Bombay High Court
Vilas Laxman Chawan vs The State Of Maharashtra And Anr on 4 April, 2025
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
2025:BHC-AS:15765-DB
904-apeal-6-2018-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 6 OF 2018
Vilas Laxman Chawan,
Age 35 years, Occu: Nil,
R/o. Laxmi Niwas, Room No.423,
4th Floor, Near Veer Hanuman Temple,
Ravalpada, Dahisar-East, Mumbai - 400 068.
(At present is in Mumbai Central Prison). .....Appellant
Vs.
1. State of Maharashtra,
(At the instance of M.H.B. Colony,
Police Station, C.R.No.150/2012,
2. Ms. X,
Dhobi Ghat, Patilwadi,
Santoshimata Road,
Footpath, Dahisar, Nadi Kinara,
Near Shankar Mandir,
Dahisar (W), Mumbai. .....Respondents
Ms. Tanvi Tapkire with Mr. Ashutosh Shukla, i/b. Ms. Shabana Syed,
for the Appellant.
Ms. P. P. Shinde, APP, for Respondent No.1-State.
CORAM : REVATI MOHITE DERE &
DR. NEELA GOKHALE, JJ.
RESERVED ON : 24th MARCH 2025.
PRONOUNCED ON : 4th APRIL 2025.
JUDGMENT :
- (Per Dr. Neela Gokhale, J.)
1. The correctness of the judgment and order dated 8 th
November 2017 (impugned judgment) passed by the Additional
904-apeal-6-2018-J.doc
Sessions Judge, City Civil and Sessions Court, Borivali Division,
Dindoshi is assailed in this Appeal. By the impugned judgment, the
sole accused stands convicted for the offences punishable under
Sections 363, 366A and 376(2)(f) of the Indian Penal Code. For the
offence punishable under Section 363 of the Indian Penal Code, he is
sentenced to suffer rigorous imprisonment (RI) for two years and to
pay a fine of Rs.1,000/- and in default of the same suffer R.I. for two
months. For the offence punishable under Section 366A of the IPC,
he is sentenced to suffer RI for five years and to pay a fine of
Rs.3,000/- and suffer RI for four months in default. For the offence
punishable under Section 376(2)(f) of the IPC, he is sentenced to
suffer RI for life and to pay a fine of Rs.10,000/- in default of which,
suffer RI for one year. The sentences are to run concurrently. Since
the Appellant is in jail from the date of his arrest, i.e., 27 th June 2012,
set off is granted against the sentence already undergone. An amount
of Rs.7,000/- realized from the fine, is directed to be paid to the
prosecutrix (victim), towards compensation.
2. The facts leading to the present Appeal are as follows:
(a) The Complainant is one Khandu Totaram Ranshing, a labourer
904-apeal-6-2018-J.doc
residing at Dhobi Ghat, Dahisar, Mumbai on the footpath. He
was serving in the Bombay Municipal Corporation as a contract
worker engaged to clear gutter and nala. He has three daughters
and two sons, the youngest daughter, the victim, being 4 years of
age at the time of the incident.
(b) On 26th June 2012, at about 21:30 hours, the victim went to
purchase some snacks near their house and did not return. Her
family members and neighbors started searching for her. At
23:30 hours, the Appellant then aged 20 years came to the
complainant's house with the victim. The complainant took his
daughter from the Appellant and noticed that she was bleeding
heavily from her private parts. The Appellant explained that he
found the victim sitting with a stranger at a bus stop near the
railway station and was crying. The Appellant claimed to have
assaulted the stranger who ran away. Thus, the Appellant
brought the victim to the complainant's house.
(c) The Complainant along with his neighbour went to the MHB
Colony Police Station and narrated the incident to the police. The
police immediately sent the victim to Bhagwati Hospital for
904-apeal-6-2018-J.doc
medical treatment. Thus, an FIR was registered by the police
bearing C.R.No.150 of 2012 dated 27 th June 2012 for the
offences punishable under Section 363 and and 376 of the IPC.
(d) Upon completion of investigation, a report dated 21 st September
2012 was filed under Section 173 of the Code of Criminal
Procedure (Cr.P.C.). The Appellant was charged under Sections
363, 366A and 376(2)(f) of the IPC.
(e) Upon committal, charge was framed against the Appellant. The
Appellant entered a plea of 'not guilty' and claimed to be tried.
(f) The prosecution examined 14 witnesses. The defence did not
lead any evidence. After the prosecution's evidence, examination
of the Appellant under Section 313 of the Cr.P.C. followed.
(g) Vide judgment and order dated 8th November 2017, the
Additional Sessions Judge convicted the Appellant and sentenced
him as noted in paragraph No.1 herein above. Being aggrieved
by the same, the Appellant preferred the present Appeal.
3. The witnesses examined by the prosecution are as under:
904-apeal-6-2018-J.doc
PW/1 : Father of the victim
PW/2 : Mother of the victim
PW/3 : Victim
PW/4 : Prakash Ramdas Chavan, Panch of Spot Panchanama
PW/5 : Anil Suresh Hatangale, Panch of Seizure of Clothes
of Victim and Informant.
PW/6 : Prabha Shivdas Khalse, Witness present at the house
of Informant (Hostile)
PW/7 : Shantaram Motiram Chavan, Panch of arrest of
Appellant and seizure of his clothes.
PW/8 : Dr. Priyanka Unday Honavar, Medical Officer at
Bhagwati Hospital, Borivali.
PW/9 : Subhashchandra Daulat Posture, First Investigating
Officer.
PW/10 : Prakash Maruti Phadtare, Police Havaldar - DNA
Kit carrier on 30.06.2012.
PW/11 : Dattatrya Gangadhar Devkate, Muddemal Carrier
on 30.06.2012.
PW/12 : Subhash Namdev Vele, Second Investigating Officer.
904-apeal-6-2018-J.doc
PW/13 : Dr. Kiran Sambhaji Kalyankar, Medical Officer at
Nagpada Police Hospital.
PW/14 : Komal Prakash Mahajan, Assistant Chemical
Analyser.
4. Ms. Tanvi Tapkire, learned counsel appeared for the
Appellant and Ms. Prajakta Shinde, learned APP represented the State.
5. The thrust of the defense were omissions in the testimony
of the father (PW/1) and the mother (PW/2). According to Ms.
Tapkire, PW/1, in his cross-examination, admitted that his daughter
did not tell him that the Appellant committed the said act with her
and it is only on the basis of the suggestion of the people living on the
footpath with him that he went to the police station to file the
complaint against an unknown person. Similarly, according to Ms.
Tapkire, P/W-2 also admitted that when her daughter narrated the
incident to her, she did not tell the same to P/W-1. She also stated
that she did not reveal the same to her husband, since he had recently
undergone an operation. Further more, Ms. Tapkire points to the
delay in filing the FIR after 2 hours. Coupled with the fact, that the
mother did not share the incident with the father immediately, it is
904-apeal-6-2018-J.doc
contended that a possibility of the victim being tutored cannot be
ignored. Hence, according to Ms. Tapkire, the accusation of the
complainant is riddled with doubt.
6. Ms. Tapkire, further contends that the chain of custody of
samples relating to the victim and the Appellant sent to the Forensic
Science Laboratory (FSL) for determination of DNA matching is
dubious and the same is not conclusively established to be of sterling
quality. She points to the evidence of PW/11 who admitted in his
cross-examination that the Investigating Officer gave muddemal of 11
packets in his custody on 29 th June 2012 at 5:30 p.m. He kept it in
the storeroom in the police station and deposited the same with the
FSL, Kalina on 30th June 2012. He stated that he was not aware as to
how the samples were taken and kept in the police station.
7. Ms. Tapkire also then took us through Exhibits 45, 46 and
47, i.e., three letters bearing outward Nos.5517/2012, 5518/2012 and
5522/2012 which were sent to the FSL along with the muddemal.
Letter No.5517/2012 dated 29th June 2012 relates to 11 items
comprising of clothes of the victim and the Appellant and soil samples
of the incident. The second letter bearing No.5518/2012 of the same
904-apeal-6-2018-J.doc
date relates to the victim's samples of her body hair, nails, blood
samples with the vaginal swab, foreign bodies, etc. in a sealed packet.
The third letter No. 5522/2012 of the same date relates to the body
samples of the Appellant in a sealed condition. According to Ms.
Tapkire, the testimony of PW/11 and the aforesaid letters, juxtaposed
with the testimony of PW/8 namely the medical doctor does not
establish the chain of custody of the samples. PW/8 stated that he
took the samples on 27 th June 2012 and prepared the case papers in
his own handwriting. The case papers at Exhibit-37 denote that the
samples were taken by him on 27 th June 2012. Hence, there is no
clarity regarding where the samples were stored during the intervening
day till the custody was ultimately taken by PW/11 on 29 th June 2012
and sent to the FSL on 30 th June 2012. She relied on a decision of the
Supreme Court in the matter of Rahul v. State of Delhi, Ministry of
Home Affairs and Anr.1, wherein the Supreme Court reiterated its
own observation in the case of Manoj v. State of M.P.2 wherein the
issue of DNA profiling methodology as also the collection and
preservation of DNA evidence is dealt with in detail. The Supreme
Court observed that the DNA evidence is in the nature of opinion
1 (2023) 1 SCC 83.
2 (2023) 2 SCC 353.
904-apeal-6-2018-J.doc
evidence, its probative value varies from case to case. Thus, Ms.
Tapkire says that since there is no clarity on the custody of the samples
for one whole day till they were sent to FSL, it casts a serious doubt
on the veracity of the same.
8. The third submission advanced by Ms. Tapkire relates to
testimony of PW/5-Panch regarding recording panchnama of the
seizure of clothes of the victim. The said witness has turned hostile
and has deposed that the police have not seized and sealed the shirts
of the Appellant and the victim in his presence under the panchnama.
Ms. Tapkire says that thus, the discovery of these clothes is thoroughly
unreliable and cannot be given any credence.
9. Ms. Tapkire thus, emphasizing the aforesaid issues,
highlights the flaws in the impugned judgment and order and urges
the Court to accept the Appeal and acquit the Appellant.
10. Ms. Shinde, learned APP, in contrast, supported the
judgment of conviction and order of sentence of the Additional
Sessions Judge and asserted that the trial Court took pain to assess the
evidence in arriving at its findings. She took us through the evidence
904-apeal-6-2018-J.doc
of the witnesses, the Exhibits on record and the assessment of the
evidence by the trial Court. She stated that the testimony of the
prosecutrix is consistent. Thus, she says that no case is set up by the
Appellant for interference and urged the Court to dismiss the Appeal.
Analysis:
11. We have heard the parties, considered the evidence led at
the trial and perused the impugned judgment and order.
12. Before addressing the evidence, we deem it appropriate to
discuss the settled law regarding the weight to be attached to the
testimony of the victim in matters involving sexual offences, especially
where the prosecution case hinges on the victim's evidence-a scenario
central to the present case. It is trite law that the accused can be
convicted solely on the basis of evidence of the complainant/victim as
long as the same inspires confidence and corroboration is not
necessary for the same. This law was discussed in detail by the Apex
Court in the matter of Nirmal Premkumar v. State represented by
Inspector of Police.3 The relevant portion is reproduced as under:
"11. Law is well settled that generally speaking, oral
3 (2024) SCC OnLine SC 260.
904-apeal-6-2018-J.doc
testimony may be classified into three categories, viz.: (i)
wholly reliable; (ii) wholly unreliable; (iii) neither wholly
reliable nor wholly unreliable. The first two category of
cases may not pose serious difficulty for the Court in
arriving at its conclusion(s). However, in the third category
of cases, the Court has to be circumspect and look for
corroboration of any material particulars by reliable
testimony, direct or circumstantial, as a requirement of the
rule of prudence.
12. In Ganesan v. State (2020) 10 SCC 573, this Court
held that the sole testimony of the victim, if found reliable
and trustworthy, requires no corroboration and may be
sufficient to invite conviction of the accused.
13. This Court was tasked to adjudicate a matter
involving gang rape allegations under section 376(2)(g),
I.P.C in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC
21. The Court found totally conflicting versions of the
prosecutrix, from what was stated in the complaint and
what was deposed before Court, resulting in material
inconsistencies. Reversing the conviction and holding that
the prosecutrix cannot be held to be a 'sterling witness', the
Court opined as under:
"22. In our considered opinion, the 'sterling witness'
should be of a very high quality and calibre whose
version should, therefore, be unassailable. The court
considering the version of such witness should be in
904-apeal-6-2018-J.doc
a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement
made by such a witness. What would be more
relevant would be the consistency of the statement
right from the starting point till the end, namely, at
the time when the witness makes the initial statement
and ultimately before the court. It should be natural
and consistent with the case of the prosecution qua
the accused. There should not be any prevarication
in the version of such a witness. The witness should
be in a position to withstand the cross-examination
of any length and howsoever strenuous it may be and
under no circumstance should give room for any
doubt as to the factum of the occurrence, the persons
involved, as well as the sequence of it. Such a version
should have co-relation with each and every one of
other supporting material such as the recoveries
made, the weapons used, the manner of offence
committed, the scientific evidence and the expert
opinion. The said version should consistently match
with the version of every other witness. It can even
be stated that it should be akin to the test applied in
the case of circumstantial evidence where there
should not be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him. Only if the version of
such a witness qualifies the above test as well as all
904-apeal-6-2018-J.doc
other such similar tests to be applied, can it be held
that such a witness can be called as a 'sterling witness'
whose version can be accepted by the court without
any corroboration and based on which the guilty can
be punished. To be more precise, the version of the
said witness on the core spectrum of the crime
should remain intact while all other attendant
materials, namely, oral, documentary and material
objects should match the said version in material
particulars in order to enable the court trying the
offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty
of the charge alleged."
(underlining ours, for emphasis)"
13. The Supreme Court in its decision in the case of State of
H.P. v. Sanjay Kumar4 also held that it is well settled that a testimony
of victim in cases of sexual offences is vital and unless there are
compelling reasons which necessitates looking for corroboration of a
statement, the Court should find no difficulty to act on the testimony
of the victim of a sexual assault alone to convict the accused.
Undoubtedly, her testimony has to inspire confidence.
14. We shall now proceed to look at the substantive evidence
in the present matter. PW/1 who is the father of the victim has clearly
4 (2017) 2 SCC 51.
904-apeal-6-2018-J.doc
deposed that on 26th June 2012, the victim left to buy some toffees
from the shop but did not return for about two hours. He and his
neighbours searched the area but did not find her. At about 11 p.m.,
the Appellant, under the influence of liquor, came along with the
victim. She was bleeding from her private parts and hence, they took
her to hospital where she was admitted and medically examined. This
witness has identified the Appellant as well as the clothes of his
daughter. Nothing demonstrably contradictory has been brought out
in his cross-examination.
15. PW/2, mother of the victim also corroborated the
statement of her husband, PW/1. She specifically deposed that her
daughter narrated the entire incident to her, specifically that the
Appellant took her to eat Chinese food, thereafter took her to the
railway track, removed her knicker and committed rape on her. He
also threatened to throw her on the railway track if she disclosed the
incident to anybody. PW/2 identified the Appellant. This witness was
also consistent in her cross-examination and nothing contrary could be
elicited in his cross-examination. There is no contradiction found in
her cross-examination. PW/2 stood firm on her deposition in the
examination-in-chief.
904-apeal-6-2018-J.doc
16. PW/3 who is the victim herself has narrated the entire
incident in graphic detail. She specifically deposed despite being of
only 8 years at the time of deposing an incident having occurred when
she was only 4 years old, she remembered and narrated the incident
in detail. She identified the Appellant without hesitation. She said
that it was raining on the fatal day and the Appellant approached her
when she was standing at the shop of Rajesh. The Appellant took her
to eat Chinese food and afterwards took her near the Railway patari.
He removed her knicker and raped her. She complained of pain in her
lower body. She stated then thereafter he brought her home and on
seeing her condition, her parents took her to the hospital. PW/3
further deposed that she told the incident to her mother when she was
in the hospital but did not narrate the same to her father. She also
stated that another person left her near the bus stop, but she
categorically denied the suggestion that it was that person who raped
her.
17. The chain of events from the time of incident till the
victim was medically examined and treated and thereafter,
immediately narrated the incident to her mother leaves us in no doubt
as to the veracity of her accusation. It is quite normal that a minor
904-apeal-6-2018-J.doc
child of 4 years may have inhibition in confiding in a father than her
mother. Similarly, the fact that PW/2 did not inform her husband
about the narration of the victim does not appear to be suspicious. In
fact, in her cross-examination itself, she has explained that she did not
tell her husband, since he had recently undergone a surgery. We find
this explanation quite plausible and there is no merit in the argument
of the Appellant in this regard. There is nothing in the testimony of
either PW/2 and PW/3 to remotely doubt their evidence. The
sequence of events asserted by the prosecution are complete. The
Supreme Court, in its recent decision in the matter of State of
Rajasthan v. Chatra5 acknowledged and appreciated that the tears of a
child/victim, have to be understood for what they are worth. This
silence cannot accrue to the benefit of the respondent. The silence
here is that of a child. It cannot be equated with the silence of a fully
realised adult prosecutrix, which again would have to be weighed in
its own circumstances. In the present case, the mere fact that the
victim shared her ordeal with her mother after she was medically
treated and not with her father has to be understood in the context of
a frightened child who was subjected to a sexual assault and was
5 2025 INSC 360
904-apeal-6-2018-J.doc
traumatized. It is perfectly plausible for her to open up to her mother
in a while and not with her father. There is nothing to indicate
tutoring of the victim by her parents and the statement of the
prosecutrix inspires confidence.
18. Insofar as the arguments canvassed on behalf of the
Appellant regarding lack of clarity in the chain of custody of the DNA
samples is concerned, the testimony of PW/10 is significant. He
specifically stated that on 30 th June 2012, he along with API Sawant
and Police Naik-Shinde took the victim girl and the Appellant to the
FSL, Kalina. He further stated that they collected the empty kit from
Kalina and went to Nagpada Police Hospital. They gave the empty kit
to the doctor, who gave the sealed kit of the samples of the victim and
the Appellant to them. On the same day, they deposited the kit with
the FSL, Kalina. Exhibits 42 and 43 are the covering letters along with
the samples. There is no discrepancy in the statements of PW/10.
19. As far as the testimony of PW/11 juxtaposed with the
evidence of PW/8 is concerned, there is no suggestion in the cross-
examination forthcoming in respect of the argument now canvassed
before us as to where this muddemal comprising of the clothes of the
904-apeal-6-2018-J.doc
Appellant and the victim with samples of vaginal swab, etc. were
stored during the intervening day of 28 th June 2012. In fact, the
Exhibits 45, 46 and 47, the covering letters addressed to the FSL
containing the description of the articles sent to it, specifies that the
samples received by the FSL were sealed. Moreover, there is no
suggestion given to this witness alleging tampering of the seal of the
samples. In this view of the matter, there is no reason to assume that
the FSL samples were tampered with. The result of the analysis of
DNA profile of the swab of victim and blood sample of the Appellant
is established. The anal swab and the para urethral swab of the victim
have matched with that of the Appellant.
20. PW/12, the Investigating Officer corroborates the
testimony of PW/10 and PW/11 regarding the chain of custody of
samples collected for DNA testing. Even in his cross-examination, his
testimony remained firm and he reiterated that he sent the victim and
the Appellant to the hospital on 30th June 2012 for collecting samples.
21. PW/4, the Panch to the spot panchnama deposed as to the
discovery of evidence under Section 27 of the Indian Evidence Act.
He stated that the Appellant in his presence stated that he will show
904-apeal-6-2018-J.doc
the spot of the incident, where he also kept the victims clothes.
Pursuant thereto, the victim's clothes (half pant) was found from
under a stone on the Dahisar railway track. The same was seized
under the panchnama. One wallet belonging to the Appellant was also
found containing his PAN Card, MNS Card and other articles. This
witness has deposed to this panchnama. Once again, there is no
contradiction in his cross-examination. PW/5, however, the second
panch has turned hostile and stated that he has not signed the
panchnama. Although, he has admitted his signature on the labels
shown to him on the packet containing the shirts of the Appellant and
the victim. We have also perused the evidence of PW/7, another
panch, who has affirmed his signature on the panchnama. He has
identified the clothes of the Appellant.
22. PW/8, the medical doctor who examined the victim on the
day of the incident has deposed clearly that the victim was raped. She
also stated that the victim was admitted in the hospital for three days
under her care and she collected the samples for testing by FSL. She
also identified the case papers dated 27 th June 2012 in her handwriting
under her signature. The case papers clearly reveal the medical history
904-apeal-6-2018-J.doc
of the victim reflecting a sexual assault. Her testimony also remained
firm in her cross-examination.
23. Thus, the case of the prosecution essentially is based on
the statement of the prosecutrix. She has very clearly narrated her
ordeal and there is no reason to disbelieve her. Her testimony inspires
confidence. The chain of custody of the samples for DNA testing is
also seamless. The defense has been unable to dent the testimony of
the witnesses in any manner. Save and except the testimony of PW/5
and PW/6, who turned hostile, all the other witnesses support the
prosecution case, more importantly, the statements of the victim, her
mother and the medical doctor along with the result of DNA analysis
clearly establish the guilt of the Appellant beyond reasonable doubt.
24. The trial Judge has correctly appreciated the evidence of
the witnesses. He has also noted that the victim who was 4 years of
age at the time of the incident and was 8 years old when she deposed
before the Court. Even after a gap of 4 years, the prosecutrix
steadfastly stood by her statement. Per contra, the trial Judge further
noted that the Appellant in fact failed to give any explanation as to
who was the person with whom he found the prosecutrix at the bus-
904-apeal-6-2018-J.doc
stop and quarreled with him. We have also perused the statement of
the Appellant recorded under Section 313 of the Code of Criminal
Procedure, 1973 ('Cr.P.C.'). Even to the question put to him in respect
of him informing the complainant about the victim being seen with a
another person at the bus-stop and the story of the Appellant of
assaulting that person, the Appellant has given no explanation. The
object of recording statement of the accused under Section 313 of the
Cr.P.C. embodies the salutary principle of natural justice, audi alteram
partem and empowering the Court to examine the accused is to give
the accused concerned an opportunity to explain the incriminating
circumstances appearing against him in the prosecution evidence. The
object of 313 Cr.P.C. is also to permit the accused to forward his own
version with regard to his alleged involvement in the crime. Such an
examination would have a fair nexus with a defence he may choose to
bring. Thus, in the present case the defence and/or the Appellant has
even failed to avail the opportunity offered to him during the
recording of his statement under Section 313 of the Cr.P.C. and given
no explanation in that regard. Thus, the prosecution has established its
case beyond all reasonable doubt, against the Appellant by legal,
admissible and cogent evidence.
904-apeal-6-2018-J.doc
25. In view of the above and for the reasons stated above, the
present Appeal fails and is accordingly, dismissed. The conviction and
sentence awarded to the Appellant for the offences as stated aforesaid
stands confirmed.
26. Before we part, we acknowledge and record our
appreciation for the invaluable assistance rendered by Ms. Tanvi
Tapkire, learned counsel and Ms. P. P. Shinde, learned APP.
(DR. NEELA GOKHALE, J.) (REVATI MOHITE DERE, J.)
Signed by: Raju D. Gaikwad
Designation: PS To Honourable Judge
Date: 05/04/2025 12:11:49
