DNA report can sustain POCSO conviction even if victim, parents turn hostile: Madras High Court

The Madras High Court on Friday upheld the conviction of a man in a child sexual assault case by relying on DNA evidence pointing to his guilt, even though both the child victim and her mother turned hostile (no longer supported the allegations against the accused) during trial [Murugan Vs State]..The DNA report indicated that the accused man had fathered a child born to the child victim. A Bench of Justices N Anand Venkatesh and KK Ramakrishnan found that the DNA samples was properly collected, tested and proved before the trial court. There was no material to suggest tampering with the collected blood samples or any procedural irregularity in handling the evidence, the Court noted. "The trial court was perfectly right in relying upon the DNA report to come to the conclusion that the child was born to the appellant (accused) and the victim girl and that clearly laid the foundational fact to substantiate the charge," the Court, therefore, held..The Court was hearing an appeal filed by one Murugan against a July 31, 2023 judgment of the Fast Track Mahila Court at Theni. The trial court had convicted him under the Protection of Children from Sexual Offences Act, 2012 (POCSO) and sentenced him to life imprisonment. He was also convicted under Section 506 of the Indian Penal Code for criminal intimidation.The prosecution's case was that the accused, who was around 40 years old, called the 13-year-old victim to a house on January 18, 2020 and committed penetrative sexual assault on her. He was also accused of threatening her against disclosing the incident.During a medical examination, the victim was found to be five weeks pregnant. She later gave birth to a child on October 24, 2020, after the final report (chargesheet) had already been filed.After Murugan was convicted by the trial court in the case, he moved the High Court challenging the verdict and seeking acquittal. .He argued that neither the victim nor her parents had supported the prosecution's case and that the trial court had convicted him only on the basis of the DNA report. It was also argued that there was no proper chain of custody for the blood samples and that the relevant documents were not supplied to him under Section 207 of the Code of Criminal Procedure.The High Court rejected these arguments..It noted that after the child was born, the Child Welfare Committee wrote to the investigating officer to take steps for DNA testing. Blood samples of the accused, the victim and the child were collected through the Government Medical College Hospital, Theni and sent to the Forensic Science Laboratory, Madurai through the trial court.The Court found that the blood samples reached the FSL within six days and there was nothing to indicate tampering.“There is no material to show that there was any tampering of the blood samples collected, since it has gone to the court immediately and thereafter was sent to the FSL,” the Court said.The Bench also rejected the argument that the accused had not been supplied with DNA-related documents. It said that the documents were not available when the final report was filed, since the child was born only later. It further noted that the accused had cross-examined the FSL Deputy Director on the basis of those very documents, indicating that he had access to them. .However, the Court modified the conviction. It said the charge under Section 5(l) of the POCSO Act, which applies to repeated penetrative sexual assault, could not be sustained since the victim had turned hostile and there was no clear evidence of repeated assault.Instead, the Court convicted the accused under Section 5(j)(ii) of the POCSO Act, which deals with penetrative sexual assault resulting in the child becoming pregnant.The Bench also reduced Murugan's sentence from life imprisonment to rigorous imprisonment for a term of not less than 20 years..The appellant was represented by Advocate Mayilvahana Rajendran..The State was represented by State counsel (criminal side) D Venkatesh..[Read Judgment]