DATE OF JUDGEMENT
29 January 2019
Justice V.M. Deshpande
Appellant- Shaktiman s/o Tulsidas Sondwale
Respondent- The State of Maharashtra
This is a case of conviction based on DNA. In this case the High court made it clear that it is obligatory to prove that the victim is a ‘child’ within the meaning of Sec 2(d) of the POCSO Act and that DNA by using Polymerase Chain Reaction Technique to determine paternity of the foetus and accused is valid in the court. Also, the evidence of victim was considered even though she was proved mentally retarded as that does mean that she is a lunatic.
6. Punishment for aggravated penetrative sexual assault.-- (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.
The appellant was convicted for an offence punishable under Section 376 (2) (i) (n) of the Indian Penal Code and Sections 5 (i) (ii) (I) punishable under Section 6 of the Protection of Children from Sexual Offences Act (POCSO Act) and was sentenced with rigorous imprisonment of 10 years and payment of fine of Rs.3,000/-. He was also convicted for an offence punishable under Section 506 of the IPC and he was directed to suffer rigorousimprisonment for two years. This appeal was filed to challenge the same.
The victim ( a minor) was sexually assaulted by the appellant. He lured her on the pre-text of giving something to her and when she went with him to an agricultural field, he committed sexual assault on the person twice. She told this after her mother got to know that she was almost 5 months pregnant.
Since the victim was of a tender age and un married, the request for medical termination was allowed and the pregnancy was terminated.
The counsel for appellant submitted that he had been falsely implicated in the crime. It was contended that the victim is mentally retarded and so her evidence should be excluded in its entirety. It was submitted that the victim has tuned hostile which implies that the appellant is innocent.
He also contended that the DNA report should be excluded since there was no reason for preservation of the aborted fetus for DNA testing.
Whether the evidence of victim is sustainable?
The court dismissed the appeal
The court fist made it clear that it is important to prove that the victim is a child within the meaning of Sec 2(d) of the POCSO Act. In this case, the court was satisfied that she was a minor during the incident.
The court noted that although the victim belongs to mentally retarded category, it cannot be said that she is a lunatic. It was also observed that while recording the evidence of the victim that she was able to give her evidence and that it was recorded on the satisfaction of the learned judge.
The court held that the submission that there was no reason for the medical officer to preserve the aborted fetus, in absence of registration of offence against anybody is meaningless and said that the preservation of fetus in a sealed container is not unnatural in this case as the doctor who operated the abortion was aware that the operation was done on a minor unmarried girl.
The Assistant chemical Analyser extracted DNA from the aborted fetus and then amplified that DNA by using polymerase chain reaction technique. Accordingly, after both the samples matched it was concluded that the appellant was the biological father of the fetus. This technology applied by the Assistant chemical analyser was enough to prove the same and was accepted by the court.
It was held that “Since, the prosecution has established that the victim was "Child" and paternity of the aborted fetus is of the appellant and it is duly proved by scientific method, on reappreciation of the entire prosecution case, I do not find any merit in the appeal”
The court in this case makes it clear that polymerase chain reaction technique used for amplifying DNA for paternity test is scientifically proven and can be accepted in the court. the court also established that victim might be mentally regarded but she was not a lunatic and was capable of giving evidence.
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