Roshan S/O Manohar Sahare vs The State Ofmah. Thr. Pso Girad ...
2024 Latest Caselaw 26473 Bom

Bombay High Court

Roshan S/O Manohar Sahare vs The State Ofmah. Thr. Pso Girad ... on 18 October, 2024

Author: G. A. Sanap

Bench: G. A. Sanap

2024:BHC-NAG:12189

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR.

                             CRIMINAL APPEAL NO. 236 OF 2022

                    APPELLANT                  :      Roshan S/o. Manohar Sahare, Aged
                                                      27 Years, Occu: Panipuri Seller, R/o.
                                                      Girad, Tah. Samudrapur, Dist.
                                                      Wardha.

                                                            //VERSUS//

                    RESPONDENTS                : 1. The State of Maharashtra, through
                                                    P.S.O. Girad, Tah. Samudrapur, Dist.
                                                    Wardha.
                    Amendment as per Hon'ble       2. XYZ (Victim), through informant in
                    Court's Orders dt.
                                                      Crime No.2/2020 registered with
                    21.06.2022 & 1.07.2022.
                                                      Police Station, Girad, Tah.
                                                      Samudrapur, District Wardha.

                **************************************************************
                  Mr. S.S. Das, Advocate for the Appellant.
                  Mr. P.P. Pendke, APP for Respondent No.1/State.
                  Ms. S.H. Bhatia, Advocate (appointed) for Respondent No.2 is
                  absent.
                **************************************************************
                                    CORAM : G. A. SANAP, J.
                                    DATED : 18th OCTOBER, 2024.


                ORAL JUDGMENT

. In this appeal, challenge is to the judgment and order

dated 31.01.2022, passed by the learned Additional Sessions Judge,

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Hinganghat, whereby the learned Judge convicted the appellant of

the offences punishable under Sections 376(2)(j), 376(2)(n) and

376(3) of the Indian Penal Code, 1860 (for short, "IPC") and

under Section 5(l) r/w Section 6 of the Protection of Children from

Sexual Offences Act, 2012 (for short, "POCSO Act"), and

sentenced him to suffer rigorous imprisonment for ten years and to

pay a fine of Rs.5,000/- and in default to suffer rigorous

imprisonment for three months for the offence punishable under

Section 376(2)(j)(n) of the IPC. No separate sentence has been

awarded for the proved offences punishable under Sections 376(3)

of the IPC and under Section 5(l) r/w Section 6 of the POCSO

Act.

02] BACKGROUND FACTS:

The informant (PW-1) is the mother of the victim-girl.

The crime was registered on her report lodged on 3 rd January,

2020. The case of prosecution, which can be gathered from the

report and other materials, is that, on the date of the incident, the

victim was around 13 years of age. The incident of penetrative

sexual assault occurred on 2nd January, 2020. On the date of the

incident, there was rain, and therefore, the informant did not go for

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work on the field. On that date, on account of the rain, the victim

also did not go to the school. It is stated that at about 3:00 p.m.,

the informant went to attend the Bachatgat meeting and returned

back at about 6:00 p.m. At that time, she found that the victim was

sleeping in the house. The husband of the informant told her that,

after about 5:00 p.m., he saw that the appellant was holding the

hand of the victim and dragging her towards the Government

Hospital. The appellant, after seeing the father, left the victim and

ran away. The father brought the victim back to the house.

03] It is stated that, after narration of the above incident by

her husband, the informant made an enquiry with the victim

regarding the matter. The victim told her that she had a love affair

with the appellant. The victim told her mother that on 2 nd January,

2020, in the noon, the appellant forcibly took her to the hillock

and committed a forcible sexual intercourse with her. The victim

told her parents that 2-3 times in the past, the appellant had

committed sexual intercourse with her. The informant, on being

apprised of this incident by the victim, deliberated upon this

incident with her family members and the Chairperson of the

village Tantamukti Committee. On 3rd January, 2020, the

informant, victim, and her father went to Girad Police Station and

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lodged the report.

04] On the basis of this report, a crime bearing No.2/2020

was registered with Girad Police Station. The initial investigation

was carried out by PW-7. PW-7 recorded the First Information

Report (FIR) and seized the cloths of the victim. Further

investigation was carried out by PW-14. After recording the FIR,

the Investigating Officer referred the victim for medical

examination. The appellant was arrested and referred for medical

examination. The Investigating Officer recorded the statements of

the witnesses. The statement of the victim was recorded by PW-7.

Similarly, the statement of the victim was recorded by the learned

Judicial Magistrate First Class, Samudrapur, under Section 164 of

the Code of Criminal Procedure, 1973 (for short, "Cr.PC"). The

samples had been sent for CA and DNA analysis. After completion

of the investigation, the charge-sheet was filed against the

appellant.

05] Learned Additional Sessions Judge framed the charge

against the appellant. The appellant pleaded not guilty. His defence

is of false implication in this crime. The prosecution, in order to

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bring home the guilt of the appellant, examined 14 witnesses. The

learned Judge, on consideration of the evidence, held the appellant

guilty of the charge and convicted and sentenced him as above.

The appellant, being aggrieved by this judgment and order, has

come before this Court in appeal.

06] I have heard Mr. S.S. Das, learned advocate for the

appellant and Mr. P.P. Pendke, learned APP for respondent

No.1/State. Perused the record and proceedings.

07] Learned advocate for the appellant submitted that the

prosecution has not adduced cogent and concrete evidence to

prove the birth date of the victim. Learned advocate submitted that

the birth certificate of the victim at Exh.22 has not been properly

proved, and therefore, the learned Judge was not right in relying

upon this birth certificate to record a finding on this point. Learned

advocate further submitted that, while lodging the report, the

informant had not stated the birth date of the victim. The

prosecution has not examined any witness from the Gram

Panchayat Office to prove the birth certificate.

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08]       Learned APP submitted that the victim, in her evidence

as well as in her statement, has categorically stated that her birth

date is 25th March, 2006. It is submitted that the evidence of the

informant and the evidence of the father of the victim on this point

is consistent. It is pointed out that, in the report at Exh.24, the

informant had categorically stated that, on the date of the incident,

the victim was 13 years of age. Learned APP submitted that the

birth certificate produced on record is a public document. This

documentary evidence was collected by the Investigating Officer

during the course of the investigation. It is submitted that it is not

the case of the appellant that this documentary evidence in the

form of a birth certificate was brought into existence just for the

sake of supporting the case of the informant.

09] I have minutely perused the record and proceedings. The

informant, in her report, has categorically stated that, on the date of

the incident, the victim was 13 years of age. The informant, in her

substantive evidence, has stated that the birth date of the victim is

25th March, 2006. The birth certificate was exhibited during the

course of the evidence of the informant. PW-3 is the victim. In her

evidence, she has stated that her birth date is 25 th March, 2006.

PW-11 is the father of the victim. He has stated that, on the date of

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the incident, the victim was 13 years of age. Apart from the age of

the victim, the father has categorically stated the age of his two

children. He has further categorically stated that the birth date of

the victim is 25th March, 2006. The statement of the victim was

recorded by the learned Judicial Magistrate First Class,

Samudrapur. The victim, during the course of her preliminary

enquiry by the learned Magistrate, narrated her birth date as 25 th

March, 2006. It is undisputed that, on the date of the incident, the

victim was studying in VIII Standard.

10] In the backdrop of the above oral evidence, it is

necessary to consider the birth certificate at Exh.22. It is

undisputed that this certificate was obtained by the Investigating

Officer during the course of the investigation. This birth certificate

was issued by the Registrar, Birth and Death Registration Office,

Girad, on 6th January, 2020. The report, in this case, was lodged on

3rd January, 2020. This birth certificate, which is a certified copy

from the public record, has a presumptive value. Perusal of the

contents of this birth certificate does not leave any manner of

doubt in my mind about the authenticity of this document. The

birth certificate was compiled in the charge-sheet being the most

important document in the case of the prosecution. Perusal of this

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birth certificate would show that the names of the parents of the

victim have been recorded therein. The parents, at the time of the

birth of the victim, had been residing at village Girad. As per

Exh.22, the victim was born at P.H.C., Peth. The entry of the birth

and the birth date of the victim was registered with the Registrar on

1st April, 2006. The registration entry number is 07. Perusal of this

document would show that it was issued on the basis of the public

record maintained with the Competent Authority. Perusal of the

cross-examination of the witnesses would show that the

authenticity of this document has not been challenged at all. The

Investigating Officer had no reason to manipulate such a record

after registration of the crime. In my view, such inference also

cannot be drawn in this case. This evidence, in my view, is

sufficient to prove that, on the date of the incident, the victim was

around 13 years of age and, as such, a child as defined under

Section 2(1)(d) of the POCSO Act.

11] In the backdrop of the above finding, the evidence

adduced by the prosecution with regard to the incident of

penetrative sexual assault on the victim needs minute scrutiny and

appreciation. Learned advocate for the appellant took me through

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the oral and documentary evidence. Learned advocate submitted

that the evidence adduced by the prosecution is not sufficient to

prove the incident of penetrative sexual assault on the victim on 2 nd

January, 2020. Learned advocate took me through the evidence of

the victim and submitted that the victim, at the stage of her

evidence before the Court, has improved her version on all the

material aspects. Learned advocate submitted that the evidence of

the victim, as to the occurrence of the incident on the given date, is

not credible and trustworthy. The evidence of the victim, in the

submission of the learned advocate for the appellant, is not of

sterling quality to place implicit reliance on the same, to convict

the appellant. Learned advocate submitted that the evidence of the

parents of the victim is not direct evidence as to the occurrence of

the incident. It is pointed out that there are major material

omissions in their evidence before the Court. The improvements

made by the victim as well as by her parents are major to create a

doubt about their credibility. Learned advocate submitted that the

medical evidence with regard to the examination of the victim is

not sufficient to accept the case of the victim that on 2 nd January,

2020, she was subjected to penetrative sexual assault. Learned

advocate submitted that the Medical Officer did not notice any

fresh injury to the genitals of the victim. Learned advocate pointed

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out that the Medical Officer had noticed an old healed hymen tear.

It is submitted that, on the basis of this old healed hymen tear, the

complicity of the appellant with regard to the incident occurred on

2nd January, 2020, cannot be established.

12] Learned advocate took me through the medical

examination report of the appellant. Learned advocate pointed out

that, on examination of the penis of the appellant, the doctor

found that the smegma was present. Learned advocate submitted

that, in the teeth of the evidence of the Medical Officer, the

occurrence of the incident on 2nd January, 2020 is highly

improbable. As far as the DNA report is concerned, the learned

advocate submitted that the prosecution has failed to establish

beyond reasonable doubt that there was no scope for

contamination of the samples. Learned advocate took me through

the evidence on record from the time of the collection of the

samples till the analysis of the samples and submitted that, without

proper evidence with regard to the care and precautions taken to

maintain the purity of the samples and to avoid the contamination

of the samples, reliance cannot be placed on such evidence.

Learned advocate further submitted that the seizure of the cloths of

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the victim by the Investigating Officer is doubtful. Learned

advocate submitted that the learned Judge has failed to properly

appreciate the evidence and, as such, has come to a wrong

conclusion.

13] Learned APP submitted that the omissions proved from

the evidence of the victim and her parents are not major omissions

to doubt their credibility. In the submission of the learned APP, the

evidence of the victim is sufficient to prove the penetrative sexual

assault on her by the appellant on 2 nd January, 2020. Learned APP

submitted that the appellant, at the time of his examination,

admitted the act of penetrative sexual assault by him with the

victim. Learned APP submitted that the prosecution, by adducing

cogent and concrete evidence, has proved that there was no scope

for tampering with the samples. Learned APP submitted that the

CA reports and the DNA report clearly record that the samples

have been received in sealed condition. Learned APP submitted

that the DNA report is the best evidence in this case to corroborate

the version of the victim as well as the version of her parents.

14] In order to appreciate the rival submissions advanced by

the learned advocates for the parties, I have minutely scrutinized

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the evidence on record. In this case, the Court has to carefully

scrutinize the evidence of the victim. The parents of the victim, as

can be seen from the record, are not the direct witnesses to the

occurrence of the incident. It is the case of the prosecution that, on

2nd January, 2020, there was rain, and therefore, the informant had

not gone to the field for work. In the evening, the father of the

victim, while coming back from the field, noticed that near the

Government Hospital of the village, the appellant had caught hold

the hand of the victim and was dragging her towards the hospital.

When the appellant saw the father of the victim, he released the

victim and ran away. It is the case of the prosecution that the victim

went to the house. The father then narrated this incident to her

mother. It is further case of the prosecution that, by this time, the

victim had slept. The informant, when the victim woke up, made

the enquiry with her about this incident and, at that time, the

victim narrated the incident occurred at the hillock in the noon

with her. It is, therefore, apparent that the parents of the victim,

even as per the case of prosecution, are not in any manner directly

or indirectly are privy to the incident, which had occurred at the

hillock. At this stage, it is necessary to mention that, if the evidence

of the victim, on scrutiny, is found to be credible and trustworthy,

then, to some extent, for the purpose of lending an assurance to the

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case of prosecution, the evidence of the parents of the victim can be

considered.

15] The victim, in this case, is the most important witness.

The victim, on the date of the report, had accompanied her mother

to the police station. The report of the incident was lodged on 3 rd

January, 2020 at 10:08 p.m. The incident had occurred in the

noon of 2nd January, 2020. Even if it is assumed that the parents of

the victim came to know about this incident in the evening of 2 nd

January, 2020, there was more than 24 hours delay in lodging the

report. The report lodged by the mother of the victim at Exh.24 is

silent about the penetrative sexual assault. It was stated in the

report that the appellant had removed her cloths, lied her on

ground and had done some work with her. The informant is a

rustic villager. She had narrated the incident in her own language.

In her evidence, she has not stated about the occurrence of any

incident prior to 2nd January, 2020. Same is the evidence of her

father. The victim, in her evidence, has not stated the date of the

incident. However, she has stated that, on that day, the date was

2nd. She has stated that, on that day, there was rain, and therefore,

she did not go to the school. She has stated that, when she was

going to bring Kharra (tobacco and betelnut mixture), the accused

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met her while returning from the shop. Thereafter, she went to

bring the book from her friend. The appellant met her and took

her to the hillock. While narrating the actual incident, she has

stated that there the accused removed her cloths and his cloths and

then he had relations with her. In her evidence, she has stated that

the accused penetrated his penis into her vagina and thereafter

brought her down from hillock and then she came to the house. In

her evidence, she has stated that, when she narrated the incident to

her parents, on the very same day, her parents had gone to the

police station for lodging the report. In the further part of her

examination-in-chief, she has stated that on the next day, they went

to lodge the report to the police station.

16] Perusal of her cross-examination would show that her

evidence with regard to the insertion of penis into her vagina has

been found to be omission. It is further seen that major part of her

examination-in-chief has been proved to be omission. It is to be

noted that this occurrence of the incident as narrated by the victim

appears to be doubtful. The victim, in her evidence, has stated that,

by walk, if one has to go to hillock, it requires one hour. It is her

case that the appellant had forcibly took her to hillock. The cross-

examination of the victim would show that, on the road to the

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hillock, there are houses. Even on the hillock, the people regularly

come and go. It has come on record that this sexual act with the

victim was committed in the open area. It needs to be stated at this

stage that on the given date, there was rain. It is to be noted that if

the accused had committed forcible intercourse with the victim in

the open area on the hillock, then the mud ought to have stuck to

her cloths as well as the cloths of the appellant. There was no injury

on the body of the victim. Perusal of the panchanama would show

that the surface at the spot of the incident was rough. There were

pebbles/stones on the spot.

17] It is further seen on perusal of the record that the

statement of the victim was recorded by PW-7. In her statement

before the Police, she narrated only one incident, which had

occurred on 2nd January, 2020. It is further seen that, in her

statement before the police, she did not narrate the incident of

penetrative sexual assault, i.e., the insertion of penis into her vagina

by the appellant. It has come on record that the statement of the

victim was recorded by the Magistrate. That statement has not

been exhibited. The statement is part of the record. The said

statement can be perused by the Court for the purpose of

ascertaining the truthfulness of the evidence of the victim recorded

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before the Court. Perusal of this statement would show that, in her

statement before the Magistrate, she narrated two incidents.

According to her, first incident occurred on 28th December, 2019.

As per her statement, the accused had committed sexual

intercourse with her in his house. As far as the incident of 2 nd

January, 2020 is concerned, she has stated that the appellant

committed sex with her. The incident, which she had narrated

before the Court, was not specifically stated by her while recording

her statement. In my view, overall perusal of her evidence creates

doubt about the occurrence of the incident on 2nd January, 2020.

18] In this context, it is necessary to consider the evidence of

the mother of the victim. Perusal of the evidence of the mother of

the victim also creates doubt about the occurrence of the incident

and the nature of the incident occurred on 2 nd January, 2020. The

informant has narrated that the victim told her about the sexual

assault committed on her by the appellant. She has admitted that,

prior to this incident, there was a discussion in the locality about

the love affair of the victim. She has admitted that, when there was

a discussion about the love affair of the victim with the appellant,

they lodged the report against the appellant. She has admitted that,

before lodging the report, she had a discussion with the respectable

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persons from her community and then lodged the report. She has

categorically admitted that, on 2nd January, 2020, she had gone to

the police station. On 2nd January, 2020, she went to the police

station and the police made enquiry with her about the incident.

She has admitted that on 2nd January, 2020, she lodged the report

and made allegations against the appellant. The police had

obtained her signature on the said report. She has categorically

admitted that, after lodging the report against the appellant on 2 nd

January, 2020, on the next day, the police told her that on the basis

of the said report, they cannot take action against the appellant.

She has further stated that, therefore, on the second day, she lodged

the report. It is to be noted that this first report lodged on 2 nd

January, 2020 is not part of the record. However, the admission of

informant makes it clear that the incident narrated in the said

report was not sufficient to register the crime of penetrative sexual

assault on the victim by the appellant. In my view, this is a very

vital and important circumstance. This admission, therefore, creates

doubt about the occurrence of the incident of penetrative sexual

assault on the victim on 2nd January, 2020. If such an incident had

occurred, then the informant would have narrated the same in

great detail in her report to the police on 2 nd January, 2020. In my

view, this is a very vital circumstance.

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19]       In this context, it is necessary to see the evidence of the

father of the victim. The father has also admitted that on 2 nd

January, 2020, they had gone to lodge the report against the

appellant to the police station. He has also admitted that, on the

very same day, the report was lodged by her wife. He has further

stated that on 2nd January, 2020, the police recorded his statement

as well as the statement of the victim. In my view, this is a very

important circumstance in this case to create doubt about the

occurrence of the incident on 2nd January, 2020.

20] If the evidence of the victim and her parents is

considered in totality, it would show that it creates doubt about the

occurrence of the incident on 2 nd January, 2020. The DNA report,

which has been relied upon by the prosecution, needs to be

appreciated in this background. It is pertinent to note that the

medical evidence is not sufficient to corroborate the version of the

victim. At this stage, it would be necessary to consider the evidence

of the Medical Officer PW-10.

21] The history of assault narrated by the victim before the

doctor was recorded by the doctor. The victim had stated before

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the doctor (PW-10) that the first sexual assault had occurred on

28th December, 2019. It was with her consent. She has stated that

the second sexual assault occurred on 2nd January, 2020 at about

2:00 p.m. The victim had admittedly changed her cloths. The

victim is silent about the colour and other description of the

knickers worn by her on the date of the incident dated 2 nd January,

2020. The Medical Officer, on examination of the genitals of the

victim, found that there was no evidence of matting, staining,

swelling, infection, edema, tear, bruises, swelling, bleeding, or

tenderness. The doctor found the old healed torn present on the

hymen. The edges of the hymen were regular, and no injury was

present. The doctor, on the basis of the hymen tear, opined the

possibility of sexual assault. The doctor has categorically admitted,

in her cross-examination, that she did not find any recent injury on

the entire body or the genital area of the victim. The doctor has

admitted that she did not mention the age of the old healed torn

present on the hymen. The doctor has categorically admitted that

the hymen can get torn during cycling or any heavy physical

activity. The doctor has admitted that, if there is a sexual

intercourse on a minor girl, the injury may be possible to her

genitals. So, the evidence of the Medical Officer does not in any

manner suggest that, in the recent past, the victim was subjected to

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penetrative sexual assault. The doctor did not notice any fresh

injury. The history of assault narrated by the victim to the doctor

clearly suggests that she had a love affair with the appellant, and in

the month of December, 2019, she had consensual sex with the

appellant. It is to be noted that, in this case, which has been based

on the report of the informant with regard to the incident of 2 nd

January, 2020, it would not be possible to take cognizance of any

such incident occurred in the past. The evidence of the Medical

Officer, therefore, does not lend an assurance to the testimony of

the victim as to the occurrence of the incident on 2 nd January,

2020.

22] The next important witness is the Medical Officer

(PW-5), who had examined the appellant. He has opined that the

appellant was capable of performing sex. The doctor, on

examination of the penis of the appellant, noticed that smegma was

present. The doctor has categorically recorded that cremastric

reflexes were present. In my view, this evidence of the doctor

assumes great importance. The Medical Officer, in his cross-

examination, has stated that, if a person does not commit sexual

intercourse for 3-4 days, the smegma should be found on the penis.

He has stated that, at the time of the sexual intercourse, the

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foreskin of the penis retracts, and because of friction, smegma gets

brushed away sometimes. In my view, the presence of the smegma

is the circumstance in favour of the defence of the appellant. In my

view, therefore, the evidence of both the Medical Officers does not

corroborate the evidence of the victim on the material aspect,

namely the occurrence of the incident on 2nd January, 2020.

23] The next important piece of evidence relied upon by the

prosecution is the DNA report. It is true that the semen detected

on the knickers of the victim was found to be of the appellant. In

my view, the evidence of the DNA is scientific evidence. The DNA

analysis report by itself cannot be a conclusive proof. The

authenticity of the said evidence has to be independently

established by the prosecution. The prosecution is required to

produce cogent and concrete evidence from the stage of collection

of the samples till the time of the analysis of the samples. In this

case, as per the prosecution, the incident occurred on 2 nd January,

2020, at about 2:00 p.m. The report was lodged on 3 rd January,

2020 at about 10:08 p.m. The victim had changed her cloths by

that time. The record shows that PW-7 had seized the cloths of the

victim on 3rd January, 2020, at about 8:20 p.m. The victim was

examined by the Medical Officer at 12:15 a.m. of 4 th January,

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2020. PW-7 is not the Investigating Officer. The seized cloths, as

per the case of the prosecution, had been carried to CA on 8 th

January, 2020. It is further seen that the blood samples, which had

been collected for the purpose of DNA analysis, had not been

collected in a DNA kit. The biological samples collected by the

Medical Officer had been deposited in the Malkhana of the police

station and all the samples had been carried to F.S.L. on 8 th January,

2020. The Malkhana In-charge has not been examined. The

preservation of the blood samples in the police station or the

precautions taken to preserve the blood samples in the police

station have not been stated by the Investigating Officer (PW-14).

The record, namely Malkhana register entry, does not show that all

the samples had been sealed. Therefore, the evidence on record is

not sufficient to record a concrete finding that there was no

possibility of either contamination or manipulation of the samples.

It is further seen that the victim has stated that on 28 th December,

2019, the appellant had committed intercourse with her. The

victim, in her evidence, has not uttered a word about the

description, colour, etc. of the knickers worn by her on the date of

the incident. The prosecution has not adduced any evidence that

the same knickers was worn by her on the date of the incident. The

police, on the date of the incident, had not seized the knickers. The

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possibility of the victim wearing the said knickers on 28 th

December, 2019 has not been ruled out. There is no evidence on

record to clarify this aspect. There is no evidence about the custody

of the knickers for two days.

24] In the backdrop of the above evidence, the authenticity

and credibility of the DNA report has to be considered. Before

placing implicit reliance on the DNA report, the prosecution is

duty-bound to prove that there was no scope for tampering and

contamination. The purity and quality control of the samples till

the analysis must be maintained and proved. In this case, the

prosecution has not examined the CA, who had analyzed the

samples initially, and the DNA Analyst, who had analyzed the

samples in the DNA division. The reasons have not been placed on

record. The reports have been admitted in evidence without

examining the DNA Analyst. The prosecution has taken the risk.

In my view, this is a very vital circumstance against the prosecution.

It is seen on perusal of the DNA report at Exh.58 that the samples

had been received in the DNA division of R.F.S.L., Nagpur, on

25th February, 2020. The report would further show that analysis

was completed on 27th October, 2020. The DNA Analyst, in his

substantive evidence, must depose about the condition of the

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samples when the samples were received and the preservation of

the samples during the period from 25th February, 2020 to

27th October, 2020. The DNA Analyst needs to be examined to

establish the precautions taken during the course of the analysis to

maintain the purity of samples and avoid risk of contamination. In

my view, this vital evidence is not on record. Therefore, in my view,

it would not be possible to place implicit reliance on the DNA

report to sustain the conviction of the appellant. In this context, it

would be appropriate to make a useful reference to the decision of

the Hon'ble Apex Court in the case of Rahul Vs. State of Delhi,

Ministry of Home Affairs and Another with connected appeals

[(2023) 1 SCC 83] . It reads thus:

"The DNA evidence is in the nature of opinion evidence as envisaged under Section 45 and like any other opinion evidence, its probative value varies from case to case.

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

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for DNA profiling.

The DNA may be more useful for purpose of investigation but not for raising any presumption of identity in a court of law."

25] In view of the above, I conclude that the evidence on

record is not sufficient to prove the charge against the appellant.

The learned Judge has failed to properly appreciate the evidence

and has come to a wrong conclusion. The prosecution has failed to

establish the foundational facts to trigger the presumption as

postulated under Section 29 of the POCSO Act against the

appellant. The presumption is a rebuttable presumption. In the

absence of establishing the foundational facts, the accused cannot

be called upon to lead the evidence and rebut the presumption. In

this case, the presumption was not at all triggered against the

appellant. In view of this, I conclude that the conviction and

sentence cannot be sustained. In view of this, I proceed to pass the

following order:

ORDER

i] The Criminal Appeal is allowed.

ii] The judgment and order of conviction and sentence

passed against the appellant by the learned Additional Sessions

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Judge, Hinganghat, dated 31.01.2022, in Special (POCSO) Case

No.6/2020, is quashed and set aside.

iii] The appellant/accused - Roshan S/o. Manohar Sahare is

acquitted of the offences punishable under Sections 376(2)(j),

376(2)(n) and 376(3) of the IPC and under Section 5(l) r/w.

Section 6 of the POCSO Act.

iv] The appellant/accused - Roshan S/o. Manohar Sahare is

in jail. He be released forthwith, if not required in any other

case/crime.

v] The Criminal Appeal stands disposed of in the above

terms.

(G. A. SANAP, J.) Vijay

Signed by: Mr. Vijay Kumar Designation: PA To Honourable Judge Date: 25/10/2024 18:50:14