were properly sealed and found intact. From the report dated 03.07.2010 received from the office of the Director, State Forensic Science Laboratory, Ranchi it would also appear that sample of seminal fluid of Bishnu Kumar Mandal was not received in the State Forensic Science Laboratory, Ranchi, though blood stains on a gauze piece marked as D is mentioned at Serial No.9 of the description of the source of exhibits. On such facts, a possibility of replacing the vaginal swab and the piece of undergarment belonging to 'L' being replaced with another swab and a piece of cloth tampered with seminal fluid of the appellants is not beyond comprehension. We find that the prosecution has failed to establish that the vaginal swab and undergarment (Petikot) of 'L' were properly sealed and not tampered. There is no evidence to suggest that these material objects were sealed at the place of occurrence as when and how these samples of 'L' were sealed have not come on record. Where these samples were preserved and in whose custody these samples have remained till these samples were sent to the State Forensic Science Laboratory, Ranchi have not been disclosed by the

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prosecution. The report dated 03.07.2010 from the State Forensic Science Laboratory, Ranchi does not record that the seals on the samples were signed by any witness.

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The learned A.P.P has contended that no such manipulation of the vaginal swab and undergarment of 'L' has happened for the reason that the FSL report has implicated only two appellants and had any manipulation with the vaginal swab and undergarment of 'L' been done it could have been done in respect of all four and not only two of the appellants.

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In a criminal trial identity of an accused must be established clearly by leading sufficient evidence on his complicity in the crime. Except DNA report which implicates only Bansia Siddhu and Bishnu Kumar Mandal, there is absolutely no evidence which would even raise a suspicion against the appellants. There is no eye-witness to the occurrence and the last-seen-together evidence is so faint to be referred to as an incriminating material. It is a well-settled principle in criminal jurisprudence that the prosecution must establish its case on complicity of an accused in the crime beyond reasonable doubt. Why some thing has happened or why a particular thing has not happened are not the questions an accused is required to answer in a criminal trial. After analyzing the evidences laid during the trial if the court finds that there is a reasonable doubt on complicity of an accused in the crime, the benefit must be extended to the accused. In this context this has also to be kept in mind that suspicion howsoever strong cannot take the place of legal evidence and only on suspicion an accused cannot be convicted and, that too, for a serious offence like rape and murder. The DNA report no doubt raises an accusing finger to Bansia Siddhu and Bishnu Kumar Mandal but the gaping hole in the prosecution's case and break in the chain of events starting from collection of the blood and seminal fluid samples of the appellants raise a doubt on their complicity in the crime. In “ Hanumant Govind Nargundkar Vs.

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State of M.P.” reported in AIR 1952 SC 343 , the Hon'ble Supreme Court has observed thus;

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“It is well to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should 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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The appellants were engaged in the barracks inside the residential premises of the Jail Superintendent. The appellants, namely, Bansia Siddhu, Samsen Hansda and Lorence Marandi @ Lowrence Marandi are Wardens and Bishnu Kumar Mandal is a barber who was engaged on daily wages. The prosecution has claimed that Bansia Siddhu, Samsen Hansda and Lorence Marandi @ Lowrence Marandi were on duty in the evening of 11.03.2010 but it has come in the evidence that there were 8 Wardens on duty every day out of which 4 each were on shift duty. Who was the fourth one on duty with the appellants, if at all they were on duty, has not been disclosed by the prosecution. No duty chart was produced during the trial and P.W 2 has admitted in his cross-examination that he has found 4-5 Masons near the place of occurrence when he had gone there on a secret information. P.W 9, who is son and P.W 10, who is daughter of 'L' have deposed in the court that their mother had gone to work at the residence of the Jailor, who is P.W 2 and P.W 11 who has identified the dead body has stated that he was working at the residence of Jailor. He has stated that there were four other women who were working there with him but he has not identified 'S' as a co-worker. In his examination-in-chief he has stated that he has seen dead body of a female at the residence of the Jail Superintendent and in his

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cross-examination, presumably to a suggestion by the defence that he did not know how the occurrence took place, he admits that he cannot recognize the persons working with him at the residence of the Jail Superintendent. There is no eye-witness to the occurrence and the appellants have been convicted with the aid of section 34 of the Indian Penal Code. In “Girija Shankar vs. State of U.P.” reported in (2004) 3 SCC 793 , the Hon’ble Supreme Court has observed, thus;

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“9. ……… In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime……..”

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In view of the aforesaid discussions, in the final analysis we find that the prosecution has failed to prove the charges against the appellants.

¶94

Accordingly, the judgment of conviction dated 15.09.2014 and the order of sentence of R.I for life and fine of Rs.10,000/- under section 302 r/w section 34 of the Indian Penal Code and sentence of R.I for ten years and fine of Rs.10,000/- under section 376 (2) (g) of the Indian Penal Code awarded to the appellants above-named in Sessions Trial No.159 of 2010 are set-aside.

¶95

The appellants, namely, Bansia Siddhu, Samsen Hansda, Lorence Marandi @ Lowrence Marandi and Bishnu Kumar Mandal are acquitted of the charges framed against them.

¶96

Mrs. Priya Shrestha, the learned A.P.P states that the appellant, namely, Bansia Siddhu in Criminal Appeal No.20 of 2015 is in custody.

¶97

Accordingly, Bansia Siddhu who is the appellant in Criminal Appeal No.20 of 2015 shall be released forthwith if not required in connection to any other criminal case.

¶98

¶99

The appellants, namely, Samsen Hansda in Criminal Appeal No.19 of 2015, Lorence Marandi @ Lowrence Marandi in Criminal Appeal No.43 of 2015 and Bishnu Kumar Mandal in Criminal Appeal No.78 of 2015 are on bail and, therefore, they shall stand discharged of liability of the bail-bonds furnished by them.

¶100

Criminal Appeal (D.B) Nos.20 of 2015, 19 of 2015, 43 of 2015 and Criminal Appeal (D.B) No.78 of 2015 are allowed. 29. Let lower-court records be sent to the court concerned forthwith.

¶101

(Shree Chandrashekhar, J.)

¶102

(Ratnaker Bhengra, J.)

¶103

Jharkhand High Court, Ranchi Dated:02/03/2020 Sudhir A.F.R.

Samsen Hansda v. the State of Jharkhand

Case brief

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Samsen Hansda v. the State of Jharkhand

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