Crl. A./14/2014 of Surya Baraily Vs State Of Sikkim on 22 September 2015

HI GH COURT OF SI KKI M : GANGTOK

(Criminal Appellate Jurisdiction)

Date: 22.09.2015

------------------------------------------------------------------------ S.B. : HON’BLE MR. JUSTI CE S.P. W ANGDI , JUDGE

------------------------------------------------------------------------ Crl A No.1 4 of 2 01 4

Appellant

: Surya Baraily,

S/ o Damber Baraily, R/ o Charali, Hariya Budhubarey, District Jhapa, Nepal, A/ P Upper Suldung, Mangalbaria, West Sikkim.

Versus

Respondent

:

State of Sikkim

Application under Section 3 74 ( 2 ) of the Code of Crim inal Procedure, 1 97 3.

---------------------------------------------------------------------- Appearance Mr. Udai P. Sharma, Legal Aid Counsel with Mr. Yok Kumar Rai and Mr. Passang Tshering Bhutia, Advocates for the Appellant.

Mr. Karma Thinlay Namgyal, Additional Public Prosecutor with Mrs. Pollin Rai, Assistant Public Prosecutor for the State-Respondent.

---------------------------------------------------------------------- JU DGME N T(ORAL)

W angdi, J.

[ 1 ] This Appeal is directed against the judgment of the Learned Judge, Fast Track Court, South Sikkim at Namchi, dated 21.09.2013 in Sessions Trial (Fast Track) Case No.26 of 2013, by which the Appellant was convicted for having committed offence under Section 376 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced to undergo imprisonment for 7 (seven) years and to pay a fine of Rs.1,000/ - (Rupees one thousand) in default of payment of which he was directed to undergo further imprisonment of 2 (two) months.

[ 2 ]The gravamen of the prosecution case is that based upon First Information Report, Exhibit 2 dated 05.10.2012, lodged at the Mangalbaria Police outpost by one Ratna Bahadur Biswakarma and Bishnu Maya Biswakarma of Upper Suldung, West Sikkim, stating that on finding her youngest daughter of less than 12 years of age to be pregnant, as a consequence of sexual assault by the Appellant, case under Section 376 IPC was registered by the Naya Bazar Police Station against him and investigation taken up. As a result of the investigation it came to light that, taking advantage of victim being alone in the house at night, when her parents were away, the Appellant had sexually assaulted her.

[ 3 ]Without going further into the details of the prosecution case, it is sufficient to note that after the investigation, charge-sheet was filed against the Appellant having found sufficient evidence of him having committed the offence of rape against victim child.

[ 4 ]The Learned Fast Track Court which had conducted the trial against the Appellant, eventually found the Appellant guilty of the charge under Section 376 IPC and was accordingly convicted and sentenced as already alluded to.

[ 5 ]It is eminent and paramount to note that the complaint against the Appellant was based upon the finding that the victim was found pregnant by 4 (four) months and the cause of her pregnancy was said to have been the rape committed upon her by the Appellant. The other aspect which is of relevance is that the charge-sheet had been filed against the Appellant even before receipt of the Forensic Report Exhibit 40, in respect of the DNA test on the samples of blood taken from the victim P.W. 2, the child and the Appellant. This fact is not disputed and is also quite evident from what appears in the evidence of the prosecution, particularly that of the (Investigating Officer) and also from paragraph 27 of the impugned judgment. Thus, there is no doubt of the fact that the impugned judgment came to be passed by the Learned Trial Court without it having the benefit of considering the DNA report.

[ 6 ] During the course of the hearing of this Appeal, it was brought to the notice of this Court that the CFSL Report, Exhibit 40, pertaining to the DNA as referred to earlier, had been received after the pronouncement of the impugned judgment and during the pendency of this Appeal.

[ 7 ]Thus, on 15.10.2014 Mr. U. P. Sharma, Learned Legal Aid Counsel for the Appellant, submitted that it was vital for the Appellant to take the CFSL report on record and accordingly prayed that an appropriate order be passed for adducing additional evidence. If not, serious prejudice may be caused to the Appellant. Order dated 15.10.2014 was accordingly passed, relevant portion of which reads as follows.

“In view of the above and in the interest of justice, it is appropriate that further evidence be taken on the following: -

(i) The CFSL report dated 14-06-2013 submitted by Dr. (Mrs.) Soma Roy, Examiner-cum-Reporting Officer, Senior Scientific Officer (Biology), CFSL Laboratory, Kolkata be exhibited. submitted by Dr. (Mrs.) Soma Roy, Examiner-cum-Reporting Officer, Senior Scientific Officer (Biology), CFSL Laboratory, Kolkata be exhibited.

(ii) Dr. (Mrs.) Soma Roy, Senior Scientific Officer (Biology), CFSL Laboratory, Kolkata, be examined. Officer (Biology), CFSL Laboratory, Kolkata, be examined.

While taking additional evidence on the above aspect, liberty be afforded to both the parties to examine the witness and also place such other evidence as may be found necessary and admissible in law. It is made clear that the evidence shall be confined to the DNA report only.”

[ 8 ]The additional evidence thus recorded in compliance of the aforesaid direction was taken on record by order dated 04.11.2014 and was considered at the hearing of the Appeal. In my view, this report on the DNA samples goes to the root of the prosecution case. The relevant portion of the DNA report reads as follows: - “From the above observations, it is concluded that the genetic profile of Mr. Surya Baraily (source of Exhibit- A) is not thebiological father of the Baby Sapana Baraily (source of Exhibit-C) daughter of Ms. Arpana Biswakarma (source of Exhibit - B).” profile of Mr. Surya Baraily (source of Exhibit- A) is not thebiological father of the Baby Sapana Baraily (source of Exhibit-C) daughter of Ms. Arpana Biswakarma (source of Exhibit - B).”

[ 9 ]Dr.(Mrs.) Soma Roy, the Senior Scientific Officer, CFSL, Kolkata, who conducted the DNA test, was produced as P.W. 20 and in her evidence she has proved the CFSL Report, Exhibit 40 and other cognate evidence, namely, genetic profile of the Appellant, Exhibit ‘A’, that of the child, Exhibit ‘C’ and of the prosecutrix, Exhibit ‘B’. As per her opinion, the Appellant is not the biological father of the baby, Sapana Baraily. It may be noted that the Senior Scientific Officer, P.W. 20, is a prosecution witness and it is a trite position that evidence of a prosecution witness can be relied upon by an accused in his defence.

[ 1 0 ]Mr. U. P. Sharma, strongly refers to and relies upon this evidence to submit that by it the very foundation of the Prosecution case is set at naught.

[ 1 1 ]Mr. Karma Thinlay Namgyal, Additional Public Prosecutor, fairly concedes to this position and the evidence appearing on the records. As per him, the value of DNA report as a reliable evidence is no more resintegrain view of the decision of the Hon’ble Supreme Court in the case of Kam ti Devi ( Sm t) And Another Vs. Poshi Ram : ( 20 01 ) 5 SCC 31 1, where it has, inter alia, been held that “the result of a genuine DNA test is said to be scientifically accurate.” Notwithstanding this, even if we consider the case on the anvil of the principle underlying Section 112 of the Indian Evidence Act, 1872, it cannot be said that the case against Appellant stands established having regard to the categorical evidence of the prosecutrix that “except on the relevant night, the accused did not commit offence” against her.

[ 1 2 ] From the facts and circumstances discussed above and upon consideration of the records as well as the oral submissions of Learned Counsel for the parties, there is no dispute that the very basis of the allegation against the Appellant in the FI R was the prergnancy of the prosecutrix, the cause of which was said to have been him. Thus, the entire case of the prosecution hinged upon the proof that the child was indeed that of the Appellant. We have already noted that the CFSL Report, Exhibit 40, clearly reflects to the contrary. Apart from the DNA report and the statement of the prosecutrix, no other evidence is found on the record to support the prosecution case and pass the rigors of proof beyond reasonable doubt.

[ 1 3 ]As also noted, the Learned Trial Court did not have the benefit of considering the CFSL Report, which if it had, would have given a different complexion to the prosecution case.

[ 1 4 ]For the aforesaid reasons, I am inclined to allow the Appeal.

ds/ to

[ 1 5 ]In the result, the Appeal is allowed.

Consequently, the impugned judgment of the Fast Track Court is set aside and the Appellant is acquitted of the charge under Section 376 IPC.

[ 1 6 ]The Appellant be released forthwith from custody, if he is not required in any other case.

[ 1 7 ]Copies of this judgment be transmitted immediately to the Court of the Learned Sessions Judge, Fast Track, West Sikkim at Gyalshing and the Superintendent of State Prison, Gangtok, for its due compliance.

( S. P. W angdi )

Judge

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