1. Appellant Mukesh Kumar has filed the present appeal under Section 374 of the Code of Criminal Procedure against the judgment of conviction/order of sentence dated 18.10.2021 passed by the learned Special Judge, Fast Track Court (POCSO), Mandi, District Mandi, H.P. (hereinafter referred to as the ‘learned trial Court’).

2. By way of the judgment of conviction and order of sentence, as referred to hereinabove, the learned trial Court has convicted the appellant (hereinafter referred to as the ‘accused’) for the commission of offence punishable under Section 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the ‘POCSO Act’) and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months under Section 376 IPC and imprisonment for seven years and to pay a fine of Rs.5,000/- and in default of payment of fine to further undergo imprisonment for six months under Section 4 of the POCSO Act. The learned trial Court has also ordered that both the sentences shall run concurrently.

3. Brief facts, leadings to the filing of the present appeal, before this Court, may be summed up as under:-

On 25.02.2015, the child victim along-with her parents appeared before the police and moved an application disclosing therein that she is undergoing training of Computer Application, in multimedia institution, situated near school at place ‘X’. On 23.02.2015, according to her version, as contained in the application, as usual, she was on her way to the institute. Since she was late, as such, she could not board the bus and was on the way to the institute on foot. In the meanwhile, accused, who is previously known to child victim, met her and offered her to give lift. Firstly, child victim has shown her reluctance but, later on, she took lift from the accused. The accused, instead of moving straightaway towards the institute allegedly took her to a hotel, on the pretext of having some refreshment. The accused took her to a hotel at Barmana, where, the accused had offered a drink to her. On the next day, at about 6.00 a.m. when, the child victim regained her consciousness, then, she found herself and the accused, in an objectionable condition. According to her, the said room was in fact, at control gate Sundernagar. Thereafter, at the instance of the accused, the child victim had worn her clothes. At about 7.15 a.m. the uncle of the child victim found her and thereafter, the child victim had gone to her house. On 24.02.2015, on the repeated insistence of her parents, the child victim had narrated the entire incident to them.

4. On the basis of above facts, the child victim had prayed to the police to take action against the accused.

5. Upon this, the police machinery swung into motion and the FIR under Sections 363, 328, 376 IPC read with Section 4 of the POCSO Act has been registered.

6. The child victim was medico legally examined at Civil Hospital and the physical evidence was collected and preserved by the doctor.

7. The accused was arrested on 25.02.2015 at about

7.30 p.m. He was also medico legally examined. During the investigation, the accused identified the room, where, he had done the act, which has been alleged against him by the child victim in the complaint to the police.

8. After the completion of investigation and after receiving the report from the FSL, the Police has filed the challan under Section 363, 376, 328 IPC read with Section 4 of the POCSO Act against the accused.

9. During the investigation, the blood samples of child victim and accused for DNA profiling were also collected by the doctor concerned and the same were also sent to FSL for DNA profiling. After receiving the report, the police filed the supplementary report placing on record the report of FSL.

10. After complying with the provisions of Section 207 Cr.P.C, the learned trial Court found a prima-facie case against the accused for the commission of the offences punishable under Section 363, 328, 376 IPC read with Section 4 of the POCSO Act.

11. Consequently, the accused has been charge sheeted accordingly and the charges, so framed, were put to the accused. He has pleaded not guilty and claimed to be tried.

12. Since, the accused has not pleaded guilty, as such, the prosecution has been directed to adduce evidence to substantiate the charges framed against the accused.

13. Consequently, the prosecution has examined as many as 22 witnesses.

14. After the closure of the prosecution evidence, the entire incriminating evidence, appearing against the accused, was put to him, in his statement, recorded under Section 313 Cr.P.C.

15. The accused has denied the entire prosecution case, by taking the simplictor defence of innocence and false implication.

16. However, the accused has not opted to lead any evidence in defence.

17. Thereafter, the learned trial Court, after hearing the learned Public Prosecutor and the learned defence counsel has convicted the accused, for the commission of offences punishable under Section 376 IPC and under Section 4 of the POCSO Act and sentenced him, as referred to hereinabove.

18. Feeling aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence, the accused has preferred the present appeal before this Court, assailing the judgment of conviction and order of sentence on the ground that the learned trial Court has not considered the fact that the prosecution has miserably failed to prove the case against the accused beyond any shadow of doubt.

19. Findings have been assailed on the ground that there is no direct evidence against the accused as the star witnesses of the prosecution i.e. the child victim has not supported the case of the prosecution and even her parents had also not supported the case of the prosecution. The prosecution story has further been assailed on the ground that it has been proved, in this case, that the child victim was more than 18 years of age, as admitted by the child victim herself in her deposition recorded in the Court.

20. On the basis of the above grounds, Mr. Jagan Nath, learned counsel appearing for the accused has prayed that the appeal may kindly be accepted by acquitting the accused from the offences, for which, he has been convicted, in this case, by the learned trial Court.

21. Per contra, Mr. Ajay Vaidya, learned Senior Additional Advocate General assisted by Mr. Vinod Thakur, learned Additional Advocate General has opposed the prayer, so made by the learned counsel for the appellant, on the ground that the learned trial Court has rightly considered the evidence, in its right perspective and the judgment of conviction and order of sentence, is based upon the positive evidence adduced by the prosecution before the learned trial Court. Hence, a prayer has been made to dismiss the appeal.

22. In order to decide the matter, it would be just and appropriate for this Court to discuss the evidence adduced by the prosecution to prove the charges against the accused.

23. PW-1 Kusum Lata is the Headmistress of the school and issued the school leaving certificate of the child victim Ext.PW-1/A. The child victim was admitted in the school on 05.04.2012, however, according to her cross-examination, there is no entry in the register about the fact that when the child victim was admitted in the school. She has further deposed that the records submitted by her, in the Court, have been verified with the admission form.

24. PW-2 Naresh Kumar is the Panchayat Secretary. He has issued the birth certificate Ext.PW-2/A. This witness has not entered the relevant entries in the birth and death register.

25. PW-3 is the father of the child victim. According to him on 23.02.2015, when the child victim had not returned back, then, on the next day, he along-with his brother and son had started searching for the child victim. The brother of this witness has gone to Chatrokri Chowk, Sundernagar and he had brought back the child victim to the home. On inquiry, the child victim disclosed to this witness that she had gone to her sister’s house. He has categorically deposed that the child victim has not disclosed that the accused had kidnapped her.

25.1. Since this witness has resiled from his earlier statement made before the police, as such, on the request made by the learned Public Prosecutor, this witness has been declared hostile by the learned trial Court and the learned Public Prosecutor has been permitted to cross-examine this witness. Despite of the best efforts made by the learned Public Prosecutor, nothing material could be elicited from his cross- examination except his admission over the documents Ext.PW- 3/A, Ext.PW-3/B and Ext.PW-2/C.

25.2. In the further cross-examination by the learned counsel for the accused, this witness has also deposed that the date of birth of the child victim was got registered by his father in the Panchayat. He has also sided with the accused by deposing that the date of birth was got recorded on the basis of the guess-work. Ext.PW-2/C was signed by him. On the day, when this witness has appeared in the witness box, he has given the age of the child victim as more than 19 years.

26. Mother of the child victim has been examined as PW-4. She has also followed the footsteps of her husband, as such, like her husband, she has also been declared hostile and despite of the best efforts made by the learned Public Prosecutor nothing material could be elicited from her cross- examination. Interestingly, like her husband, she has also given the age of the child victim more than 19 years on the day when, she has appeared in the witness box.

27. PW-5 is the child victim. On 6.8.2016, she has given her aged as 19 years. She, in her examination-in-chief itself had exonerated the accused from the charges leveled against him by stating that nobody had kidnapped her or sexually assaulted her.

27.1. Learned Public Prosecutor has only succeed in obtaining her admission qua her signatures over the memos Ext.PW-5/A and Ext.PW-3/A as well as her signatures over her statement recorded under Section 164 Cr.P.C Ext.PW-5/B.

27.2 According to her deposition in the cross- examination by the learned Public Prosecutor, the statement under Section 164 Cr.P.C which was videographed, was given, at the instance of the police.

27.3. In cross-examination by the learned counsel for the accused, she has reiterated the stand that she had given the statement under Section 164 Cr.P.C at the instance of the police and she has given her age as more than 19 years.

28. PW-8 Chuni Lal was working as Manager in Lake View Paying Guest House, Sundernagar. He has been called in the witness box by the prosecution to prove that on 23.02.2015, he has made the entry, in the relevant register of the Guest House, regarding the stay of the accused with the child victim. However, he has also not supported the prosecution case and has also been declared hostile. Learned Public Prosecutor could not elicit anything material from his cross-examination, for which, any help could be taken by prosecution.

29. PW-9 Khem Chand on 27.02.2015 was associated, in the investigation of the case. In his presence, child victim had identified the bed sheet, in one of the rooms of the Guest House, which was taken into possession vide memo Ext. PW-3/A. The police had also taken into possession the document of the relevant entry in the guest register vide memo Ext.PW-3/B.

30. PW-10 Sethi Ram is the owner of the Lake View Paying Guest House, Sundernagar and has employed Chuni Lal as its Manager. On 27.02.2015, this witness has handed over the visitor’s register of the Guest House, which was taken into possession vide memo Ext. PW-3/B. He has proved the visitor’s register as Ext.PW-10/A and relevant entry vide Ext.PW- 10/B of guests staying in room No. 105 on 23.02.2015. During investigation, the police had also taken into possession bed sheet Ext.P-2. According to this witness, entries Ext. PW-10/A were not made by him, however, the same were entered by Chuni Lal.

31. PW-13 Netar Singh had videographed the process of recording the statement of the child victim and has prepared the DVD’s Ext.PW-13/A and Ext. PW-13/B, which were handed over to the police. The videography was conducted by this witness, at the instance of the police.

32. PW-15 Dr. Suchi Sharma has medico legally examined the child victim on 25.02.2015 on the application of the police Ext.PW-15/A. According to this witness, the child victim had given the history of penetration. This witness had preserved the samples of endovaginal swab, endocervical swab, nail clippings, slide from vagina, anal swab, clothes, pubic hair and slide from endocervix and sealed the same and handed over to the police. After receipt of the receipt of FSL report Ext. P-X on 23.04.2015, this witness had deposed that human semen was detected on the shirt, salwar and vaginal swab of the victim. On the basis of above facts, she has given that the possibility of sexual intercourse, in this case, cannot be ruled-out. She has proved the MLC Ext.PW-15/B. She has duly identified the wearing apparels of the child victim as well as the samples, in which, she had put the physical evidence collected by her during the medico legal examination of the child victim.

32.1. As per cross-examination of this witness, the child victim was brought by the police for her medical examination. The child victim was not previously known to this witness. According to this witness, the child victim was of good general health and had obtained puberty at the age of 14 years. According to her, there is possibility of injury on the private part of the victim, in case of sexual intercourse, however, she has qualified her statement, by stating that the child victim was produced before her, after two days of the sexual assault, as such, the possibility of healing of minor injury, cannot be ruled- out. She has admitted that she had not found any injury, on the person of the child victim, at the time of her medical examination.

33. PW-18 Dr. Suraj Bhardwaj on 27.02.2015 had obtained the blood samples of accused on the FTA cards and he had also prepared the identification form Ext. PW-18/A. The accused was identified by S.I. Kalyan Singh.

34. PW-22 Sh. Gaurav Sharma, the then Additional Chief Judicial Magistrate, Sundernagar had proved the statement of the child victim Ext. PW-5/B. This witness had recorded her version Ext. PW-22/A.

35. PW-11 HC Puran Chand was posted as MHC. On 25.02.2015, SI Kalyan Singh has deposited case property to this witness which was registered in the Malkhana register at Serial No.993. The abstract of Malkhana register is Ext.PW-11/C. Similarly, on 27.02.2015, SI Kalyan Singh has handed over the case property to this witness which he had entered in the Malkhana register at Serial No. 993. The abstract of Malkhana register is Ext.PW-11/C. He has also deposited one motor cycle No. HP-31A-9189 along-with its key to this witness. He has further deposed the manner in which the case property was handed over to him. This witness has forwarded the case property to FSL, Junga except the FTA card of the child victim and the motor cycle through HHC Naresh Kumar No. 105 for depositing the same to RFSL, Mandi vide R.C. No. 56 of 2015 on 3.3.2015. After receiving the report of chemical analysis on 27.05.2015, the case property as well as FTA card of the victim vide R.C. No. 133 of 2015, the same were handed over to HHC Ashwani Kumar for depositing the same to FSL, Junga for DNA profiling.

36. PW-12 HHC Naresh Kumar took the case property, which was handed over to him on 03.03.2015 to RFSL, Mandi which, he had deposited the same with the authorities of RFSL, Mandi.

37. PW-14 Sh. Madan Dhiman, had got registered the FIR Ext.PW-14/A on the application Ext.PW-5/A of the father of the child victim. The investigation was then handed over to SI Kalyan Singh. This witness has also prepared the challan.

38. PW-20 SI Kalyan Singh has investigated the case after the registration of the FIR. He has deposed about the manner, in which, he has conducted the investigation. Rest of the witnesses are police officials, related to the link evidence.

39. PW-16 HHC Ashwani Kumar on 27.05.2015 had taken the case property which was given to him as per RC Ext. PW-11/G to SFSL, Junga.

40. PW-17 HHC Pal Singh brought the result Ext. P-Y alongwith the case property from SFSL, Junga.

41. PW-19 LHC Shanta took the child victim to civil hospital on 25.02.2015 for her medico legally examination. The Medical Officer had handed over the MLC and the preserved samples to her. The MLC was handed over by her to the I.O. whereas, preserved sealed samples to MHC Police Station.

42. PW-20 SI Kalyan Singh had conducted the investigation, when, the investigation was entrusted to him. The child victim was sent to hospital for her medical examination. After the medical examination, LHC Shanta had handed over the MLC Ext. PW-16/A, sealed parcels Ext. P-A and Ext.P-B alongwith the sample seal to this witness and he had further handed over the same to MHC. Although this witness has deposed about the manner, in which, the investigation was conducted by him, however, only his deposition qua receipt of the FTA cards and the case property is to be discussed. By moving application Ext.PW-18/A, this witness has got collected the blood samples of the accused for DNA profiling on FTA card, which were handed over to this witness by the Medical Officer, which, he has deposited with the Malkhana. On 21.05.2015, this witness, by moving application Ext. PW-20/J, before the Medical Officer had obtained the blood samples on FTA cards of the child victim. These samples were supplied to him, in a sealed condition, which, he had deposited with MHC. He has prepared the supplementary challan, after receipt of report Ext. P-Y.

43. PW-21 Dr. Akant Kaushal collected the blood samples of the child victim on FTA card and later on, that FTA card was handed over to the police, in a sealed condition, along-with specimen seal impression.

44. This is the entire evidence, which has been led by the prosecution in this case.

45. In this case, the star witnesses, which have been examined by the prosecution to substantiate the charges framed against the accused, turned hostile. The complainant, at one point of time, had leveled specific allegations against the accused about the manner, in which, he had enticed away, kidnapped the daughter of this witness and about the fact that he had ravished her, but, for the reasons best known to him, when appeared, in the witness, has not supported the case of the prosecution. Whatsoever he has deposed, in the cross-examination, by the learned Public Prosecutor and by the learned counsel for the accused, by virtue of the said deposition, he has rather supported the case of the accused.

46. Similar is the stand taken by the child victim. At one point of time, she had given details, about the manner, in which, the accused had taken her away from the custody of her parents and the manner, in which, she had been ravished by the accused, but, when appeared in the witness box, she has not only destroyed the case of the prosecution, but also made futile attempt to deposed that whatsoever, she has stated in her statement recorded under Section 164 Cr.P.C before the Magistrate, was deposed, at the instance of the police. In other words, it can be said that she has leveled allegations against the police that at their insistence, she had leveled the allegations against the accused, in her statement recorded under Section 164 Cr.P.C. Despite of the best efforts made by the learned Public Prosecutor, nothing material could be elicited from her, from which, any help could be taken by the prosecution to improve its case.

47. The perusal of judgment passed by the learned trial Court clearly shows that the judgment of conviction has been passed on the DNA report Ex. P-Y, after relying upon the presumption as provided under Section 29 of the POCSO Act.

48. As stated above, all the star witnesses including the child victim as well as her father and mother had not supported the case of the prosecution. Rather, they have resiled from their statements given to the police. Although, the learned trial Court has given ample opportunity to the learned Public Prosecutor to cross-examine the above three witnesses by declaring them hostile and despite of the best efforts made by the learned Public Prosecutor, nothing material could be elicited from them.

49. In such a situation, the only question, which remains to be decided by this Court is whether the conviction can be based upon the DNA report only.

50. The legislature, in its wisdom, has inserted Section 53A and Section 164A of the Cr.P.C by the Act 25 of 2005 w.e.f. 23.06.2006. Sections 53A and Section 164A of the Cr.P.C are reproduced as under:-

“[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.

(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;-

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

(ii) the age of the accused,

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

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

(v) other material particulars in reasonable detail.

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

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

(5) The registered medical practitioner shall, 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 Sub-Section (5) of that section.]”

“[164A. Medical examination of the victim of rape.-(1) Where, during the stage when an offence of committing rape 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 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:-

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

(ii) the age of the woman;

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

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

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail,

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

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

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

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

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

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

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 [LQ/SC/2014/186] . The relevant paragraph 18 of the same is reproduced as under:-

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

53. The procedure, which is to be adopted 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 [LQ/SC/2017/778] . The relevant paragraphs No. 211 to 228 of the same are reproduced as under:-

“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 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’.

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:

“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 succintly than did Lord Taylor C.J. in the case of Deen (transcript: December 21, 1993), so we shall gratefully adopt his description.

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

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

“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.

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).”

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.

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.”

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

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:

“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 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.”

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.

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) … … … …

(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:-

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

(ii) the age of the accused,

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

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

(v) other material particulars in reasonable detail.

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

(1) … … … …

(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:-

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

(ii) the age of the woman;

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

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

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail.”

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:

“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. …”

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:

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

“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.

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:

“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.”

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:

“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:

“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.”

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 appellant-accused 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:

“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 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.”

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:-

“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.”

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:

“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.”

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:

“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.”

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:

“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.”

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

“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.

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.”

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)

54. The Hon’ble Apex Court, in a recent decision in case titled as Pattu Rajan vs. State of Tamilnadu (2019) 4 SCC 771 [LQ/SC/2019/564] 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:-

“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.

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:

“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…” (emphasis supplied)

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 [LQ/SC/1978/275] ; State of H.P. v. Jai Lal & Ors., (1999) 7 SCC 280 [LQ/SC/1999/853] ; Baso Prasad & Ors. v. State of Bihar, (2006) 13 SCC 65 [LQ/SC/2006/1155] ; Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors. (supra); Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors., (2010) 2 SCC (Cri) 299) [LQ/SC/2009/1657] .

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 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.” (self emphasis supplied)

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:-

"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:

“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 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.

…………………………………………

DNA Profiling Methodology

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.

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:

1. isolation, purification & quantitation of DNA

2. amplification of selected genetic markers

3. visualising the fragments and genotyping

4. statistical analysis & interpretation.

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

Statistical Analysis 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:

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.

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.

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.

Collection and Preservation of Evidence 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)

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.

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

“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.”

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:

“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.

138. The US Supreme Court, in District Attorney's Office for the Third Judicial District v. Osborne, 44 dealt with a post- conviction 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 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 Pradesh45, Santosh Kumar Singh v. State Through CBI 46, Inspector of Police, Tamil Nadu v. John David 47, Krishan Kumar Malik v. State of Haryana48, Surendra Koli v. State of Uttar Pradesh & Ors 49, and Sandeep v. State of Uttar Pradesh50, Rajkumar v. State of Madhya Pradesh51 and Mukesh & Ors. v. State for NCT of Delhi & Ors. 52 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 Maharashtra53 “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 [LQ/SC/2014/186] but variance in a particular result depends on the quality control and quality procedure in the laboratory.”

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:

“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 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.”

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).

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.

57. In view of the decision of the Hon’ble Apex Court as referred above, it was for the prosecution to prove by leading the cogent, convincing and positive evidence, that all the precautions, as referred above, were taken by it. This fact is necessary for the prosecution as the entire process of collecting the blood samples for DNA profiling in controlled and done by the human agencies i.e. doctors and the Investigating officers. Every step to preserve the sample from manipulation/contamination has to be proved as absence of those steps may cause prejudice to the accused.

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 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.

59. Judging the facts and circumstances of the present case, now this Court has to discuss the manner, in which the DNA samples were drawn by the police during the investigation of the case. The blood sample of accused Mukesh was collected by PW-18 Dr. Suraj Bhardwaj. He has simply deposed that he had obtained the blood sample of accused Mukesh on FTA card to whom he had identified in the Court when appeared in the witness box on the basis of photographs affixed on identification form Ext. PW-18/A. The accused before taking the sample of blood was identified by SI Kalyan Singh. His statement is totally silent qua the fact that after obtaining the blood sample on FTA card, he put those cards in envelop and handed over the same, in a sealed condition to the I.O. He also remained silent about the procedure, if any, taken by him before and after taking the sample, what to talk about any precaution taken during the process of obtaining such sample. The Investigating Officer has also not deposed that PW-18 had given the blood sample of accused on FTA card in a sealed envelop to him.

60. In the cases, where the strict punishment has been provided by the law, it is obligatory upon the prosecution to prove by leading the positive evidence that every precaution has been taken to keep the FTA card, upon which, the blood samples of the accused were allegedly obtained by PW-18 in a safe condition right from obtaining the blood samples till the same is submitted by the police to the authorities at FSL, Junga for DNA profiling. In the absence of the positive evidence, nothing can be presumed.

61. The other material evidence regarding the obtaining of blood samples of child victim is PW-21 Dr. Akant Kaushal. Like PW-18, this witness has deposed that after obtaining the blood sample of the child victim on the FTA card, he had put the same in a sealed parcel and handed over the same to the I.O. for further transmitting the same to FSL, Junga for DNA profiling. However, he has not deposed the specimen of seal by which, he had sealed the parcel. In the absence of deposition by PW-18 and PW-21, this Court is not inclined to attach any probative value to the statement of MHC who has deposed about the manner in which, he had kept the samples in Malkhana and further transmitted the same to the FSL, Junga for DNA profiling. For the sake of repetition, both these witnesses i.e. PW-18 and PW-21 have not deposed even about the alleged sealing process conducted by them, what to talk about the precautions to be taken as per the decision of the Hon’ble Apex Court in ‘Manoj’ case cited supra.

62. It has rightly been pointed out by the learned counsel appearing for the accused that much relied document Ext. P-Y is containing the averments which are contrary to the deposition of the doctor PW-18, who had collected the blood sample of the accused on FTA card. As per reference given in the report, the parcel 3, which was stated to be containing the FTA card containing the blood sample of the accused, when received in the laboratory was found sealed with three seals of seal ‘A’. The blood sample of the accused was collected by PW-18 Dr. Suraj Bhardwaj on FTA card. There is no whisper in his deposition that the parcel containing the FTA card was ever sealed by him, what to talk about deposing that the same was sealed with three seals of seal ‘A’. This witness has not deposed that he had handed over the FTA card containing the blood samples of the accused to SI Kalyan Singh in a sealed condition. Even otherwise, SI Kalyan Singh while appearing in the witness box as PW-20 has not deposed that the doctor had handed over the blood samples of the accused on FTA card for DNA profiling in a sealed cover, then the averments made in the report Ext. P-Y regarding the sealing of the parcels with three seals of ‘A’ is not liable to be accepted as a gospel truth.

63. Neither PW-18 nor PW-21 have deposed about the manner, in which, they had collected the blood samples of the accused and the child victim. Before accepting the report Ext. P-Y, it was incumbent upon the prosecution to prove on record, by way of positive evidence that every precaution at the time of collecting the blood samples. It is for the prosecution to rule-out the possibility of the samples being contaminated. In the absence of evidence how the samples were collected as well as the fact that the sample of the blood of the accused on FTA card was not handed over to the police in a sealed condition, it will not be safe to rely upon the report Ext. P-Y, in this case.

64. The star witnesses of the prosecution have turned hostile and the manner, in which, the blood samples of the accused were collected by PW-18 Dr. Suraj Bhardwaj, the evidentiary value of the report Ext. P-Y comes under the cloud of suspicion and it would not be safe for this Court to rely upon said report.

65. In view of the above, there was no occasion for the learned trial Court to draw a presumption under Section 29 of the POCSO Act as for drawing such a presumption, firstly, the prosecution has to prove the case, against the accused beyond any shadow of doubt, as the initial burden to prove the guilt of the accused always remain on the prosecution and no conviction can be based merely on the basis of Section 29 of the POCSO Act, as such, the judgment of conviction passed by the learned trial Court does not sustain in the judicial scrutiny by this Court.

66. Consequently, the appeal is allowed by setting aside the impugned judgment of conviction. The accused, who is in judicial custody, is ordered to be set free forthwith, if not required in any other case.