As a result, this Criminal Appeal is allowed, and the appellant is acquitted of all the charges. The conviction and sentence passed in Spl.S.C.No.20 of 2017 on the file of the learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court) Villupuram,, vide judgment dated 07.02.2018, are set aside. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged. [S.S.S.R.,J] [S.M.,J] 20.12.2023 Index: Yes/No Speaking Order / Non-Speaking Order Neutral Citation: Yes / No 1.The Sessions Judge, Mahalir Neethimandram, Fast Track Mahila Court, Villupuram. 2. The Inspector of Police All Women Police Station Kottakuppam Tindivanam. 3.The Public Prosecutor High Court of Madras, Chennai – 600 104.   S.S.SUNDAR,J. AND SUNDER MOHAN,J. dk Crl.A.No.538 of 2023 Dated: 20.12.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 14.12.2023 PRONOUNCED ON : 20.12.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Crl.A.No.538 of 2023
Chandra Mohan …Appellant/1st Accused
Versus
The State
Represented by its
Inspector of Police
All Women Police Station
Kottakuppam
Tindivanam. …Respondent/Complainant

PRAYER: Appeal has been filed under Section 374 (2) Cr.P.C., to call for the records of Spl.S.C.No.20 of 2017, on the file of the learned Sessions Judge, Mahalir Neethimandram, Fast Track Mahila Court, Villupuram and set aside the Judgement dated 07.02.2018 and acquit the appellant of the charges levelled against him.
For Appellant : Mr.P.G.Perumal Pandian
For Respondents : Mr.A.Gokulakrishnan
Additional Public Prosecutor
JUDGMENT
(Order of the Court was delivered by SUNDER MOHAN,J.)
The appellant, who is the first accused in the criminal case in Spl.S.C.No.20 of 2017 and sentenced to undergo life imprisonment for the offence punishable under Section 6 of the Protection of Children from Sexual offences Act, 2012, (hereinafter referred to as POCSO Act, 2012), and to pay a fine of Rs.1,00,000/- in default of the same to undergo Simple Imprisonment for a period of two years.
2(a). It is the case of the prosecution that the appellant is the stepfather of the victim; that the victim’s mother and her biological father got separated; that the victim’s mother (A2) got acquainted with the appellant and they were both living as husband and wife; that the victim was living with her grandmother; that the appellant used to visit the victim and during those visits used to have sexual intercourse with the victim by making her unconscious by giving sleeping tablets in the juice; that when the victim informed her mother (A2), she supported the appellant and advised the victim to adjust with him; that the victim became pregnant and her mother (A2) took her to the hospital; that on
29.11.2016, the Doctors examined the victim and found her to be pregnant and informed the Police; that on 01.12.2016, the victim gave a complaint/Ex.P14, which was registered in Cr.No.7 of 2016, under Sections 6 & 17 of the POCSO Act, 2012 and Section 313 of the Indian
Penal Code. (FIR was marked as Ex.P15.)
(b) P.W.13/Inspector of Police, took up the investigation, and examined witnesses, proceeded to the place of occurrence, and prepared Observation Mahazar/Ex.P2 and Rough Sketch/Ex.P16 at 6.00 P.M on 01.12.2016. On the same date, P.W.13 arrested both the accused, and thereafter, the accused were remanded to judicial custody. On 20.12.2016, P.W.13, gave a request to the learned Chief Judicial
Magistrate,Villupuram, for recording the statement of the victim under Section 164 Cr.P.C. On the same day, P.W.13 recorded the statements of the Doctors and the statement of the Assistant Director, Forensic Science Department, who conducted the DNA test. She obtained a copy of the birth certificate of the victim, marked as Ex.P17. After examination of other witnesses, P.W.13 filed the Final Report before the learned Sessions Judge, Magalir Neethi Mandram, (Fast Track Mahila Court),
Villupuram in Spl.S.C.No.20/2017 under Sections 6 and 6 r/w Section 17 of the POCSO Act, 2012, and Section 313 of the IPC against the accused.
(c) The accused were furnished with copies of the statements. On the appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with, and the case was taken on file as Spl.S.C.No.20 of 2017. The trial Court, viz., the learned Sessions Judge, Magalir Neethi Mandram, (Fast Track Mahila Court), Villupuram, framed charges for the offences under Section 6 of the POCSO Act, 2012, as against the appellant and when questioned, the appellant pleaded ‘not guilty’.
(d) In order to prove the case, the prosecution examined P.W.1 to P.W.13 and marked Exs.P1 to P17. When the appellant was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. The appellant and the second accused neither examined any witnesses nor marked any documents.

(e) On appreciation of oral and documentary evidence, the trial Court found that, on consideration of the evidence, that the appellant is guilty of the offence under Section 6 of the POCSO Act, 2012, and sentenced him to Life imprisonment and a fine of Rs.1,00,000/- in default to undergo Simple imprisonment for a further period of two years. The trial Court acquitted the second accused of the offence under Section 6 r/w 17 of the POCSO Act, 2012, and Section 313 of the IPC.
(f) Challenging the above conviction and sentence, the
accused/first accused has preferred the appeal.
3. The learned counsel for the appellant submitted that the victim and the other witnesses examined on the side of the prosecution turned hostile, and this is a case of no evidence except for the opinion of the expert, namely the Assistant Director working in the DNA department of the Forensic Science Laboratory. The learned counsel submitted that the Trial Court ought not to have convicted only based on opinion evidence, which can only corroborate the other evidence on record and cannot be the sole basis for rendering a finding of guilt.
4. The learned Additional Public Prosecutor, per contra, submitted that the findings of the DNA analysis are 100% accurate and the identification by DNA profile is infallible. The learned Additional Public Prosecutor pointed out the evidence of the expert and the Forensic Science Laboratory Report (Ex.P9), wherein it is stated that the cumulative probability of paternity of the appellant for being the father of the child to whom the tissue piece belongs is 99.99999998%. Therefore, the learned Additional Public Prosecutor submitted that there is no infirmity in the finding of the Trial Court.
5. We have considered the rival submissions and perused the evidence on record. P.W.2, the grandmother of the victim, turned hostile. P.W.5 is the Child Helpline Coordinator, who was present with the victim when she gave Ex.P1/complaint at the request of the Inspector of Police. She speaks about the recording of the complaint by P.W.13. P.W.1/the victim, who had given the complaint and also had given a statement before the learned Judicial Magistrate under Section 164 of the Criminal Procedure Code, turned hostile. Nothing has been elicited during her cross-examination in support of the prosecution case except for making some suggestions, which were denied by the victim. We also find that when the victim was taken to the Doctor/P.W.7, she informed the Doctor that one Vicky aged about 22 years, was friendly with her and had committed sexual assaults, and this fact is also recorded in Ex.P6/the Medico – legal Examination of Sexual Violence report issued by P.W.7.

6. Be that as it may. We find that it is the prosecution case that the
victim was eight weeks pregnant when she was examined by the
Doctor/P.W.7, on 30.11.2016. It is further the case of the prosecution that P.W.7 had suggested that paternity can be determined by DNA examination of the foetus. The relevant portions of Ex.P6 read as follows:
…”3. The biological identity of the person caused this pregnancy may be established by using DNA typing of the preserved abortus.”
7. It is seen that P.W.12, Gr.I., Women Police Constable, had collected the abortus on 09.12.2016, from the JIPMER Hospital, Pondicherry, and handed it over to the Forensic Science Laboratory at Chennai. Thereafter, on the orders of the trial Court, blood samples were collected from the accused and the victim and sent through P.W.12 to the Forensic Science Laboratory at Chennai on 22.03.2017. PW.8/Assistant Director, along with the Deputy Director and Scientific Officer, after comparing the DNA profile of the blood samples with the DNA profile of the tissue (abortus), found that the cumulative probability of paternity of the appellant for being the father of the child to whom the tissue piece belongs is 99.99999998%. The relevant observation reads as follows:
(i) The cumulative probability of paternity of Mr.D.Chandramohan, for being the father of the child to whom the tissue piece (of ref 2) belongs is found to be 99.99999998 %.
(ii) The cumulative chance of exclusion of any random man from the paternity of the child to whom the tissue piece (of ref 2) belongs is
99.99999999999999%.
Conclusion : From the DNA typing results of the above samples, it is found that,
(i) the tissue piece (of ref 2) belongs to a male child.
(ii) Mr. D. Chandramohan, is the biological father of the male child to whom the tissue piece (of ref 2) belongs.
8. Now the question is that in the absence of any other evidence,
can it be held that the appellant committed the offences alleged against the victim on the basis of the opinion evidence of the expert. The question as to the accuracy of the results by comparison of the
DNA profile had come up for consideration in several cases before the
Hon’ble Supreme Court. In a recent Judgment in Manoj Vs. State of Madhya Pradesh, reported in (2023) 2 SCC 353. The Hon’ble Supreme Court held as follows:
”151. During the hearing, an article published by the
Central Forensic Science Laboratory, Kolkata
[DNA Profiling in Justice Delivery System, Central Forensic
Science Laboratory, Directorate of Forensic Science, Kolkata (2007).] was relied upon. The relevant extracts of the article are reproduced below:
“Deoxyribonucleic acid (DNA) is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with intercalated proteins. Twenty-three pairs of chromosomes present in each nucleated cells and an individual inherits 23 chromosomes from mother and 23 from father transmitted through the ova and sperm respectively. At the time of each cell division, chromosomes replicate and one set goes to each daughter cell. All information about internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases : Adenine (A), Guanine (G), Thymine (T) and Cytosine (C) along with sugar phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have exactly same DNA but it varies from individual to individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA) found in large number of copies in the mitochondria is circular, double stranded, 16,569 base pair in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also being in large number of copies than nuclear DNA, it can be used in the analysis of degraded samples. Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures.
Only 0.1 % of DNA (about 3 million bases) differs from one person to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples.
***
DNA Profiling Methodology
DNA profile is generated from the body fluids, stains, and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be established. DNA profiling is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed genetic markers. The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs). Analysis of a set of 15 STRs employing Automated DNA Sequencer gives a DNA profile unique to an individual (except monozygotic twin). Similarly, STRs present on Y chromosome (Y-STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of azoo11permic or vasectomized” male. Cases in which DNA had undergone environmental stress and biochemical degradation, min lSTRs can be used for over routine STR because of shorter amplicon size.
DNA profiling is a complicated process and each sequential step involved in generating a profile can vary depending on the facilities available in the laboratory. The analysis principles, however, remain similar, which include:
1. isolation, purification & quantitation of DNA
2. amplification of selected genetic markers3. visualising the fragments and genotyping
4. statistical analysis & interpretation.
In mtDNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples:
Statistical Analysis
Atypical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison:
(1) Match : If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched.
(2) Exclusion : If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources.
(3) Inconclusive : The data does not support a conclusion of the three possible outcomes, only the “match” between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA profile in a population.
In case of paternity/maternity testing, exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci possible mutations should be taken into consideration while reporting a match. Paternity or Maternity indices and likelihood ratios are calculated further to support the match.
Collection and Preservation of Evidence
If DNA evidence is not properly documented, collected, packaged, and preserved, it will not meet the legal and scientific requirements for admissibility in a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving. DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be identified, preserved, packed and sent for DNA profiling.”(emphasis supplied).
152. In an earlier judgment, Rv.Dohoney & Adams the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials : (1) the scientist should adduce the evidence of the DNA comparisons together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.
153. The Law Commission of India in its Report [185th Report, on Review of the Indian Evidence Act, 2003.], observed as follows:
“DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not “match”, then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA “profile” or “fingerprint” is found. It may be, for example, that the relevant profile is found in 1 person in every 1,00,000 : This is described as the “random occurrence ratio” (Phipson 1999, 15th Edn., Para 14.32).
Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law.” (emphasis in original)

154. In Dharam Deo Yadav v. State of U.P. [Dharam
Deo Yadav v. State of U.P., (2014) 5 SCC 509 : (2014) 2 SCC (Cri) 626] this Court discussed the reliability of DNA evidence in a criminal trial, and held as follows : (SCC pp.
528-29, para 36)
“36. The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made up of a double stranded structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. … DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory.”
155. The US Supreme Court in District Attorney’s Office for the Third Judicial District v. Osborne [District
Attorney’s Office for the Third Judicial District v. Osborne, 2009 SCC OnLine US SC 73 : 557 US 52 (2009)] dealt with a post-conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that : (SCC OnLine US SC)
“Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. … DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others.”
156. Several decisions of this Court — Pantangi
Balarama Venkata Ganesh v. State of A.P. [Pantangi
Balarama Venkata Ganesh v. State of A.P., (2009) 14 SCC 607 : (2010) 2 SCC (Cri) 190], Santosh Kumar Singh v.State
[Santosh Kumar Singh v.State, (2010) 9 SCC 747 : (2010) 3 SCC (Cri) 1469], State of T.N. v. John David [State of T.N. v.
John David, (2011) 5 SCC 509 : (2011) 2 SCC (Cri) 647], Krishan Kumar Malik v.State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61], Surendra Koli v. State of U.P. [Surendra Koli v. State of U.P., (2011) 4 SCC 80 : (2011) 2 SCC (Cri) 92] ,
Sandeep v. State of U.P.[Sandeep v.State of U.P., (2012) 6 SCC 107 : (2012) 3 SCC (Cri) 18] , Rajkumar v. State of
M.P. [Rajkumar v. State of M.P., (2014) 5 SCC 353 : (2014) 2 SCC (Cri) 570] and Mukesh v. State (NCT of Delhi)
[Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2
SCC (Cri) 673] have dealt with the increasing importance of DNA evidence. This Court has also emphasised the need for assuring quality control, about the samples, as well as the technique for testing in Anil v. State of
Maharashtra [Anil v. State of Maharashtra, (2014) 4 SCC 69 : (2014) 2 SCC (Cri) 266] : (Anil case [Anil v. State of
Maharashtra, (2014) 4 SCC 69 : (2014) 2 SCC (Cri) 266] ,
SCC p. 81, para 18)
“18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory.”
157. This Court, in one of its recent decisions, Pattu
Rajan v. State of T.N. [Pattu Rajan v. State of T.N., (2019) 4 SCC 771 : (2019) 2 SCC (Cri) 354], considered the value and weight to be attached to a DNA report : (SCC p. 791, para 52)
“52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party.”
158. This Court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance, was to corroborate. This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case.”
The above Judgment would show that the guilt of the accused can be established by relying upon the DNA reports, provided the reliance is to “corroborate.” In paragraph 158 of the Judgment extracted above, the said position has been made clear. We may also note that in the article published by the Central Forensic Science Laboratory, Calcutta, which has been quoted with approval by the Hon’ble Supreme Court in the above decision, it is stated that if DNA evidence is not properly documented, collected, packaged, and preserved, it would not meet the legal and scientific requirements for admissibility in a Court of law. The report also states that DNA evidence can be contaminated when DNA from another source gets mixed with the DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his or her mouth, nose, or other parts of the face and then touches an area that may contain the DNA to be tested.
9.Therefore, it is seen that DNA testing can be a powerful technique in investigations and criminal trials. However, care has to be taken to ensure that the samples collected are properly documented, packaged, and preserved.
10. This is a case where, though P.W.7 stated in her report that the identity of the person who caused the pregnancy may be established by using DNA typing of the preserved abortus, there is no evidence let in by the prosecution as to when the foetus was aborted or as to when the abortus was collected and preserved by the Doctors at JIPMER Hospital, Pondicherry. We have only the evidence of P.W.12, the constable, who says she collected the abortus on 09.12.2016 and handed it over to the Forensic Science Laboratory, (FSL). When P.W.8, the Assistant Director of FSL was specifically questioned as to her knowledge about how the abortus (tissue) was collected, she stated that she was not aware of the same. To a further question, she would state that if the tissue (abortus) gets warm, it might lose its characteristics. She would further state that it was kept in a thermocol box with ice. The relevant answers given by P.W.8, the Assistant Director, read as follows:
…”jpR ahhplkUe;J vt;thW vLf;fg;gll;J vd;gJ Fwpj;J ehd; vJt[k; brhy;ytpyiy; vdw;hy; rhpjhd;/ bghJthf jpR o/vd/;V ghpnrhjid bra;a[k;nghJ murh’;fk; tpjpj;Js;s tpjpKiwfis gpd;gwWn; thk; vd;why; rhpjhd;/ jpR vtt;hW v’;fs;
Ma;tfj;jpw;F bfhz;Ltug;gll;J vd;why; bjh;nkhf;Ty; lgg;htpy; I!;rpy; itj;J bfhz;L te;jhh;fs;/ jpR mjpf btgg;khFk;nghJ mit cU bjhpahky; mHpa tha;g;g[s;sJ vdw;hy; rhpjhd;/ Mdhy; ,J ed;F gjg;gLj;jg;glL; vLj;J te;jhh;fs;/ jpR khjphpia vt;thW vLj;jhh;fs; vdw;hy; mjw;Fk; vdf;Fk; rk;ke;jkpyiy; / jpR vdg;J rPf;fpuk; cUbjhpahky; ngha;tpLk; vdW; brhdd;hy; mJ gjg;gLj;Jk; Kiwiag;bghUj;jJ/”
As stated earlier, there is absolutely no evidence as to when it was collected or who collected and preserved the abortus at JIPMER Hospital, Pondicherry. There is no evidence to show as to how the abortus was preserved until 22.03.2017, when the comparison is said to have been made.
11. In a recent decision, the Hon’ble Bombay High Court had occasion to consider the case where the victim was a mentally retarded person, and the conviction by the trial Court was on the basis of expert evidence of the DNA. It was found in that case that the prosecution had not let in any evidence to show how the samples were collected, packed, and preserved. The Division Bench of the Bombay High Court in Suresh Vs. The State of Maharasthra, reported in 2023 SCC Online Bom 641, held as follows:
”9… P.W.8 the investigating officer ought to have explained, where those samples were kept, in which condition they were kept and how they were transmitted. P.W.9 A.S.I. Sonawane is the carrier, however, he has not stated as to in which condition, that means in which boxes, he had taken those samples. The method of preservation is not stated by anybody. Under such circumstance, we cannot rely on the DNA test report Exhibit-41.
10. We have considered the ocular evidence as well as the scientific evidence. As regards the ocular evidence is concerned, at the cost of repetition, we would like to say that P.W.4 and P.W.5 are not trustworthy as they have changed their statements in the cross. When the ocular evidence was not supporting, conviction ought not to have been based only on the
DNA test report i.e. medical report.”
12. We find that since the facts in the instant case are very similar to the facts dealt with by the Bombay High Court in the above decision, we are inclined to accept the view taken by the Bombay High Court.
In fact, the Bombay High Court had quoted with the approval of the
Judgement of the Hon’ble Gujarat High Court in Premjibhai Bachubai
Khasiya Vs. State of Gujarat and another, reported in 2009
Crl.L.J.2888, wherein the Gujarat High Court had held as follows:
” Positive DNA report can be of great significance, where there is supporting evidence, depending of course on the strength and quality of that evidence, even if it is positive, it cannot conclusively fix the identity of the miscreant, but, if the report is negative, it would conclusively exonerate the accused from the involvement of charge. The science of DNA is at a developing stage and when the Random Occurrence Ratio is not available for Indian Society, it would be risky to act solely on a positive DNA report, because only if the DNA profile of the accused matches with the foetus, it cannot be considered as a conclusive proof of paternity. Contrarily, if it is solitary piece of evidence with negative result, it would conclusively exclude the possibility of involvement of the accused in the offence. The positive DNA report cannot be therefore accepted by the trial Court in isolation, i.e. as sole piece of evidence to record the conviction of accused under Sections 376, 366 of Indian
Penal Code”
13. We may also remind ourselves about the observations of theHonourable Supreme Court in Pattu Rajan Vs. State of Tamil Nadu reported in (2016) 1 SCC 550, wherein they have been observed as follows:
”52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on the facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember,given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible.”
14. Therefore, we are of the considered view that the results definitely lead to a strong suspicion against the appellant. However, suspicion howsoever strong cannot take the place of proof. In the absence of any other evidence, we cannot sustain the conviction on the basis of the DNA test reports alone especially in the absence of evidence regarding the drawing of samples, packing, and preservation of the abortus, which was compared with the blood samples of the appellant and the victim. The probative value of the test report is reduced in view of the same.
15. For all the aforesaid reasons, we are of the view that the prosecution has not approved the case against the appellant beyond reasonable doubt, and therefore, we are of the view that the judgment of conviction and sentence passed in Spl.S.C.No.20 of 2017, dated 07.02.2018 on the file of learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court) Villupuram, is liable to be set aside.
16. As a result, this Criminal Appeal is allowed, and the appellant is acquitted of all the charges. The conviction and sentence passed in Spl.S.C.No.20 of 2017 on the file of the learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court) Villupuram,, vide judgment dated 07.02.2018, are set aside. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged.
[S.S.S.R.,J] [S.M.,J]
20.12.2023
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No

1.The Sessions Judge,
Mahalir Neethimandram, Fast Track Mahila Court, Villupuram.
2. The Inspector of Police
All Women Police Station Kottakuppam Tindivanam.
3.The Public Prosecutor
High Court of Madras, Chennai – 600 104.  
S.S.SUNDAR,J.
AND SUNDER MOHAN,J.
dk

Crl.A.No.538 of 2023
Dated: 20.12.2023