Deepti Anil Devasthali v. State of Maharashtra (2009) - DNA Test Evidence

• Bench: J.N. Patel, Mridula Bhatkar
• Appellant: Deepti Anil Devasthali and Leena Anil Devasthali
• Respondent: State of Maharashtra

Issue

1. Whether the narco test gives only a lead to the police for the investigation or is substantive evidence admissible in the trial.
2. Whether the DNA test done to identify the victim’s body parts can be considered as reliable evidence.

Facts

1. The appellants were arrested for the offence of murdering the victim in order to demand a ransom.
2. The accused were said to have started a detective agency, called Blue Bird Detective agency, and gave an advertisement in a newspaper that they wanted to employ young, healthy and clever men to work in their detective agency. Accused no. 1 had said to have changed her identity to Jassi during the course of commission of the offence.
3. In response to their advertisement, PW-3 Pravin Dnyaneshwar Kamble, PW-2- Ashok Jagannath Magar, PW-1 Ketan Pramod Kale and Court witness (CW-1) Rahul Abhimanyu Bhosale amongst others have applied and were interviewed by the appellants.
4. They were told that they have to abduct one doctor who was involved in kidney scandal and he was to be interviewed by the Head of their detective agency.
5. The Accused persons contacted the victim and invited him for lunch at Durvankur Hotel, at Pune.
6. The accused injected Thiosol Sodium in the wrist of the victim due to which he became unconscious in the hotel room. The appellants later put him in their car and drove away.
7. Based on a missing and abduction complaint by the wife of the victim, the police launched an investigation. On the very day, Accused no.1 and 2 visited their office of Blue Bird agency and they came to be arrested by the police in the morning. Immediately thereafter on the basis of disclosure by Accused no.2 parts of the body of the victim except the head and hands were recovered by the police.
8. The trial court found the accused persons guilty under section 302 of the Indian Penal Code was registered against Accused no.1 and 2 along with offences under Section 366 and 384 of the Indian Penal Code and they were arrested for an offence of murder.
9. The matter is now before the High Court. 

Appellant’s contentions

1. The appellant contended that the police had not conducted the identification parade required to be conducted.
2. They also questioned the authenticity of the DNA test done to identify the body parts as the victim’s, as the first test result was deemed to be inconclusive.
3. The appellant also challenged the veracity of the panchnama filed by the police. The police during the course of investigation recovered articles under panchanama and also searched the residence of the accused persons.
4. It was contended by the appellants that if a person is not found in physical possession of a particular article, then it cannot always be contended that said article does belong to that person. If an article carries any identification mark and the link between that identification mark and the identity of the person is associated then it can be said that article belongs to that person.
5. Accused No.1 has challenged her identification as Jassi by the witnesses. It was argued that if these witnesses had never seen her in her normal look, then assuming that she had changed her looks and appearance by using different wig, dentures and spectacles, these witnesses cannot identify her when she is in the normal look in the Court.

Respondent’s contentions

1. The theory of last seen together was pressed into service by the learned special prosecutor. Ld. Counsel Mr. Mundargi has argued that Doctor Deepak Mahajan was seen last in the company of Accused Nos. 1 and 2. PW-1 and C-1 are the witnesses on this vital point.
2. To establish the offence of murder, the prosecution has heavily relied on the 'last seen together' theory and contended that in the absence of any explanation as to when the Accused left the company of the victim, Section 106 of the Indian Penal Code is to be invoked.
3. The Learned Special Prosecutor has argued that the witness Shrikant Hanmant Lade (PW-32) has carried out DNA analysis by using Y-STR (Y-Short Tandem Repeats) method. He has explained in the evidence that STR method is automatic. In STR method, analysis of DNA profile by using electro phonogram of the exhibits is done and Y-STR method is used if the samples are degraded.
4. PW-32 has admitted that DNA technique is in developing stage. PW-32 has opined that DNA profile of bone samples and DNA profile of the victim’s father are from same paternal progeny and he on the basis of that has made report that deceased is the biological son.
5. The Learned Special Prosecutor has submitted that the police have arranged investigation van of the Police with Camera at the spot to collect the evidence and to shoot the recovery. However, that shooting was defective and they could not shoot and so nothing was seen in that CD. Hence it does not form a part of chargesheet.

Judgment

The appellants were held to be not guilty for the offences punishable under Section 302 read with Section 120-B and Section 201 read with Section 120-B of the Indian Penal Code.

Relevant paragraphs

The crux of the case is based on DNA analysis and the reliability of the same in convicting an accused person for an offence.

• DNA is considered as a science of precision and accuracy to establish the biological relationship between human beings. We are constrained to observe that how, when and where the samples of blood are sent by the police to the Laboratory and when the analysis was made in what method and when the report was sent should all be brought on record very systematically by the prosecution. These institutions are working as an extended arm of the Police investigation. If so, the communication between the Laboratory and the Police should be in writing. In the present case, the prosecution could not justify why Shrikant Lade went to Hyderabad for training and why the samples of the body parts of Deceased and of the samples of controlled blood of the parents of deceased Dr. Deepak Mahajan sent by the police for DNA test were not tested at Hyderabad. Moreover, if such samples were sent to Hyderabad and again they were sent back to Kalina without performing any test, then why no letter in writing was obtained from the said Laboratory at Hyderabad. Mere statement of the police or Laboratory technicians at Kalina cannot be accepted. DNA tests are to be seriously conducted with optimum care as it provides unshakable and concrete scientific evidence against the Accused.
• In the case of Anant Chintaman Lagu (Supra) the cause of the death of the deceased Laxmibai, given by Dr. Jhala was due to diabetic Coma. However the said postmortem was conducted not as a medico legal case and the Dr. Has admitted that his opinion might be inaccurate. However, Dr. H. S. Mehta, as an expert has opined that the death was probably due to administration of some unrecognizable poison. While appreciating the circumstance in the case of Anant Chintaman as a guideline for appreciation of circumstantial evidence and especially in the case of death due to poisoning. We must be aware of the fact that in the present case, the circumstance which has remained unexplained and not proved is the identification of the body itself. The DNA evidence which is produced by the prosecution is found unreliable and though it was proved that thipentone was administered to the deceased in the absence of the identification of the body and cause of his death in the opinion of Dr. Wable who performed PM, this ruling cannot be of any use to the prosecution.
• Even if discovery panchanama (though it does not inspire confidence) is accepted, it only proves that some parts of male body were discovered at the instance of Accused no.2. The important link that the said parts of the dead body were conclusively of Dr. Deepak Mahajan is not established. However, the prosecution could not tender reliable evidence on the point of DNA or any other evidence to draw conclusion that the said body parts were not of any other person but of Dr. Deepak Mahajan. The doubt, howsoever feeble it may be, it destroys the link between the Accused and discovery of the body parts of Dr. Deepak Mahajan. The doubt puts a question mark. In the present case on the point of identification of the body of Dr. Mahajan, the prosecution has not brought any accurate concrete evidence.

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