Case Note & Summary
The appellant, Nivrutti Nagorao Hange, was convicted by the Additional Sessions Judge, Aurangabad, for offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Indian Penal Code (IPC) for sexually assaulting his minor sister-in-law (the prosecutrix). The prosecutrix, who was residing with the appellant and her elder sister (PW-2) for education, became pregnant. She was hospitalized and aborted a non-viable foetus. The FIR was lodged on 17/07/2013. The appellant was absconding and arrested later. The trial court convicted him based on DNA evidence linking him to the foetus, school records proving the victim's minority, and medical evidence. The appellant appealed, arguing that the prosecutrix turned hostile, there was delay in FIR, non-compliance with Section 164-A CrPC, and flaws in the chain of custody of DNA samples. The High Court upheld the conviction. It held that the school register (Exhibit-86) proved the victim's date of birth as 25/05/1999, making her a child under the POCSO Act. The DNA report (Exhibit-99) conclusively established the appellant as the biological father of the foetus. The court found that the chain of custody was sufficiently proved as the samples were sealed and the Chemical Analyser's report was admissible under Section 293 CrPC. The delay in FIR was explained by the victim's pregnancy and abortion. The non-compliance with Section 164-A CrPC was not fatal. The court dismissed the appeal and confirmed the life imprisonment sentence.
Headnote
A) Criminal Law - POCSO Act - Age of Victim - Proof of Age - School Record - Section 2(1)(d) of POCSO Act, 2012 - The age of the prosecutrix was proved by the school register (Exhibit-86) showing her date of birth as 25/05/1999, making her below 18 years at the time of the incident. The teacher (PW-9) produced the original register from proper custody, and the entry was made at the time of admission based on Anganwadi record. Held that the school record is admissible under Section 35 of the Evidence Act and sufficient to prove minority (Paras 10-12). B) Criminal Law - POCSO Act - DNA Evidence - Conviction Despite Hostile Victim - Sections 4 and 6 of POCSO Act, 2012 - The prosecutrix (PW-1) turned hostile and did not support the prosecution case. However, the DNA report (Exhibit-99) conclusively established that the appellant and the prosecutrix were the biological parents of the aborted foetus. The sister (PW-2) and medical evidence (PW-10) proved the pregnancy and abortion. Held that DNA evidence, corroborated by medical and circumstantial evidence, is sufficient to sustain conviction even without the victim's testimony (Paras 13-18). C) Criminal Law - Evidence Act - Chain of Custody - DNA Samples - Section 293 of CrPC, 1973 - The appellant challenged the chain of custody of the foetus and blood samples. The court found that the samples were collected, sealed, and sent to the Chemical Analyser in sealed condition, and the report (CA report) was admissible under Section 293 CrPC. The non-examination of every custodian does not break the chain if the sealed condition is proved. Held that the DNA evidence is reliable and admissible (Paras 19-22). D) Criminal Law - POCSO Act - Delay in FIR - Explanation - The FIR was lodged on 17/07/2013, while the incident occurred earlier. The delay was explained by the fact that the victim was under threat from the appellant and the pregnancy was discovered only on 04/07/2013, followed by hospitalization and abortion. Held that the delay is satisfactorily explained and does not vitiate the prosecution case (Paras 23-24). E) Criminal Law - CrPC - Section 164-A - Medical Examination - Non-compliance - The appellant argued that the medical examination of the victim under Section 164-A CrPC was not conducted. The court held that Section 164-A is not mandatory and its non-compliance does not affect the admissibility of other medical evidence. Held that the absence of such examination does not weaken the prosecution case (Para 25).
Issue of Consideration
Whether the conviction of the appellant under POCSO Act and IPC for sexual assault of a minor is sustainable when the prosecutrix turned hostile and the prosecution relied on DNA evidence and school records to prove age and paternity.
Final Decision
The appeal is dismissed. The conviction and sentence awarded by the trial court are confirmed.
Law Points
- DNA evidence can form basis of conviction even if victim turns hostile
- Age of victim can be proved by school records under Section 35 of Evidence Act
- Section 164-A CrPC not mandatory for validity of DNA report
- Delay in FIR explained by pregnancy and abortion
- Chain of custody of DNA samples need not be proved by examining each custodian if sealed condition is established
