Bombay High Court
Imtiyaj S/O Kayyum Ansari vs State Of Mah. Thr. Pso Ps Gittikhadan ... on 8 April, 2025
2025:BHC-NAG:3740
Judgment
385 apeal748.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.748 OF 2023
Imtiyaj s/o Kayyum Ansari,
aged : 28 years, occupation - Nil,
r/o Near Dinesh Kirana, Ganga Nagar
Police Station - Gittikhadan, Nagpur. ..... Appellant.
:: V E R S U S ::
State of Maharashtra,
through Police Station Officer,
Police Station - Gittikhadan, Nagpur. ..... Respondent.
Shri Amit Choube, Counsel for the Appellant.
Shri V.A.Thakare, Additional Public Prosecutor for the
Respondent/State.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 05/03/2025
PRONOUNCED ON : 08/04/2025
JUDGMENT
1. By this appeal, the appellant, who is original
accused No.1, (the accused) has challenged judgment and
order dated 24.8.2023 passed by learned Extra Joint
District Judge and Additional Sessions Judge, Nagpur
.....2/-
Judgment
385 apeal748.23
(learned Judge of the trial court) in Special (POCSO)
Case No.94/2017.
2. By the said judgment impugned, the accused is
convicted for offence punishable under Section 5(1) read
with Section 6 of The Protection of Children from Sexual
Offences Act, 2012 (the POCSO Act) and sentenced to
undergo rigorous imprisonment for 20 years and to pay
fine Rs.5000/-, in default, to undergo rigorous
imprisonment for 2 months.
He is also convicted for offence punishable under
Section 366 of the IPC and sentenced to undergo rigorous
imprisonment for 7 years and to pay fine Rs.3000/-, in
default, to undergo rigorous imprisonment for 1 month.
He is further convicted for offence punishable
under Section 363 of the IPC and sentenced to undergo
rigorous imprisonment for 3 years and to pay fine
.....3/-
Judgment
385 apeal748.23
Rs.2000/-, in default, to undergo rigorous imprisonment
for 15 days.
He is further convicted for offence punishable
under Section 344 of the IPC and sentenced to undergo
rigorous imprisonment for 2 years and to pay fine
Rs.2000/-, in default, to undergo rigorous imprisonment
for 15 days.
He is also convicted for offence punishable under
Section 506(2) of the IPC and sentenced to undergo
rigorous imprisonment for 1 year and to pay fine
Rs.1000/-, in default, to undergo rigorous imprisonment
for 7 days.
3. Brief facts of the prosecution case are as under:
The victim girl aged about 16 years was residing at
Ganga Nagar, near Ansari Kirana Shop, Nagpur in 2017
along with her parents and was studying n 10 th Std. at
.....4/-
Judgment
385 apeal748.23
Friends Convent and Highschoool, Nagpur and used to
attend the tuition class at Virchakra Colony. On
30.1.2017, she left the house to attend the tuition class,
but did not return back till 8:30 pm. Therefore, her
father, who is informant, searched her by visiting her
tuition class to make enquiry and he was informed that
she has not attended tuition class on that date. On due
search, she was not found and, therefore, he lodged
missing report vide Exh.60 at Gittikhadan Police Station
4. After registration of the crime, the investigating
officer visited the tuition class of the victim girl and
drawn spot panchanama. During search, she was found
on 3.3.2017 at Hudkeshwar at plot No.71 along with the
accused. They both were brought at the Gittikhadan
Police Station. On enquiring with the victim, she
informed that when she was proceeding to attend her
tuition class, co-accused Mohd.Arif and his wife Aaliya
.....5/-
Judgment
385 apeal748.23
took her to Kamptee at parents house of Aaliya and,
thereafter, they took her at Sai Mandir, Kanhan. She met
the present accused at the parents house of Aaliya. They
all took her at Ajmer. Though she resisted to join them to
proceed to Ajmer, they threatened her and forcefully took
her at Ajmer. On 2.2.2017, co-accused Bhima received a
phone call of his father and he came to know that police
are searching them. Thereafter, the co-accused obtained a
room on rent at Ajmer and they all resided there for 5 to
6 days. Thereafter, the victim girl was brought at Nagpur
and the accused started residing with the victim girl in
rented premises and subjected her for forceful sexual
assault against her consent. After recording her
statement, she was referred for medical examination. The
provisions of the POCSO Act were added as well as
offences were also registered under Sections 376(2)(n)
and 506 read with 34 of the IPC. The accused was
.....6/-
Judgment
385 apeal748.23
arrested. During investigation, the medical reports of the
victim girl and the accused were collected. Their samples
and clothes were seized and forwarded to the Chemical
Analyzer. After completion of investigation, the
chargesheet was submitted against the accused.
5. Learned Judge of the trial court framed the charge
against the accused vide Exh.54. In support of the
prosecution case, the prosecution has examined in all 12
witnesses namely :
PW Names of Witnesses Exh.
Nos. Nos.
panchanama and seizure memos
.....7/-
Judgment
385 apeal748.23
9 Sharvari Kulkarni, the Chemical Ana- 124
lyzer
6. Besides the oral evidence, the prosecution placed
reliance on birth certificate Exh.59, report Exh.60, FIR
Exh.61, statement under Section 164 of the victim girl
Exh.63, spot panchanama Exhs.70 and 71, seizure memos
Exhs.72 to 75, CA Reports Exhs.89 to 92, DNA Report
Exh.93, medical certificate of the accused Exh.98, medical
certificate of the victim girl Exh.102, letter to CA Exh.115,
letter to CA Exhs.116 and 117, arrest panchanama
Exh.133, requisition to CA Exh.136, station diary entries
Exhs.139 and 140, live birth report Exh.148.
7. On the basis of the said oral as well as the
documentary evidence, the prosecution claimed that it
has proved the case against the accused. Defence of the
.....8/-
Judgment
385 apeal748.23
accused is of total denial and of false implication. It is
further contended that it was a consensual act by the
victim girl out of love affair.
8. Heard learned counsel Shri Amit Choube for the
accused and learned Additional Public Prosecutor Shri
V.A.Thakare for the State. They have taken me through
the entire evidence and record.
9. Learned counsel for the accused submitted that
though the prosecution examined in 12 witnesses, no
independent corroboration is there to the testimony of the
victim girl. Sole testimony of victim is not trustworthy
and is not inspiring the confidence. Though she had an
opportunity to raise the voice, as she is forcefully taken by
the accused, she has not made her grievances at any point
of time. The medical evidence is also not sufficient to
connect the accused with the alleged offence. He has
.....9/-
Judgment
385 apeal748.23
taken me through the entire evidence and submitted that
the victim girl was on the verge of attaining the age of
majority. She herself went with the accused while leaving
her parents house. Thus, as far as the evidence as to the
"taking" is concerned, the same is not sufficient to attract
the offence of "kidnapping". On the basis of the same
evidence, the co-accused are acquitted by learned Judge
of the trial court. On the similar evidence, the present
accused cannot be convicted. As far as the offence of the
sexual assault is concerned, though the victim girl was
shown to be minor, she was at the verge of attaining the
age of majority and at the age of 17 years she left the
house and joined the company of the accused and stayed
along with the accused. Thus, no offence is made out
against the present accused. In view of that, the appeal
deserves to be allowed.
.....10/-
Judgment
385 apeal748.23
10. Per contra, learned Additional Public Prosecutor for
the State vehemently submitted that no reason comes
forward to show that why the accused is implicated in the
alleged incident if he is not involved in the crime. The
entire evidence shows that the victim girl was not known
to the accused. It was co-accused Aarif who brought her
at his house wherein she got acquaintance with the
present accused and they all took her at Ajmer and the
present accused subjected her for sexual assault. Thus, it
is not the case wherein out of love affair, they came
together and physical relationship was developed between
them. The evidence shows that the victim girl was taken
by the present accused from the lawful guardianship of
her parents and the present accused subjected her for
forceful sexual assault which is evident from the DNA
Report also. Thus, the evidence adduced by the
prosecution and the victim girl, though she is a sole
.....11/-
Judgment
385 apeal748.23
witness, inspires the confidence. The independent
corroboration is not at all required. In view of that, the
appeal is devoid of merits and liable to be dismissed.
11. After hearing both the sides and perusing the
material evidence, issue came for determination is,
whether the victim girl is minor at the relevant time.
12. To prove the said aspect, the prosecution mainly
placed reliance on the evidence of PW1 the father of the
victim girl, PW2 the victim girl, and PW12 Dr.Ratifur
Pathan. The father of the victim girl disclosed the date of
birth of the victim girl as 12.5.2000 and also deposed that
birth certificate is filed on record which is at Exh.59. As
to his cross examination, the birth date of the victim is not
challenged during the cross examination.
13. The victim girl has also deposed her birth date as
12.5.2000 and stated that at the time of incident, she was
.....12/-
Judgment
385 apeal748.23
studying in 10th Std. and her birth certificate is filed on
record. Her cross examination also shows that her birth
date is not challenged during the cross examination.
14. Thus, the evidence of PW1 the father of the victim
girl and PW2 the victim girl, as to birth date of the victim
girl, remained unchallenged. In addition to that, the
prosecution has examined PW12 Dr.Ratifur Pathan who
was serving as Medical Officer in Nagpur Municipal
Corporation and was holding the charge of Deputy
Registrar (Births and Deaths). He produced on record
extract of live birth register, live birth report, and original
birth certificate. He deposed that extract of live birth
register was prepared on the basis of the live birth
register. As per the record, birth of the victim girl is
12.5.2000. Her birth has taken place at Kalbande Nursing
Home at Nagpur. The said nursing home informed his
department as to the birth of child. The names of the
.....13/-
Judgment
385 apeal748.23
parents are mentioned in the said live report. The name
of the hospital is also mentioned in the said report. On
the basis of the said information, entry of birth was taken
and birth certificate issued. Though he is cross
examined, nothing incriminating is brought on record as
to challenge the genuineness of the said birth certificate.
15. Thus, the evidence on record sufficiently shows
that the victim girl was below 18 years of age at the
relevant time. The birth certificate is issued in view of the
provisions of Sections 12 and 17 of the Registration of
Births and Deaths Act, 1969. As per provisions of Rule 9
of the Maharashtra Registration of Births and Deaths
Rules, 1976, this Certificate is issued by the Sub-Registrar
acting under the provisions of the Registration of Births
and Deaths Act, 1969. The Act mandates that the
Registrar should discharge duties in view of Section 7 of
the said Act. Section 8 of the said Act mandates that each
.....14/-
Judgment
385 apeal748.23
head of the house to report birth in the family to the
Registrar. The Act provides for maintenance for recording
births and deaths within local area that is how certificate
came to be issued by the Sub Registrar as per the
provisions of Sections 12 and 17 of the Registration of
Births and Deaths Act, 1969. The birth certificate as such
is issued by the public officer and it is a document
forming record of the acts of the public officer and,
therefore, the same is a public document within the
meaning of Section 74 of the Indian Evidence Acts and
the same is admissible in evidence in view of Section 77
of the Indian Evidence Act . Section 17 of the said Act
provides for search of birth and death registers and supply
of extract thereof by certifying the same by the Registrar
or other authorized officer. In view of Section 17, such
extract shall be admissible in evidence for the purpose of
proving birth or death to which the entry relates. The
.....15/-
Judgment
385 apeal748.23
birth certificate is in fact the extract of birth register in
respect of entry of birth of the victim child and as such
admissible in evidence. Section 35 of the Evidence Act
makes it clear that if entry is made by public servant in
the official book in discharge of his official duty, such
entry becomes the relevant fact and admissible in
evidence. Section 35 of the Act lays down that entry in
any public, official book, register, record stating a fact in
issue or relevant fact and made by a public servant in the
discharge of his official duty specially enjoined by the law
of the country is itself the relevant fact.
16. It is thus clear that it is an entry taken by the
public servant in discharge of his official duty while
performing official duty enjoined by law. It is thus clear
that the birth certificate issued by the statutorily
appointed authority or competent authority is relevant
and admissible. It is thus clear that it is an entry taken by
.....16/-
Judgment
385 apeal748.23
the public servant in discharge of his official duty while
performing official duty enjoined by law. It is thus clear
that the birth certificate issued by the statutorily
appointed authority or competent authority is relevant
and admissible.
17. Rule 12(3) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 also states that in
every case concerning a child or juvenile in conflict with
law, the age determination inquiry shall be conducted by
the Court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining- (a) (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; (b) and only in the absence of either (i), (ii)
.....17/-
Judgment
385 apeal748.23
or (iii) of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or the
Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin
of one year, and, while passing orders in such case shall,
after taking into consideration such evidence as may be
available, or the medical opinion, as the case may be,
record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii) or
in the absence whereof, clause (b) shall be the conclusive
proof of the age as regards such child or the juvenile in
conflict with law.
.....18/-
Judgment
385 apeal748.23
18. In the light of the above legal position, the birth
entry taken by the office of PW12 Dr.Ratifur Pathan
sufficiently proves the age of the victim girl which shows
that she was below 18 years of age and is admissible in
evidence in view of Section 35 of the Indian Evidence Act.
19. Now, let us examine the evidence of the victim girl
and the father of the victim as to the "kidnapping".
20. This is one more case of sexual molestation and
sexual assault of a child. To prove the offence of
"kidnapping", the prosecution mainly placed reliance on
the victim girl who narrated that at the relevant time, she
was studying in 10 Std. and was attending the tuition
class. She was acquainted with co-accused Aarif and
Bhima as they are residing in the same locality at a
distance of 4-5 houses from her house. On 30.1.2017,
when she was proceeding at about 3:00 pm to attend the
.....19/-
Judgment
385 apeal748.23
tuition class, co-accused Aaliya asked her to accompany
her to proceed to her parents house at Kamptee.
Therefore, she went along with them. At about 8:00 pm,
she insisted co-accused Aarif to drop her at her house, but
he asked her to stay there. At the relevant time, the
present accused also came there. She was forced to stay at
the parents house of Aaliya over night. On the next date,
she was taken at Sai Mandir. The victim girl was under
impression that she was taken at home, but she was taken
at the said Sai Mandir. Thereafter, they insisted her to
accompany them to proceed at Ajmer. She resisted and
asked them to drop her at her house and also disclosed
that her parents are not aware that she came along with
them. But, they brought her at Nagpur Railway Station.
She was repeatedly asking them to drop at home, but they
forcefully took her at Ajmer and also threatened her. The
accused persons obtained a room in a lodge. In the
.....20/-
Judgment
385 apeal748.23
meantime, co-accused Bhima received a phone call of his
father and they came to know that police are searching
them. Thereafter, she was brought at Nagpur and kept at
the house of co-accused Aarif. The present accused has
also started staying with her and subjected her for the
forceful sexual assault. He was also threatening her. As
she was not having mobile phone, she could not disclose
the incident to anybody and thereafter on 3.2.2017 the
Gittikhadan Police came there and took them to the police
station.
21. To shatter the evidence of the victim girl, she was
cross examined at length and an attempt was made to
show that she travelled by public transport, but she has
not disclosed the incident to anybody. She stated that she
made an attempt to disclose the fact to the co-passengers.
She has also made an attempt to disclose fact to one lady
passenger also, but the said lady passenger told her that
.....21/-
Judgment
385 apeal748.23
she would not interfere. Only once, she was taken to
Ajmer Durgah. Rest of the time she was confined in one
room. Thus, the cross examination shows that she has
made an attempt to disclose the incident to the co
passenger, but she could not disclose the same due to
some reasons which she has narrated in the evidence.
22. As far as the offence of "kidnapping" is concerned,
it is defined under Section 361 of the IPC which states
that whoever takes or entices any minor under sixteen
years of age if a male, or under eighteen years of age if a
female, or any person of unsound mind, out of the
keeping of the lawful guardian of such minor or person of
unsound mind, without the consent of such guardian, is
said to kidnap such minor or person from lawful
guardianship.
.....22/-
Judgment
385 apeal748.23
23. Thus, ingredients of the offence "taking" or
"enticing" away a minor out of keeping of lawful
guardianship are essential ingredients of the offence of
"kidnapping".
24. The evidence of the victim girl shows that she was
acquainted with co-accused Aarif as he was residing in the
same locality at a distance of 4-5 houses. On 30.1.2017,
when she was proceeding to attend the tuition class,
Aaliya, who is wife of co-accused Aarif, took her at
Kamptee wherein she first time met with the present
accused. Her evidence shows that despite her resistance,
she was taken by Aaliya at her parents house. She was
constrained to stay there and, thereafter, she was
forcefully taken to Ajmer. Her cross examination further
shows that attempt was made by her to disclose the
incident to a female passenger, but as she could not get
the response, the helpless girl went with the present
.....23/-
Judgment
385 apeal748.23
accused at Ajmer. Though the attempt was made that the
victim girl was on the verge of attaining the age of
majority and she herself went along with the accused, the
same is not supported by her during her cross
examination. Thus, the evidence of the victim girl which
is tested during the cross examination also shows that she
was taken and enticed from the lawful guardianship of
her parents. The evidence on record nowhere shows that
she willingly accompanied the accused.
25. The aspect of "taking" or "enticing" is dealt with by
the Hon'ble Apex Court in the case of S.Varadarajan vs.
State of Madras, reported in 1965 SC 942 wherein it has
been held that it must, however, be borne in mind that
there is a distinction between "taking" and allowing a
minor to accompany a person. The two expressions are
not synonymous though we would like to guard ourselves
from laying down that in no conceivable circumstance can
.....24/-
Judgment
385 apeal748.23
the two be regarded as meaning the same thing for the
purposes of Section 361 of the Indian Penal Code. It
would, however, be sufficient if the prosecution
establishes that though immediately prior to the minor
leaving the father's protection no active part was played
by the accused, he had at some earlier stage solicited or
persuaded the minor to do so. In our, opinion if evidence
to establish one of those things is lacking it would not be
legitimate to infer that the accused is guilty of taking the
minor out of the keeping of the lawful guardian merely
because after she has actually left her guardian's house or
a house where her guardian had kept her, joined the
accused and the accused helped her in her design not to
return to her guardian's house by taking her along with
him from place to place. No doubt, the part played by the
accused could be regarded as facilitating the fulfillment of
the intention of the girl. That part, in our opinion, falls
.....25/-
Judgment
385 apeal748.23
short of an inducement to the minor to slip out of the
keeping of her lawful guardian and is, therefore, not
tantamount to "taking".
26. The case before me is that the victim girl left the
house to attend the tuition class, but she was taken by
Aaliya, the wife of co-accused Aarif, with whom the victim
girl was having acquaintance on the pretext of visiting her
parents house and, thereafter, she was constrained to stay
there and forcefully taken at Ajmer. The cross
examination itself shows that the victim girl attempted to
disclose the incident to one female co-passenger, but she
could not get the response and, therefore, there was no
alternative before her but to go along with the accused.
Her evidence further shows that she was confined in a
room at Ajmer. So, no opportunity was there for her to
disclose the incident to the people who are staying in the
said locality. No reasons came forward to show that the
.....26/-
Judgment
385 apeal748.23
victim girl is having any hidden agenda to implicate the
accused falsely. Thus, the evidence on record sufficiently
shows that the victim girl was taken by enticing her and,
therefore, offence under Section 363 of the IPC is made
out against the accused.
27. The victim girl allegedly was subjected for the
sexual assault. The evidence of the victim girl is material
which shows that after she returned from Ajmer, she was
kept at the house of co-accused Aarif at Hudkeshwar. The
present accused also started residing in the same house
and by threatening her subjected her for forceful sexual
assault repeatedly. Though she is cross examined by the
present accused, as to the sexual assault, nothing
incriminating is brought on record. Even, the cross
examination shows that she was kept at the house of co-
accused Aarif at Hudkeshwar wherein she was subjected
for the sexual assault.
.....27/-
Judgment
385 apeal748.23
28. Learned counsel for the accused vehemently
submitted that there is no independent corroboration as
far as allegation of sexual assault is concerned.
29. Perusal of the evidence reveals that the prosecution
has examined PW3 Jiwanlal Harinkhede, who acted as a
pancha on the spot panchanama as well as on the seizure
memo. Though he has not supported the prosecution
case, he admitted that on 5.3.2017 in his presence the
clothes of the victim girl are seized by obtaining the same
from the mother of the victim. The seizure memo also
shows that clothes of the victim were seized in presence
of the panchas from the mother of the victim.
30. The material evidence adduced by the prosecution
as to the medical examination of the victim is of PW6
Dr.Swati Dodke who testified that on 3.3.2017 the victim
was brought in casualty ward for her medical
.....28/-
Judgment
385 apeal748.23
examination. Her mother was along with her. On
obtaining the consent, the victim narrated the history that
she went to Kamptee with the family of the accused on
30.1.2017, then to Ajmer and stayed there and then came
to Nagpur wherein she was subjected for sexual assault.
On genital examination, she found that her hymen was
old torn. She obtained the samples of the victim i.e.
valval swab, vaginal swab, blood samples and EDTA and
handed over lady Police Constable Kalpana along with
Form-B. She opined that on perusal of FSL Report there
was a sexual violence with the victim girl. During cross
examination, she admitted that there is correction as to
the date at point No.6 in a medical report and overwriting
as to the timing. Except this cross examination, rest of
the cross examination is in the denial form. She has
admitted that rupturing of hymen is possible by cycling,
jumping, and taking part in sports and activities apart
.....29/-
Judgment
385 apeal748.23
from sexual intercourse. However, the victim is not cross
examined to show that victim was doing cycling or the
sports activities in the school.
31. The evidence of PW7 the mother of the victim also
shows that the clothes of the victim are seized from her.
Thus, the evidence of PW7 corroborated by PW3 Jiwanlal
Harinkhede, pancha on spot panchanama and seizure
memos, reveals that clothes were seized by the
investigating agency.
32. The evidence of PW6 Dr.Swati Dodke shows that
she obtained samples and sealed it and handed over to
the lady police constable.
33. After arrest of the accused, PW5 Dr.Nelson Kumar,
attached to the Government Hospital, deposed that on
4.3.2017 the accused was produced before him for
medical examination. During physical examination, he
.....30/-
Judgment
385 apeal748.23
found that he was fit and capable to perform sexual
activities. He has obtained the samples like blood
samples, nail samples, pennial swab, sealed it and labeled
it and handed over to the police constable. No fruitful
cross examination was carried out of this witness.
34. The prosecution further placed reliance on the
evidence of PW8 Dhanshree Samarth and PW9 Sharvari
Kulkarni, working as Chemical Analyzers.
35. The evidence of PW8 Dhanshree Samarth shows
that on 6.3.2017 the articles i.e. samples and clothes of
the victim and the accused are forwarded for chemical
analysis. The letters of medical officer Exhs.116 and 117
show samples were obtained, sealed and labeled.
Evidence of PW8 shows that she received samples and
muddemal properties which were in a sealed condition.
There were five sealed parcels of victim's samples and
.....31/-
Judgment
385 apeal748.23
three sealed parcels of the accused and one sealed test
tube of the accused. Initially, these aforesaid properties
were in the custody the Assistant Chemical Analyzer and
same were kept in four degree temperature in refrigerator.
She received samples on 2.1.2018 for biology. After
receiving the parcels, she verified and checked whether
the seal was intact and names were correct and after
being satisfied, she opened the parcels. After opening
three parcels, i.e. two of the victim and one of the
accused, she found there were clothes i.e. nicker and
leggins of the victim girl and under garments of the
accused. She verified whether there were blood stains
and semens. On verification, she found blood stains
mixed with suspected semen on the undergarments of the
victim. To find out whether the said blood stains were of
human or not, she carried out process of electrophoresis.
The blood stains were of human. She cut down the
.....32/-
Judgment
385 apeal748.23
portion of undergarments of the victim and sent the same
for DNA profiling. The letter received from police station
is at Exh.115, Form-B are at Exhs.116 and 117, and copy
of the forwarding letter to DNA Section is at Exh.119.
She did grouping by absorption and illusion motion, and
found that blood sample of the victim girl was of Group
"B". She also sent blood samples of the victim for DNA
profiling. On analysis, she found the blood sample of the
accused was of Group "A". Accordingly, she issued
Chemical Analyzer's Reports Exhs.89 to 93.
Her cross examination shows that except invoice
challan, she had not issued any receipt to the police. It is
confirmed during cross examination that initially she had
done biological test and, thereafter, referred to DNA
Examination. It further came in cross examination that
DNA Department gives separate number to the Articles.
CA Reports Exhs.89 to 90 show number 98/89.
.....33/-
Judgment
385 apeal748.23
36. PW9 Sharvari Kulkarni, another Chemical
Analyzer, testified that on 30.1.2018 she received blood
mixed with semen stains cutting from undergarment of
the victim bearing no.958/2017 along with the reference
letter from biological division. On analysis, by using PCR
Amplification Method, she obtained DNA profile from
blood mixed semen stains cutting from nicker labeled
BN9582017/02 and DNA Profile from prepared blood
stains of victim BN No.958/2017/04 and prepared blood
stains of the accused of case No.BN960/2017/01. Then
she complied the report in form of chart and observed
that blood mixed semen stains cutting from the nicker
contains both DNA profile obtained in BN959/2017/04
and BN 960/2017 and opined that mixed DNA profile is
obtained from Exh.2 i.e. blood mixed semen stains cutting
from nicker in BN NO.958/2017 contains DNA profile
obtained from prepared blood stains of the victim in BN
.....34/-
Judgment
385 apeal748.23
No.959/2017 and DNA Profile obtained from prepared
blood stains of accused in BN No.960/2017. Accordingly,
she issued DNA Report Exh.93. Her cross examination
shows that there are other methods also for DNA profile
apart from the method which she used in this case.
37. The evidence of PW10 Prakash Mathankar shows
that on 6.3.2017 he carried muddemal properties total 12
parcels in a sealed condition to FSL Nagpur for chemical
analysis along with requisition letter. It is at Exh.115 and
invoice challan is at Exh.120. Out of 12 parcels, three
were sealed packets of clothes, 8 sealed packets of
samples and one was sealed test tube. The only thing
brought on record is that muddemal properties were not
packed and sealed in his presence.
38. PW11 Nitin Madankar, is the Investigating Officer
who testified that the victim was taken for the medical
.....35/-
Judgment
385 apeal748.23
examination on the same day when she was traced i.e. on
3.3.2017 along with lady police constable. On the same
day, her samples were obtained and the said constable
handed over the same to him which he seized in presence
of panchas vide Exh.72. The accused was also forwarded
for medical examination on 4.3.2017. His samples were
obtained on the same day which were seized by him in
presence of panchas vide Exh.74 on 4.3.2017. The
clothes of the victim and accused were also seized on
4.3.2017. All the muddemal articles, clothes, and
samples were forwarded by him to the Chemical Analyzer
on 6.3.2017.
39. Thus, the evidence shows that the victim got
missing on 30.1.2017, she traced on 3.3.2017, on the
same day she was referred for medical examination and
her samples were obtained on 3.3.2017, the samples of
the accused were obtained on 4.3.2017, the clothes of the
.....36/-
Judgment
385 apeal748.23
victim and accused are seized on 5.3.2017, and the
samples and clothes are immediately forwarded to
Chemical Analyzer on 6.3.2017 and received in the office
of the Chemical Analyzer on 6.3.2017. Initially, the
samples were received by the Assistant Chemical Analyzer
on 6.3.2017. The same was handed over to PW8
Chemical Analyzer Dhanshree Samarth for analysis on
2.1.2018. PW8 forwarded the said samples to DNA on
30.1.2018. Chemical Analyzer PW9 Sharvari Kulkarni
analyzed and submitted DNA Report on 26.11.2018. The
letters of Medical Officer Exhs.116 and 117 show that
samples were obtained in sealed and labelled. Exh.120
also shows parcels were received which were sealed.
Evidence of PW8 Chemical Analyzer Dhanshree Samarth
also shows that the samples were kept in degree
temperature. Thus, the evidence shows that since the
seizure of the samples till the same were analyzed were in
.....37/-
Judgment
385 apeal748.23
a sealed condition and kept in a proper temperature to
protect it from damaging the said samples. The cross
examination by the accused nowhere shatters this
evidence as to the sampling, sealing, and analyzing and
the evidence is consistent as far as sealing, sampling and
analyzing are concerned. The evidence consistently
shows that the samples were in a sealed condition
through out.
40. The evidence of Investigating Officer PW11 Nitin
Madankar narrates about the investigation carried out by
him. His cross examination also nowhere shatters the
prosecution case.
41. On appreciation of the evidence, it reveals that the
victim was taken by Aaliya, the wife of co-accused Aarif.
She was constrained to stay with them and, thereafter,
she was taken to Ajmer and brought to Nagpur. The cross
.....38/-
Judgment
385 apeal748.23
examination of the victim discloses that she attempted to
disclose the incident to one female co-passenger, but she
could not get response. Her evidence further shows that
she was confined in one room at Ajmer. After returning
back, she was kept in the house of co-accused Aarif at
Hudkeshwar whereat police traced her and she found
along with the present accused and both were taken to
the police station.
42. Learned counsel for the accused vehemently
submitted that the evidence of the victim does not inspire
the confidence and, therefore, the same is liable to be
discarded. In support of his contentions, he placed
reliance on the decision in the case of State (GNCT of
Delhi) vs. Vipin alias Lalla, reported in 2025 SCC OnLine
SC 78 wherein it is observed that the only worthwhile
evidence which has been produced before the Court by
the prosecution is the deposition of the prosecutrix
.....39/-
Judgment
385 apeal748.23
herself. No injuries were detected. She has contradicted
her statement and, therefore, the Hon'ble Apex Court
observed that it is absolutely true that in the case of rape,
conviction can be made on the sole testimony of the
prosecutrix as her evidence is in the nature of an injured
witness which is given a very high value by the Courts.
But nevertheless when a person can be convicted on the
testimony of a single witness the Courts are bound to be
very careful in examining such a witness and thus the
testimony of such a witness must inspire confidence of the
Court.
He further placed reliance on the decision in the
case of Sadashiv Ramrao Hadbe vs. State of Maharashtra
and anr, reported in (2006)10 SCC 92 wherein also the
version of the prosecutrix was unsupported by the
medical evidence and, therefore, it was disbelieved.
.....40/-
Judgment
385 apeal748.23
He further placed reliance on the decision of this
court in the case of Pravin @ Khanna Pavlas Waidande vs.
State of Maharashtra (Criminal Appeal No.996/2017)
along with connected appeals. The same is also not
helpful to the defence.
Similarly, the decision in the case of Jitendra
Suresh Gabhane and ors vs. State of Maharashtra,
reported in 2017(4) Bom CR (Cri.) 289 Nagpur Bench is
also not helpful as the DNA analysis report therein was
doubtful.
43. Coming to the present case, the evidence of the
victim is not only corroborated by the medical evidence
but also it corroborated by the expert evidence of DNA
analyzer. After going through the FSL Report, PW6
Dr.Swati Dodke opined that the victim was subjected for
sexual assault. The evidence of PW8 Dhanshree Samarth
.....41/-
Judgment
385 apeal748.23
and PW9 Sharvari Kulkarni, Chemical Analyzers, shows
that they received a sample in a sealed condition. The
communications Exhs.116 and 117, letters of Medical
Officer, show samples obtained were sealed and labelled.
Exh.120 shows that parcels received were sealed. The
samples were kept in a proper condition by maintaining
temperature, as per the evidence of PW8 Dhanshree
Samarth. The evidence further shows that she received
samples in a sealed condition.
44. Thus, the basic requirement, that the samples were
kept in a proper condition and were in a sealed condition
till the same were taken for analysis, is established by the
prosecution. It is further established by the prosecution
that Chemical Analyzer PW8 Dhanshree Samarth
forwarded the same for the DNA analysis and Chemical
Analyzer PW9 Sharvari Kulkarni has analyzed the same
and submitted report.
.....42/-
Judgment
385 apeal748.23
45. In Mukesh Singh vs. The State (NCT of Delhi),
reported in AIR 2017 SC 2161, known as Nirbhaya's case,
it is observed that DNA is the abbreviation of Deoxyribo
Nucleic Acid. It is the basic genetic material in all human
body cells. It is not contained in red blood corpuscles. It
is, however, present in white corpuscles. It carries the
genetic code. DNA structure determines human character,
behaviour and body characteristics. DNA profiles are
encrypted sets of numbers that reflect a person's DNA
makeup which, in forensics, is used to identify human
beings. DNA is a complex molecule. It has a double helix
structure which can be compared with a twisted rope
'ladder'.
It has been further held that DNA testing has an
unparalleled ability both to exonerate the wrongly
convicted and to identify the guilty. Modern DNA testing
can provide powerful new evidence unlike anything
.....43/-
Judgment
385 apeal748.23
known before. DNA technology as a part of Forensic
Science and scientific discipline not only provides
guidance to investigation but also supplies the Court
accrued information about the tending features of
identification of criminals. It is further observed that there
is 100 % accuracy regarding DNA results. It is now often
possible to determine whether a biological tissue matches
a suspect with near certainty. While of course many
criminal trials proceed without any forensic and scientific
testing at all, there is no technology comparable to DNA.
Only care is to be taken to ascertain whether there was
any possibility of tampering of the samples.
46. In the present case, there is no evidence of the
tampering of the samples. The DNA Report is acceptable
as a proper sample is proved and there is no evidence of
tampering. Being DNA Report is absolutely free from
.....44/-
Judgment
385 apeal748.23
tampering and proved to be that sampling is proper, it is
acceptable in support of the prosecution case.
47. On appreciation of the evidence, it established that
at the relevant time, the victim was below 18 years of age.
She was taken by the accused and the present accused has
subjected her for forceful sexual assault. As far as her
evidence is concerned, it is well settled that the victim of
sexual assault is not an accomplice. She stands at higher
pedestal than that of injured witness. Her evidence is
required to be received the same weightage as is attached
to evidence of injured witness.
48. If totality of circumstances emerging from the
record are considered, it would disclose that the victim of
such crime especially in the present case does not have
any motive to falsely implicate the accused. Her evidence
is trustworthy and nothing is on record to show that she
.....45/-
Judgment
385 apeal748.23
has any oblique motive to implicate the accused falsely. As
such, it is not required to seek corroboration to her
evidence and it is to be accepted. Broader probabilities of
the prosecution case are examined and nothing is brought
on record to disbelieve the version of the victim. Thus,
the prosecution has proved the charges against the
accused.
49. After re-appreciating the entire evidence, it reveals
that the victim was not only "kidnapped" but also
subjected for sexual assault by the accused. Learned
Judge of the trial court appreciated the evidence by
considering all these aspects and rightly convicted the
accused.
50. In the light of the above foregoing discussion, no
infirmity can be found in the judgment impugned in the
.....46/-
Judgment
385 apeal748.23
appeal. As such, the appeal being devoid of merits is
liable to be dismissed and the same is dismissed.
Appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 09/04/2025 12:04:04
