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‘Same expert as Nirbhaya case’ — govt plea against SC clean chit to Chhawla rape-murder convicts

In its review petition, govt has called DNA evidence in 2012 case 'conclusive & unassailable' and rejected SC's contention that possibility of tampering can't be ruled out.

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New Delhi: The Union Ministry of Home Affairs has rejected the Supreme Court’s observation discrediting the procedure followed for the DNA report in the 2012 Chhawla rape and murder case. The ministry has pointed out that the same doctor had carried out the forensic examination in this and in the Nirbhaya gangrape and murder case from the same year. 

The central government wants the top court to reconsider its 7 November judgment acquitting three men who had allegedly kidnapped, raped, and brutally killed a 19-year-old woman in Delhi’s Chhawla area in February 2012. The SC judgment overturned concurrent findings by the trial court and the Delhi High Court that had sentenced the three to death.

The home ministry has sought an open court hearing of its review petition filed last week.

“It is reiterated that Dr. B.K. Mohapatra was the same doctor who had examined and prepared the DNA report in the Nirbhaya rape and murder case. In Nirbhaya’s case, the Hon’ble Supreme Court did not doubt the reliability and validity of the CFSL (Central Forensic Science Laboratory) report which was prepared, attested, and exhibited by this very same doctor, and in fact, (the) law was laid down with regard to (the) conclusive nature of scientific and medical evidence,” reads the 160-plus-page petition, accessed by ThePrint.

Authored by a bench led by then Chief Justice of India U.U. Lalit (retired) and Justice Ravindra Bhat, the judgment last month gave a clean chit to the three men and highlighted the delay in sending samples to the laboratory for forensic examination. According to police records, the DNA samples of the accused were taken on 14 February 2012 and those of the victim on 16 February. They were sent for examination on 27 February.

“During this period, they remained in the malkhana (dedicated place to store the seized material) of the police station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out,” the court had held in its November judgment.

Moreover, according to the bench, there was no evidence to prove that the technique applied by the expert in conducting a DNA examination was reliable. In the absence of such evidence, the top court said, DNA profiling became highly vulnerable, more particularly when the collection and sealing of the “samples sent for examination were also not free from suspicion.”


Also Read: India amended rape laws — forgot about police attitude, delayed action, humiliation in court


‘Misconceived and incorrect’

The home ministry’s petition — which rejects the court’s view that the possibility of tampering can’t be ruled out — offers insight into DNA technology and the procedures followed in India.

In the absence of direct eyewitnesses in the case, investigators relied heavily on scientific and medical evidence to establish a chain of circumstances to link the accused to the crime scene. 

Investigators conducted multiple DNA profiling not just to prove the sexual assault, but also the presence of the accused and the victim inside the car where the woman was raped.

Apart from DNA profiling of the victim’s vaginal swab, police carried out four more tests — of the accused’s hair that was found on the victim’s body, a black strand of hair later found to be the victim’s, and the victim’s blood found on the accused’s car and its jack. DNA tests also found semen on the car’s seat covers.

The home ministry has called the DNA tests “conclusive and unassailable” and said that  Mohapatra had testified about them in the trial court.

The petition says the doctor, with 15 years of experience in forensic biology and DNA profiling, had testified that the seals on the parcels were intact and tallied with the specimen seals. He confirmed that the reports produced before the court bore his signature on each page, it says.

Citing the possibility of tampering, the court had said that although Mohapatra had testified and his report was exhibited, merely exhibiting a document “would not prove its contents”. But the review petition argues that since a similar examination by the same doctor  both documentary and orally was accepted in the Nirbhaya case, the top court’s observation was “misconceived and incorrect”.

Quoting the observations in the Nirbhaya judgment, the ministry says a DNA report is conclusive proof if the chain of custody — that is, the sequence of evidence documentation — and non-tampering of evidence has been proved by the prosecution witnesses and documents.

The review also draws up a detailed chronology of events in an effort to demonstrate that no adverse inference can be drawn from the delay in sending the samples to the forensic laboratory.

Also, the process of genotyping — a process to help determine differences in genetic makeup — followed to conduct DNA tests is automated and cannot be manipulated, the petition claims. Therefore, it argues, the DNA reports in the case are conclusive proof of rape and cannot be overlooked because of “alleged minor inconsistences” in the investigation.

Moreover, the scientific technique used to collect vaginal swabs for DNA profiling makes tampering “impossible and improbable”, the review has said, adding that the court’s argument that a “certified medical practitioner could possibly plant the DNA of another person on a vaginal swab” was “misconceived and baseless”.

Decomposition slower in winter, says MHA

The review also seeks to discard doubts the bench had cast over medical evidence in the case. According to the police version, the alleged incident of kidnapping was on 9 February 2012 and the victim’s body was found four days later.

However, according to the autopsy report, there were no signs of putrefaction. 

As a result, the Supreme Court in its judgment questioned the police version of the story — that the victim had been murdered between 10 and 11 February 2012.

“It is submitted that the findings of this Hon’ble Court regarding the time of death and putrefaction are misconceived and incorrect,” the review petition says, adding that the doctor who conducted the autopsy had confirmed all antemortem and post-mortem injuries on the body.

In the instant case, the victim’s sternoclavicular joint, which supports the framework of the body, was found dislocated — a rare injury that according to the MHA, is the result of significant force applied on that portion of the body.

The injury, the MHA says in its petition, was on account of a hit the victim suffered from the car jack on which her blood was detected. 

The review also addresses the absence of signs of putrefaction on the victim’s body and cites the autopsy report as specifically mentioning the beginning of the decomposition. Since the incident was reported during the winter, rigor mortis set in slowly and lasted for a long time in dry, cold air, delaying the decomposition process, the report says.

(Edited by Uttara Ramaswamy)


Also Read: Marital rape victims are included in abortion law’s exception for rape survivors, says SC


 

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