[Cites 14, Cited by 0]
Bombay High Court
Vijaypal Bikki Singh vs The State Of Maharashtra on 24 December, 2025
2025:BHC-AS:57349
APEAL-599- of 2019 WITH CONT. APPEAL.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.599 OF 2019
Dilawar Hafiz Khan }
Age- 28 years, Occ: Business }
}
R/at Valvan Gaon, Near Jai Malhar
}
Mutton Shop, Nana Matanwale House, }
Lonawala, Taluka-Maval, District-Pune,
}
}
At present undergoing the sentence }
Digitally signed
NILAM by NILAM
SANTOSH
imposed upon him at Yerwada Central }
SANTOSH KAMBLE } ... Appellant
KAMBLE Date: 2025.12.24
15:36:34 +0530
Prison, Yerwada.
Versus
1. State of Maharashtra }
(At the instance of Senior Inspector of }
}
Police Bhoari Police Station vide C.R.
}
No.I-148 of 2014) }
}
2. XYZ }
(At the instance of Bhoari Police Station) } ... Respondent
WITH
CRIMINAL APPEAL NO.926 OF 2021
Yasin Shakir Khan }
Age- 41 years, Occ: Service }
}
R/at "G" Ward, Table Land, Near Bazar
}
Post Office, Lonawala, Taluka-Maval, }
District-Pune }
At present undergoing the sentence }
imposed upon him at Yerwada Central }
Prison, Yerwada. } ... Appellant
}
N.S. Kamble page 1 of 23
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Versus
1. State of Maharashtra }
(At the instance of Senior Inspector of }
}
Police Bhoari Police Station vide C.R.
}
No.I-148 of 2014) }
}
2. XYZ }
(At the instance of Bhoari Police Station) } ... Respondent
WITH
CRIMINAL APPEAL NO.1277 OF 2019
Satish Chitbhal @ Ramaasare Gupta }
Age- 33 years, Occ: Driver }
}
R/at Netajiwadi, Near Sathi Asara Mandir,
}
Near Water Lake, Khandala, Taluka- }
Maval, District-Pune. }
}
At present undergoing the sentence }
imposed upon him at Yerwada Central }
Prison, Yerwada. } ... Appellant
Versus
State of Maharashtra }
(At the instance of Senior Inspector of }
}
Police Bhoari Police Station vide C.R. Respondent
} ...
No.I-148 of 2014) }
WITH
CRIMINAL APPEAL NO.989 OF 2021
Vijaypal Bakki Singh }
Age- 24 years, Occ: Service }
}
N.S. Kamble page 2 of 23
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R/o.Village at Post : Jatauli Ratwan, }
Chikasna, Tlauka-Bharatpur, }
}
Rajasthan-321 025.
}
Convict No.C-18130 }
Yerwada Central Prison, Pune } ... Appellant
Versus
State of Maharashtra }
Through Bhosari Police Station }
}
FIR No.148 of 2014.
} ...
Respondent
----
Mr.Nitin H. Sejpal a/w Mrs.Pooja N. Sejpal, Mr.Siddharth Gharat
and Mr.Sahir Patel in Appeal No.599 of 2019 and 609 of 2019,
for the Appellant.
Mr.A.S. Gawai, APP, for the Respondent-State.
Ms.Devyani Kulkarni, for Respondent No.2.
----
CORAM : R.M. JOSHI, J.
RESERVED ON : 15th DECEMBER 2025
PRONOUNCED ON : 24th DECEMBER 2025
ORAL JUDGMENT :
. These Appeals take exception to the judgment and
order dated 27th February 2019 passed in Sessions Case No.609
of 2014 whereby the Trial Court convicted the Accused persons
for the offences punishable under Section 366 of Indian Penal
N.S. Kamble page 3 of 23
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Code ('IPC' for short) and sentenced to suffer RI for 5 years and
fine of Rs.5,000/-, Section 376(2)(n) of IPC and sentenced to
suffer RI for 10 years and fine of Rs.10,000/- and Section 376(2)
(1) of IPC and RI for 10 years with fine of Rs.10,000/- each.
2. Since both Appeals involve similar question of facts
and law, by consent of both sides Appeals are heard together and
decided by this common judgment.
In short the case of the prosecution is that, victim
who has moderate mental retardation left the house on petty
quarrel with the family members on 20 th October 2014. As she
did not return, her brother lodged missing report with the Police
on 1st May 2014. On 2nd May 2014 she came back home. Her
mother took her to the Police Station where she disclosed about
she being sexually assaulted initially at one lodge at Mumbai and
thereafter being brought back to Pune by one boy to take her to
agricultural farm where he called three other people and all of
them committed sexual assault on her. On the basis of the report
lodged by mother of the victim, offence came to be registered.
The victim was sent for medical examination. It was found later
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that she was pregnant and hence the relevant samples were
obtained from the victim as well as from the Accused. Spot
panchanma was done. Recoveries were undertaken. On
conclusion of investigation, charge-sheet came to be filed.
During the course of trial since the Accused abjured the charge,
the prosecution examined the following eight witnesses.
Sr no. Name of witnesses No. of Exhibits
witnesses
(Complainant- Mother of
Victim)
(Brother of Victim)
Medical Officer
(Punch witness)
DESHMUKH
(Punch witness)
Panch Witness
BHOSALE
(I.O)
Apart from the oral evidence the prosecution placed
reliance on following documentary evidence.
Sr no. Name of documents Exhibits
N.S. Kamble page 5 of 23
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Victim
14. seizure panchanama of condom 48A
Accused No. 1 to 4
Seizure of Shawl
conducting TIP
TIP parade
20. Forwarding Letter about the 60 to 63
Medical Reports and Potency Test
of the accused
21. disability certificate and mental Article 'X'
retardation certificate of the victim and 'Y'
22. DNA Reports 36 to 38
3. The learned Trial Court found the evidence led by
the prosecution sufficient to bring home the guilt of the Accused
beyond reasonable doubt and hence convicted them and
sentenced them to suffer imprisonment as mentioned herein
above.
4. The learned counsels for the Appellant/Accused
submit that the evidence led by the prosecution before the Trial
Court is not conclusive in nature in order to prove the guilt of the
N.S. Kamble page 6 of 23
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Accused beyond reasonable doubt. It is submitted that having
regard to the mental retardness of the victim, it would not be safe
to rely upon the testimony moreover, when it is full of
contradictions. It is submitted that the prosecution though
claims about conducting of identification parade, the manner in
which the same was conducted so also in view of the admission of
the victim herself about the Accused being shown to her in the
Police Station makes the said parade not reliable for convicting
the Accused. To support this submission counsel for the
Appellant placed reliance on judgment in case of Ravindra Alias
Ravi Bansi Gohar V/s., State of Maharashtra & Ors1.
5. It is further argued that though the prosecution has
sought to place reliance on DNA report in respect of Accused
Nos.3 and 4 however since, there is no conclusive evidence in
order to show that the samples were obtained by taking all care
and caution so also the samples were retained tamper proof till its
examination. It is his submission that the prosecution has failed
to even examine the carrier who took the samples for chemical
1 1998 CRI.L. J. 4059
N.S. Kamble page 7 of 23
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analysis. A reference is made to the evidence on record indicating
that the samples were sent for Chemical examination after lapse
of considerable time and hence it cannot be said that the DNA
Test Report is conclusive in nature.
6. It is argued that though there is CA report filed on
record allegedly showing the Accused No.3 as biological father of
fetus of victim, however there is no evidence led about collection
of samples of Accused, so also CA report is not proved through its
author. Insofar as the Accused No.4 is concerned it is argued that
there is alleged recovery of condom at his instance from the spot
of the incident. It is submitted that having regard to the fact that
the incident in question has allegedly occurred in the month of
May, owing to the heat at the relevant time, it cannot be said that
the said sample would remain intact for its analysis. It is
submitted that in any case since the said alleged incriminating
evidence is not put to the Accused person in the statement under
Section 313, the same deserves to be kept out of consideration.
To support this submission, he placed reliance on judgment in
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case of Kalicharan & Others V/s. State of Uttar Pradesh 2, Samsul
Haque V/s. State of Assam3 and Rajkumar Alias Suman V/s. State
(NCT of Delhi)4 . It is further argued that even otherwise the
said recovery is not believable as the police had already visited the
said spot earlier. In response to the contention of the counsel for
Respondent No.2 with regard to the relegation of the matter back
to the Trial Court for putting these incriminating circumstances
to the Accused person, it is submitted that first of all there is no
evidence which would be sufficient to hold that the sampling
done was full proof so also that the seized samples were kept
tamper free. It is his submission that, in such circumstances,
there is no proprietary in directing the Trial Court to put those
questions to the Accused person by relegating a matter back. It is
further submitted that having regard to the nature of evidence led
by the prosecution, it cannot be held that the offence alleged
against the Accused has been proved beyond reasonable doubt.
7. The learned APP and learned counsel for Respondent
No.2 opposed the Appeal by contending that in case of offence
2 (2023) 2 Supreme Court Cases (Cri.) 185 and 2023 (2) Supreme Court Cases 583
3 (2020) 3 Supreme Court Cases (Cri.) 596 and (2019) 18 Supreme Court Cases 1612
4 2023) 17 Supreme Court Cases 95
N.S. Kamble page 9 of 23
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of sexual assault on women, her sole testimony if found reliable
would become ground of conviction without seeking any further
corroboration. It is their submission that the evidence of victim is
free from doubt as she in normal course narrates the occurrence
of incidents in question. It is submitted that even otherwise the
oral evidence of the victim is duly supported by the medical
evidence on record. They also drew attention of the Court to the
evidence of Medical Officer Dr.Rode, PW-4 who stated about
history being given by the victim which is consistent with her
substantive evidence before the Court. It is submitted that there
is no reason for victim to falsely implicate the present Accused in
the crime in question.
8. At the outset, this Court finds it appropriate to refer
the judgment of the Hon'ble Supreme Court in case of Nirmal
Parmar (Supra) wherein the law of appreciation of evidence in
respect of sexual offence has been dealt with and summarized as
under:-
11. Law is well settled that generally speaking, oral
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
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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 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
N.S. Kamble page 11 of 23
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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 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)
14. In Krishan Kumar Malik v. State of Haryana (2011) 7
SCC 130, this Court laid down that although the victim's
solitary evidence in matters related to sexual offences is
generally deemed sufficient to hold an accused guilty, the
conviction cannot be sustained if the prosecutrix's
testimony is found unreliable and insufficient due to
identified flaws and lacunae. It was held thus:
"31. No doubt, it is true that to hold an accused guilty
for commission of an offence of rape, the solitary
evidence of the prosecutrix is sufficient provided the
same inspires confidence and appears to be absolutely
trustworthy, unblemished and should be of sterling
quality. But, in the case in hand, the evidence of the
prosecutrix, showing several lacunae, which have
already been projected hereinabove, would go to show
that her evidence does not fall in that category and
cannot be relied upon to hold the appellant guilty of
the said offences.
N.S. Kamble page 12 of 23
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32. Indeed there are several significant variations
in material facts in her Section 164 statement,
Section 161 statement (CrPC), FIR and
deposition in court. Thus, it was necessary to get
her evidence corroborated independently, which
they could have done either by examination of
Ritu, her sister or Bimla Devi, who were present
in the house at the time of her alleged
abduction. The record shows that Bimla Devi
though cited as a witness was not examined and
later given up by the public prosecutor on the
ground that she has been won over by the
appellant."
15. What flows from the aforesaid decisions is that in
cases where witnesses are neither wholly reliable nor
wholly unreliable, the Court should strive to find out the
true genesis of the incident. The Court can rely on the
victim as a "sterling witness" without further
corroboration, but the quality and credibility must be
exceptionally high. The statement of the prosecutrix
ought to be consistent from the beginning to the end
(minor inconsistences excepted), from the initial
statement to the oral testimony, without creating any
doubt qua the prosecution's case. While a victim's
testimony is usually enough for sexual offence cases, an
unreliable or insufficient account from the prosecutrix,
marked by identified flaws and gaps, could make it
difficult for a conviction to be recorded.
9. The law on the point of appreciating testimony of the
victim of sexual assault is settled to say that if the victim's
testimony is of sterling quality, the same can be accepted without
asking for any corroboration thereto. Keeping in mind these
observations and principles laid down by the Hon'ble Supreme
Court, the evidence of prosecution needs examination.
N.S. Kamble page 13 of 23
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10. The prosecution relies upon following evidence in
order to connect the Accused with the crime in question and to
prove their guilt:-
(i) Testimony of victim.
(ii) Corroborating evidence of mother of
victim.
(iii) Medical evidence, General Examination
so also Genital Examination.
(iv) Previous statements made by the victim
to the Police and Medical Officer by giving history.
(v) Identification of the Accused in Court as
well as during the course of investigation in
identification parade.
(vi) DNA Profile Test connects Accused
Nos.3 and 4.
11. The learned counsel for Accused made grievance
about the incriminating circumstances such as DNA profile
reporting not being put to the Accused person which according to
them has led to miscarriage of justice. In this regard even the
learned counsel for Respondent No.2 and learned APP do not
dispute that the questions pertaining to the DNA Test Report
were not put to the Accused persons. The Hon'ble Supreme
Court in case of Kalicharan & Others & Samsul Haque (Supra)
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has held that the circumstances which are not put to the Accused
would be completely excluded from consideration. This Court
therefore finds no hesitation to hold that the evidence with regard
to DNA Test needs to be kept out of consideration for the
purpose of the decision of the Appeal.
12. Now the question arises as to whether this is a fit case
for relegating the matter back to the Trial Court for asking the
questions in this regard to the Accused person. The Hon'ble
Supreme Court in case of Rajukumar (Supra) has held that it is
curable defect for the purpose of relegating the matter back to the
Trial Court. The Court has taken into consideration other
aspects such as the passage of time since the Trial is over so also
the nature of evidence led before the Trial Court.
13. Perusal of the evidence led before the Trial Court
indicates that there is no satisfactory evidence with regard to the
collection of samples so also its preservation till the samples were
sent to Chemical Analyzer for analysis. The prosecution has not
led evidence to prove the collection of samples of Accused for
DNA so also has not examined carrier in order to complete the
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chain of events in this regard. There is specific suggestion made
to the Investigating Officer about tampering of the muddemal.
In light of these facts, it cannot be said that the prosecution has
succeeded in proving the collection of samples, its preservation
and its reference to the Chemical Analyzer without tampering.
Thus there is no proprietary in relegating the matter back to the
Trial Court for permitting questions to be put to the Accused in
that regard.
14. As far as the Test Identification Parade is concerned,
the victim has admitted in her cross-examination about she being
shown Accused persons at Police Station. Thus it cannot be said
that the identification parade would be of any use for the
prosecution to prove the guilt of the Accused. Even Trial Court
has not accepted the said identification parade to be sufficient
evidence in that regard.
15. It would however be material to take note that the
identification parade is essentially for the purpose of
ascertainment by the Investigating agency about the right person
being charged for any offence. No doubt where the Accused and
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the victim are unknown to each other, such ascertainment
becomes necessary. Question arises as to whether such
ascertainment would be a mandatory requirement in all cases.
16. Though in this case Accused persons were unknown
to the victim. However, if victim had sufficient time to see the
Accused persons during the commission of offence, the
identification of Accused even in Court cannot be doubted. As
far as Accused No.1 is concerned, he took victim from Pune to
Mumbai and brought her back on the next day. Similarly the
other Accused persons were called at a farm wherein she was
sexually abused. From the cross-examination of the victim
nothing is brought on record to indicate that she was not having
sufficient opportunity to notice the Accused persons and
remember them. Most importantly, in the case where the victim
had no reason whatsoever to falsely implicate the Accused person
in this crime, such identification cannot be discarded lightly.
Thus in such case failure on part of prosecution to conduct the
identification parade as per Rules will not lead to the automatic
acquittal of Accused. From the Cross-examination of the victim
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nothing could be elicited by the defense in order to discard the
said identification. No questions are put to victim to hold that
she had enough time to note the details/features of Accused and
to identify them at later point of time. It is sought to be argued
on behalf of the Appellant/Accused that the victim is suffering
from mental retardation and therefore it could be said to place
reliance on her identification of the Accused. In this regard
evidence of medical officer indicates that the victim had moderate
mental retardation However, at the same time, from her evidence
it can be seen that she was able to recollect even small things
which occurred on the date of incident when she left the house.
This clearly shows that the victim was capable enough to
understand and even identify the Accused persons in the Court
correctly.
17. In view of the substantial evidence of the victim
which is fully consistent and reliable in respect of she being taken
by Accused No.1 to Mumbai where forcible sexual intercourse
came to be established by him with her. Thereafter, she being
brought back to Pune and subjected to gang rape by the Accused
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person. Apart from the fact that the sole testimony of the victim
is sufficient to bring home guilt of the Accused, herein this case
her version is duly supported by medical evidence on record.
Medical Officer Dr.Rode specifically deposed about she having
examined victim on 2nd May 2014 and recorded history given by
victim as well as her mother. In the cross-examination Medical
officer denied the suggestion that the history was given by
mother and she consistently deposed about the history given by
the victim in respect of penetrative sexual assault on her by the
Accused No.1 and thereafter by all four Accused. On clinical
examination Medical Officer found the following injuries on the
person of victim.
(i) Contusion of size 1.5 x 1.5 cm over
interior aspect of left arm 7 cm. below shoulder
joint tenderness present.
(ii) Superficial abrasion of 3 x 05 cm and 2 x
0.5 cm. size on postero lateral aspect of left arm 5
cm. below shoulder joint.
(iii) 3 x 1 cm size contusion over posterior left
forearm 3 Cm below elbow joint.
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(iv) 3 x 0.3 cm size superficial abrasion left
lateral aspect of thoracolumber tenderness present.
(v) Erythymatous patch of 5 x 3 cm. over
medical aspect of left thigh 7 cm. above knee joint.
18. The Medical officer also conducted genital
examination and found that "I did her genital examination. Labia
Majora was normal. Labia Minora was normal. Hymen tears
present at 4 o'clock, 8 o'clock and 10 o'clock position. Fresh
bleeding seen from 10 o'clock position. Tenderness present.
Fouchette superficial laceration and inflammation present.
Perihymenal inflammation present. Vaginal bleeding was
present. Pubic hair normal not matted."
19. The Medical Officer therefore has candidly opined
about medical examination suggestive of penetrative sexual
vaginal intercourse with evidence of injuries over genital area and
other body parts. During cross-examination of the Medical
Officer nothing is elicited by the defence in order to create doubt
about testimony of this witness. No doubt it was accepted in the
cross-examination that perihiymenal inflammation can be
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possible due to the infection of Gonorrhea and venereal diseases.
It is however denied that there was no sexual assault on the
Accused. The Medical Officer has further denied the possibility
of injuries being caused while playing or by fall on the ground.
It is thus clear from the evidence of Medical officer that she
supports the version of victim about she being ravished by all
four Accused persons.
20. As discussed herein above, the evidence of victim is
worthy of acceptance and since it is coupled with the medical
evidence on record, this Court has no hesitation to hold that the
Accused persons have committed sexual assault on the victim and
she was subjected to rape by them. The offence punishable under
Section 376 and 376(d) of IPC therefore is rightly held to be
proved against all the Accused persons.
21. Insofar as the offence punishable under Section 366
of IPC is concerned, the said offence is attributed only against
Accused No.1 and the evidence on record does not suggest
commission of the said offence by Accused Nos.2 to 4,
consequently the conviction recorded by the Trial Court for the
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offence punishable under Section 366 of the IPC is confirmed
qua Accused No.1. Accused Nos.2 to 4 however are required to
be acquitted for the said charge for want of any case being made
out by the prosecution to that effect and for non availability of
evidence on record.
22. As a result of the above discussion, following order.
ORDER
(i) The judgment and order passed by the Trial
Court in Sessions Case No.609 of 2014 dated 27th
February 2019 convicting the Accused Nos.1 to 4
for the offences punishable under Section 376 and
376(d) stands confirmed.
(ii) The conviction of Accused No.1 for the offence
punishable under Section 366 of IPC is confirmed.
(iii) The Accused Nos.2 to 4 however stand
acquitted for the offence punishable under Section
366 of IPC.
(iv) Any fine amount, if any paid by the
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Accused Nos.2 to 4, in respect of the offence under
Section 366 of IPC be refunded to these Accused.
23. All pending Applications are disposed of.
(R.M. JOSHI, J.)
24. Learned counsel for the Appellant seeks four weeks
time for surrender of Appellant-Dilawar Hafiz Khan who is on
bail from 1st April 2021. Since this Appellant is on bail, time of
four weeks is granted for him to surrender before Jail Authority.
(R.M. JOSHI, J.)
N.S. Kamble page 23 of 23
