JUDGMENT : The present appeal has been preferred by the appellant-accused challenging the legality and correctness of the judgment passed by II Additional District and Sessions (Special) Judge, D.K. Mangaluru, in Special Case No.39/2017 dated 22.8.2019. 2. I have heard Sri.Dineshkumar K. Rao and Kumari. Pooja Kattimani, learned counsels appearing for the appellant and Sri.M.Diwakar Maddur, learned High Court Government Pleader for the respondent-State. 3. Though this case is listed for admission, with consent of the learned counsel appearing for the parties, the same is taken up for final disposal. 4. The genesis of the case of the prosecution are that PW1 filed a complaint alleging that her parents go to work in the morning at 7.00 a.m. and came back in the evening and she was studying in 8th standard. Accused was residing in neighbourhood along with his wife. Accused on his acquaintance with the parents of the minor victim used to visit the house and used to talk in cordial manner with the victim. On 21.4.2016 at about 7’o clock when her parents had gone to the work, her sister had gone to the neighbours house to tie the flowers, at about 7.15 a.m. accused came to the house of the complainant, started talking with her and hugged her and gave her a kiss. Later he closed the front door of the house, again hugged her and kissed her. In spite of refusal by the complainant, he had caressed the chest and all over her body and asked her to remove her clothes. When she removed her clothes, the accused also removed his clothes and put his private part into the private part of the complainant. When the complainant resisted saying it was paining, he continued his act and thereby committed forcible sexual intercourse on her. Thereafter, he used to have intercourse with her once or twice in a week, when nobody was there in the house of the complainant. He had intimidated the complainant not to tell about the incident to her mother and sister. As the complainant missed her period for three months, her mother took her to the doctor at Primary Health Centre. Thereafter, he used to have intercourse with her once or twice in a week, when nobody was there in the house of the complainant. He had intimidated the complainant not to tell about the incident to her mother and sister. As the complainant missed her period for three months, her mother took her to the doctor at Primary Health Centre. There the doctor said that there were signs of pregnancy and an intimation was given to the Bajpe police station and later on asked the complainant and her mother to consult the doctor at Lady Goschen Hospital, Mangaluru and with consultation of the lady doctor, the victim filed the complaint. On the basis of the complaint a case was registered and thereafter after investigation charge sheet has been filed. 5. The learned special Court took the cognizance, secured the presence of the accused and after hearing the learned counsel appearing for the parties, charge was framed, accused pleaded not guilty, he claims to be tried and as such trial was fixed. 6. In order to prove the case of the prosecution, it got examined 19 witnesses and got marked 25 documents and 6 Material Objects. Thereafter, the statement of the accused was recorded by putting incriminating material as against him. Accused denied the same. Thereafter, after hearing the learned counsel appearing for the parties, the trial Court held that the prosecution has proved the guilt of the accused and convicted the accused. Challenging the legality and correctness of the impugned order, the appellant-accused is before this Court. 7. The main grounds urged by the learned counsel for the appellant are that the impugned order is contrary to evidence, material placed on record. It is his contention that the learned Judge has committed a serious error in convicting the appellant-accused that too when all the material witnesses have turned hostile and none of the witnesses have supported the case of the prosecution. It is his further submission that except the evidence of official witnesses, no other material is there to connect the accused to the alleged crime. He further submitted that the learned trial Judge only on relying upon the DNA report came to a wrong conclusion and has wrongly convicted the accused. It is his further submission that except the evidence of official witnesses, no other material is there to connect the accused to the alleged crime. He further submitted that the learned trial Judge only on relying upon the DNA report came to a wrong conclusion and has wrongly convicted the accused. It is his further submission that merely because the DNA is a positive report and having great significance, however, such report cannot be accepted in isolation as a sole piece of evidence to record conviction of the accused. In order to substantiate his contention he relied upon the decision in the case of Premjibhai Bachubhai Khasiya Vs. State of Gujarat and another reported in 2009 Crl.L.J. 2888. It is his further submission that the DNA test alone cannot be relied upon for the purpose of recording the conviction. On these grounds he prayed to allow the appeal and to set aside the impugned order and acquit the accused. 8. Per contra, the learned High Court Government Pleader vehemently argued and submitted that admittedly the victim is aged 13½ years at the time of alleged incident and the DNA analysis shows that the accused is the biological father of the foetus and even the expert who analysed the DNA has given positive report that the accused is the biological father of the foetus. Accused has not given any explanation. It is his further submission that under Section 29 of the POCSO Act there is presumption and the accused is liable to explain under what circumstances the report has come that he is the biological father of the said foetus. It is his further submission that the trial Court by considering all the materials placed on record has come to a right conclusion and has rightly convicted the accused. On these grounds he prayed to dismiss the appeal. 9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the trial Court records. 10. In order to establish the case of the prosecution, it got examined 19 witnesses. PW1 is the victim girl. She has not supported the case of the prosecution and she has been treated as hostile. Even during the course of cross-examination by the learned Public Prosecutor nothing has been elicited so as to appreciate her evidence. 10. In order to establish the case of the prosecution, it got examined 19 witnesses. PW1 is the victim girl. She has not supported the case of the prosecution and she has been treated as hostile. Even during the course of cross-examination by the learned Public Prosecutor nothing has been elicited so as to appreciate her evidence. PWs.2 and 3 are the parents of the victim. They have not supported the case of the prosecution. PW4 is the spot and seizure mahazar pancha to Exs.P2, P7 and P8. So also PWs.5 and 6 are also spot mahazar pancha to Ex.P2. PWs.7 and 8 are the seizure mahazar pancha to Ex.P7, they have not supported the case of the prosecution and they have been treated as hostile. PW9 is the doctor who examined the victim. She has deposed that the victim informed that during the month of April 2016 victim and the accused had a physical contact and the victim’s last menstrual cycle was on 20.8.2016 and on 25.11.2016 she has been aborted the foetus and given the report as per Ex.P8 and she has sent the collected material for DNA test as per Ex.P9. PW10 is the Head Constable who carried the FIR to the jurisdictional Court and submitted the same to the Court. PW11 is the Head Constable who is also carrier of the seized article to FSL, Bengaluru. PW12 is the doctor who examined the accused. In her evidence she has deposed that there is nothing to suggest that accused is not competent to have sexual intercourse. She has given a report as per Ex.P11. PW13 is the woman Head Constable who took PW1 to the hospital for medical examination. PW14 is the Police Constable who carried the seized article to FSL, Bengaluru. PW15 is the Head Constable who carried the seized article to Mangaluru RFSL. PW16 is the PSI who went in search of the accused and he apprehended the accused and brought him and produced before the Investigating Officer by giving a report. PW17 is the CPI who registered the case on the basis of the complaint Ex.P1 and he has also further investigated the case. PW18 is the Scientific Officer, RFSL, Mangaluru. PW16 is the PSI who went in search of the accused and he apprehended the accused and brought him and produced before the Investigating Officer by giving a report. PW17 is the CPI who registered the case on the basis of the complaint Ex.P1 and he has also further investigated the case. PW18 is the Scientific Officer, RFSL, Mangaluru. She has deposed that she has received the sealed articles and the chemical examination report indicates that no seminal stains were detected in the article sent and she has given her report as per Ex.P16. PW19 is the Scientific Officer, DNA Centre, Bengaluru. She has deposed that she has conducted the DNA test analysis on the basis of the articles sent to her. The manner in which the DNA test has been conducted has been spoken to by her and she has further deposed that she has given a detailed report as per Ex.P16. It is stated in Ex.P16 that the article in DNA profile of feotus with placenta sent in item No.1 is consistent with having come from the offspring of Soundarya D/o Hulappa H. and Nagappa S/o Manappa and matching with the alleles in the DNA profile of the sample blood sent in item Nos.2 and 3 respectively. Evidence of PW19 - Scientific Officer, DNA Centre, Bengaluru, in her evidence she has only deposed that PCR products were separated on genetic analysis. In her cross-examination she has admitted that she do not possess degree in DNA Forensic Science, the office has to record description of the seal, the description of the articles on receipt by the police, she has not personally examined articles before subjecting for scientific examination. She has admitted that blood sample for DNA examination should be drawn by a doctor in the presence of Magistrate and immediately sent for analysis after drawing. She has deposed that if the blood samples are not sent immediately, there are chances of the temperature affecting the blood sample, it should be sent in thermocol box with ice cubes, minimum 500 micro litres of blood sample is required for DNA analysis. In Exs.P16 to P18, the quantity of blood taken for DNA analysis not mentioned, EDT, (preservative added to blood sample) has not been mentioned, she has volunteers EDT to the blood samples was not added, official seal is not found in Exs.P17 and P18. In Exs.P16 to P18, the quantity of blood taken for DNA analysis not mentioned, EDT, (preservative added to blood sample) has not been mentioned, she has volunteers EDT to the blood samples was not added, official seal is not found in Exs.P17 and P18. She has admitted that blood sample has to be sent at right time to get appropriate results, she has not mentioned timings of analysis done on the articles, if it is stored for more than six days at 24 degree temperature, it could vary the final results, nowhere it is mentioned that it was sent in ice box. 11. On going through the evidence of PW17- Investigating Officer he has deposed that in the presence of Magistrate he collected blood sample of accused and victim. But neither PW12 has deposed about collection of blood nor any Doctor who collected the sample has been examined. In that light, relying upon the evidence and report of PW19 is not safe, when all the scientific analysis have not been done as contemplated under the law, it is unsafe to accept the same without there being any corroboration. 12. Be that as it may. On going through the entire evidence the independent witnesses including the victim and her parents have not supported the case of the prosecution. Even the evidence of PWs.9 to 18 will not going to help in any manner, because they have not spoken anything about the alleged incident, they have spoken regarding investigation conducted. 13. The only material which is available before the Court is that of the opinion of PW19, the DNA test report as per Ex.P16. The DNA test is an impact of the modern scientific and technological revolution. No doubt this new technology can be used as an effective tool in crime detection. To prove the case of the prosecution the DNA technology as a latest tool of forensic science, is the byproduct of modern genetic science. Many Courts not only in India even in United States have relied upon and have accepted it as a admissible evidence. No doubt this new technology can be used as an effective tool in crime detection. To prove the case of the prosecution the DNA technology as a latest tool of forensic science, is the byproduct of modern genetic science. Many Courts not only in India even in United States have relied upon and have accepted it as a admissible evidence. However, by close reading of the material through which the scientific result is going to be taken, the entire process of procuring the DNA evidence is controlled by human agencies i.e. Investigating Officers and forensic scientists, there is ample chance of manipulation, tampering of such evidence by corrupt officers or scientist which needless to say highly prejudices the accused persons. Even preservative methods adopted are not properly brought on record. In that light, prosecution has to establish corroboration to such evidence and its truthfulness error free, accurate, unbiased and correct testing. 14. No doubt Article 20(3) on the Constitution of India, if it is contended that the accused is not bound to give the blood test, however, in order to have an investigation, the Investigating Officer or the Court can direct him to give the blood for DNA sample. Merely because he has given the consent for taking the blood, then under such circumstances, the report which has been given cannot be accepted as a gospel truth. When there is ample chance of tampering, then under such circumstances it is going to be highly prejudice the accused person. The science may be infallible, but human action, which controls the result of the scientific forensic examination, is always fallible and there is probability of manipulation and tampering with the scientific evidence. 15. Keeping in view the above said facts, I am of the considered opinion that it is highly unsafe to rely upon the sole DNA test to convict the person on the basis of the said test. There must be a unique balance between scientific evidence and human evidence. Therefore, existing value based criminal justice system cannot be done away with and as such, a susceptible balance has to be struck between the modern system based on scientific and technological knowledge and our existing value based system. It should be remembered that the law directly deals with the basic complex human problems, which are not of mathematical precision and the fate of every case depends upon its own factual matrix. It should be remembered that the law directly deals with the basic complex human problems, which are not of mathematical precision and the fate of every case depends upon its own factual matrix. 16. It is observed in the decision of Shakthiman Vs. State of Maharashtra through Police Station Officer reported in 2019 SCC Online Bom 139 that the DNA report or the scientific method to determine the paternity or sexual assault is firmly established. The only challenge for it can be set up for there occurred tampering with the blood sample of the accused at any stage. If something is on record to show that there was a possibility of tampering of the blood sample of the accused, then only there could be some room for suspicion about DNA report. But it will have to be judged from the facts of each case on hand. 17. It has also been observed in one more decision of the Gujarat High Court in the case of State of Gujarat Vs. Jayantibhai Somabhai Khant reported in 2015 Crl.L.J. 3209 that if the DNA report is the sole piece of evidence, even if it is positive, cannot conclusively fix the identity of the miscreant. Wherein it has been observed as under: “We are not unmindful of a decision of this Court in the case of Premjibhai Bachubhai Khasiya v. State of Gujarat, 2009 Cri LJ 2888 wherein a Division Bench of this Court observed that if the DNA report is the sole piece of evidence, even if it is positive, cannot conclusively fix the identity of the miscreant, but if the report is negative, it would conclusively exonerate the accused from the involvement or charge. It was observed that science of DNA is at a developing stage and it would be risky to act solely on a positive DNA report. This decision was rendered more than four and a half years back. Science and Technology has made much advancement, and world over DNA analysis technology is being relied upon with greater confidence and assurance. We do not think that the Indian Courts need to view the technology with distrust. Of course, subject to the laboratory following the usual protocols, DNA result can be of immense value to the investigators, prosecutors as well as courts in either including or excluding a person from involvement in a particular act. We do not think that the Indian Courts need to view the technology with distrust. Of course, subject to the laboratory following the usual protocols, DNA result can be of immense value to the investigators, prosecutors as well as courts in either including or excluding a person from involvement in a particular act. The said decision of this Court must be viewed in the background of the facts in which it was rendered. It was a case where the accused were charged with offence under Sections 363, 366, 376 read with Section 114 of the Penal Code, 1860. All important witnesses including the prosecutrix herself had turned hostile and did not support the prosecution. Despite which, the trial Court handed down conviction primarily on the basis of DNA report which opined that the DNA profiling of the foetus matched with that of the appellant original prime accused. It was in this background while reversing the conviction, the above noted observations were made. It can thus be seen that mere establishment of the identity of the father of the foetus in any case would not be sufficient to record conviction of the accused for rape and gangrape under Sections 363, 366 and 376 of the Penal Code, 1860. The said decision, in our opinion, therefore, cannot be seen as either rejecting the reliability of the DNA technology or laying down any proposition that in every case the DNA result must be corroborated by independent evidence before the same could be relied upon.” 18. The decision of Premjibhai Bachubhai Khasiya quoted supra by the learned counsel for the appellant has also been relied upon. 19. Keeping in view the ratio laid down in the above decision, if the evidence of PW19 is looked into, in her cross-examination she has deposed that if blood samples are not sent immediately, it should be sent in thermocol box with ice cubes and if it is stored for more then six days at 24 degree temperature it could vary the final result. In that light if the evidence of PW17Investigating Officer is seen the blood sample was collected in the presence of the Magistrate on 10.01.2017, as per the evidence of PW19 the sealed articles were received in her lab on 11.01.2017, she has not deposed that it was in thermocol box with ice cubes. In that light if the evidence of PW17Investigating Officer is seen the blood sample was collected in the presence of the Magistrate on 10.01.2017, as per the evidence of PW19 the sealed articles were received in her lab on 11.01.2017, she has not deposed that it was in thermocol box with ice cubes. She has deposed in her cross-examination that at the threshold the articles would be tested for any contamination or tampering at the office, there is no corresponding entry recorded by the office in the register maintained. In that light in the cross-examination it has been brought on record to show that there was possibilities of tampering of the blood sample of the accused, which creates a suspicion about the DNA report as per Ex.P16. When a doubt arises in the case of the prosecution, benefit of doubt has to be given to accused, when the uncorroborated evidence has been produced and prosecution is standing on its single leg of DNA report. 20. By taking into consideration the above said decisions and the factual matrix, I am of the considered opinion that, it is highly unsafe to convict the accused only by relying upon the DNA test alone. 21. Taking into consideration the said facts and circumstances, I am of the considered opinion that when there are no corroboration with any other material, only because the DNA test has given a positive result, then under such circumstances it is unsafe to convict the accused. In that light, I am of the considered opinion that the appellant has made out a case to allow the appeal. 22. Criminal Appeal is allowed. The judgment passed by II Additional District and Sessions (Special) Judge, D.K. Mangaluru, in Special Case No.39/2017 dated 22.8.2019 is set aside and accused is acquitted of the charges leveled against him in this case. The jail authorities are hereby directed to release the accused-Nagappa forthwith, if he is not required in any other case. The Registry is directed to intimate the jail authorities to release the appellant, forthwith. In view of disposal of the appeal, IA No.1/2019 does not survive for consideration and the same is accordingly disposed of.