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2018 DIGILAW 978 (HP)

Chandresh Sharma v. State of H. P.

2018-05-24

DHARAM CHAND CHAUDHARY

body2018
JUDGMENT : Dharam Chand Chaudhary, J. Order dated 4.8.2017, passed by learned Additional Sessions Judge(II), Kangra at Dharamshala in an application under Section 216 of the Code of Criminal Procedure framing thereby additional charge under Section 376 IPC against the petitioner (hereinafter referred to as the ‘accused’), is under challenge in this petition on several grounds, however, mainly that similar application was previously dismissed by learned trial Court, hence, there being no change in the facts and circumstances, no such order could have been passed. 2. On having gone through the entire record and also taking into consideration the submissions made on behalf of the accused as well as the prosecution, it is apparent that similar application filed by the prosecution with a prayer to frame additional charge for the commission of offence punishable under Section 376 of the Indian Penal Code against the accused was dismissed by learned trial Judge with the following observations:- “…….The evidence in the present case is near completion as the only Investigating Officer is to be examined. Accused had not done any cross examination against the charge under section 376 IPC, therefore, framing of additional charge is surely going to prejudice the defence of the accused. Moreover, there is no supporting oral evidence in this regard. Further the result of DNA profiling is not perfect science, there are possibility of error as well. As per Modi’s Medical jurisprudence :- The DNA is the generic material that makes every individual different, except for genetically identical twins. A pattern of chemical signals i.e. genetic code, has been discovered within the DNA molecule, which is very unique to each individual, just like their actual fingerprint. Thus, the DNA profiling, unique to each individual, is colloquially referred to as DNA fingerprint and it is also known as DNA typing. The companies who offer the DNA profiling claim that a DNA match of two individuals is as unlikely as 1 in 30 billion. One more estimation puts it as 1 in 780,000,000,000. There are still chances of the DNA profiling of two individuals matching, the benefit of which must be given to the accused. The companies who offer the DNA profiling claim that a DNA match of two individuals is as unlikely as 1 in 30 billion. One more estimation puts it as 1 in 780,000,000,000. There are still chances of the DNA profiling of two individuals matching, the benefit of which must be given to the accused. Taking the case in hand under section 216 Cr.P.C., I am of the view that the alteration or addition of charge is surely going to prejudice the case of the accused as he has already cross examined all the material witnesses except Investigating Officer and Scientific Officer. This will amounts to opening of the case once again. Moreover, also there is no oral evidence in this case regarding the offence u/s 376 IPC. For the foregoing discussion and observation, the present application is hereby disallowed. Application stands disposed of it after its due registration be tagged with main case. Let Investigating Officer be summoned and Scientific Medical Officer be examined through video conferencing, a letter in this regard be issued to Forensic Expert of SFL Junga, he will be examined at 03.00-PM through video conferencing. Put up on 02.12.2016.” 3. Mr. R.K. Bawa, learned Senior Advocate assisted by Mr. Ajay K. Sharma, Advocate strenuously contended that when the application previously instituted with a prayer to frame additional charge against the accused was dismissed with the observations that no oral evidence to show that the deceased was subjected to sexual intercourse by the accused is available on record and that the DNA profiling is not a prefect science, the impugned order could have not been passed in a subsequent application, more particularly, there being no change in the circumstances and the evidence available on record. 4. Admittedly, the charge can be altered or modified at any stage of the proceedings in the trial. As noticed supra, the previously instituted application was dismissed vide order dated 5.11.2016 with the observations that the DNA profiling is not a perfect science and also that there is no supporting oral evidence in this regard. True it is that it is not the case of the prosecution that the deceased was subjected to sexual intercourse by the accused and even no investigation on these lines was ever conducted. In the report filed under Section 173 Cr.P.C also, there is no mention that the deceased was also subjected to sexual intercourse. True it is that it is not the case of the prosecution that the deceased was subjected to sexual intercourse by the accused and even no investigation on these lines was ever conducted. In the report filed under Section 173 Cr.P.C also, there is no mention that the deceased was also subjected to sexual intercourse. The Medical Officer PW-22 Dr. Susheel Sharma, Assistant Professor, Department of Forensic Medicine, Dr. RPGMC, Tanda while conducting post-mortem, also preserved viscera, blood in gauze, nail clips, and two vaginal swabs for analysis for report by the expert in the State Forensic Science Laboratory. The DNA profiling in this regard was conducted by PW-43 Dr. Vivek Sehajpal. He has issued the report Ext. PW-43/A. On the basis of required tests, he concluded that the DNA of the accused was found in the vaginal swab of the deceased. This according to him is suggestive of the fact that there was sexual intercourse between the accused and the victim. On the day i.e., 5.11.2016, when the order in the previously instituted application was passed, only the DNA profiling report Ext. PW-43/A was available on record and no any other corroborative material thereto. Such material has come on record by way of the testimony of PW-43 Dr. Vivek Sehajpal, Assistant Director, DNA Reports, SFSL, Junga and on re-examination of PW-22 Dr. Susheel Sharma. 5. Therefore, this Court is not in agreement with the submissions that there being no change in the circumstances nor any material available on record, the impugned order could have not been passed when the similar application was dismissed vide order dated 5.11.2016 for the reason that PW-22 had preserved the vaginal swabs for DNA profiling and the blood sample also, whereas, the exhibits so preserved have been tested and analyzed by PW-43 Dr. Vivek sehajpal. Therefore, prima-facie there is evidence to show that sexual intercourse had taken place between the accused and the prosecutrix. Such evidence, in the considered opinion of this Court, is sufficient to frame the additional charge, even if it was never the case of the prosecution right from the very beginning. The present is a case which hinges upon the circumstantial evidence and keeping in mind this aspect also, the additional charge is required to be framed so that the prosecution ultimately may not fail on any technical ground. The present is a case which hinges upon the circumstantial evidence and keeping in mind this aspect also, the additional charge is required to be framed so that the prosecution ultimately may not fail on any technical ground. On the other hand, no prejudice is likely to be caused to the accused as he has cross-examined the witnesses PW-43 and PW-22. He is still at liberty to recall any witness already examined for cross-examination or may produce any other and further evidence in his defence. 6. Such being the legal and factual position, this petition fails and the same is accordingly dismissed. Pending applications, if any, shall also stand disposed of. Any observations made hereinabove shall remain confined to the disposal of the present petition and have no bearing on the merits of the case. Send down the records.