KANU MOHAN MARATHA v. STATE — 1984 DIGILAW 98 (GUJ)

J. P. DESAI, J. ( 1 ) XXX xxx xxx ( 2 ) XXX xxx xxx ( 3 ) XXX xxx xxx ( 4 ) XXX xxx xxx ( 5 ) XXX xxx xxx ( 6 ) XXX xxx xxx ( 7 ) XXX xxx xxx ( 8 ) XXX xxx xxx ( 9 ) XXX xxx xxx ( 10 ) XXX xxx xxx ( 11 ) XXX xxx xxx ( 12 ) XXX xxx xxx ( 13 ) XXX xxx xxx ( 14 ) XXX xxx xxx ( 15 ) XXX xxx xxx ( 16 ) XXX xxx xxx ( 17 ) XXX xxx xxx ( 18 ) XXX xxx xxx ( 19 ) THE prosecution also relies upon the circumstance and in our opinion a very vital and important circumstance and it is the find of semen of AB group on the petti-coat of Mangu recovered from the scene of the incident. It also appears that one torn white cotton red bordered Saree with red design was produced by Mangu before police. Ex. 88 shows that this Saree was produced by Mangu and that there were blood stains on the same. Ex. 89 shows that this Saree was given Ex. 10 by the Forensic Science Laboratory. Ex. 89 also shows that human blood of AB group was found on this Saree. It is the prosecution case that the blood of the deceased was not of AB group but was of A group. It is further the case of the prosecution that the blood of accused No. 1 is of AB group. Now blood stained articles which were recovered from the scene of the incident and blood stained clothes attached from the body of the deceased which were given Exhibits 1 3 4 6 7 15 16 17 18 and 19 were found to have been stained with human blood of A group. Some clothes produced by Mangu which are collectively given Ex. 9 by the Forensic Science Laboratory also bore human blood of A group. In view of this we can say with reasonable certainty that blood group of the deceased was A. ( 20 ) NOW the next question is whether the prosecution is able to establish that the blood group or the saliva group of accused No. 1 is AB. The prosecution has examined Dr. Lavendrasinh Gohel P. W. 4 at Ex. In view of this we can say with reasonable certainty that blood group of the deceased was A. ( 20 ) NOW the next question is whether the prosecution is able to establish that the blood group or the saliva group of accused No. 1 is AB. The prosecution has examined Dr. Lavendrasinh Gohel P. W. 4 at Ex. 31 He produces the Yadi Ex 32 written to him by the Investigating Officer. That Yadi Ex. 32 shows that on 21-9-1980 accused Nos. 1 and 2 were sent by the Police Officer to the Civil Hospital for ascertaining the blood group of these two accused. Dr. Gohel deposes that he accordingly prepared the case papers Exs. 33 and 34 and forwarded the two accused for analysis of their blood for ascertaining the group. It appears from the endorsement made on the case papers that they were referred to the Pathology Department. The evidence of Dr. Saroj Ramesh P. W. 13 Ex. 83 shows that she collected the sample blood of these two persons who were sent to her on 21-9-1980. She further deposes that on analyses it was found that the blood group of Kanubhai Madhubhai was AB RH positive and she issued a certificate accordingly at Ex. 84. She further deposes that the blood group of Sursinh @ Ramsinh Jivaji was O RH Positive and the certificate was Ex. 85. The two certificates bore her signatures as stated by her. She had also taken the EPR Register to the Court while giving evidence. She deposes that the findings are first noted in the EPR Register and the certificate is issued thereafter. In cross-examination she admitted that the Register which she had brought to the Court did not bear her signature but it was written by her Technician Mr. S. T. Solanki. She even admitted that the blood samples were analysed by Ms. Solanki though of course according to her in her presence. She has produced the relevant extract from the Register at Ex. 86. The prosecution has not examined the Technician Mr. S. T. Solanki as a witness. Now ordinarily there would not have been any difficulty in relying upon the evidence of Dr. Saroj Ex. 83 read with the certificates Ex. Solanki though of course according to her in her presence. She has produced the relevant extract from the Register at Ex. 86. The prosecution has not examined the Technician Mr. S. T. Solanki as a witness. Now ordinarily there would not have been any difficulty in relying upon the evidence of Dr. Saroj Ex. 83 read with the certificates Ex. 84 and 85 in coming to the conclusion that the blood group of accused No. 1 was AB RH Positive while that of accused No. 2 was O RH Positive. But we have on record the two case papers Exs. 33 and 34 out of which Ex. 33 raises some doubt so far as the blood group of accused No. 1 is concerned. Dr. Gohel Ex. 31 has stated that the patients whose blood is to be analysed are sent to the Pathology Department along with the case paper and they are returned back to him with findings recorded in the same. The case paper in respect of accused No. 1 Kanu Mohan is at Ex. 33. A carbon copy of the same is also produced along with the same. The case paper in respect of accused No. 2 is at Ex. 34 and a carbon copy of the said case paper also produced by Dr. Gohel. No separate exhibit is given to the carbon copies but it appears that the case along with the corresponding carbon copy was collectively given Ex. 33. Now the carbon copy of Ex. 33 shows that there is a finding recorded on the same as follows:"blood Group: A RH Positive So far as the carbon copy of Ex. 34 is concerned the finding is recorded as follows:blood Group: O RH Positive. Looking to the evidence of Dr. Gohel it appears that the case papers are returned to him from the Pathology Department after recording the findings on the case papers. In view of this an in ference can be drawn that these findings on these two carbon copies of these two case papers must have been recorded by some one in the Pathology Department. Now these two case papers Exs. 33 and 34 were shown to Dr. Saroj P. W. 13 Ex. 83 during her examination in-chief. The carbon copies which were shown to her are also referred to as Exs. Now these two case papers Exs. 33 and 34 were shown to Dr. Saroj P. W. 13 Ex. 83 during her examination in-chief. The carbon copies which were shown to her are also referred to as Exs. 33 and 34 which leaves no doubt that collective exhibits are given to the case papers along with the corresponding carbon copies. Dr. Saroj has stated that findings on these two case papers were not in her hand. She specifically stated that the findings Blood Group A RH Positive below Exs. 33 and Blood Group: O RH Positive below Ex. 34 were not in her hand. In cross-examinaion she admitted that usually the original case papers are sent to her but she cannot say whether these case papers were sent to her or not. No distinction appears to have been made by Dr. Gohel or by Dr Saroj between the case paper Ex. 33 and the corresponding carbon copy of the same. Dr. Gohel has produced the originals as well as the carbon copies of Exs. 33 and 34. There is nothing in the evidence of Dr Gohel to show as to whether he used to send the original case paper to the Pathology Department or the carbon copy thereof. But looking to the fact that endoresements are made on the carbon copies of Exs. 33 and 34 it appears that the doctor must be retaining the original case paper anal forwarding the carbon copy of the same to the Pathology Department and the Pathology Department must be returning the carbon copy with a finding recorded on the same about the blood group of that patient. We have thus on one hand the evidence of Dr. Saroj Ramesh read with the certificate Ex. 84 that the blood group of accused No. 1 was AB RH Positive and on the other hand an endorsement below Ex. 33 that the blood group was A RH Positive. The prosecution has not tried to explain how this endorsement came to be made on the case paper Ex. 33. The prosecution appears to have rest contented only by showing during the evidence of Dr. Saroj that the Endings on the Exs. 33 and 34 were not in her hand-writings but the prosecution has not tried to go any further explaining as to how and under what circumstances such finding was recorded on Ex. 33. 33. The prosecution appears to have rest contented only by showing during the evidence of Dr. Saroj that the Endings on the Exs. 33 and 34 were not in her hand-writings but the prosecution has not tried to go any further explaining as to how and under what circumstances such finding was recorded on Ex. 33. It was the duty of the prosecution to have cleared the doubt raised by this endorsement made on Ex. 33 which endorsement is contrary to the evidence of Dr. Saroj so far as the blood group of accused No. 1 is concerned. Mr. S. T. Solanki the Technician is not examined. Ordinarily one would not expect the Technician being examined when the doctor in whose presence and under whose supervision the blood was analysed is examined. But when such a finding is recorded on Ex. 33 in the hand of some-one other than Dr. Sari and when the original Register maintained by the Department an extract from which is produced at Ex. 86 does not bear even the signature of Dr. Saroj the prosecution ought to have examined the Technician Mr Solanki whose evidence might have cleared the doubt which is raised by the findings recorded on Ex. 33. The prosecution having not made any such effort we have on one hand the evidence of Dr. Saroj read with Ex. 84 the certificate issued by her that the blood group of accused No. 1 was AB RH Positive while on the other we have the case paper Ex. 33 which shows that the blood group of accused No. 1 was A RH POSITIVE. In view of this conflicting evidence on record it is not possible to persuade ourselves to come to a clear finding that the blood group of accused No. 1 was definitely AB . ( 21 ) IT is also the case of the prosecution that blood and saliva of accused Nos. 1 and 2 More collected by the Resident Medical Officer Civil Hospital Ahmedabad on 24-9-1980 and were sent to the Forensic Science Laboratory at Ahmedabad and on analysis it was found that the group of blood and saliva of accused No. 1 was AB while that of accused No. 2 was O. We have on record Exs. 1 and 2 More collected by the Resident Medical Officer Civil Hospital Ahmedabad on 24-9-1980 and were sent to the Forensic Science Laboratory at Ahmedabad and on analysis it was found that the group of blood and saliva of accused No. 1 was AB while that of accused No. 2 was O. We have on record Exs. 90 and 91 which appear to be letters written by the Police Officer to the Forensic Science Laboratory with a request to analyse the blood and saliva collected by the R. M. O. on 24-9-1980. Except Exhibit 90 and 91 there is no material on record to show that the blood and saliva of accused Nos. 1 and 2 were collected and forward to the Forensic Science Laboratory for analysis. The doctor who collected the blood and saliva of these two accused is not examined as a witness in this case. The Police Officer must have naturaly written a Yadi to the Civil Hospital authorities on 24 requesting them to collect the blood and saliva of these two accused. No copy of any such Yadi is produced in this case. We may mention here that when accused Nos. 1 and 2 were sent to the Civil Hospital on an earlier occasion i. e. on 21-9-1980 a Yadi was written by the Police Inspector to the Police Surgeon Civil Hospital Ahmedabad with a request to ascertain the blood group of these two accused. A copy of that Yadi has been produced at Exhibit 32 in this case. But so far as the collection of blood and saliva of 24 is concerned the prosecution has not even produced any copy of any such Yadi which must have been Written by the Police Officer to the Civil Hospital authorities requesting them to collect the blood and saliva of these M accused. The Civil Hospital authorities must have naturally written a Yadi to the Police Officer stating therein that the blood and saliva of these two accused were collected and forward for necessary action. Copy of any such Yadi which might have been written by the Hospital authorities to the Police Officer is also not produced in this case. The Civil Hospital authorities must have naturally written a Yadi to the Police Officer stating therein that the blood and saliva of these two accused were collected and forward for necessary action. Copy of any such Yadi which might have been written by the Hospital authorities to the Police Officer is also not produced in this case. Even the Police Officer Babuarao Patil P. W. 42 Exhibit 112 has also not stated a word in his deposition that he forwarded these two accused to the Civil Hospital on 24-9-80 for collection of their blood and saliva. It is pertinent to note that in his deposition at para 2 he has stated that he had forward the two accused to the Civil Hospital on 21-9-1980 for ascertaining the group of blood and sc-men of these two accused. So far as this is concerned evidence is already lcd by the prosecution by examining Dr. Gohel and Dr. Saroj. We are mentioning this fact here with a view to show that even the Police Officer does not say a word in his deposition so far as the collection of blood and saliva on 24-9-1980 is concerned. The two letters Exhibit 90 and 91 only go to show that samples of blood and saliva purporting to be of Kanu Mohan and Sursing alias Ramsinh Jivaji were sent by the Police Officer to the Forensic Science Laboratory for analysis and finding as regard the group. But in absence of the evidence of the Medical Officer or any other witness that these two accused were sent to the Civil Hospital on 24-9-1980 and that their blood and saliva were collected and properly sealed and labelled and sent to the Police Officer for onward transmission it is difficult to say that the blood and saliva analysed by the Forensic Science Laboratory were those of these two accused and none else. This omission on the part of the prosecution was noticed by us after the part of the judgment was dictated on 23rd instant and it was also noticed on perusing the carbon copy of Exhibit 33 in the original record Of the trial court that there was an endorsement below the carbon copy of Exhibit 33 that the blood group was A RH Positive. We drew the attention of the learned Additional Public Prosecutor Mr. We drew the attention of the learned Additional Public Prosecutor Mr. Divetia to go through the papers and find out if there was any evidence except mention in the two letters Exhibits 90 and 91 that the blood and saliva of accused Nos. 1 and 2 were collected and properly scaled and labelled and sent to the Police Officer for onward transmission and then to address us. He was also asked to address us on the endorsement below Exhibit 33 which was contrary to the evidence of Dr. Saroj. Mr. Divetia on going through the record stated that he was unable to find out any other evidence on record except Exhibit 90 and 91. He was not in a position to satisfy us as to how it can be held on the evidence of Dr. Saroj that the blood group of accused No. 1 was AB group when there was an endorsement to the contrary on Exhibit 33. He was also unable to satisfy us as to how it was possible to hold that the blood and saliva analysed by the witness Jitendra Dave in the Forensic Science Laboratory were those of accused Nos. 1 and 2 and none else when there was no evidence about the collection of blood and saliva of these two accused the Civil Hospital. It is true that accused No. 1 in his statement Exhibit 3 has admitted that his blood and saliva were collected on reply to Q. 190 ). Now there was no evidence on record that the blood and saliva of this accused were collected on 24-9-1980. The learned trial Judge also did not put any question to accused No. 1 that his blood and saliva were collected. Question No. 190 to which the above reply was given by accused No. 1 was that blood and saliva of this accused as well as accused No. 2 were analysed by the witness Jitendra Dave and he found the group AB so far as accused No. 1 is concerned and the group O so far as accused No 2. is concerned. To that question he replied that it was true that his blood and saliva were collected but he did not know whether they were analysed. is concerned. To that question he replied that it was true that his blood and saliva were collected but he did not know whether they were analysed. When there was no evidence on record about collection of blood and saliva of accused No. 1 his reply to question No. 190 should be restricted only as regards analysis and not as regards collection. The reply given by him cannot fill up the lacuna in the prosecution evidence. His reply again does not show that blood and saliva were collected on 24-9-1980 in the Civil Hospital and that they were properly labelled and sealed. The prosecution should have led evidence not only that the blood and saliva of this accused were collected but that they were the same which were sent to the Forensic Science Laboratory and analysed by the witness Jitendra Dave who found the group AB. There being 119 such evidence on record the statement made by accused No. 1 in reply to question No. 190 does not advance the case of the prosecution any further. It is thus clear that an important link is missing so far as this aspect of the matter is concerned. ( 22 ) NOW when the prosecution has not examined the Medical Officer or any other witness to establish the first step so far as this aspect is concerned it does not advance the case of the prosecution any further; even though the evidence of the witness Jitendra Dave Exhibit 87 as we shall discuss hereafter leaves no doubt that blood and saliva purporting to be those of Kanu Mohan were found to be of AB group and that the semen stains which were found on the petti-coat attached from the scene of offence also revealed AB group. ( 23 ) THE evidence of the Assistant Director-cum-Assistant Chemical Analyser Jitendra Dave is recorded at Ex. 87. His evidence shows that the samples of blood and saliva which were sent to his Laboratory were analysed and it was found that they were of AB and O group respectively. His evidence read with the report Exhibit 93 shows that the group was AB so far as blood and saliva purporting to be those of Kanu Mohan are concerned while the group was O so far as blood and saliva purporting to be those of Sursinh are concerned. His evidence read with the report Exhibit 93 shows that the group was AB so far as blood and saliva purporting to be those of Kanu Mohan are concerned while the group was O so far as blood and saliva purporting to be those of Sursinh are concerned. His evidence further shows that the petti-coat given Exhibit 9 by him which was attached from the scene of offence by the police had several stains by semen and the group was found to be AB on analysis. The report is Exhibit 89. This witness stated in examination-in-chief about the analysis done by him and his findings and stated that he had issued the respective reports. In cross-examination he stated that the saliva has also different groups just like blood groups. He further stated that the semen saliva and blood will be of the same group of one individual. This statement made by him in his cross-examination was clear to indicate that the group of blood saliva and semen cannot be different in respect of the same individual. There-after he stated as follows in his cross-examination:"it is not necessary to say that it would not be correct to say in all the cases". This complex sentence contains two negatives and did not give us a complete idea as to what the witness intended to convey by giving this reply. In view of this we passed an order to recall this witness and his further evidence was recorded in this Court. His attention was drawn to the above complex sentence and was asked as to what exactly he meant by this reply. He stated before this Court as follows: By the said reply I mean that the group of the semen saliva and blood will be the same of the same individual. This cleared the doubt raised by the complex sentence which appeared in the cross-examination of this witness before the Trial Court. It is difficult to say that this witness is now moulding his reply in this Court because if we read the complex sentence after omitting both the negatives it clearly appears that the witness intended to convey what he stated by way of clarification in his evidence in this Court. It is difficult to say that this witness is now moulding his reply in this Court because if we read the complex sentence after omitting both the negatives it clearly appears that the witness intended to convey what he stated by way of clarification in his evidence in this Court. The witness of course added that there are two types of people one belonging to secreting type and the other belonging to non-secreting type and that it will not be possible to detect the group in saliva or semen of the persons who belong to non-secreting type. So far as the blood and saliva sent to the Forensic Science Laboratory for analysis are concerned it was possible to detect the group and therefore we can say that these two persons belong to secreting type. Similarly it was possible to detect the group of the semen on the petti-coat Ex. 9 and therefore we can say that the person whose semen was found on the petti-coat belonged to secreting type. The fact that it is possible to analyse the group of saliva and semen indicates that that individual belongs to secreting type. In further questions by this Court this witness also stated that as the semen which was found on the petti-coat Ex. 9 revealed AB group it can certainly be said that the blood of the person whose semen was found on the petti-coat must be of AB group and that the blood of that person could not be of any other group. He has further stated that if a person who falls in the group Secreting type is of A group then the semen on analysis will reveal the said group viz. A group and no other group. He than explains how the group detected in the semen and saliva will be the same as that dictated on analysis of the blood. In Modis Textbook on Medical Jurisprudence and Toxicology) 20th (1977) Edition Chapter V we find discussion about the blood groups and other fluids. The discussion at page 101 shows how group of the blood is detected and it says that there are four groups of the blood viz. A B AB and O. The discussion about examination of seminal stains is at pages 103 and 104 and also at page 105 there is discussion about the grouping under the heading Identification of Blood Groups. A B AB and O. The discussion about examination of seminal stains is at pages 103 and 104 and also at page 105 there is discussion about the grouping under the heading Identification of Blood Groups. The discussion made therein shows that blood group antigens A B and H are identified in seminal stains by following the mixed agglutination and absorption elution methods. The discussion about examination of saliva stains is on the same page 105. The discussion under the heading General shows that saliva urine and faecal stains are encoutered but not so frequently as blood and semen stains but they do provide significant evidence in the peculiar context of a crime case. It is further observed therein that in a case for instance where a criminal leaves no other clue at the scene of crime but a piece of smoked cigarette saliva stains detected on this stub is good enough to find the blood group of the person concerned. In Taylors Principles and Practice of Medical Jurisprudence 12 (1965) Edition Vol. II at page 71 it is observed under the heading Precipitin and Grouping Tests for Semen as follows:"the precipitin test may be applied to spermatic fluid in the same way as in testing for the origin of blood but it must be remembered that group-specific substances will be present only in the semen of secreting individuals of groups A B and AB. An absence of both group-specific substances from a seminal stain does not permit of a deduction as to whether the stain is from a group O person or from a non-secretor. The observations made in the above two books which are standard boob on this subject support the say of this witness Jitendra Dave Ex. 87 that the group of the semen saliva and blood will be the same in case of the same individual. In view of this evidence of this witness Jitendra Dave we can say that the blood group of the person whose semen was found on the petti-coat Ex. 9 must be J B. We can also say that the saliva group of that person must also be AB. We can also say that the semen which was found on the petti-coat Ex. 9 must be J B. We can also say that the saliva group of that person must also be AB. We can also say that the semen which was found on the petti-coat Ex. 9 must not be of the deceased because as stated a little earlier the blood group of the deceased proved to be A. In view of this if the prosecution had lcd proper evidence to establish that the blood and saliva samples of accused No. 1 were collected and then sent to the Forensic Science Laboratory then the evidence of the witness Jitendra Dave read with the reports issued by him would have definitely pointed in the direction of accused No. 1 being the person who had sexual intercourse with Bai Mangu soon after the incident on the spot as deposed to by Bai Mangu. But the prosecution having not led any evidencein this direction viz. collection of blood and saliva of accused No. 1 it is not possible for us to hold that the semen which was found on the petti-coat was of accused No. 1. The presence of semen stains of AB group on the petti-coat attached from the scene of offence thus does not lead corroboration to the evidence of Bai Mangu that it was accused No. 1 and none else who had sexual intercourse with her soon after the incident though we can definitely say that the person who had sexual intercourse with Bai Mangu was someone else other than her husband whose group was A" ( 24 ) XXX xxx xxx ( 25 ) XXX xxx xxx ( 26 ) XXX xxx xxx ( 27 ) BEFORE parting with this case or would like to observe here that it pains us that accused No. 1 is being acquitted mainly because the prosecution did not take pains either to lead evidence about collection of blood and saliva of accused No. 1 on 24-9-1980 or to examine the Technician Mr. Solanki and/or any other witness to clear up the doubt raised by the endorsement made on the case-paper Ex. 33 that the blood group of accused No. 1 was A RH Positive. Solanki and/or any other witness to clear up the doubt raised by the endorsement made on the case-paper Ex. 33 that the blood group of accused No. 1 was A RH Positive. If the prosecution had hod reliable and convincing evidence to show that the blond group of accused No. 1 was AB then that circumstance would have assured us that Mangu was telling the truth about the involvement of accused No. 1 in this incident. That circumstance if established would have left no doubt in our mind about the involvement of accused No. 1 in this incident. The prosecution having failed to lead evidence on this important point it has to thank itself It is rather surprising that even though it was brought on record that there was an endorsement on the case-paper Ex. 33 that the blood group of accused No. 1 was A RH Positive which was contrary to the evidence of Dr. Saroj no effort was made by the prosecution to explain how and under what circumstances and in whose hand such an endorsement came to be made below Ex. 33. It is rather surprising that even though the learned Public Prosecutor who conducted the prosecution in the trial Court realize that such an endorsement was made below Ex 33 which was found to be contrary to the evidence of Dr. Saroj and which endorsement was not in the hand of Dr. Saroj he rest contented only by briging out in the evidence of Dr. Saroj that the endorsement was not in her hand. The prosecution also did not examine the Technician Mr. Solanki inspite of the fact that such endorsement was found on Ex. 33 and inspite of the further fact that the evidence of Dr. Saroj disclosed that the sample was analysed by Mr. Solanki and not by her and that the entry in the register was also made by Mr. Solanki and not by her. It is also rather surprising that the prosecution did not bring out in the evidence of the Police Inspector that the blood and saliva of accused No. 1 were collected and forwarded to the Forensic Science Laboratory for analysis. Solanki and not by her. It is also rather surprising that the prosecution did not bring out in the evidence of the Police Inspector that the blood and saliva of accused No. 1 were collected and forwarded to the Forensic Science Laboratory for analysis. It is rather surprising that even copy of the Yadi which must have been written by the Police Inspector to the Civil Hospital authorities requesting them to collect the blood and saliva nor a copy of the Yadi which must have been written by the Medical Officer to the Police Inspector forwarding the blood and saliva samples have been produced in this case. We are consrained to say that want of proper care on the part of the prosecution in this regard has resulted in the acquittal of accused No. 1 which would not have been the case if they had led proper evidence in this regard. Order accordingly. .