Shrikrushna @ Kisan Maroti Gaikwad vs State Of Mah. Thr. Pso Kharana Tah.Arvi ...
2025 Latest Caselaw 5050 Bom

Bombay High Court

Shrikrushna @ Kisan Maroti Gaikwad vs State Of Mah. Thr. Pso Kharana Tah.Arvi ... on 29 April, 2025

2025:BHC-NAG:4531




              Judgment

                                                             399 apeal147.23

                                          1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR

                         CRIMINAL APPEAL NO.147 OF 2023

              Shrikrushna @ Kisan Maroti Gaikwad,
              aged 21 years, occupation : labour,
              r/o Khairy (Yende), tahsil Arvi,
              district Wardha.                    ..... Appellant.

                                  :: V E R S U S ::

              State of Maharashtra,
              through Police Station Kharangana,
              tahsil Arvi, district Wardha.
              (Crime No.231/2020).          ..... Respondent.

              Shri M.V.Rai, Counsel for the Appellant.
              Mrs.S.S.Dhote, Additional Public Prosecutor for the
              Respondent/State.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 04/04/2025
              PRONOUNCED ON : 29/04/2025

              JUDGMENT

1. By this appeal, the appellant (accused) has

challenged judgment and order dated 20.8.2022 passed

.....2/-

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by learned Additional Sessions Judge, Wardha (learned

Judge of the trial court) in Sessions Case No.55/2020.

2. By the said judgment impugned in the appeal, the

accused is convicted for offences under Section 376,

376(2)(f), and 376(2)(n) of the Indian Penal Code and

sentenced to undergo rigorous imprisonment for 10

years and to pay fine Rs.10,000/-, in default, to undergo

rigorous imprisonment for 3 months.

3. Brief facts of the prosecution case emerged from

the police papers and recorded evidence are as under:

The accused, cousin brother of victim, allegedly,

committed sexual assault on her repeatedly on 9.1.2020,

12.1.2020, and 14.1.2020 which resulted into pregnancy

and she delivered a child. On the basis of report,

Kharangana Police registered the offence against the

accused. On registration of the offence, the victim was

.....3/-

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referred for medical examination and it was found that

she is carrying pregnancy of five months. The accused

was also referred for medical examination. The spot

panchanama was drawn. The samples of the victim and

the accused are collected. After recording relevant

statements, chargesheet is filed against the accused.

During investigation, Chemical Analyzer's and DNA

Reports are also collected. As per the DNA Report, the

victim and the accused are biological parents of the child

delivered by the victim.

4. Learned Judge of the trial court framed charge vide

Exh.18. In support of the prosecution case, the

prosecution has examined in all 15 witnesses, as follows:

     PW                  Names of Witnesses                  Exh.
     Nos.                                                    Nos.
      1       Suresh Hanwate, pancha on              spot     21
              panchanama and seizure memos



                                                              .....4/-
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                                                    399 apeal147.23

5. Besides the oral evidence, the prosecution placed

reliance on CA Report Exh.13, DNA Report Exh.14, notice

to pancha Exh.22, spot panchanama Exh.23, seizure

memos Exhs.25 and 26, report Exh.41, FIR Exh.42, letter

to Medical Officer Exh.46, medical certificate Exh.47,

letter to Medical Officer Exh.51, identification form

obtained for the purpose of DNA of newly born baby

.....5/-

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Exh.52, identification form of the accused Exh.55,

identification form of victim Exh.56, letters to the CA

Exhs.63, 67, letter to Medical Officer Exh.73, medical

certificate of the accused Exh.74.

6. On the basis of the said oral as well as

documentary evidence, the prosecution claimed that

charges are proved against the accused. All the

incriminating evidence is put to the accused to obtain his

explanation by recording his statement under Section 313

of the CrPC. The defence of the accused is of total denial

and of false implication.

7. After appreciating the evidence, learned Judge of

the trial court held the accused guilty and sentenced him

as the aforesaid.

8. Heard learned counsel Shri M.V.Rai for the accused

and learned counsel Mrs.S.S.Dhote for the State.

.....6/-

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9. Learned counsel for the accused submitted that

relationship between the victim and the accused is not

disputed. The victim is elder to the accused. The sole

testimony of the victim is not sufficient to warrant

conviction against the accused. There is no independent

corroboration as to the fact of sexual assault by the

accused. The FIR is rather delayed as the alleged incident

has taken place between 9.1.2020 and 14.1.2020.

Whereas, FIR is lodged on 17.6.2020. The physical

relationship was out of consent. He submitted that there

is no evidence that since obtaining the samples for the

purpose of DNA till the same are forwarded to analysis

were intact. There is every possibility of tampering of the

said samples. No evidence is adduced by the prosecution

to show that since seizure of the samples till the same are

forwarded to DNA, the same was intact. Thus,

considering the nature of the evidence, the prosecution

.....7/-

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miserably failed to prove the charges against the accused.

In view of that, the judgment impugned deserves to be

quashed and set aside.

10. In support of his contentions, learned counsel for

the accused has placed reliance on following decisions:

1. Vijayan vs. State of Kerala, reported in (2008)14 SCC 763;

2. Kaini Rajan vs. State of Kerala, reported in (2013)9 SCC 113;

3. Lotan Budha Chaudhari vs. The State of Maharashtra and anr, reported in 2017 ALL MR (Cri) 2680;

4. Sandeep s/o Kaniram Rathod vs. State of Maharashtra, reported in 2010 ALL MR (Cri) 2673, and

5. Munja s/o Jijabhau Bhange vs. The State of Maharashtra, reported in 2024 ALL MR (Cri)

717.

11. Per contra, learned Additional Public Prosecutor for

the State supported the judgment impugned in the appeal

.....8/-

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and submitted that the evidence of the victim,

corroborated by the parents and brother of the victim,

shows that father of the accused is the maternal-uncle of

the victim. She had been to the house of her maternal-

uncle wherein the accused subjected her for forceful

sexual assault. The said fact is not only corroborated by

the medical evidence but also corroborated by DNA

Report. The evidence of the Medical officer as to

obtaining of samples is not challenged. The evidence of

the prosecution is also not challenged as to the validity of

obtaining the samples till the same are forwarded to the

Chemical Analyzer. The DNA Report shows that the

victim and the accused are biological parents of the child

delivered by the victim. The victim and her parents were

under expectation that the accused would perform

marriage with the victim and considering the relationship,

initially, they have not lodged report. The delay is

.....9/-

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properly explained by the prosecution. Thus, the

prosecution has proved the charges against the accused

beyond reasonable doubt. In view of that, the appeal

being devoid of merits is liable to be dismissed.

12. To prove the charges against the accused, the

prosecution mainly relied upon the evidence of PW7

victim. She testified that the accused is her nearest

relative, the son of her maternal-uncle. The sister of the

accused had been to her house at Rasulabad for fair and

on 7.1.2020 she insisted the victim to come along with

her and, therefore, she along with the sister of the

accused had been to the house of her maternal-uncle. Her

brother dropped them there. On 9.1.2020, her maternal-

uncle and aunt had been to attend their work. The sister

of the accused had been to her school and she was alone

in the house. At the relevant time, when she was lying on

bed and watching TV, at about 1:00 pm, the accused came

.....10/-

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in the house, locked the door of the house from inside,

and asked for the sexual favours by saying "eyk rq ,dnk teq

ns". He then pressed her chest and subjected her for the

forceful sexual assault. Though she resisted the act of the

accused, he did not listen. Similarly, on 12.1.2020 and

14.1.2020, again, the accused subjected her for the

physical assault by taking disadvantage of the fact that

she was alone in the house. On 15.1.2020, she informed

about the incident to the sister of the accused Suwarna.

On 29.1.2020, she returned to home. As she did not

receive her menstrual for five months, she disclosed the

said incident to her mother. It revealed that she is

pregnant of five months and, therefore, they went to the

house of the accused to talk about her marriage, but the

accused refused to marry her. Therefore, she approached

the police station on 17.6.2020 and lodged report Exh.41.

The prescribed format of FIR is at Exh.42.

.....11/-

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13. The evidence of the victim further shows that she

delivered a baby boy. Her medical examination was

conducted. During her cross examination, she admitted

that immediately after the incident, she has not disclosed

the said incident to anybody. She voluntarily explained

the same that she did not tell because she was scared. She

also admitted that the accused never assured her for

marriage when he had sexual relations with her on three

occasions. She further admitted that on 29.1.2020, when

she returned home, she has not disclosed the incident to

anyone. Rest of the cross examination is mere denial of

the incident.

14. Thus, the cross examination shows that defence of

the accused is of total denial. He has neither stated that

there was love affair nor taken the defence of consent.

.....12/-

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15. To corroborate the version of the victim, the

prosecution has examined PW2 the father of the victim.

As per his evidence, five months ago, he came to know

that the victim is pregnant. The victim has disclosed this

fact to her mother that the accused forcibly had physical

relationship with her for 3-4 times and he came to know

this fact from his wife. His evidence further shows that

the sister of the accused, who is his niece, took the victim

at her house in village Khairi Ade and the victim stayed

there till 29.1.2020. During the said period, the alleged

incident took place. After noting the victim is pregnant,

and on disclosure of the victim, he also with other

relatives went to the house of the accused, but the parents

of the accused quarreled with them and the accused also

denied to perform marriage. Therefore, they approached

to the police station and the victim lodged the report.

During his cross examination, one omission is brought on

.....13/-

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record that the victim told his wife that the accused had

forcible physical relationship with her for 3-4 times which

is not appearing in his statement. Rest of the cross

examination is only in denial form.

16. PW3 the mother of the victim is examined vide

Exh.32. Her evidence is on the similar line that the sister

of the victim, who is her niece, took the victim along with

her at village Khairi Ade. The victim returned home on

29.1.2020. After five months, the victim disclosed her

that she has not received menstrual period and also

disclosed that the accused forcibly established the

physical relations with her for three times. She realized

the changes in the body of the victim. She disclosed the

said fact to her husband. Thereafter, she along with her

husband went at the house of the accused, but her brother's

wife, who is the mother of the accused, quarreled with them. The

accused also refused to marry with her. During her cross

.....14/-

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examination, it came on record that the victim is two year

elder to the accused. She is unable to tell the dates when

these physical relations were established between the

accused and the victim. She further admitted that the

victim did not tell about the incident for five months.

Here, the first time defence was taken by the

accused that the victim and her parents wanted to

perform his marriage with the victim forcibly and,

therefore, this false report is lodged.

17. PW4 grandmother of the victim also deposed on

the similar line that on disclosure by the victim to her

mother, they came to know that the accused in his house

forcibly established physical relations with the victim. The

victim was five months pregnant. They had been to the

house of the accused, but the accused denied to perform

the marriage. Her entire cross examination is only denial

.....15/-

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of the fact which she has stated during her chief-

examination.

18. PW5 is the brother of the victim examined vide

Exh.36, who deposed that on 7.1.2020 he dropped the

victim and sister of the accused at the village of the

accused on his motorcycle. After 4-5 months, the victim

disclosed to her mother that she has not received

menstrual period. They learnt that she is pregnant for

five months. They had been to the house of the accused,

but the accused refused to marry. During his cross

examination, he admitted that his parents and others

went to the house of the accused to talk about the

marriage between the victim and the accused.

19. PW6 Taibai Kasar, is the neighbour of the victim.

She came to know from the mother of the victim that the

accused has forcibly physical relationship with the victim

.....16/-

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which resulted into pregnancy of the victim. She along

with the parents of the victim had been to the house of

the accused, but the mother of the accused quarreled with

them and the accused also refused to perform marriage

with the victim. She also admitted that they went to the

house of the accused to fix marriage of the victim and the

accused.

20. To corroborate the evidence of these witnesses, as

to sexual assault on the victim, the prosecution has

examined Medical Officer PW8 Dr.Priyanka Talwekar. As

per her evidence, on 17.6.2020, she was working as

Medical Officer, Gynaecologist Department at General

Hospital, Wardha. On that day, they received letter from

Kharangana Police Station as to the medical examination

of the victim Exh.46. The victim was brought by LPC

Leena. After obtaining the consent, the victim narrated

the history that she had sexual intercourse on 14.1.2020

.....17/-

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with the accused and also disclosed that the said sexual

intercourse was against her wish and without her consent.

On examination, she found that the victim was pregnant

of 23.4 gestational age. On general examination, she was

well oriented with time, the hymen was ruptured with old

multiple tear. The ultra sonography was conducted. Her

pregnancy was beyond 20 weeks. Accordingly, she issued

certificate Exh.47. Discharge card is at Exh.48. During

cross examination, only suggestion is given that she has

not noted the history properly.

21. PW9 Dr.Mohini Hiware, is the another Medical

Officer examined vide Exh.50. As per her evidence, she

received letter from police officer of Kharangana Police

Station requesting to obtain DNA Samples of newly born

baby of the victim. The said letter is at Exh.51. She

examined the baby boy which was brought to the hospital

and identified the victim. She obtained blood samples for

.....18/-

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DNA Testing after consent of the victim. The blood

samples were properly sealed and handed over the same

to the police. The identification form of the baby boy is at

Exh.52. This evidence remained unchallenged as she is

not cross examined by the defence.

22. PW10 Dr.Aarti Masaram, examined vide Exh.54. As

per her evidence, she was working as Medical Officer at

the General Hospital. On 23.6.2020, the accused was

brought in the hospital by Police Constables Rajesh and

Pankaj for obtaining blood samples and samples for DNA

Analysis. The identification form of the accused bears

her signature and the photograph of the accused. The

police brought DNA Kit. She obtained the blood samples

in empty bottle of kit. The samples were labeled with

name, age of the accused and the case number. After

obtaining the samples, she filled declaration form which is

at Exh.55. Similarly, the victim was also brought to the

.....19/-

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hospital for taking blood samples and DNA Analysis. She

has taken blood samples of the victim in empty bottle of

DNA Kit. The samples were labeled with name, age of the

victim and case number. Accordingly, she filled

declaration form Exh.56. During her cross examination,

only suggestion was given that she is deposing false that

she has obtained blood samples of the victim and the

accused.

23. PW11 Dr.Abhay Shinde, examined vide Exh.57,

deposed that he was working as Radiologist and

Sonologist at General Hospital, Wardha. The victim was

brought in hospital on 18.6.2020. He conducted

sonography test and it revealed that the victim was

pregnant of 23 weeks and five days. The sonography

report is Exh.58. Only one suggestion was given to this

witness that the age of fetus was not 23 weeks and five

days. Rest of the evidence remained unchallenged.

.....20/-

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24. PW14 Dr.Robin Kamble, examined vide Exh.72,

deposed that on 26.2.2020 he received letter for medical

examination of the accused. The accused narrated the

history that five months before he had sexual intercourse

with the victim. On examination, he opined that the

accused was competent to have sexual intercourse which

is at Exh.64. Though he is cross examined at length,

nothing incriminating came on record.

25. PW1 Suresh Hanwate was examined to prove the

spot panchanama and seizure memos. He deposed that

on 20.6.2020 spot panchanama Exh.23 was drawn. In his

presence two blood samples of the victim were drawn by

doctor of General Hospital, Wardha. In his presence, two

sealed tubes were seized. In his presence, the blood

sample of the accused and his nails samples were also

seized and the said seizure memos are at Exhs.26 and 28.

During his cross examination, she has shown his inability

.....21/-

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to tell about adjoining houses near the spot of the

incident.

26. PW13 Amar Hajare, is the Police Constable who

testified that on 6.8.2020, the Police Inspector of

Kharangana Police Station issued him a letter in the name

of Forensic Science Laboratory requesting for DNA Kit.

The said letter is at Exh.67. He brought DNA Kit from

Nagpur and gave it to ASI Nikam. The DNA Samples of

newly born baby was taken in DNA Kit by Medical Officer

at General Hospital at Wardha. The said DNA Samples

are carried by him to Forensic Science Laboratory, Nagpur.

Letter was given to him to carry the same which is at

Exh.69. Along with the same, the identification form of

the newly born baby was also handed over to him. He

handed over the same to the Forensic Science Laboratory.

Here also, his cross examination is only the denial as to

the chief-examination.

.....22/-

Judgment

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27. PW15 Sanjay Gaikwad, examined vide Exh.75, is

the Investigating Officer, who has narrated about the

investigation carried out by him. During evidence, he

has stated that he has obtained the blood samples of the

victim, accused, and the newly born baby of the victim

and forwarded it to the Forensic Science Laboratory. The

extract of muddemal register in respect of submitting

blood samples and nail cutting of the accused are at

Exh.84. He has called DNA Kits from Forensic Science

Laboratory and obtained the blood samples in kit. On

obtaining the blood samples, immediately, on 23.6.2020,

he forwarded the samples to the Forensic Science

Laboratory. Thus, after completion of the investigation,

he submitted the chargesheet against the accused. During

cross examination, he admitted that he has not seized

inner garments of the accused and the victim. He has also

not recorded the statements of neighbouring witnesses

.....23/-

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residing near the house of the accused. He admitted that

it was stated by the victim that there were talks of

marriage between family members of the accused and the

victim and, therefore, there was delay in lodging of the

FIR. The victim lodged FIR as the accused refused to

marry her.

28. Besides the oral evidence, the prosecution placed

reliance on DNA report Exh.14. As per the said DNA

Report, the victim and the accused are concluded to be

biological parents of the baby delivered by the victim.

29. On appreciation of the evidence, there is no dispute

as to the fact that the victim and the accused are close

relatives. The accused is the son of maternal-uncle of the

victim. The evidence of the father of the victim, the

mother of the victim, grandmother of the victim, and the

brother of the victim shows that the victim had been to

.....24/-

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the house of the accused as it was the house of her

maternal-uncle. The accused has also not denied her visit

to his house and her stay in the house. The entire

evidence of these witnesses discloses that when the

victim had been to the house of the accused, she was

subjected for the forceful sexual assault by the accused on

three occasions which resulted into her pregnancy. The

defence of the accused is of total denial and false

implication. It is further defence of the accused that

parents of the victim insisted him to perform the

marriage with the victim to which he denied and,

therefore, the false report is lodged against him. The

prime witness to prove the incident is the victim who

categorically stated that when she had been to the house

of her maternal-uncle, the accused who is son of her

maternal-uncle asked her for the sexual favour and

subjected her for the forceful sexual assault. Though she

.....25/-

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is cross examined at length, only admission given is that

the accused never assured her for marriage. Nothing

incriminating is brought on record. Admittedly, she has

not disclosed the said incident to her parents till 5 months

after she returned from the house of the accused. The

evidence on record sufficiently shows that she was

pregnant of five months. This fact is disclosed by her to

her mother as she has not received her menstrual for five

months and, thereafter, her parents approached the family

members of the accused and the accused refused to

perform marriage with her. It is not the defence of the

accused that out of love affair physical relationship was

developed between him and the victim. It is also not

defence of the accused that out of consent the alleged

incident of physical relationship was developed between

them.

.....26/-

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30. The evidence of Medical Officer PW8 Dr.Priyanka

Talwekar shows that when the victim was examined by

her, she was pregnant of more than 20 weeks. This

evidence remained unchallenged.

31. The evidence of Medical Officer PW11 Dr.Abhay

Shinde, also discloses that he had conducted sonography

test and it revealed that she is pregnant of 23 weeks and

five days. The evidence of the prosecution witnesses and

the victim further shows that she delivered a baby boy.

PW9 Dr.Mohini Hiware has obtained the samples of baby

boy on 7.8.2020 at 1:00 pm. PW10 Dr.Aarti Masaram

deposed that blood samples of the victim and the accused

were obtained in DNA Kit on 23.6.2020 and the evidence

of PW13 Amar Hajare, the Police Constable, shows that he

has carried the said samples for DNA and handed over the

same.

.....27/-

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32. Thus, the evidence on record, especially the

evidence of the victim, shows that the alleged incident of

sexual assault took place on 9.1.2020, 12.1.2020, and

14.1.2020. On 15.1.2020, she disclosed the said fact to

the sister of the accused. On 29.1.2020, she returned to

her house. After that, she has not received her menstrual

till 12.6.2020. She was pregnant of 5 months. She

waited for the message of the accused till 16.6.2020 and

on 17.6.2020 she has lodged the report. The victim was

first time medically examined on 17.6.2020 and found

pregnant of more than 20 weeks. Her medical certificate

is at Exh.47. After delivering a child, the child was

brought to the hospital on 7.8.2020 for obtaining the

DNA Samples. The DNA Kit was produced before her and

she obtained the said blood samples in the said DNA Kit

on 7.8.2020. The letter addressed to the Medical Officer

is dated 7.8.2020. The said letter also discloses that the victim has delivered

.....28/-

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a child on 4.8.2020. Immediately, on 7.8.2020, the blood

samples of newly born child was obtained. The blood

samples of the victim and the accused were obtained on

23.6.2020. The identification forms of the victim and the

accused are at Exhs.55 and 56. PW13 Amar Hajare,

brought the DNA Kit for obtaining the blood samples of

the newly born baby on 6.8.2020 and on 7.8.2020 the

blood samples were obtained. The letter was also issued

to the Forensic Science Laboratory to provide the DNA Kit

to obtain the blood samples of the victim and the accused

on 22.6.2020 and their blood samples were obtained on

23.6.2020. The letter was also issued to the Forensic

Science Laboratory, Nagpur forwarding the blood samples

of the victim and the accused for DNA analysis. Whereas,

the samples of the newly born baby was forwarded on

7.8.2020.

.....29/-

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33. Thus, the communication on record Exh.61 shows

that on 22.6.2020 DNA Kits are obtained for obtaining the

samples of the victim and the accused. The evidence of

PW10 Dr.Aarti Masaram discloses that the said blood

samples were obtained on 23.6.2020 in DNA Kits and

letter Exh.63 shows that on 23.6.2020 the said blood

samples were forwarded for DNA Analysis to the Forensic

Science Laboratory. The victim girl has delivered a baby

boy on 4.8.2020. PW13 Amar Hajare was sent to obtain

DNA Kits on 6.8.2020 vide letter Exh.67 and PW9

Dr.Mohini Hiware obtained the said blood samples on

7.8.2020 and the said blood samples were immediately

forwarded for the DNA Analysis on 7.8.2020 vide letter

Exh.69. The evidence of the Medical Officers PW9

Dr.Mohini Hiware and PW10 Dr.Aarti Masaram shows

that they have obtained the blood samples, sealed it, and

handed over the same to the police in a sealed condition.

.....30/-

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The sealing of the said samples or defence of tampering is

not taken by the accused. Exhs.13 and 14 DNA Reports

show that the blood samples of the victim and the

accused were received in Forensic Science Laboratory on

23.6.2020 vide reference No.928/2020 and the blood

sample of the newly born baby was received in Forensic

Science Laboratory on 7.8.2020 vide reference

no.1282/2020. The letters addressed to the Police

Station Officer along with the DNA Reports further

disclose that the samples were received in a condition

"seals intact". On receipt of the said DNA Samples, the

same were analyzed by the Analyzer and opined that the

victim and the accused were concluded to be biological

parents of the child delivered by the victim.

34. As already observed, the accused has not taken

defence as to sealing of the samples and tampering of the

same.

.....31/-

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35. There is no dispute as to the fact that the victim

has delivered a baby boy and DNA Reports disclose that

the victim and accused are biological parents of the baby

boy delivered by the victim. The defence is not taken as

to the consent or the love affair. The evidence on record

sufficiently shows that immediately obtaining the

samples, the same were forwarded to the Forensic Science

Laboratory for analysis. Thus, the evidence on record

shows that after obtaining the samples, till samples were

forwarded and the analyzed, the same were in a sealed

condition and there is no case of tampering of the seals.

Nothing is on record to show that the seals were not

intact or the same were kept either in the police station or

with the medical officer. The evidence categorically

shows that immediately after obtaining the samples, the

same were forwarded for the DNA Analysis.

.....32/-

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36. The DNA evidence is now a predominant forensic

technique for identifying criminals when biological

tissues are left at scene of crime. DNA testing on samples

such as saliva, skin, blood, hair or semen not only helps

to convict but also serves to exonerate. The sophisticated

technology makes it possible to obtain conclusive results.

The DNA is the genetic blue print for life and is virtually

contained in every cell. The DNA testing can make a

virtually positive identification when two samples are

matched. Thus, the DNA Report is helpful to inculpate as

well exculpate the accused.

37. Thus, basic requirement that the samples were kept

in a proper condition and were in a sealed condition, till

the same were taken for the analysis is established by the

prosecution.

.....33/-

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38. 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'.

39. The DNA Report is acceptable as proper samples

and there is no evidence of tampering. Being DNA Report

is absolutely free from tampering and proved to be that

.....34/-

Judgment

399 apeal147.23

the sampling is properly, it is acceptable in support of the

prosecution.

40. Learned counsel for the accused submitted that the

victim is elder to the accused and sole testimony of the

victim is available. She has not disclosed the incident to

anybody and, therefore, the consent on her part can be

inferred. In support of his contentions, he placed reliance

on the decision of the Hon'ble Apex Court in the case of

Vijayan vs. State of Kerala supra wherein it has been held

that in cases where sole testimony of the prosecutrix is

available, it is very dangerous to convict the accused,

specially when the prosecutrix could venture to wait for

seven months for filing the FIR for rape. This leaves the

accused totally defenceless. Had the prosecutrix lodged

the complaint soon after the incident, there would have

been some supporting evidence like the medical report or

any other injury on the body of the prosecutrix.

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399 apeal147.23

Moreover, no DNA Test was conducted to find out

whether the child was born out of the said incident of

rape and that the appellant-accused was responsible for

the said child.

41. In the present case, the facts show that the samples

of the DNA Analysis are obtained and on analysis, the

victim and the accused are disclosed to be biological

parents of the baby delivered by the victim.

42. Learned counsel for the accused further placed

reliance on the decision in the case of Amol @ Ratan

Pralhadrao Tayade vs. State of Maharashtra, reported in

2022 ALL MR (Cri) 801 wherein the Division Bench of

this Court held long period of intimate relations between

the appellant and the victim would clearly indicate that

the victim was a consenting party.

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399 apeal147.23

Here, the facts of the present case shows that the

victim had been to the house of the accused being his

relative. It is neither case of the prosecution nor the

accused that there was long standing relationship

between the accused and the victim. Therefore, the said

decision is also not helpful to the defence.

43. Learned counsel for the accused further placed

reliance on the decision of the Hon'ble Apex Court in the

case of Kaini Rajan vs. State of Kerala supra wherein it is

held that the consent given by the prosecutrix believing

accused's promise to marry her consent would amount to

misconception of fact if the same arises from false

representation of accused as regards his intention. If the

accused never intended to marry her and made promise

of marriage only to induce prosecutrix to give consent,

sexual act committed by accused pursuant to such consent

would constitute rape. In the present case, key material

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399 apeal147.23

facts alleged by the prosecution of the alleged first

incident of rape did not inspire confidence.

Here, it is not the case that the evidence of the

victim supported by the medical evidence establishes that

the victim was subjected for sexual assault when she had

been to the house of the accused. Thus, facts of the cited

case are not identical to the present case in hand.

44. The decisions of this court in the cases of Lotan

Budha Chaudhari vs. The State of Maharashtra and anr

and Sandeep s/o Kaniram Rathod vs. State of

Maharashtra are also not helpful to the defence.

45. Section 375 IPC defines the expression "rape",

which indicates that the first clause operates, where the

woman is in possession of her senses, and therefore,

capable of consenting but the act is done against her will.

The expression "against her will" means that the act must

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399 apeal147.23

have been done in spite of the opposition of the woman.

"Consent" is also stated to be an act of reason coupled

with deliberation. It denotes an active will in the mind of

a person to permit the doing of an act complained of.

"Consent", for the purpose of Section 375, requires

voluntary participation not only after the exercise of

intelligence based on the knowledge of the significance

and moral quality of the act but after having fully

exercised the choice between resistance and assent.

Whether there was consent or not, is to be ascertained

only on a careful study of all relevant circumstances. An

inference as to consent can be drawn if only based on

evidence or probabilities of the case.

46. The Hon'ble Apex Court in the case of Kaini Rajan

vs. State of Kerala supra held Section 90 of the IPC

though does not define "consent", it describes what is not

"consent". It says that a "consent" is such a "consent" as

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399 apeal147.23

is intended by the IPC if it is given under a misconception

of fact. a misrepresentation as regards the intention of

the person seeking consent, i.e. the accused, could give

rise to the misconception of fact. the consent given

pursuant to a false representation that the accused

intends to marry, could be regarded as consent given

under misconception of fact.

47. Section 114A of the Evidence Act deals with

presumption. If sexual intercourse has been committed by

the accused and if it is proved that it was without consent

of the prosecutrix and she states in her evidence before

the court that she did not consent the Court shall presume

that she did not consent. Presumption has been

introduced by the legislature in the Evidence Act looking

to atrocities committed and in the instant case as per

statement of the victim, she resisted and she did not give

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399 apeal147.23

consent to the accused at the first instance and he

committed rape on her.

48. Thus, the evidence on record shows that there was

no "consent" on the part of the victim and the

presumption under Section 114A, which is in favour of

the the victim, is not rebutted by the accused. This is not

a case wherein it can be said that the accused was having

love affair with the victim or the consent was obtained on

the promise of marriage.

49. In the present case, considering the evidence of the

victim, it is neither the case of the accused that the victim

was consenting party to the said physical relationship nor

it is the defence that there was love affair between them.

Therefore, it must be concluded in the background of the

facts that the victim was subjected for sexual assault by

the accused to fulfill his lust.

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399 apeal147.23

50. Thus, Section 90 of the Indian Penal Code though

does not define the term 'consent', in negative terms it

describes what does not amount to consent. The

"consent" may be express or implied, must be actuated,

obtained through deceit or fraud. If the "consent" is

given by the victim under misconception of fact, it

vitiates. The "consent" for the purpose of Section 375 of

the Indian Penal Code, requires voluntary participation

not only after the exercise of intelligence based on the

knowledge of the significance and moral quality of the

act but after having fully exercised the choice between

resistance and assent. Whether there was "consent" or

not, is to be ascertained only on a careful study of all

relevant circumstances.

51. The Hon'ble Apex Court, in the case of Deelip

Singh vs. State of Bihar, reported in (2205)1 SCC 88

framed two questions relating to consent:-

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399 apeal147.23

(1) Is it a case of passive submission in the

face of psychological pressure exerted or

allurements made by the accused or was it a

conscious decision on the part of the

prosecutrix knowing fully the nature and

consequences of the act she was asked to

indulge in? and

(2) Whether the tacit consent given by the

prosecutrix was the result of a

misconception created in her mind as to the

intention of the accused to marry her?

While answering these questions, the Hon'ble Apex

Court held that the girl had taken a conscious decision,

after active application of mind to the events that had

transpired. It was further held that at best, it is a case of

breach of promise to marry rather than a case of false

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399 apeal147.23

promise to marry, for which the accused is prima facie

accountable for damages under civil law.

52. The Hon'ble Apex Court, in the case of Deepak

Gulati vs. State of Haryana, reported in (2013)7 SCC

675, has drawn distinction between "rape" and

"consensual sex" and held that the physical relationship

between the parties had clearly developed with the

consent of the prosecutrix, as there was neither a case of

any resistance, nor had she raised any complaint

anywhere at any time despite the fact that she had been

living with the accused for several days, and had

travelled with him from one place to another.

53. In the instant case, there was no love affair

between the victim and the accused. They being relatives

were visiting each others house. It is also not the defence

that out of "consent", physical relations were developed

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399 apeal147.23

between them. The cross examination also nowhere

discloses that it was active participation of the victim in

the act on the basis of which the inference of "consent"

can be drawn. On the contrary, the evidence of the

victim consistently shows that the accused has asked her

for sexual favour and despite her resistance, he subjected

her for sexual assault. Thus, presumption under Section

114A of the Evidence Act is applicable and the same is

not rebutted by the accused.

54. The another contention of learned counsel for the

accused is that there is inordinate delay in lodging the

FIR.

55. The evidence on record shows that the victim has

not disclosed the said incident to anybody for five months

except sister of the accused. The fact about her disclosure

to the sister of the accused is not denied or no contrary

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399 apeal147.23

evidence is brought on record by the accused by

examining his sister. The delay in lodging the FIR in

sexual assault cases is not always fatal to the prosecution

if the delay is properly explained. The evidence of

Investigating Officer PW15 Sanjay Gaikwad during cross

examination reveals that the victim disclosed to him that

there were talks of marriage between family members of

the victim and the accused and, therefore, there was

delay in lodging the FIR. Not only the evidence of the

victim but also her father, mother, grandmother, brother,

and neighbour also shows that after disclosure of the

incident, they approached the parents of the accused and

disclosed the incident to them and requested to perform

the marriage of the victim and the accused which is

denied by them. This act of the victim and her parents is

natural in the light of the fact that accused was her

nearest relative. It was obvious on the part of the victim

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399 apeal147.23

and her parents first to settle the issue considering

relationship between them and as the accused denied to

perform the marriage, the victim approached the police

station.

56. Thus, the delay caused in lodging the FIR is

properly explained by the prosecution. The delay in

lodging FIR is not always fatal to the prosecution. The

delay in lodging FIR in sexual offences has to be

considered with different yardstick.

57. In the case of Satpal Singh vs. State of Haryana,

reported in (2010)8 SCC 714 the Hon'ble Apex Court

held that in a rape case the prosecutrix remains worried

about her future. She remains in traumatic state of mind.

The family of the victim generally shows reluctance to go

to the police station because of society's attitude towards

such a woman. It has further been held that no straight

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399 apeal147.23

jacket formula can be laid down this regard. In case of

sexual offences, the criteria may be different altogether.

As honour of the family is involved, its members have to

decide whether to take the matter to the court or not. In

such a fact-situation, near relations of the prosecutrix may

take time as to what course of action should be adopted.

Thus, delay is bound to occur.

58. This Court has always taken a judicial note of the

fact that "ordinarily the family of the victim would not

intend to get a stigma attached to the victim. Delay in

lodging the First Information Report in a case of this

nature is a normal phenomenon."

59. Although it is true that in the case of "rape"

conviction can be made on the sole testimony of the

prosecution, as her evidence is in the nature of an injured

witness, which is given a very high value, but when a

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399 apeal147.23

person is to be convicted on the testimony of sole witness,

the utmost care is to be taken and the testimony of such

witness must inspire the confidence. It is true that in a

"rape" case the accused could be convicted on the sole

testimony of the victim, if it is capable of inspiring of

confidence in the mind of the court. If the version given

by the victim is unsupported by any medical evidence or

the whole surrounding circumstances are highly

improbable and belie the case set up by the prosecutrix,

court shall not act on the solitary evidence of the victim.

The courts shall be extremely careful in accepting the sole

testimony of the prosecutrix when the entire case is

improbable and unlikely to happen.

60. As far as ground of delay is concerned, the

evidence on record shows that the victim has disclosed

the incident to her mother after five months as she has

not received menstrual and, thereafter, a first attempt was

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399 apeal147.23

made to settle the marriage of the victim and the accused

considering close relationship between them. As the

accused and his family members denied to perform the

marriage, the victim approached the police station and

lodged the report. Thus, delay has to be considered in the

light of facts and circumstances of the case that such

delay is not always fatal to the prosecution.

61. After re-appreciating the entire evidence, it

reveals that the victim, who is the nearest relative of the

accused, was subjected for sexual assault by him by

betraying her trust. Learned Judge of the trial court has

appreciated all these aspects and rightly convicted the

accused.

62. In the light of the above foregoing discussion, no

infirmity can be found in the judgment impugned in the

appeal. In this view of the matter, the appeal being

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399 apeal147.23

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: 02/05/2025 11:06:03