Appeal
Appeal prayer
Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure, 1973, against the conviction of the appellant/A2 and sentence in Spl.S.C.No.35 of 2017 dated 28.03.2019, on the file of the learned Sessions Judge, Magalir Neethimandram [Fast Track Court], Tiruppur, and set aside the conviction and sentence imposed in judgment dated 28.03.2019 and acquit the appellant/A2.
Facts
Accused assaulted PW.5, kidnapped victim girl and committed repeated penetrative sexual assault on her
2. (i) It is the case of the prosecution that the victim, a minor girl aged 14 years at the time of occurrence, while she was with her friend-PW5, near a public toilet at Sandhaipettai, on 09.03.2017 at about 9.30 p.m., the appellant (A2) and A1 came in a TVS-50 Moped bearing Regn.No.TN38 A 4576 assaulted PW5 and took the victim girl in PW5’s bike to the corn fields belonging to one Prabhavathy at Dharapuram and committed repeated penetrative sexual assaults on her.
Based on the complaint made by victim girl FIR is registered under IPC and POCSO
(ii) It is the further case of the prosecution that the victim girl made a complaint [Ex.P1] to the police on 10.03.2017 at about 3.00 p.m., before the respondent police. PW13, the Sub Inspector of Police, registered the FIR in Cr.No.2 of 2017 for the offences under Sections 366-A and 392 of the IPC and Section 5(g) read with Section 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’) against the appellant and A1. The printed FIR was marked as Ex.P17.
Investigation started
(iii) PW16, the Inspector of Police, took up the investigation and went to the scene of the occurrence on 10.03.2017 at about 4.35 p.m., and prepared the Observation Mahazar [Ex.P5] and Rough Sketch [Ex.P20] in the presence of the witnesses. She seized the earring [M.O.6] and a blackcoloured sports bra [M.O.5] belonging to the victim from the scene of the occurrence under Seizure Mahazar [Ex.6]. Thereafter, she examined the witnesses and at about 9.00 p.m., arrested both the accused on the identification of PW5. She recorded the confession of the accused and seized the vehicle of PW5 [M.O.7] viz., TVS Victor bearing Regn.No.TN57 X 8061 from the possession of the accused, under the Seizure Mahazar [Ex.12]. Thereafter, she sent the accused for medical examination. She also seized a light blue-coloured full hand shirt [M.O.10] and a dark green and cement coloured checked lungi [M.O.12], belonging to the appellant and thereafter, sent all the dress materials and other articles seized, to the Court under Form-95. She sent the accused for medical examination to conduct potency test on 14.03.2017.
Vaginal smear and vaginal swab taken from victim to send to forensic lab
(iv) In the meanwhile, on 13.03.2017, learned Judicial Magistrate No.II, Udumalaipet, recorded the Section 164 Cr.P.C., statement of the victim. On 15.03.2017, PW16 made a requisition to the Magalir Neethimandram [Fast Track Court], Tiruppur, to send the vaginal smear and vaginal swab taken from the victim to the Forensic Science Laboratory. Thereafter, she examined all other witnesses and after obtaining the report from the Forensic Science Laboratory, she handed over the investigation to PW17.
PW.17 (I.O) filed final report (charge sheet) against both the accused
(v) PW17, the Inspector of Police, thereafter took up the investigation and filed the final report against both the accused, for the offences under Sections 366 and 394 of the IPC and Section 5(g) read with Section 6 of the POCSO Act, before the learned Sessions Judge, Magalir Neethimandram [Fast Track Court], Tiruppur, which was taken on file as Special S.C.No.35 of 2017.
Trial followed by Charges under IPC and POCSO
(vi) On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with and the trial Court framed charges against the accused, and when questioned, the accused pleaded ‘not guilty’.
(vii) To prove the case, the prosecution examined 17 witnesses as P.W.1 to P.W.17, marked 27 exhibits as Exs.P1 to P27 and marked 13 Material Objects as M.O.1 to M.O.13. When the accused were questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against them, they denied the same. The accused examined one Premalatha, mother of A1 as DW1 and did not mark any documents.
Conviction by Trial court
(viii) On appreciation of oral and documentary evidence, the trial Court found that the prosecution had established its case beyond reasonable doubt and held the accused guilty of the offences levelled against them and
Against Kalimuthu (A2): Section 394 IPC: 10 years of rigorous imprisonment (RI) and a fine of ₹5,000, in default 2 years of RI – Section 366 IPC: 10 years of RI and a fine of ₹5,000, in default 2 years of RI – Section 5(g) read with Section 6 of POCSO Act**: Life imprisonment and a fine of ₹20,000, in default 2 years of RI.
Against Sethupathy (A1): Section 394 IPC: 10 years of RI and a fine of ₹5,000, in default 2 years of RI. – Section 366 IPC: 10 years of RI and a fine of ₹5,000, in default 2 years of RI – Section 5(g) read with Section 6 of POCSO Act: Life imprisonment and a fine of ₹20,000, in default 2 years of RI.
The sentences were ordered to run concurrently.
Analysis
6. We have carefully considered the rival submissions and have perused all the relevant records.
Star witness analysis
7. (i) PW1 is the victim; PW2 is the mother of the victim; PW3 and PW4 are the observation mahazar witnesses; PW3 turned hostile; PW5 is the friend of the victim, who was attacked by the accused as per the prosecution case; and PW6 is the witness to the confession of the accused and to the recovery of the bike belonging to PW5 from the possession of the accused.
Someone informed PW7 as if he was attacked by the accused took his bike and kidnapped the victim
(ii). PW7 is the sister’s husband of the victim, who speaks about the fact that the victim went missing in the evening of 09.03.2017 and they went in search of the victim, that he met two persons and one of them informed him that two persons beat him up, took his bike and had taken the victim in the said bike; that about 12.30 a.m., the victim was walking near a tea shop and when asked, she informed that two people, viz., the appellant and another whose name is Sethupathy (A1) had committed sexual assault on her; PW8 is a hearsay witness, who came to know that the victim was kidnapped by two people; and PW9 is the witness to the confession of the accused;
PW10 (doctor) stated that vaginal smear contained sperm cells
(iii). PW10 is the Doctor who had examined the victim and had taken the vaginal smear which contained sperm cells. She made entries in the Accident Register Ex.P13; PW11 is the doctor who examined both the accused and issued potency certificates i.e., Ex.P14 in respect of A1 and Ex.P15 in respect of the appellant (A2); PW12, is the Tahsildhar who speaks about the rainfall data in the occurrence place from 01.03.2017 to 15.03.2017 and issued Ex.P16-certificate; PW13 is the Sub-Inspector of Police, who registered the FIR; PW14 is the Scientific Officer in the Forensic Science Laboratory, who found seminal stains in the dress materials of the victim and sent for chemical analysis and for DNA comparison to the Directorate of Forensic Science Department; PW15 was the Assistant Director of DNA Department of the Forensic Science Laboratory and had issued the DNA Report-Ex.P19 stating that the seminal stains found in the vaginal smear belonged to the accused; PW16 and PW17 are in the investigating officers, who conducted the investigation and filed the final report.
Complaint was lodged by the victim herself
8. From the above narrative, it could be seen that the complaint was lodged by the victim herself at 3.00 p.m., on 10.03.2017. As per the complaint and the evidence of PW7, who is the victim’s uncle (sister’s husband), the victim returned to the house in the early morning of 10.03.2017 i.e. at about 12.30 a.m. It is not known, as to why the complaint was not lodged immediately.
Discrepancies in the facts and investigation procedures
9. Be that as it may. The victim’s version is that she came to know the names of the accused, while they were talking with each other during the occurrence. Therefore, both accused were named in the FIR. However, we may note that though the FIR is said to have been registered at 3.00 p.m., on 10.03.2017, it was sent to the jurisdictional Magistrate only the next day i.e., 11.03.2017 at about 11.20 a.m., as could be seen from the endorsement made by the learned Magistrate in Ex.P17-FIR. The accused were arrested according to the prosecution on 10.03.2017 at about 9.00 p.m., which means that the FIR reached the Magistrate only after the arrest of the accused. There is no explanation as to why the FIR was not sent immediately to the Magistrate. Though, PW13 the Sub Inspector of Police in the cross examination claims that the FIR was sent to the Magistrate on 10.03.2017, it is not so. Therefore, this throws a serious doubt as regards the prosecution version that the victim had given the names of the accused in her complaint.
PW5 being the friend of victim did not inform or complaint the crime
10. Strangely, PW5 who claims to be the friend of the victim and assaulted by the accused, does not inform or complain of the assault to anyone. He would state in his deposition that after he was assaulted and his bike was stolen by the accused, he went to his village. Though, he admits that there was a temple festival and there were policemen all around, he neither informed them about the occurrence nor went to the police station to complain about the kidnapping. He further deposed in the cross examination that both accused were arrested by the police at 9.00 a.m., in the morning of 10.03.2017, which is much before the registration of the FIR. PW5 would add that both accused came walking, attacked him before taking away the bike and kidnapped the victim. This version is contrary to the version of PW1 that the accused came in a TVS-50 moped. That apart, it is seen that the TVS-50 moped was not seized by the police and there is absolutely no investigation in this regard, though it is the prosecution case that the accused abandoned the TVS moped and took the victim girl in PW5’s bike.
No TIP conducted
12. Another strange aspect that we find in this case is that though the accused were arrested, the investigating officers had not taken any steps to conduct the Test Identification Parade. It is not known as to how the investigating officers confirmed the identity of the accused, in the absence of a Test Identification Parade. Though it is claimed by the investigating officer that PW5 identified the accused after their arrest, there is nothing on record to show as to how and on what basis the two accused were fixed as accused. It is needless to mention that the identification of PW5 at the time of arrest would hardly be of any relevance, as no value can be attached to it. That apart, both PW6 and PW9, who were said to be witnesses to the arrest and confession of the accused have not stated about any alleged identification by PW5.
13. As regards the victim’s version we find that no Test Identification Parade was conducted.
14. It is also admitted that it was raining at the relevant point in time and there was a power cut. The occurrence took place during the night hours. Therefore, in the absence of a Test Identification Parade, we are of the view that the victim’s identification in Court for the first time nearly 18 months after the occurrence would have no value. In this regard, we may rely upon the following observations of the Hon’ble Supreme Court in Kanan’s case [cited supra]
“It is well settled that where a witness Identifies an accused who is not known to him in the Court for the first time, his evidence Is absolutely valueless unless there has been a previous T. I. parade to test his powers of observations. The Idea of holding T. I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.”
Contradiction as to the previous acquaintance of accused to victim
15. As stated earlier, the FIR was sent to the Magistrate only on 11.03.2017 at about 11.20 a.m. The accused, according to the prosecution were arrested at 9.00 p.m. on 10.03.2017. Therefore, in the light of the several infirmities that we have just pointed out above and the delay in registration of the FIR, it is highly doubtful as to whether the victim had given the names of the accused. That apart, the victim had stated before the Doctor that two known persons had committed penetrative sexual assaults. It is the prosecution case and the evidence of PW1 that both the accused were not known to her. This contradiction, in our view, also throws a doubt as regards the version of the victim.
Analysis of DNA evidence
16. As regards the medical evidence, the relevant portion of the DNA report [Ex.P19] reads as follows:
“(i) The seminal stains on item 2 – vaginal swab (male traction) (of ref.2) and item 7 Churidar top (of ref.3) are that of the alleged accused 1 Sethupathi and alleged accused 2 – Kalimuthu.
(ii) The seminal stains on item 2 – vaginal swab (female traction) (of ref 2) are that of the victim xxxxxx.”
No evidence provided by the prosecution as to when the blood samples were taken from accused
17. It is well settled that if the DNA report is sought to be relied upon by the prosecution, it must be clear from the evidence as to what samples were compared and as to whether the samples were taken from the victim or the accused. In the present case, it is stated that the prosecution has compared the vaginal swab with the blood samples taken from the accused. There is absolutely no evidence as to when the blood samples were taken from the accused. Even assuming that blood samples were taken from the accused, the ‘chain of custody’ of the sample has not been established. In the absence of the same, the report based on comparison of such a sample, would be of no value.
18. In a similar case, where there is no evidence of blood sample being taken from the accused and in the absence of establishing the chain of custody, to ensure that the blood samples were in fact taken from the person concerned, packed and preserved properly, the Hon’ble Supreme Court in Prakash Nishad’s case [cited supra] held that the DNA report cannot be held to be dependent in such circumstances. The judgment laid stress on the importance of establishing the chain of custody of the sample. The relevant observation are as follows:
“62. The document also lays emphasis on the ‘chain of custody’ being maintained. Chain of custody implies that right from the time of taking of the sample, to the time its role in the investigation and processes subsequent, is complete, each person handling said piece of evidence must duly be acknowledged in the documentation, so as to ensure that the integrity is uncompromised. It is recommended that a document be duly maintained cataloguing the custody. A chain of custody document in other words is a document, “which should include name or initials of the individual collecting the evidence, each person or entity subsequently having custody of it, dated the items were collected or transferred, agency and case number, victim’s or suspect’s name and the brief description of the item.”
19. That apart, as regards the reliability of the DNA Report, in a recent Judgment in Manoj Vs. State of Madhya Pradesh, reported in (2023) 2 SCC 353. The Hon’ble Supreme Court held as follows:
“paras: 151 to 158“
In the above judgment there is a reference to the article published by the Central Forensic Science Laboratory, Calcutta, which states that if DNA evidence is not properly documented, collected, packaged, and preserved, it would not meet the legal and scientific requirements for admissibility in a Court of law. The report also states that DNA evidence can be contaminated when DNA from another source gets mixed with the DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his or her mouth, nose, or other parts of the face and then touches an area that may contain the DNA to be tested. Therefore, it is evident that DNA testing can be a powerful technique in investigations and criminal trials. However, care has to be taken to ensure that the samples collected are properly documented, packaged, and preserved, which is not so in this case.
Prosecution case doubtful
20. Thus, from an overall reading of the evidence, we find that in the facts and circumstances of the case, the fact that there was a delay in lodging the complaint and sending it to the Court with a further delay, would render the prosecution case highly doubtful. Though PW7 claims that the victim was secured at 12.30 a.m. on 10.03.2017, the complaint was lodged only at 3.00 p.m. on 10.03.2017. As stated earlier, it was only after the arrest of the accused, the FIR was despatched to the Court. Therefore, the fact that the names of the accused were found in the FIR would not be of any use to the prosecution. On the contrary, it raises a doubt as to whether it was the victim who had given the names of the accused. The version of PW5 and his conduct do not inspire confidence. There is no investigation as regards the TVS-50 moped in which the accused have said to have come and abandoned before taking the victim in PW5’s bike. It is also PW5’s version that the accused were arrested at 09.00 a.m., on 10.03.2017 which makes the prosecution case even more doubtful.
Criminal appeal allowed accused acquitted
22. Accordingly, the Criminal Appeal is allowed. The conviction and sentence imposed upon the appellant/A2 in Spl.S.C.No.35 of 2017 dated 28.03.2019, on the file of the learned learned Sessions Judge, Magalir Neethimandram [Fast Track Court], Tiruppur, are set aside. The appellant/A2 is acquitted of all the charges and directed to be released forthwith, unless his presence is required in connection with any other case. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged. Consequently, the connected Criminal Miscellaneous Petition is closed.
Though A1 not filed any appeal Hon’ble Madras High court extended the benefit of acquittal A1 also
23. The learned Additional Public Prosecutor, on instructions submits that A1 has not filed any appeal against his conviction. However, since we are of the view that the prosecution has not established its case, the observations made by us, would enure to the benefit of A1 as well. Therefore, A1-Sethupathy, is also acquitted of all the charges and directed to be released forthwith, unless his presence is required in connection with any other case. The learned Additional Public Prosecutor states that A1 is confined in Central Prison, Coimbatore. The Superintendent of Prisons, Central Prison, Coimbatore, shall release A1-Sethupathy, forthwith.
Judgments cited/discussed
1. Prakash Nishad @ Kewat Zinak Nishad v. State of Maharashtra – (Crl.A.Nos.1636-1637 of 2023) – This judgment was referenced to highlight the importance of establishing the chain of custody for DNA samples.
2. Kanan v. State of Kerala – (1979) 3 SCC 319 – This judgment was cited to emphasize that identification of the accused in court for the first time without a prior Test Identification Parade is valueless.
3. Manoj v. State of Madhya Pradesh – (2023) 2 SCC 353 – This judgment was mentioned to discuss the reliability and admissibility of DNA evidence in criminal trials.
Party
Kalimuthu (Appellant/Accused No.2) vs. State represented by Inspector of Police, All Women Police Station, Dharapuram, Tiruppur District (Respondent/Complainant) – Crl.A.No.765 of 2022 – 20.06.2024 – The Hon’ble Mr. Justice M.S. Ramesh and The Hon’ble Mr. Justice Sunder Mohan.
