Bombay High Court

Rupchand S/O Dilip Shende vs State Of Mah. Thr. Pso Ps Bhandara Tah. ... on 21 February, 2025

2025:BHC-NAG:1762




              Judgment

                                                           358 apeal155.23

                                          1

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

                         CRIMINAL APPEAL NO.155 OF 2023

              Rupchand s/o Dilip Shende,
              aged about 28 years, occupation:
              labour, r/o Kasturba Gandhi Ward,
              Bhandara, tahsil and district Bhandara. ..... Appellant.

                                  :: V E R S U S ::

              1. State of Maharashtra,
              through Police Station Officer,
              Police Station Bhandara, tahsil
              and district Bhandara.

              2. XYZ (victim in Crime No.344/2019
              registered by PSO Bhandara).      ..... Respondents.

              Shri V.B.Gawali, Counsel for the Appellant.
              Shri M.J.Khan, Addition Public Prosecutor for Respondent
              No.1/State.
              Ms.Mohini Sharma, Counsel Appointed for Respondent
              No.2/Victim.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 27/01/2025
              PRONOUNCED ON : 21/02/2025

              JUDGMENT

.....2/-

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358 apeal155.23

1. The appellant (accused) has preferred this appeal

against judgment and order dated 19.9.2022 passed by

learned Special Judge (under POCSO Act), Bhandara

(learned Judge of the trial court) in Special Criminal

Case No.40/2019.

2. By the said judgment impugned, learned Judge of

the trial court convicted the accused under Section

376(2)(h) of the Indian Penal Code and sentenced to

undergo rigorous imprisonment for ten years and to pay

fine Rs.2000/-, in default, to undergo rigorous

imprisonment for two months.

The accused is further convicted under Section 6 of

the Protection of Children from Sexual Offences Act,

2012 (the POCSO Act) and sentenced to undergo

rigorous imprisonment for ten years and to pay fine

.....3/-

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Rs.2000/-, in default, to undergo rigorous imprisonment

for two months.

3. Brief facts of the prosecution case, emerged from

police papers and recorded evidence, are as under:

On 11.5.2019, the victim girl, aged about 16 years

lodged a report at Bhandara Police Station alleging that

in the year 2016, she left school and was working in

"Komal Fruit Centre" owned by one Komal Desai. Her

duty hours were 7:00 am to 12:00 am and 2:00 pm to

7:00 pm. The accused was also running fruit shop and

used to visit "Komal Fruit Centre" for purchasing stock.

Therefore, she got acquaintance with him. In June 2017,

he asked for her mobile number, but she has not shared

her mobile number. On his repeated asking, she shared

her mobile number and he started calling her. This fact

came to notice of her mother and, therefore, her mother

.....4/-

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took her mobile phone. On 7.10.2018, at about 12:00 in

the mid night, she along with other girls was returning

home. At the relevant time, she was restrained by the

accused and forcefully asked her for sexual favour. He

forcefully took her along with him and on her resistance,

he told her that he will perform marriage with her. On

the promise of marriage, he took her along with him in

one house and subjected her for forceful sexual assault.

Thereafter, on multiple occasions, she was subjected for

sexual assault by the accused.

4. Due to multiple sexual assaults, she has not

received her menses and, therefore, she approached the

accused and disclosed her apprehension, but the accused

has not paid any heed towards it and subjected her for

forceful sexual assault. Thereafter, he provided her some

pills. Though she consumed said pills, she revealed to be

pregnant. Thereafter, she insisted the accused to perform

.....5/-

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marriage with her, but he denied to perform the

marriage. Thus, she alleged that by giving a false promise

of marriage, he subjected her for sexual assault and

thereby committed an offence. On the basis of the said

report, the police have registered the crime against the

accused.

5. After registration of the crime, wheels of

investigation started rotating. During investigation, the

victim was sent for medical examination. During her

medical examination, it revealed that she is pregnant of

five months. The medical officer referred her for

Sonography. The Sonography report is also obtained. She

has shown spot of the incident. Accordingly, spot

panchanamas are drawn. The birth certificate of the

victim is obtained to ascertain her age. Her blood

samples as well as blood samples of the accused are

collected for DNA Examination. Subsequently, she

.....6/-

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delivered a baby child. The blood samples of the said

newly born child are also obtained. All the samples are

forwarded for DNA Examination. On analysis of the DNA

Samples, it revealed that she and the accused are

biological parents of the child delivered by the victim.

After completion of the investigation, chargesheet is

submitted against the accused.

6. Learned Judge of the trial court framed charge

vide Exh.11. In support of the charge, the prosecution

examined as many as 19 witnesses, as follows:

     PW                    Names of Witnesses              Exh.
     Nos.                                                  Nos.



              panchanama





                                                            .....7/-
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                                                   358 apeal155.23







     12     Ashwini    Chavhan,      Deputy       Chief   116
            Executive Officer

     14     Dr.Muneshwar      Bhongade,       Medical     124
            Officer




     19     Dr.Ashish Chindhalore, Medical Officer        174

7. Besides the oral evidence, the prosecution placed

reliance on report DNA Report Exh.6, oral report Exh.20,

FIR Exh.21, statement of the victim by CWC Exh.28,

identification form of the victim for DNA Exh.32, medical

case record Exh.36, spot panchanamas Exhs.43 to 45,

electricity bill Exh.46, seizure panchanamas Exhs.47, 52

.....8/-

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to 54, medical certificate Exh.48, extract of the register

recording the name of the patients Exh.56, requisition

letter Exh.64, medical certificate Exh.65, requisition letter

Exh.67, requisition letter Exh.71, medical certificate

Exh.72, requisition letter Exh.75, identification form of

the accused for DNA Exh.76, requisition letter Exh.77,

identification form of the victim for DNA Exh.78, general

diary entries Exhs.83 to 88, duty pass Exhs.89 to 91,

general diary entries Exhs.92 to 94, duty pass Exh.98,

general diary entries Exhs.99, 100, 107 to 109 and 111,

duty pass Exh.112, letter to the CA Exh.114, letter to the

Chief Officer, Nagar Parishad Exh.116, birth certificate

Exh.118, extract of birth register Exh.119, requisition

letter Exh.125, identification form Exh.126, duty pass

Exh.128, requisition for DNA kit Exh.129, general diary

entries Exhs.131 to 132 and 135 to 137, requisition to the

CA Exh.138, duty pass Exh.140, general diary entry

.....9/-

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Exh.142, requisition to the Medical Officer Exh.146,

arrest panchanama Exh.149, general diary entries

Exhs.152 to 155, duty pass Exh.156, general diary entries

Exhs.157 and 158, requisition to the CA Exh.159,

requisition to the Medical Officer Exh.160, Sonography

Report Exh.175/1.

8. The accused has also examined three defence

witnesses namely DW1 accused himself vide Exh.181,

DW2 Dilip Shende vide Exh.183, and DW3 Subhash

Barse vide Exh.189. Besides the oral evidence, he placed

reliance on application under Right to Information Act

Exh.184, list of Corporators Exh.186, station diary entry

Exh.193.

9. All the incriminating evidence is put to the

accused. The defence of the accused is of total denial

and of false implication. It is the specific defence of the

.....10/-

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accused that the victim has one sided love affair and

insisted for physical relationship.

10. Heard learned counsel Shri V.B.Gawali for the

accused, learned Additional Public Prosecutor Shri

M.J.Khan for the State, and learned counsel Ms.Mohini

Sharma for the victim.

11. Learned counsel for the accused submitted that

though the victim has stated that she is below 18 years of

age, her age is not proved by the prosecution. The entire

evidence of the victim sufficiently shows that it was the

victim who had one sided love affair with the accused

and out of that physical relationship was developed

between them. Thus, it is consensual act and physical

relationship on insistence of the victim. He further

submitted that mere breach of promise to perform the

marriage, is not sufficient to attract offences under

.....11/-

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Sections 376(2)(h) of the Indian Penal Code and 6 of the

POCSO Act. It is further submitted that the evidence of

the victim is suffering from various infirmities and the

same cannot be acted upon as it does not inspire

confidence. Learned Judge of the trial court had not

considered that under what circumstances the physical

relationship was developed between the victim and the

accused. Though the DNA Report discloses involvement

of the accused, his blood samples were never obtained.

For all above these grounds, as the prosecution failed to

establish the case against the accused, the appeal be

allowed.

12. In support of his contentions, learned counsel for

the accused placed reliance on following decisions:

1. Attorney General for India vs. Satish & anr, reported in 2021 ALL MR (Cri) 4694 (S.C.);

.....12/-

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2. Ashik Ramjan Ansari vs. The State of Maharashtra and anr, reported in 2023 ALL MR (Cri) 2669, and

3. Dilip s/o Bhaiyyasingh Tekam vs. State of Maharashtra, reported in 2018 ALL MR (Cri) 5092.

13. Per contra, learned Additional Public Prosecutor

for the State strongly opposed the appeal and submitted

that not only the evidence of the victim but also the

entire chain of the circumstances is established by the

prosecution. As far as the consent of the victim is

concerned, the same was obtained under misconception

of fact. It is not only a case of breach of promise but also,

under the misconception of fact that the accused would

perform marriage with her, consent was obtained. Since

inception, the intention of the accused was to defraud

her. Thus, the prosecution has established the offence

against the accused. The evidence of the victim is neither

shattered during the cross examination nor the defence

.....13/-

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has succeeded in proving that she is more than eighteen

years of age. The consent of the victim is not relevant as

she was below eighteen years of age at the time of the

incident. For all above these grounds, the conviction

imposed by learned Judge of the trial court is proper and

no interference is called for in the judgment impugned in

the appeal.

14. Learned counsel for the victim reiterated the said

contentions made by learned Additional Public

Prosecutor for the State and placed reliance on the

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

Ahmed vs. State (NCT of Delhi), reported in (2023)15

SCC 385.

15. The accused is facing charge for the offences under

Sections 376(2)(h) of the Indian Penal Code and 6 of the

POCSO Act. As per the allegations of the victim, the

.....14/-

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accused under the misconception of fact that he would

marry with her subjected her for sexual assault which

resulted into her pregnancy and she delivered a baby

child. To substantiate the allegation, the victim stepped

into the witness box vide Exh .19 and testified about the

incident. As per the evidence of the victim, she was

below eighteen years of age at the time of the incident.

She narrated in detail regarding occurrence of the

incident. The sum and substance of the evidence is that

the first incident of sexual assault took place on

7.10.2018 when she was returning the home. The

accused took her and demanded from her sexual favour.

Though she was resisting the act, he forcefully detained

her and subjected her for the sexual assault. On her

refusal, he promised her for marriage. Thereafter, on

multiple occasions, she was subjected for sexual assault.

Resultantly, she was pregnant and on disclosing by her to

.....15/-

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the accused, he gave her some pills, but the pills were not

effective and she was constrained to carry pregnancy and

deliver a baby child. As per her the evidence, her birth

date is 6.10.2003 and she studied upto 9th Std at "Nisha

Vidyalaya, Bhandara". As per her evidence, she delivered

a baby child on 21.8.2019.

16. The investigation officer collected blood samples

of the victim as well as blood samples of the newly born

child for DNA purpose.

17. To corroborate the version of the victim, the

prosecution has also examined PW2 the mother of the

victim. She also corroborated the story narrated by the

victim. As per her evidence, she noted that her daughter

is talking continuously on her mobile phone and,

therefore, she withdrew the mobile phone. Subsequently,

it revealed to her that she is pregnant and, therefore, she

.....16/-

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inquired with her. She took the victim to PW4 Dr.Sarla

Agrawal. Said Dr.Sarla Agrawal disclosed that she is

pregnant of 5 and 1/2 months. On inquiring with the

victim, she disclosed the name of the accused.

Thereafter, the report was lodged. The mother has also

disclosed the date of birth as 6.10.2003.

18. Both these witnesses the victim and PW2 the

mother of the victim are cross examined by the defence

counsel. The defence of the accused was that the victim

had one sided love affair with him and, therefore,

physical relationship was developed between them.

During her cross examination, some minor omissions and

contradictions, which are not affecting the core of the

prosecution, are brought on record. During her cross

examination also, it is brought on record that the accused

had not taken her to his house for subjecting her for the

forceful sexual assault. However, she has denied that no

.....17/-

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such incident has taken place. It is specifically brought

on record that she was of understanding age to

understand the word "Sex". The tenure of entire cross

examination was that as she was having one sided love

affair and she wanted to marry with the accused and the

accused refused to marry with her, she lodged the report.

As far as her desire to marry with the accused is

concerned, she admitted the same, but in a subsequent

cross examination she specifically stated that now she

does not want to marry with the accused as she was

forced to suffer by the accused by promising her for

marriage.

19. The cross examination of the mother of the victim

also shows that the accused has refused to marry and,

therefore, the report is lodged.

.....18/-

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20. To prove the age of the victim, besides the oral

evidence of the victim, the prosecution placed reliance on

the evidence of PW12 Deputy Chief Executive Officer

Ashwini Chavhan examined vide Exh.115. The victim has

stated her birth as 6.10.2003. The mother of the victim

has also reiterated the same. As far as the cross

examination of the victim on the point of age is

concerned, except denial, nothing is brought on record.

She also denied that she has no document to show her

birth date. As far as PW2 the mother of the victim, on

the point of age is concerned, she stated that the victim

was born at home at Bhandara and her birth date is

registered. Though the mother is cross examined,

nothing is brought on record to falsify her version as to

the date of birth. She specifically stated that after eight

days of birth of the victim, she had registered her date of

birth. The further cross examination shows that she

.....19/-

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denied that the birth dates of her other children are not

registered.

21. Now, coming to the evidence of PW12 Deputy

Chief Executive Officer Ashwini Chavhan, she stated on

oath that she holds the charge of Sub Register (Births and

Deaths Register). The birth date of the victim is

registered in the record of Chief Officer Nagar Parishad,

Bhandara and as per the record, the birth date of the

victim was recorded as 6.10.2003 and registration date is

30.12.2003 i.e. after two months of her birth.

PW12 Deputy Chief Executive Officer Ashwini

Chavhan is cross examined at length and it is brought on

record that parents are required to give information to

Nagar Parishad. The information of birth of the victim is

given by Brijmonah Katakwar who was Nagar Sewak at

the relevant time. The said birth certificate is at Exh.118.

.....20/-

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22. Thus, the entry of birth of the victim is taken in the

birth register by the public authority which is admissible

in evidence under Section 35 of the Indian Evidence Act.

23. Thus, the prosecution has placed on record the

birth certificate which is at Exh.118 issued by the Sub

Registrar, Nagar Parishad, Bhandara under the provisions

of Sections 12 and 17 of the Registration of Births and

Deaths Act, 1969 and Rules 8 and 13 of the Maharashtra

Registration of Births and Deaths Rules. The said birth

certificate shows the date of birth of the victim as

6.10.2003 and it was registered on 30.12.2003 that is

after two months of the birth of the victim. The names of

the parents are mentioned in the said birth certificate

issued by the Sub Registrar. It is argued that the said

birth certificate is not the valid document as it nowhere

mentions who has given the information about the date

of birth to the Nagar Parishad at Bhandara and, therefore,

.....21/-

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the said evidence is not sufficient to prove the age of the

victim.

24. 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. Section 7 thereof deals with appointment of

Registrars for each local area comprising the area within

the jurisdiction of the Municipality, Panchayat or other

local authority. It is the duty of the Registrar to register

every birth and every death which takes place in his

jurisdiction. This Act mandates that the Registrar should

discharge his duties carefully. Section 8 of this Act

mandates each head of the house to report birth in the

family to the Registrar. The Act provides for maintenance

of register for recording birth and death within the local

area. That is how, certificate came to be issued by the

.....22/-

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Sub-Registrar as per provisions of Sections 12 and 17 of

the said Act. The Birth Certificate, as such, is issued by

the Public Officer and it is a document forming the record

of the acts of the Public Officer and therefore the same is

a public document within the meaning of the said term as

per provisions of Section 74 of the Indian Evidence Act,

1872. The same is admissible in evidence by mere

production thereof in view of provisions of Section 77 of

the Evidence Act.

25. Section 17 of the Registration of Births and Deaths

Act, 1969, provides for search of Birth Register and

supply of extract thereof by certifying the same by the

Registrar or other authorized Officer. Section 17 of the

said Act provides that such extract shall be admissible in

evidence for the purpose of proving birth or death to

which the entry relates. The Birth Certificate is, in fact,

the extract of Birth Register in respect of entry of birth of

.....23/-

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the victim child and as such, admissible in evidence.

Section 35 of the Evidence Act, 1872, makes it clear that

if entry is made by public servant in the official book in

discharge of his official duty, then such entry becomes the

relevant fact and admissible in evidence. Section 35 of

the Indian Evidence 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. To render a

document admissible under Section 35, three conditions

must be satisfied, firstly, entry that is relied on must be

one in a public or other official book, register or record,

secondly, it must be an entry stating a fact in issue or

relevant fact; and thirdly, it must be made by a public

servant in discharge of his official duty, or any other

person in performance of a duty specially enjoined by

.....24/-

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law. It is, thus, clear that the Birth Certificate issued by

the statutorily appointed competent authority is relevant

and admissible. The birth certificate is a public

document and primary evidence which can be proved by

production in view of Section 77 of the Indian Evidence

Act.

26. The Hon'ble Apex Court, in the case of Mahadeo

vs. State of Maharashtra and anr, reported in (2013)14

SCC 637, held that Rule 12(3) of the Juvenile Justice

(Care and Protection of Children) Rules, 2007 is

applicable in determining the age of the victim of rape.

Said Rule 12(3) reads as under:

"Rule 12(3) : In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the co urt or the Board or, as the case may be, the Committee by seeking evidence by obtaining-

.....25/-

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(a) i. the date of birth certificate from the s chool (other than a play school) first attended; and in the absence whereof;

ii. the birth certificate given by a corporation or a municipal authority or a panchayat;

iii. the matriculation or equivalent certificates, if available;

(b) and only in the absence of either (i), (ii) 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.

27. 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 the 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 .....26/-

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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 the law.

28. Thus, the evidence, in the present case, of the

victim and her mother states that the date of birth of the

victim is 6.10.2003 which remained unchallenged and is

corroborated by the evidence of PW12 Deputy Chief

Executive Officer Ashwini Chavhan.

29. Thus, the prosecution succeeded in proving that

the victim was below eighteen years of age i.e. sixteen

years at the time of the incident.

30. The aspect of the sexual assault on the victim, as

per the prosecution, is corroborated by the evidence of

PW4 Dr.Sarla Agrawal, PW5 Dr.Nisha Bhawsar, PW6

.....27/-

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Dr.Avinash Gomkale, PW8 Medical Officer Pankaj Yeole,

PW19 Dr.Ashish Chindhalore.

31. PW4 Dr.Sarla Agrawal, examined the victim

initially. Her evidence is to the extent that on 7.5.2019

the victim along with her mother came to her. The entry

of the name of the victim is taken in the register

maintained in the hospital. The victim was sixteen years

old and came with a complaint that she missed her

menstruation period. From appearance, the size of her

belly was enlarged and, therefore she suspected

pregnancy. She also referred her for sonography and

asked her to approach PW6 Dr.Avinash Gomkale. After

receipt of the report from PW6 Dr.Avinash Gomkale, the

victim again came to her and it revealed to her that the

victim is carrying 22-23 weeks pregnancy. As the victim

was sixteen years old and carrying 22 weeks pregnancy,

she suggested her to approach the police. The extract of

.....28/-

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the register wherein the names of the patients are

entered is at Exh.56. Reference slip is at Exh.57 and

report is at Exh.58. During cross examination, she stated

that she disclosed the police that she suspected that

the victim is carrying the pregnancy. She further clarified

that on examination of the victim, her first diagnosis was

pregnancy and the victim was not knowing to her

menstrual period and, therefore, to ascertain the exact

age of the pregnancy, she referred her to PW6 Dr.Avinash

Gomkale.

32. PW6 Dr.Avinash Gomkale, examined vide Exh.66,

stated that the victim was referred to him by PW4

Dr.Sarla Agrawal. After obtaining the consent, he carried

out sonography examination from which it revealed that

there is 22-23 weeks pregnancy. Accordingly, he gave a

report.

.....29/-

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Though the said witness is cross examined,

nothing fruitful transpired from his cross examination.

33. PW5 Dr.Nisha Bhawsar, who was serving as

Gynaecologist in the Government Hospital at Bhandara,

received a letter from Bhandara Police Station as to

referring the victim. On examination of the victim, it

revealed to her that her menstrual cycle was 16.11.2018

and she was found 24 weeks pregnancy. Accordingly, she

advised sonography. The medical certificate issued by her

is at Exh.65.

34. PW19 Medical Officer Dr.Ashish Chindhalore, who

has carried out the sonography of the victim, also stated

that on 13.5.2019 he was attached to the Bhandara Civil

Hospital. Dr.Bhavsar, had referred to him the victim for

sonography. On sonography, it was found that the victim

.....30/-

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had 24 weeks pregnancy, as per the clinical report.

Accordingly, he submitted report Exh.175.

35. The evidence of PW5 Dr.Nisha Bhawsar shows that

the victim has narrated the incident of sexual assault in

October 2018.

36. Though these witnesses are cross examined,

nothing incriminating is brought on record.

37. PW8 Dr.Pankaj Ganraj Yeole, examined vide

Exh.74, deposed that the victim was brought to his

hospital on 14.5.2019 for obtaining the blood samples.

Accordingly, he collected her identification form and DNA

kit brought by the police constable and collected her

blood samples in DNA kit and handed over the said DNA

kit to the police constable who brought her.

38. PW13 Dr.Jyoti Mukhi, is examined vide Exh.122.

As per her evidence, the victim was brought to her

.....31/-

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hospital on 19.8.2019 as she had labor pains. On

21.8.2019, the victim delivered a female child under her

observation. The cross examination of this witness shows

that the date of conception probably was after

16.11.2018. She further admitted that conception

usually occurs after 14 days of last menstrual period.

39. PW14 Dr.Muneshwar Bhongade, Medical Officer,

examined vide Exh.124, stated that he was attached to

the Civil Hospital at Bhandara. He received a requisition

for obtaining blood samples of a baby delivered by the

victim for DNA Testing. The DNA kit was handed over to

him along with identification form of the baby.

Accordingly, he collected blood samples of that baby and

handed over the DNA kit to the police constable, which is

marked at Exh.126.

.....32/-

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40. The accused is examined by PW7 Medical Officer

Dr.Durgesh Pashine, who testified that on 12.5.2019 the

accused was brought to him. He examined the accused

and issued certificate contending that there was no injury

on his person. The accused was physically potent to

undergo sexual intercourse.

41. PW8 Dr.Pankaj Ganraj Yeole, has also obtained the

blood samples for DNA of the accused on 14.5.2019 and

DNA kit was handed over to the constable who brought

the accused for obtaining the DNA Samples.

42. Thus, the consistent evidence of the Medical

Officers shows that the victim was pregnant when she

was examined initially by PW4 Dr.Sarla Agrawal and

PW13 Dr.Jyoti Mukhi performed her delivery on

21.8.2019. PW8 Medical Officer Pankaj Yeole has

obtained the blood samples of the victim as well as the

.....33/-

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accused in DNA kits and PW14 Dr.Muneshwar Bhongade

collected the blood sample of the newly born child.

43. Exh.76 is the identification form of the accused.

Exh.78 is the identification form of the victim and

Exh.126 is the identification form of newly born child.

44. The set of evidence adduced by the prosecution of

PW9 Police Constable Minali Biswas, whose evidence is to

the extent that PSI Gokhare issued her duty pass and

directed her to take the victim for medical examination.

Accordingly, she went to the Government Hospital along

with the victim, but the victim was examined on

12.5.2019 as the lady Medical Officer was not available

on 12.5.2019. On 12.5.2019, the victim was examined

and referred for sonogrpahy. On 13.5.2019, the

sonography was conducted. Accordingly, entries were

taken in station diary. The relevant entries in the station

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diary are at Exhs.83 to 88. Duty pass is Exh.89. Her

return report is Exh.90.

Her further evidence shows that she was again

given duty to collect samples of the victim for DNA Test.

Duty pass is at Exh.91. Station diary is at Exh.92. She

took the victim along with the DNA kit and handed over

the kit and identification form of the victim to the

Medical Officer who obtained the blood samples and

handed over the DNA kit and identification form to her.

The nature of her cross examination is only denial. The

concerned station diary is at Exhs.92 and 93, and return

report is at Exh.94.

45. PW10 Police Constable Maroti Ghuge, examined

vide Exh.97, deposed that on 14.5.2019 he took the

accused for obtaining the blood samples for DNA in civil

hospital. His duty pass is at Exh.98, station diary entry is

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at Exh.99. He handed over the DNA to the Medical

Officer along with identification form. The sample were

collected and handed over to him in a sealed condition.

He returned to the police station and handed over the

said samples to the Investigation Officer. During his cross

examination, he admitted that if the accused is taken out

from the lock-up or kept inside the lock-up, the entries

are maintained in lock-up register. His duty pass is at

Exh.98, return report Exh.101, concerned station diary

entries are at Exhs.99 and 100.

46. PW11 Police Constable Krushna Katkade, was sent

to the Nagpur Forensic Science Laboratory to collect the

DNA kit. His duty pass is at Exh.107. He obtained two

DNA kits. Again on 14.5.2019, he handed over the blood

samples collected in DNA kits to Nagpur Forensic Science

Laboratory. Accordingly, entry in station diary is taken.

The DNA kits were in vaccination box in a sealed

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condition. The cross examination shows that he was

given duty pass when he had been to the Forensic

Laboratory to collect the DNA kit. Station diary entries

are Exhs.107 to 111, duty pass is at Exh.112, return

report is at Exh.113, and letter to the Director of Forensic

Science Laboratory Exh.114.

47. PW15 Ajay Kukade, is another Police Constable

who has also collected DNA kit on 22.8.2109. His duty

pass is at Exh.128. He was given the DNA kit and blank

form by Forensic Science Laboratory. He handed over the

same to the Investigating Officer. Return report is at Exh.

130, letter to the Forensic Science Laboratory is at

Exh.129, station diary entries Exhs.131 and 132.

48. PW16 Police Constable Hiralal Landage, examined

vide Exh.134, was assigned with the duty to carry DNA

Samples. He was handed over the DNA Samples in a

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DNA kit in Ice Box on 23.8.2019. The station diary entry

is at Exh.135. He had been to the Forensic Science

Laboratory to hand over the same, but the said

Laboratory was closed on 24th and 25th and, therefore, he

again went and handed over the same samples on

26.8.2019. The general diary entries are Exh.135 to 137.

The letter to the Forensic Science Laboratory is at

Exh.138, duty pass is at Exh.140, and the general diary

entry is at Exh.142.

49. Thus, on the basis of the evidence of these

witnesses, the prosecution claimed that the prosecution

has established the chain that since collection of the

blood samples in DNA kit, the same were in a sealed

condition and there was no chance of tampering. It is

further submitted that with the help of the Medical

Officer's evidence, the prosecution established the

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manner in which the samples were collected and those

were in a sealed condition.

50. PW17 Karuna Atram and PW18 Megha Gokhare,

the Investigating Officers, testified about the investigation

carried out by them.

51. The defence of the accused is of total denial and

false implication as well as one sided love affair by the

victim. To substantiate the same, the accused examined

himself vide Exh.181 who testified that the victim had

one sided love affair with him and she was desiring to

marry with him. His cross examination shows that the

victim has disclosed to him her desire to marry with him.

He also admitted that he never complained anybody that

his DNA Samples were never collected.

52. DW2 Dilip Shende, the father of the accused,

testified that birth of the accused is 15.1.1993. He

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admitted during cross examination that he had not filed

any document to show that the victim is four years

younger to the accused. The document collected by him

under the Right to Information Act is list of the

Corporators in Parishad Bhandara, which are at Exh.186.

Exh.187 is the disability certificate of the father of the

accused.

53. DW3 is Subhash Barse Barse, whose evidence is to

the extent that the original record was brought from the

period 11.5.2019 to 30.5.2019. His evidence further

shows that there is an entry in respect of obtaining the

vaccine box to carry DNA kit.

54. Thus, on the basis of the evidence of these defence

witnesses, the accused attempted to bring on record that

there was one sided love affair by the victim and as he

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has not performed the marriage with the victim, she

falsely implicated him in the alleged offence.

55. The DNA Reports Exhs.6 and 7 show that the

samples were received on 14.5.2019 and 26.8.2019. The

DNA extracted from the blood sample of the baby of

victim and blood sample of the victim and the accused in

DNAn-421/2019 was typed as 15 STR LOCI and gender

specific Amelogenin locus using PCR amplification

technique. The samples are interpreted as follows:

1. for all the 15 different genetic systems analyzed with pcr, putative father Rupchand Dilip Shende in DNAn/421/2019 matched obligate paternal alleles present in baby of the victim at all 15 STR Loci,

2. Similarly, for all the 15 different genetic systems analyzed with PCR, the victim (name of the victim is mentioned in report) in DNAn/ 421/2019 matched the obligate the maternal alleles present baby of the victim at all 15 STR LOCI.

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It was opined that the victim in DNAn/421/2019 and Rupchand Dilip Shende in DNAn/421/2019 are concluded to be the biological parents of baby of the victim.

56. Thus, the victim and the accused were analyzed to

be the biological father and mother of the child delivered

by the victim.

57. The undisputed facts of the case are as under:

1. The victim was sixteen years of age at the time of the incident.

2. She has acquaintance with the accused as the accused used to visit fruit shop whereat she was working. There was communication between them.

3. On 7.10.2018, the accused took her and subjected her for sexual assault on the promise of marriage.

4. The physical relationship between the parties was developed as there was a promise of marriage by the accused which resulted into her pregnancy.

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58. On appreciation of the evidence, it reveals that a

sixteen year girl was subjected for the sexual assault by

the accused by promising her for marriage. She has

narrated the entire incident regarding the sexual assaults

on multiple occasions. She also alleged that on her

resistance, the accused promised her for marriage and,

thereafter, the physical relationship was developed

between them. On disclosure by her about her

pregnancy, he declined to perform marriage with her.

The defence of the accused is that she was having one

sided love affair with him. As far as the forceful sexual

assault is concerned, it is denied by him.

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

has delivered a baby girl and the DNA Report discloses

that the victim and the accused are biological parents of

the baby girl delivered by the victim. She admitted that

she wanted to marry with the accused and as he refused

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to marry with her, she lodged the report. The cross

examination of the victim shows that she has not stated

in her statement that the accused has promised her for

marriage. Though she has admitted that she has not

stated the same, recital of the FIR itself shows that at the

time of first incident i.e. on 7.10.2018, when she was

resisting the act of the accused, as he was insisting her for

the physical relationship, the accused promised her for

marriage, which is stated by her. The evidence of the

mother of the victim also shows that when the victim's

belly was found increased, she was taken to the hospital

and it revealed that she is pregnant. On enquiry with her,

she has disclosed about the act of the accused.

60. The evidence of the victim as to the sexual assault

on her is corroborated by the medical evidence. The

evidence of PW4 Dr.Sarla Agrawal, PW5 Dr.Nisha

Bhawsar, PW6 Dr.Avinash Gomkale, and PW13 Dr.Jyoti

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Mukhi consistently shows that when the victim was

examined, she was pregnant of 22-23 weeks. Her

pregnancy was also confirmed by the sonography report.

The sonogrpahy was conducted by PW6 Dr.Avinash

Gomkale as well as by PW19 Dr.Ashish Chindhalore. The

history narrated by her before PW5 Dr.Nisha Bhawsar

also shows that she was subjected for sexual assault by

the accused. The aspect of obtaining the blood samples is

also established from the evidence of PW8 Medical

Officer Pankaj Yeole, who has obtained the blood sample

of the victim as well as the accused. PW14

Dr.Muneshwar Bhongade collected the blood sample of

the child delivered by the victim. The chain of the

circumstance, that the victim was taken to the hospital by

PW9 Police Constable Minali Biswas for medical

examination and sonography, is supported by the

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358 apeal155.23

evidence of the said witness and also corroborated by the

relevant entries.

61. The DNA kits are obtained from the Forensic

Science Laboratory. PW11 Police Constable Krushna

Katkade has brought the said DNA Kits on 13.5.2019

which were two in numbers. The station diary is at

Exh.107. PW10 Police Constable Maroti Ghuge took the

accused for obtaining the blood samples on 14.5.2019.

Accordingly his blood samples were collected by PW8

Dr.Pankaj Yeole on 14.5.2019. The said samples were

collected in DNA Kit. PW10 Police Constable Maroti

Ghuge has handed over the samples and DNA Kits to the

Investigating Officer on 14.5.2019. PW9 Police Constable

Minali Biswas, has taken the victim for obtaining her

blood samples on 14.5.2019. She has handed over the

DNA Kit to PW8 Dr.Pankaj Yeole for obtaining the blood

samples. After blood samples were obtained, she

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collected the said DNA Kit and handed over the same to

the Investigating Officer.

62. PW11 Police Constable Krushna Katkade, was

again deputed on 14.5.2019 to hand over the samples to

the Forensic Science Laboratory at Nagpur. Accordingly,

station diary entry No.109 is taken which is placed on

record. He has deposited the said samples in the Forensic

Science Laboratory on 15.5.2019.

63. The evidence of PW13 Dr.Jyoti Mukhi shows that

the victim has delivered a baby child on 21.8.2019.

64. PW15 Police Constable Ajay Kukade, was deputed

on 22.8.2019 to bring the DNA Kit from Forensic Science

Laboratory at Nagpur. His duty pass is at Exh.128. He

brought the DNA Kit and blank form of identification and

handed over the same to the Investigation Officer.

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65. PW14 Dr.Muneshwar Bhongade , obtained the

blood sample of newly born child of the victim on

23.8.2019. The samples were received in the Forensic

Science Laboratory on 15.5.2019 and on 26.8.2019. The

same were analyzed during 19.3.2019 to 11.9.2019. The

Samples Examination Report shows that the samples

were received along with the seals intact.

66. Thus, the entire evidence on record shows that

since obtaining the samples, till the samples are

forwarded, the samples were in a sealed condition and

there is no case of tampering of the seals.

67. The DNA Report shows that the accused and the

victim are the biological parents of the child delivered by

the victim.

68. The DNA evidence is now a predominant forensic

technique for identifying criminals when biological

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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.

69. Here, in the present case, the prosecution has

established the chain of sampling and collection etc..

Though the accused has taken a defence that his samples

were never obtained, the evidence of the Medical Officer

and the police officials sufficiently establishes the fact

that the accused was taken for obtaining the samples.

The samples were obtained and forwarded for the

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analysis. On analyzing the same, he found to be

biological father of the child delivered by the victim.

70. Now, only question remains is, whether the

consent of the victim can be taken into consideration.

71. Admittedly, the victim was below eighteen years of

age at the time of the incident. It is not a case of love

affair between the victim and the accused. The

prosecution has come with a specific case that the victim

was promised for marriage and on the promise of

marriage her consent was obtained and she was subjected

for sexual assault.

72. Section 375 of the Indian Penal Code, defines the

offence of "rape" and enumerates six descriptions of the

offence.

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The first clause states, where the woman is in

possession of her senses and, therefore, capable of

consenting, but the act is done against her will.

The second clause states, where it is done without

her consent and third, fourth and fifth clauses operate

when there is a consent, but it is not such a consent as

excuses the offender, because it is obtained by putting her

in fear of death or any hurt.

The expression "against her will" means that the

act must have been done in spite of the opposition of the

woman.

73. Section 90 of the Indian Penal Code defines

"consent", which is reproduced hereinunder:

"90. Consent known to be given under fear or misconception. - A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a

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misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person.-- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child.-- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."

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

does not define the term 'consent', but, 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

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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.

75. Whether there was consent or consent was

obtained under misconception of fact?

76. The Hon'ble Apex Court, in the of Uday vs. State of

Karnataka (2003)4 SCC 46, has considered a wherein the

victim aged about 19 years old had given a consent for

physical relationship with the accused with whom she

was deeply in love, on a promise that he would marry her

on a later date. She was subjected for the sexual

intercourse which resulted into her pregnancy. The

complaint was lodged on failure of the accused to marry

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her. It was held that the consent cannot be said to be

given under the misconception of fact. It was held in

paragraph Nos.21 and 23 as under:

"21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on

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the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

23. Keeping in view the approach that the Court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown up girl studying in a college. She was deeply in love with the appellant. She was however aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the

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consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact."

77. 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:-

(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

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(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

promise to marry, for which the accused is prima facie

accountable for damages under civil law.

78. 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

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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.

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

Shivashankar vs. State of Karnataka, reported in

(2019)18 SCC 204 held that it is difficult to hold sexual

intercourse in the course of a relationship which has

continued for eight years is 'rape'.

In Dr.Dhruvaram Murlidhar vs. The State of

Maharashtra and ors, reported in (2019)18 SCC 191, the

Hon'ble Apex by referring the above decision held that,

"thus, there is a clear distinction between rape and

consensual sex. The court, in such cases, must very

carefully examine whether the complainant had actually

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wanted to marry the victim or had mala fide motives and

had made a false promise to this effect only to satisfy his

lust, as the later falls within the ambit of cheating or

deception. There is also a distinction between mere

breach of a promise and not fulfilling a false promise. If

the accused has not made the promise with the sole

intention to seduce the prosecutrix to indulge in sexual

acts, such an act would not amount to rape. There may

be a case where the prosecutrix agrees to have sexual

intercourse on account of her love and passion for the

accused and not solely on account of the misconception

created by accused, or where an accused, on account of

circumstances which he could not have foreseen or which

were beyond his control, was unable to marry her despite

having every intention to do. Such cases must be treated

differently. If the complainant had any mala fide

intention and if he had clandestine motives, it is a clear

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case of rape. The acknowledged consensual physical

relationship between the parties would not constitute an

offence of "rape."

80. In the case of Pramod Suryabhan Pawar vs. The

State of Maharashtra, reported in (2019)9 SCC 608 also

the Hon'ble Apex Court held that, "where the promise to

marry is false and the intention of the maker at the time

of making the promise itself was not to abide by it but to

deceive the woman to convince her to engage in sexual

relations, there is a "misconception of fact" that vitiates

the woman's "consent". On the other hand, a breach of a

promise cannot be said to be a false promise. To establish

a false promise, the maker of the promise should have

had no intention of upholding his word at the time of

giving it. The "consent" of a woman under Section 375 is

vitiated on the ground of a "misconception of fact" where

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such misconception was the basis for her choosing to

engage in the said act."

81. In the instant case, it is an admitted position that

there was no love affair between the accused and the

victim. They are having acquaintance as the accused

used to visit the fruit shop wherein the victim was

working. It is also not the case of the accused that the

victim was having any love and affection for him.

Though he stated that she has having one sided love

affair and though his engagement with the victim to have

physical relationship and the defence taken by him that

the victim is having one sided love affair, the same itself

is sufficient to show his intention. It appears that the

intention of the accused, as per the testimony of PW1

victim, right from the beginning was not honest and he

kept promising that he will marry her, till she became

pregnant. This kind of consent obtained by the accused

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cannot be said to be consent because she was under

misconception of fact that the accused intends to marry

her and, therefore, she had submitted to sexual

intercourse with him. This fact is apparent from the DNA

Report. It is more than clear, that the accused made a

false promise that he would marry her, from the fact that

no circumstances are brought on record by the accused to

show that at the relevant time he was intending to marry

her, but the circumstances are such that he could not

perform the marriage with her. The contention of the

accused, that she was having one sided love affair and his

engagement with the victim by promising her for

marriage, appears to be not bona fide since beginning.

The accused completely misled her by promising her for

marriage. This kind of consent taken by the accused with

clear intention not to fulfill the promise and persuaded a

girl to believe that he is going to marry and obtained her

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consent for the sexual intercourse under total

misconception cannot be treated to be a consent. Where

promise to marry is false and intention of maker at the

time of making promise itself was not to abide by it but to

deceive a girl to convince her to engage in sexual

relations, there is a "misconception of fact" that vitiates

girl's "consent". It is not merely a case of breach of

promise but it is a case only to seduce the false promise

was made and the victim was subjected for sexual assault

on misconception of fact. Moreover, the victim who was

below sixteen years of age and her consent is not relevant

as it is not consent at all.

82. Thus, it is evident that at the initial stage itself the

accused had no intention to keep his promise to marry

the victim. The accused has not brought on record a

circumstance to show that he could not fulfill the promise

due to unavoidable circumstances. In such circumstances,

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the case of the prosecution, that her consent was

obtained under misconception of facts, is established.

Learned Judge of the trial court has appreciated the

entire evidence and also held that presumption under

Section 29 of the POCSO Act is attracted. The said

presumption is not rebutted though foundational facts

are proved. Section 30 of the POCSO Act speaks of

presumption of culpable mental state and it shall be the

defence of the accused to prove the fact that he had no

mental state. The presumption is applicable as the