The State v. Brojan Biswas

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION CIRCUIT BENCH AT PORT BLAIR ....

PRESENT: THE HON'BLE JUSTICE JOYMALYA BAGCHI AND THE HON'BLE JUSTICE GAURANG KANTH CRA (DB)/7/2022 The STATE ...

APPELLANT VS.

BROJAN BISWAS ...

RESPONDENT For the Appellants : Ms. A. S. Zinu For the Respondents : Mr. Alokesh Sarkar Heard on : July 2, 2024 Judgment on : July 2, 2024 JOYMALYA BAGCHI, J.

1.

The appeal against acquittal has been preferred by the State against the judgment and order dated July 01, 2022 whereby the respondent was acquitted of the charge under section 6 of the POCSO Act. 2.

Prosecution case against the respondent who is the maternal grandfather of the minor victim is to the effect that in the month of December, 2021. The respondent had committed aggravated penetrative

sexual assault on the victim at a jungle situated at Madhupur, Police Station Diglipur. As a result, victim had become pregnant. During investigation, DNA samples of the fetus and that of the respondent were sent for DNA analysis. Though the DNA report had not been received, police report was filed on March 16, 2022 and trial commenced. 3.

During trial, prosecution examined 16 witnesses including the victim PW-5. She deposed in the last part of the December, 2021 the respondent had raped her in a jungle. On March 15, 2022, she was taken to the hospital. Doctor declared she was pregnant and FIR came to be registered. Trial Judge took into consideration the entries made in the medical report which showed that the victim's last menstrual period (LMP) was in the second week of January, 2022. This noting, as per the learned Judge, improbabilised the penetrative sexual assault in December 2021 resulting in pregnancy. Accordingly, he acquitted the respondent. 4.

Ms. A. S. Zinu for the appellant-State contends after delivery of judgment, DNA report showing the respondent is the biological father of the fetus, was received by the prosecution. Had this is vital piece of evidence been produced, the Trial Court would certainly have taken a different view. She prays that the case be remanded for adducing the clinching evidence which has subsequently surfaced.

5.

Learned counsel for the respondent submits that noting in the medical report with regard to the last menstrual period (LMP) improbabilises the prosecution case that the victim was raped in December

2021 resulting in pregnancy, Once being acquitted, his client cannot be subjected to a second trial.

6.

The moot issue which falls for decision is whether the prosecution is justified to seek remand of the case for proving the DNA report after the respondent had been acquitted. The prosecution case involves penetrative sexual assault on a 15 year old girl by her own grandfather. PW-5, the minor victim stated that she had been raped by her grandfather in the last part of December, 2021. During investigation, samples from her fetus and that of the respondent were sent for the DNA analysis. Unfortunately, the DNA report was not received in time and the trial proceeded. 7.

Trial Judge noted the entries made in the medical records show that the last menstrual period (LMP) of the minor was in the third week of January, 2022. On such premise, he held that the allegation of penetrative sexual assault in December, 2021 resulting in pregnancy was absurd. 8.

This Court is in agreement with Ms.Zinu that the notings in the medical record was on the basis of a tentative opinion of a minor girl with regard to menstrual period and cannot stand in light of clinching DNA evidence which shows the respondent is the biological father of the fetus. 9.

It is trite a criminal case is a voyage of discovery and not a bout on procedural wrangles. Section 53 A of the Code of Criminal Procedure, inter alia, provides for mandatory examination of an accused including DNA analysis to collect evidence regarding the offence.

10.

DNA report showing a match between the accused and the fetus in the womb of the minor victim is a vital and clinching piece of evidence. As the report was received by the prosecution after the delivery of the judgment, prosecution was unable to adduce this evidence during trial. Failure to produce the DNA report in course of trial was due to circumstances beyond the control of the prosecution and the blame cannot lie at its door step. 11.

On the other hand, it is most imperative that the prosecution is given an opportunity to adduce this vital evidence for a fair and just determination of the case. Such exercise cannot by any stretch of imagination amount to a second trial but a continuation of the original proceeding for unravelling truth by giving the prosecution an opportunity to adduce a most vital piece of evidence which was not in its possession during trial.

12.

This Court is conscious that the reliability of a DNA report depends on multiple factors, i.e the manner of drawing of samples, preservation of samples, chain of custody and reasons for coming to a finding that the two samples had matched. These issues can be decided only if the case is remanded for leading further evidence by both the parties with regard to the DNA report.

13.

In the light of the aforesaid discussion, we set aside the judgment and order of the acquittal and remand the matter to permit the prosecution to lead further evidence to prove the DNA report received by it after delivery of judgment and any other evidence that it may be fit and proper.

14.

The respondent shall be at liberty to cross-examine the witnesses including the expert, if necessary and lead defence evidence, if so advised, in accordance with law.

15.

The appeal is allowed to the aforesaid extent. 16.

The Trial Court records be sent down forthwith along with a copy of the judgment and order of this Court.

17.

Urgent certified server copies, if applied for, be issued to the parties upon compliance of due formalities.

I agree.

(Gaurang Kanth, J.) (Joymalya Bagchi, J.)