Bombay High Court
Dayaram S/O. Nawalsing Barela vs The State Of Maharashtra on 1 February, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:2203-DB
1 CrApeal.1201.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 1201 OF 2019
Dayaram s/o. Nawalsing Barela,
Age : 33 years, Occu : Agril.,
R/o. Narwade, Tq. Chopda,
Dist. Jalgaon ...Appellant
Versus
The State of Maharashtra ...Respondent
.....
Mrs. Vaishali A. Shinde (More), Advocate for the Appellant
(appointed through Legal Aid)
Mrs. V. S. Chaudhari, APP for the Respondent / State
.....
CORAM : R. G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 16TH JANUARY, 2024
PRONOUNCED ON : 01st FEBRUARY, 2024
JUDGMENT :
[ Per : Neeraj P. Dhote, J. ]: -
. This is the Appeal under Section 374 (2) of the Code of
Criminal Procedure, 1973 (in short, 'Cr.P.C.') against the Judgment
dated 02.06.2017 passed by the Special Judge (POCSO Act),
Amalner, in Special (POCSO) Case No.15 of 2015 convicting the
Appellant for the offences punishable under Section 376 (i) and (f)
and Section 506 of the Indian Penal Code, 1860 (for short, 'I.P.C.')
and under Section 5 (m) and (n) read with Section 6 of the
2 CrApeal.1201.2019
Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as the 'POCSO Act') and sentencing him to undergo Life
Imprisonment with fine of Rs.5,000/-, in default to undergo Simple
Imprisonment for one (01) month for the offence punishable under
Section 5 (m) and (n) read with Section 6 of the POCSO Act and to
suffer Rigorous Imprisonment for two (02) years and to pay the fine
of Rs.1,000/-, in default to suffer Simple Imprisonment for one
month for the offence punishable under Section 506 of the I.P.C. No
separate sentence is awarded for the offence of rape.
2. Heard the learned Advocate for the Appellant and the
learned APP for the State. Perused the paper-book.
3. The Prosecution's case as seen from the Police Report is
as under:-
3.1. The Informant was the Sarpanch of the village Junegaon,
Tal. Chopda, Dist. Jalgaon. The Appellant is resident of the said
village. He resides with the victim, who is his daughter. The
Appellant's wife has deserted him. On 07.10.2015 Jankabai (PW
No.4) informed her (the Informant) that her niece i.e. victim, was
crying loudly in the night as the Appellant was beating her. She (PW
No.4) informed that the Appellant had gone out. The Informant,
3 CrApeal.1201.2019
Jankabai and other villagers went to the house of the Appellant,
where they saw that the victim was weeping. On enquiry with her,
she told them that in the night of 06.10.2015 when she was sleeping,
the Appellant came home at 09:00 p.m. in an inebriated state and
switched off the lights of their hut and raped her by removing her
clothes and threatened by the Scythe. The victim told them that prior
to that the Appellant had raped her from time to time and as her
mother was not there, she could not disclose the incident. The
Informant and some of the villagers went to the Police Station and
lodged the report and Crime came to be registered against the
Appellant.
3.2. During the investigation, the Spot Panchanama was
done, victim was sent for medical examination, the statement of the
victim and the other villagers came to be recorded, the clothes of the
victim and the Appellant came to be seized, the Appellant came to be
arrested, the Appellant was sent for medical examination, the
document regarding age of the victim was collected from the school,
the Articles seized during the investigation were sent for chemical
analysis and on completion of the investigation, the Appellant came
to be charge-sheeted.
4 CrApeal.1201.2019
4. The learned Trial Court framed the Charge against the
Appellant for the aforesaid offences, under which he has been
convicted, vide Exh.3 to which the Appellant pleaded not guilty and
claimed to be tried. To prove the Charge, the prosecution examined
in all ten (10) witnesses and brought on record certain documents.
After the prosecution closed its evidence, the Appellant's statement
came to be recorded under Section 313 (1)(b) of the Cr.P.C. The
Appellant claimed innocence and false implication. Thereafter, the
Appellant is convicted by the impugned Judgment.
5. It is submitted by the learned advocate for the Appellant
that the prosecution has not proved that the victim was minor. It is
further submitted that, the evidence of the victim is unbelievable and
not corroborated by medical evidence. He further submitted that the
Informant was having grudge against the Appellant due to his habit
of drinking liquor and creating chaos in the village and any how she
wanted the Appellant to be behind the bars. It is further submitted
that the evidence brought on record by the prosecution is not
concrete and considering the nature of the punishment for the
offences, strict proof is necessary. It is submitted that, the learned
Trial Court has committed an error in convicting and sentencing the
Appellant and the same be set aside.
5 CrApeal.1201.2019
6. Per contra, learned APP submitted that there is no reason
for the victim to falsely implicate her father. It is submitted that the
evidence brought on record by the prosecution establishes the Charge
and the learned Trial Court has rightly passed impugned Judgment
and order and hence, prayed for dismissal of the Appeal.
7. It is the case of prosecution that the victim was minor at
the time of incident. One of the Charge levelled against the Appellant
is under the POCSO Act. As per Section 2 (1)(d) of POCSO Act,
"child" means any person below the age of eighteen (18) years. The
provisions of Section 34 of the POCSO Act provide the procedure in
respect of the determination of age. The Hon'ble Supreme Court of
India in P. Yuvaprakash v. State Rep. by Inspector of Police, reported
in AIR 2023 S.C. 3525 has considered the said provision of Section
34 and one of the points for consideration was the victim's age. The
relevant observations are reproduced below:
"11. Before discussing the merits of the contentions and
evidence in this case, it is necessary to extract Section 34 of
the POCSO Act which reads as follows:
"34. Procedure in case of commission of offence by
child and determination of age by Special Court. - (1)
Where any offence under this Act is committed by a
child, such child shall be dealt with under the
provisions of the Juvenile Justice (Care and Protection
6 CrApeal.1201.2019
of Children) Act, 2015 (2 of 2016).
(2) If any question arises in any proceeding before the
Special Court whether a person is a child or not, such
question shall be determined by the Special Court after
satisfying itself about the age of such person and it
shall record in writing its reasons for such
determination. (3) No order made by the Special Court
shall be deemed to be invalid merely by any
subsequent proof that the age of a person as
determined by it under sub-section (2) was not the
correct age of that person."
12. In view of Section 34 (1) of the POCSO Act, Section
94 of the JJ Act, 2015 becomes relevant, and applicable. That
provision is extracted below:
"94. Presumption and determination of age. - (1)
Where, it is obvious to the Committee or the Board,
based on the appearance of the person brought before it
under any of the provisions of this Act (other than for
the purpose of giving evidence) that the said person is a
child, the Committee or the Board shall record such
observation stating the age of the child as nearly as may
be and proceed with the inquiry under section 14 or
section 36, as the case may be, without waiting for
further confirmation of the age.
(2) In case, the Committee or the Board has
reasonable grounds for doubt regarding whether the
person brought before it is a child or not, the
Committee or the Board, as the case may be, shall
undertake the process of age determination, by seeking
evidence by obtaining -
(i) the date of birth certificate from the school, or
the matriculation or equivalent certificate from the
concerned examination Board, if available; and in the
absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any other
latest medical age determination test conducted on the
orders of the Committee or the Board:
Provided such age determination test conducted on the
7 CrApeal.1201.2019
order of the Committee or the Board shall be completed
within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to
be the age of person so brought before it shall, for the
purpose of this Act, be deemed to be the true age of that
person."
13. It is evident from conjoint reading of the above
provisions that wherever the dispute with respect to the age of
a person arises in the context of her or him being a victim
under the POCSO Act, the courts have to take recourse to the
steps indicated in Section 94 of the JJ Act. The three
documents in order of which the Juvenile Justice Act requires
consideration is that the concerned court has to determine the
age by considering the following documents:
"(i) the date of birth certificate from the school, or
the matriculation or equivalent certificate from the
concerned examination Board, if available; and in the
absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any other
latest medical age determination test conducted on the
orders of the Committee or the Board".
14. Section 94 (2)(iii) of the JJ Act clearly indicates
that the date of birth certificate from the school or
matriculation or equivalent certificate by the concerned
examination board has to be firstly preferred in the absence
of which the birth certificate issued by the Corporation or
Municipal Authority or Panchayat and it is only thereafter in
the absence of these such documents the age is to be
determined through "an ossification test" or "any other latest
medical age determination test" conducted on the orders of
the concerned authority, i.e. Committee or Board or Court. In
the present case, concededly, only a transfer certificate and
not the date of birth certificate or matriculation or equivalent
certificate was considered. Ex. C1, i.e., the school transfer
certificate showed the date of birth of the victim as
11.07.1997. Significantly, the transfer certificate was
produced not by the prosecution but instead by the court
summoned witness, i.e., CW-1. The burden is always upon
the prosecution to establish what it alleges; therefore, the
prosecution could not have been fallen back upon a
8 CrApeal.1201.2019
document which it had never relied upon. Furthermore, DW-
3, the concerned Revenue Official (Deputy Tahsildar) had
stated on oath that the records for the year 1997 in respect to
the births and deaths were missing. Since it did not answer to
the description of any class of documents mentioned in
Section 94(2)(i) as it was a mere transfer certificate, Ex C-1
could not have been relied upon to hold that M was below 18
years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs.
State of Uttar Pradesh & Ors.,3 this court outlined the
procedure to be followed in cases where age determination is
required. The court was dealing with Rule 12 of the erstwhile
Juvenile Justice Rules (which is in pari materia) with Section
94 of the JJ Act, and held as follows:
"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to
be followed in determination of age. The juvenility of a
person in conflict with law had to be decided prima facie on
the basis of physical appearance, or documents, if available.
But an inquiry into the determination of age by the Court or
the JJ Board was by seeking evidence by obtaining: (i) the
matriculation or equivalent certificates, if available and in the
absence whereof; (ii) the date of birth certificate from the
school (other than a play school) first attended; and in the
absence whereof; (iii) the birth certificate given by a
corporation or a municipal authority or a panchayat. Only in
the absence of either (i), (ii) and (iii) above, the medical
opinion could be sought from a duly constituted Medical
Board to declare the age of the juvenile or child. It was also
provided that while determination was being made, benefit
could be given to the child or juvenile by considering the age
on lower side within the margin of one year."
16. Speaking about provisions of the Juvenile Justice
Act, especially the various options in Section 94 (2) of the JJ
Act, this court held in Sanjeev Kumar Gupta vs. The State of
Uttar Pradesh & Ors4 that:
"Clause (i) of Section 94 (2) places the date of birth
certificate from the school and the matriculation or
equivalent certificate from the 2021 (12) SCR 502
[2019] 9 SCR 735 concerned examination board in the
same category (namely (i) above). In the absence
thereof category (ii) provides for obtaining the birth
certificate of the corporation, municipal authority or
panchayat. It is only in the absence of (i) and (ii) that
age determination by means of medical analysis is
provided. Section 94(2)(a)(i) indicates a significant
9 CrApeal.1201.2019
change over the provisions which were contained in
Rule 12(3)(a) of the Rules of 2007 made under the Act
of 2000. Under Rule 12(3)(a)(i) the matriculation or
equivalent certificate was given precedence and it was
only in the event of the certificate not being available
that the date of birth certificate from the school first
attended, could be obtained. In Section 94(2)(i) both
the date of birth certificate from the school as well as
the matriculation or equivalent certificate are placed in
the same category.
17. In Abuzar Hossain @ Gulam Hossain v State of
West Bengal5, this court, through a three-judge bench, held
that the burden of proving that someone is a juvenile (or
below the prescribed age) is upon the person claiming it.
Further, in that decision, the court indicated the hierarchy of
documents that would be accepted in order of preference."
8. Coming to the case in hand, the prosecution examined
PW No.9 - Kailas Uttam Magar to prove the age of victim. His
evidence, which is at Exh.29, show that he was working as Head
Master at Adgaon High School, Adgaon since the year 2011. On
21.06.2014 student xxx (victim) was admitted in the school in the 5 th
Std. At that time, her birth date was disclosed as 01.06.2003. His
evidence show that the said information about the date of birth was
given by the parents of the pupil and accordingly entry was made in
the general register. His evidence show that the said entry was
recorded in his handwriting and the copy of the relevant page from
the original General Register was at Exh.30. The extract from the
said School General Register and bona fide certificate are brought on
record at Exhs.31 and 32, respectively. In cross-examination, it has
come that the parents of xxx (victim) did not produce the copy of the
10 CrApeal.1201.2019
birth certificate.
9. The evidence of above referred witness clearly
establishes that the entry of xxx victim's date of birth in the said
school record was not based on the birth certificate. Therefore, said
evidence in respect of Age of the Victim is discarded. The Appellant
in his statement under Section 313 of the Cr.P.C. denies the evidence
of this witness that the said date of birth of victim was disclosed by
the parents. It is needless to state that the date of birth / age is to be
proved in accordance with law. Thus, without hesitation it is held
that the prosecution has failed to prove the date of birth and age of
the victim as required by law. All in all, the prosecution failed to
establish that the victim was the child at the time of the incident.
10. Star witness of the prosecution is the victim girl. She
was examined as PW No.3 at Exh.16. The note made by the learned
Trial Court in the said deposition of victim show that her evidence
was recorded without administering oath as she did not know the
sanctity of oath. Her evidence show that the Appellant is her father
and at the time of the incident she was residing with the Appellant.
Except her and the Appellant, there was nobody residing in their
house. She deposed that the incident took place prior to five (5) to
six (6) months when, the Appellant came home at 09:00 p.m. under
11 CrApeal.1201.2019
the influence of liquor, turned off the light, removed her clothes and
committed rape on her. Her evidence show that she opposed the
same, but the Appellant threatened her by showing Scythe and
whenever she tried to rescue herself, he caught hold of her. She
further deposed that the accused had committed rape on her since
last four (4) to five (5) months from the incident in question and
used to threaten her by showing the Scythe and therefore, she did not
disclose to anybody. According to her, in the morning Munnabai and
Radhabai took her to the house of Hirabai where the Police Patil was
also called and thereafter they went to Chopda Police Station. She
was referred for the medical examination. There were stains on her
clothes and the clothes were handed over to the police which were at
Article 'A' to 'D'. She deposed that, her statement was recorded before
the Magistrate at Chopda.
11. The evidence of PW No.2 - Mahadev Manik Fad show
that the spot panchanama at Exh.15 was drawn in his presence and
he acted as a panch. His evidence show that the spot of incident was
at village Narwade, Tal. Chopda and the spot of incident was hut and
it was shown by the informant (PW No.1).
12. The scrutiny of the evidence of PW No.1 - Lilabai Dilip
12 CrApeal.1201.2019
Bhil, who was the Sarpanch of the said village Narwade at the
relevant time, show that opposite to the house of the Appellant there
was a tar road which proceeds towards village Vadati, there was
Aashram school towards eastern direction of the road, there were
houses of the persons from Pawara community towards western
direction of the road which were constructed by making
encroachment on the public property and since last 20-25 years the
Appellant was residing at the said spot along with his father, brother
and other relatives. The evidence of PW No.1 Lilabai show that her
house was about 4 to 10 minutes by walk from the house of the
Appellant.
13. The evidence of PW No.4 - Jankabai Nandu Barela show
that the Appellant was her brother-in-law, who used to reside with
the victim and the Appellant's wife resides at her paternal home. Her
evidence show that she resides behind the house of the Appellant
since last 20-25 years.
14. The evidence of PW No.10 - Kailas Fakirba Wagh, the
Investigating Officer show that the hut i.e. spot of incident was of
10 ft x 12 ft size and was a kaccha hut having the door made from
sticks. His evidence further show that the house of Radhabai Gulab
13 CrApeal.1201.2019
was opposite to the house of the Appellant and there was a passage
admeasuring around 2 ½ to 3 ft. between the houses of the Appellant
and Radhabai.
15. From the above evidence of PW No.1 - Lilabai, PW No.2 -
Mahadev, PW No.4 - Jankabai and PW No.10 - Kailas, it is clear that
the house of Appellant which is the spot of incident is not an isolated
place. It is situated in the village having other houses. Even the close
relative of the victim, PW No.4 - Jankabai, was residing behind the
house of the Appellant. If such was the location of the spot of
incident, it is unlikely that the victim was repeatedly raped by the
Appellant for about four (4) to five (5) months prior to the incident
and she kept mum. The evidence of victim show that the Appellant
had threatened her with Scythe and therefore she kept mum and did
not disclose the act of rape to anyone. Her evidence show that,
'whenever she tried to rescue from the accused, he used to caught
hold her' was an improvement from her previous statement. If this
was so, according to her even at the time of the last incident of rape,
she was threatened by the Appellant with Scythe, however at that
time she disclosed about the incident to Munniabai, PW No.4 -
Jankabai, PW No.1 - Lilabai and Radhabai when they came to her
house. It is nowhere the case of prosecution that during all such
14 CrApeal.1201.2019
times the victim had tried to approach PW No.4 who was her relative.
There is nothing in the evidence that all the time the Appellant used
to be present in the house and did not allow the victim to go out of
the house. This becomes clear from the evidence of PW No.1 - Lilabia
where she deposed that when she along with Jankabai, Munnabai
and Police Patil had gone to the house of the victim on 07.10.2015 at
about 07:00 a.m., the Appellant was not present in the house. Even
the evidence of PW No.5 Vaishali Avinash Dhangar, who was the
Police Patil of the village Narwade, show that when she went to the
house of the victim along with PW No.1 - Lilabai, PW No.4 -
Jankabai, Radhabai, Munnibai, the Appellant was not present in the
house. There is no evidence that the victim was kept in captivity and
therefore she could not approach the people in the locality.
16. As per the victim, the Appellant came home under the
influence of liquor and committed rape on her. The evidence of PW
No.1 - Lilabai, who was the Sarpanch of village Narwade, show that
the accused was addicted to liquor and was habituated to raise shouts
under the influence of liquor, which caused nuisance to the public
from the said locality. When the Appellant was habituated to liquor
to such an extent and had come home under the influence of liquor,
the version of PW No.3 victim that she was raped by him when he
15 CrApeal.1201.2019
was under the influence of liquor is required to be seen with doubt.
17. Evaluation of above discussed evidence creates
reasonable doubt about the prosecution's case of rape on the victim
in the intervening night of 06th and 07th October, 2015 and such
repeated acts prior to four (4) to five (5) months from the date of
incident. The place of residence of the victim was Hut, having the
door made of sticks and the relatives of the Appellant were residing
in the vicinity. The victim had all the opportunity to disclose such act
of the Appellant to her relatives. Had really been that she was under
the threat, she would have never disclosed anything to the witnesses
who claimed to have seen her weeping in the morning of 06.10.2015
and informing them about the incident when they went to her house.
18. There are other aspects to the matter as well.
Evidence of PW No.1 - Lilabai show that Munnibai Gatalu
Bhil, Fulsing Bhil, Mangal Bhil and Yuvraj Bhil had
complained against the Appellant to her. The evidence of PW
No.10 - Kailas Wagh, Investigating Officer show that in response
to his letter at Exh.43 addressed to the Grampanchayat for
providing the extract of the house showing the ownership
was informed by the Grampanchayat vide Exh.44 that
16 CrApeal.1201.2019
there was no house in the name of the Appellant and the house was
constructed by making encroachment. Suggestion was given to PW
No.1 Lilabai (Sarpanch) that the Appellant had come to her with a
request to allot him a house under the Indira Aavas Yojana and she
refused the same. In his statement, the Appellant while answering
the question no.72 as to why the witnesses were deposing falsely
against him, he stated that 'he constructed the house on the
government property and PW No.1 - Lilabai had demolished the
same, thereafter he had constructed the house, PW No.1 and others
used to harass his wife, therefore, he had kept her at maternal home
and they were intending to remove him from the said village and
they brought him to the police station'. He further stated that 'PW
No.1 also threatened to his daughter (victim), therefore due to
pressure she deposed against him.'
19. Coming back to the evidence of PW No.3 Victim, she
deposed that quarrels used to take place between PW No.1 Lilabai
and the Appellant on account of consumption of liquor. This makes it
clear that the relations between PW No.1 Lilabai and the Appellant
were not cordial. Her evidence show that PW No.1 - Lilabai /
informant and Munnabai accompanied her to the police station and
she attended the court along with PW No.1 - Lilabai. The possibility
17 CrApeal.1201.2019
of tutoring the Victim by PW No.1 Lilabai cannot be ruled out.
20. The evidence of PW No.4 - Jankabai, who is the wife of
Appellant's brother and stays in the same village, show that prior to
two years of the incident, the Appellant used to reside at Kapadne.
Suggestion is given that there was quarrel between the Appellant and
the Munnibai, therefore, he was driven out of the village. As already
discussed, the evidence available on record indicate that the act of
the Appellant of raising shouts under the influence of liquor caused
the nuisance to the persons from the locality. It is to be noted that
the Appellant was produced before the police by his brother.
21. The prosecution has brought on record the medical
evidence through PW No.6 Dr. Pankaj Raman Patil. His evidence
show that on 07.10.2015 he was attached to the Sub District
Hospital, Chopda as a Medical Officer and the victim was referred to
him by the police and she was examined by him and other doctors.
His evidence show that there was rupture of hymen and he collected
the samples of scalp hair, clippings of nails of both hands, oral swab,
blood for grouping and DNA analysis, public hair, two vulval swabs
and two peri-anal swabs and referred the samples for chemical
analysis and the victim was referred to the Civil Hospital, Jalgaon for
x-ray and sonography examination of abdomen and she was given
18 CrApeal.1201.2019
the treatment for prevention of sexually transmitted infectious
diseases. His evidence show that he filled up the proforma for
medico legal examination of the victim in his handwriting, which was
at Exh.20. His evidence show that the hymen may be ruptured due to
penetration and at the time of the first penetration it causes rupture
of hymen and bleeding. However, if the penetration is repeated,
there may not be bleeding, but hymen appears in a torn condition. In
the cross-examination of this witness, it has come that page no.10 to
13 of Exh.20 do not reflect visible injuries. It has come that rupture of
hymen is possible, if the girl engages herself in cycling or climbing
trees. His evidence show that he did not mention the age of rupture
and did not notice bleeding or fresh injury on the vaginal part of the
victim. He deposed that he cannot state that if minor girl is forcibly
raped for the first time, in that case she may receive injuries to her
vaginal part.
22. Perusal of the Exh.20 which is filled in proforma
for medico legal examination of victim of sexual violence show
that, post incident the victim had not taken bath and was
not douched. The column no.17 of Exh.20 which reads 'examination
for injuries on the body if any' do not show any injury. Sub para-4 of
19 CrApeal.1201.2019
para no.21 which is titled as 'Genital and Anal evidence' show that
the vaginal swabs 'for semen examination and DNA testing' and
'vaginal smear (air-dried) for semen examination' were not taken and
the reason mentioned is 'not allowing'. Para no.22 which is titled as
'provisional medical opinion' reads as under:
"22. Provisional medical opinion
I have examined (name of survivor) xxx M/F/Other ...
aged 11 years reporting (type of sexual violence and
circumstances0 .. 15 hours XYZ days / hours after
the incident, after having (bathed/douched etc.) -NA- My
findings are as follows:
. Samples collected (for FSL), awaiting reports
. Samples collected (for hospital laboratory)
.
Clinical findings . Additional observations (if
any) Refer to CHT for XYZ & (not legible)"
23. The above discussed medical evidence do not indicate
the signs of sexual assault on the victim. Though the hymen was
found to be torn, the said witness has given other reason for causing
rupture of hymen. Medical evidence, therefore, is of no assistance for
the prosecution to prove the charge.
24. In the evidence of PW No.10 Kailas Wagh, Investigating
Officer, report of the chemical analysis are brought on record at
Exh.47 to 49. Perusal of the said reports show that the blood group
of the Appellant was 'A' and the blood group of victim was 'B'. It
20 CrApeal.1201.2019
further show that no semen was detected on Exh.1 (perianal swab),
Exh.2 (vaginal swab), Exh.3 (buccal swab) and Exh.9 (pubic hair of
the victim). It further show that no blood was detected on Exh.4
(Scalp hair of the victim), Exh.5 & 6 (nail clippings of the victim).
The CA report at Exh. 48 mentions that 'opinion regarding presence
of foreign hair in Exh. 9 (public hair of the victim) cannot be given as
it is unsuitable for examination. The report further show that no
blood was detected on Exh.'A' - frock, Exh.A-1 Knicker, Exh.A-2
Slacks, Exh. A-3 Scarf, Exh. B half pant, Exh.B-1 Half shirt, Exh.B-2
Underwear. It further show that no semen was detected on Exh.A
frock, A-2 Slacks, Exh. A-3 Scarf, Exh. B half pant, Exh.B-1 Half shirt,
Exh.B-2 Underwear and Exh. C1 quilt.
25. Whereas the CA report at Ex.47 indicate that the quilt at
Exh. 'C' were having few blood stains of human (inclusive) ranging
from about 0.1 cm to 1 cm in diameter at places and three semen
stains, two semen stains were each of about 2 cm in diameter on
middle portion and another one semen stain is of about 3 cm in
diameter at one end of human blood group 'A' and Exh. A-1 Knicker
had few semen stains ranging from about 1 cm to 1.5 cm in diameter
on middle portion of human blood group 'A' and human blood
(inclusive) on Exh. C-1 (Quilt). However, the said report showing
21 CrApeal.1201.2019
blood and semen by itself will not be sufficient to hold that the
Charge is proved. The evidence of panch witness nowhere show that
the Articles were sealed. Under such circumstances, the said reports
of Chemical Analysis are of no assistance for the prosecution.
26. The above discussed evidence available on record do not
prove that the Appellant had committed rape on the victim. The
substantive evidence of the witnesses is not concrete. The
corroborative evidence in the nature of medical evidence do not
support the case of prosecution. The prosecution has failed to
establish the Charge against the Appellant. The Appellant deserves
acquittal. Hence, we proceed to pass the following order.
ORDER
(i) The Appeal is allowed.
(ii) The Judgment and order dated 02.06.2017 passed by the
Special Judge (POCSO Act), Amalner, in Special (POCSO)
Case No.15 of 2015 convicting and sentencing the Appellant
is hereby quashed and set aside.
(iii) The Appellant is acquitted of the offences punishable under
Sections 376 (i) and (f), 506 of the Indian Penal Code and
under Section 5 (m) and (n) read with Section 6 of the
Protection of Children from Sexual Offences Act, 2012.
22 CrApeal.1201.2019
(iv) The fine, if any, paid by the Appellant, be returned to him.
(v) The Appellant be released forthwith, if not required in any
other crime.
(vi) Muddemal be dealt with in accordance with law.
(vii) Record & Proceedings be sent back to the Trial Court.
(viii) The fees of Advocate appointed for the Appellant, is
quantified at Rs.7,000/- (Rupees Seven Thousand Only) to
be paid by High Court Legal Services Sub Committee,
Aurangabad.
( NEERAJ P. DHOTE, J. ) ( R. G. AVACHAT, J. )
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 02/02/2024 15:11:43
