Telangana High Court
Kethavath Mallesh vs The State Of Telangana on 26 June, 2025
THE HONOURABLE SMT JUSTICE K. SUJANA
CRIMINAL REVISION CASE No.17 of 2025
ORDER:
This Criminal Revision Case is filed before this Court
with a prayer to set aside the judgment and conviction passed
in Crl.A.No.3 of 2023 dated 10.12.2024 on the file of the I
Additional District and Sessions Judge, at Mahabubnagar,
preferred against the judgment and conviction passed in
JCC.No.31 of 2020 dated 10.02.2023 before the Court of the
Child Justice Board cum Judicial Magistrate of First Class,
Mahabubnagar.
2. Brief facts of the case are that the revision petitioner, a
student and child in conflict with law (for short ‘CCL’),
preferred an appeal vide Crl.A.No.3 of 2023 under Section 52 of
the Juvenile Justice (Care and Protection of Children) Act,
2015, challenging the conviction and sentence passed in
JCC.No.31 of 2020 by the Juvenile Justice Board-cum-Judicial
Magistrate of First Class for Child Cases, Mahabubnagar. The
CCL was found guilty of offences punishable under Section
376(2)(n) of IPC and Section 5 read with 6 of the Protection of
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Children from Sexual Offences (POCSO) Act, 2012. He was
directed to be sent to the Special Home for Boys, Hyderabad,
for a period of three years to undergo reformative services,
including education, counselling, skill development,
behavioural therapy, and psychiatric support.
3. The case originated from Crime No.104 of 2019
registered by the CI of Police, Jadcherla Rural Circle, alleging
that during his intermediate studies through
Dr. B.R. Ambedkar Open University at Kalwakurthy, the CCL
developed acquaintance with the minor victim. He proposed
love to her, and in January 2019, under the pretext of
marriage, took her to a secluded hillock near Appannapally
village and engaged in sexual intercourse. It was alleged that
such acts occurred on multiple occasions at the same location,
despite his knowledge that the victim was a minor. In March
2019, the victim became pregnant and disclosed the same to
the CCL in June 2019, requesting marriage. However, he
evaded the proposal. On 02.09.2019, she again contacted him,
but upon his refusal to marry her, she allegedly consumed
pesticide on 03.09.2019 after being scolded by her father in the
agricultural fields for neglecting her studies. She was shifted to
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Area Hospital, Badepally, and later to Government Hospital,
Mahabubnagar, where she succumbed during treatment on
07.09.2019.
4. Post-mortem examination revealed six months’
pregnancy, and DNA analysis confirmed the CCL as the
biological father of the fetus. The cell phone and motorcycle
allegedly used during the incidents were recovered pursuant to
a confession-cum-seizure panchanama. The prosecution
examined 17 witnesses and marked 22 exhibits, along with 2
material objects. The CCL denied the allegations during
examination under Section 313 Cr.P.C. and did not adduce
defence evidence. Though the trial Court found no sufficient
evidence to establish charges under Sections 305 and 366-A
IPC relating to abetment of suicide and kidnapping, it held the
sexual assault charge proved based on oral testimony, medical
findings, and DNA evidence, and accordingly, the CCL was
convicted under Section 255(2) Cr.P.C. and sentenced as
above.
5. The appellate Court, upon hearing both parties and
perusing the record, confirmed the findings of the trial Court,
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holding that the DNA results were conclusive and established
the culpability of CCL under Section 376(2)(n) IPC and Section
5 r/w 6 of the POCSO Act, 2012. It found no grounds to
interfere with either conviction or sentence and dismissed the
appeal on 10.12.2024, further directing cancellation of bail
bonds and extending the benefit of Section 428 Cr.P.C. in
computation of detention. Aggrieved thereby, this Criminal
Revision Case is preferred.
6. Heard Sri K.Venkata Vara Prasad, learned counsel for
revision petitioner, and Sri E.Ganesh, learned Assistant Public
Prosecutor, appearing for respondent – State.
7. Learned counsel for revision petitioner contended that
the judgments and convictions rendered by both the Trial
Court and the Appellate Court are contrary to law, fact, and
evidence on record. He submitted that the complaint dated
08.09.2019 lodged by PW-1 does not indicate any specific
allegation or motive attributed to the revision petitioner,
rather, it reveals that the victim had taken the extreme step of
suicide due to admonishment by her own parents. He placed
emphasis on the failure with regard to properly appreciating
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the material contradictions in the evidence of PW-1 regarding
the motive for the suicide committed by deceased. He lamented
that even the testimonies of other prosecution witnesses
suggest that the victim consumed pesticide following
reprimands from PW-1, and not due to any conduct of the
petitioner. He highlighted that several witnesses were unaware
of the circumstances leading to the suicide and therefore the
attribution of motive to the petitioner is legally unsustainable.
8. Additionally, learned counsel for revision petitioner
submitted that PW-6, the brother of victim, did not implicate
the petitioner in any clear or unequivocal terms, thereby,
failing to establish the involvement of petitioner beyond
reasonable doubt. He pointed out that PW-11 is a hearsay
witness and the alleged confession forming part of his evidence
cannot be treated as substantive proof. He averred that the
certificate under Section 65-B of the Indian Evidence Act, along
with the associated exhibits, did not conform to statutory
requirements. Further, that PW-14 allegedly deposed regarding
call records without producing requisite legal authorization,
rendering such evidence inadmissible. He raised doubts over
the credibility of PW-11, described as a Government servant
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and a stock witness, whose testimony was relied upon to
convict the petitioner.
9. That apart, learned counsel for revision petitioner
vehemently challenged the finding that the revision petitioner
was the biological father of the fetus, asserting that such a
conclusion was reached without any legally sustainable or
corroborative proof, and reiterated that the allegations of
repeated sexual acts and aggravated penetrative assault were
unsupported by cogent and reliable evidence. Therefore, he
prayed this Court to allow the revision case, setting aside the
judgment and conviction dated 10.12.2024 in Crl.A.No.3 of
2023, confirming the trial Court’s finding in JCC No.31 of
2020.
10. On the other hand, the learned Assistant Public
Prosecutor, vehemently opposed the submissions made by
learned counsel for revision petitioner, and contended that over
the phone used by victim, they found five numbers that were
contacted repeatedly, on which they secured the presence of
the said persons, whose DNA samples were collected by the
expert and the said samples were sent to FSL. He submitted
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that the FSL report revealed CCL responsible for the said
offence, and thereafter, his confession was also recorded,
basing on which material objects were recovered. Therefore,
while advocating that there are no infirmities or illegalities in
the sentence and conviction of petitioner/accused, he prayed
this Court to dismiss the Criminal Revision Case.
11. Having regard to the rival submissions made, and on
going through the material placed on record, it is noted that
the contention of revision petitioner is that except the DNA
report, there is no other evidence on record to connect the CCL
with the offences as alleged. It is seen that the prosecution
examined PW.1 to PW.17, out of which, PWs.1 and 2 are
parents of the victim, according to whom the victim consumed
pesticide as they asked her to concentrate on studies and later
they came to know from one Swaroopa and Suvarna that the
victim used to talk to Mallesh, Srikanth, Wadde Srinu and
Shiva Naik, and used to move closely with CCL.
12. PW.3 is a circumstantial witness whose evidence is only
with regard to the revelation that victim consumed pesticide as
her parents admonished her for not working properly in their
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agricultural lands, and except this there is no other
incriminating material on record in the evidence of PW.3. The
version of PW.4 states that on hearing hues and cries of PW.3,
he went to her and found the victim lying on the ground and
when PW.3 informed him that victim consumed pesticide, they
shifted the victim to hospital. He stated that he does not know
the reason of commitment of suicide. The version of PW.5 is
similar to that of PW.4.
13. PW.6 is the brother of victim who was twelve years old
back then. He stated that victim returned to house and went
into her room and closed doors. He stated that he heard her
taking the name of CCL and then she consumed pesticide and
was later shifted to hospital, where they came to know that she
was pregnant, whereas, in his cross examination he admitted
that he was present at school when his sister committed
suicide. Therefore, the evidence of PW.6 is no way helpful to
the prosecution. PWs.7 and 8 are the classmates of victim who
did not support the case of prosecution. PW.9 is the
headmistress at Primary School, Midjil, whose evidence is only
to the extent of ascertaining age of victim on the date of
incident. PW.10 is the panch witness for inquest and his
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evidence is only with regard to conducting inquest panchnama.
The evidence of PW.11 is in relation to seizure of material
objects 1 and 2. PW.12 conducted autopsy which stated that
the victim was six months pregnant. She stated that she
conducted potency test over CCL and opined that there is
nothing to suggest that individual examined is not capable of
performing the act of sexual intercourse, and that Ex.P11 is the
report issued by her.
14. PW.13 is the headmaster of ZPHS Boys, at Kalwalurthy,
who issued bonafide certificate of CCL on 28.01.2020, wherein,
the date of birth of CCL was mentioned as 12.06.2002 which
clearly reveals that on the date of offence, he was juvenile.
PW.14 is Officer whose evidence is with regard to call data.
PW.15 is the investigating Officer who deposed about the
investigation done by him and also with regard to DNA report
marked through him. PW.16 is the owner of mobile phone
which was used by the victim, and PW.17 is the second
investigating Officer who sent questionnaire to PW.12 regarding
age of victim and description of genital organs.
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15. As seen from the evidence recorded on behalf of
prosecution, it is noted that except the evidence of Investigating
Officer and medical evidence put on record through DNA
report, there is absolutely no other evidence on record against
the CCL that corroborates with the case of prosecution. That
being so, at this stage, it is evident to determine whether DNA
report can be a sole basis for conviction of accused. According
to appellate Court, the DNA report is a conclusive proof which
is sufficient to show that CCL had sexual intercourse with
victim due to which she became pregnant.
16. Though DNA report is a scientific evidence, it can be
believed if there is any corroborative evidence to prove the
accusation against the accused. In the present case, though
there is no such corroborative evidence against the CCL, it is
also to be noted that while the DNA reports are highly accurate
and clear in establishing facts, they are not always to be
considered unless there is other evidence in support of
allegations. At this juncture, it is relevant to note the principle
laid down by the Hon’ble Supreme Court in the case of Rahul
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vs. State of Delhi, Ministry of Home Affairs 1 , wherein, in
paragraph No.37 it was held as under:
“37. In this regard very pertinent observations
made by this Court in Manoj v. State of M.P.
[Manoj v. State of M.P., (2023) 2 SCC 353 :
2022 SCC OnLine SC 677] deserve to be
made. This Court has in detail dealt with the
issue of DNA profiling methodology and
statistical analysis, as also the collection and
preservation of DNA evidence. The relevant
paragraphs read as under : (SCC paras 151-
56)
“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 transmitted1
2023 1 SCC 83
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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.
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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 vasectomised” 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
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principles, however, remain similar, which
include:
1. isolation, purification & quantitation of
DNA
2. amplification of selected genetic markers
3. 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
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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.’
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152. In an earlier judgment, R v. Doheny [R v.
Doheny, (1997) 1 Cri App R 369 (CA)] 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
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Crl.RC.No.17 of 2025how 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.’
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.
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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
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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] ,
Inspector of Police v. John David [Inspector of
Police 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] , and
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)
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Crl.RC.No.17 of 2025’18. 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 the DNA profile of the suspect, it can
generally be concluded that both the 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.'”
(emphasis in original)”
17. Further, the Bombay High Court recently held that DNA
test report cannot be solely relied on for conviction when the
ocular evidence does not support it. A division Bench sitting at
Aurangabad set aside a man’s rape conviction observing that
the victim changed her testimony and the DNA evidence was
not reliable. It was concluded that the victim’s testimony
cannot be trusted as she changed her statements. Therefore,
the conviction should not have been based only on the DNA
test report. Furthermore, in Criminal Appeal No. 306 of 2016
the Calcutta High Court held that a DNA report is not
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man in a rape case despite the DNA report indicating he was
not the biological father of the child born to the victim.
18. There are several precedents that stated DNA analysis
report cannot be considered conclusive evidence regarding rape
and can only serve as corroborative evidence during the trial; it
is not definitive evidence. An accused cannot be discharged
based solely on a scientific report when direct evidence is
present in the Case Diary. Allegations of rape may be
substantiated by substantive evidence, which requires evidence
from both sides.
19. Reverting to the facts of the case on hand, it can be said
that CCL cannot be convicted solely on the basis of DNA report,
as the DNA report cannot be considered as conclusive evidence
when there is no corroborative evidence. That being so, it can
be opined that the trial Court committed grave error in
convicting the CCL/revision petitioner, treating the DNA report
as conclusive proof, and subsequently, the appellate Court also
committed grave error in confirming the sentence and
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of this Court.
20. Having regard to the facts and circumstances of the case,
this Criminal Revision Case is allowed, acquitting the revision
petitioner and setting aside the sentence and conviction passed
in JCC.No.31 of 2020 dated 10.02.2023 before the Court of the
Child Justice Board cum Judicial Magistrate of First Class,
Mahabubnagar, and the sentence and conviction confirmed in
Crl.A.No.3 of 2023 dated 10.12.2024 on the file of the I
Additional District and Sessions Judge, at Mahabubnagar.
Miscellaneous applications, if any pending, shall also
stand closed.
_______________
K. SUJANA, JDate:26.06.2025
PT
23
SKS,J
Crl.RC.No.17 of 2025THE HONOURABLE SMT JUSTICE K. SUJANA
CRIMINAL REVISION CASE No.17 of 2025
Date:26.06.2025
PT