Bombay High Court
Ganesh S/O Kashirao Rade vs The State Of Mah. Thr. P.S.O., Alipur P.S on 24 January, 2025
Author: G. A. Sanap
Bench: G. A. Sanap
2025:BHC-NAG:1656
Cri.Apeal.500.2011.jud.+4.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 500/2011
WITH
CRIMINAL APPEAL NO. 501/2011
WITH
CRIMINAL APPEAL NO. 507/2011
WITH
CRIMINAL APPEAL NO. 528/2011
WITH
CRIMINAL APPEAL NO. 568/2011
*******************
CRIMINAL APPEAL NO. 500 OF 2011
1. Chandu @ Chandrashekhar Keshaorao
Chambhare,
Aged about 25 years
2. Shankar s/o Kawduji Tadas,
Aged about 30 years
3. Ganesh s/o Bapurao Dhage,
Aged about 22 years
All R/o Allipur, Dist. Wardha .... APPELLANTS
// V E R S U S //
The State of Maharashtra
Through P.S.O., P.S. Allipur,
District:- Wardha ... RESPONDENT
Cri.Apeal.500.2011.jud.+4.odt
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WITH
CRIMINAL APPEAL NO. 501 OF 2011
Prashant Ashokrao Satone
Aged about : 24 years, Occu. :Business,
R/o Allipur, Tah. Hinganghat,
Distt. Wardha, Police Station Wardha .... APPELLANT
// V E R S U S //
State of Maharashtra
Through Police Station Officer,
Allipur, Tah. Hinganghat,
District:- Wardha ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 507/2011
Ganesh S/o Kashirao Rade,
Aged about 23 years,
Occupation : Agriculturist,
R/o Shirasgaon, Tah. Hinganghat,
Dist. Wardha .... APPELLANT
// V E R S U S //
The State of Maharashtra
Through Police Station Officer,
Allipur Police Station, Tq. Hinganghat,
District:- Wardha ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 528/2011
1. Pravin Santoshrao Surkar,
Aged about : 19 years, Occu. : Nil
R/o Allipur, Distt - Wardha
Cri.Apeal.500.2011.jud.+4.odt
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2. Sunil Vitthalrao Warghane
Aged about : 19 years, Occu:- Nil
R/o Allipur, Dist. Wardha .... APPELLANTS
// V E R S U S //
State of Maharashtra
Through Police Station Officer,
Allipur, District:- Wardha ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 568/2011
Khushal S/o Rambhau Masulkar,
Aged about 35 years,
R/o Allipur, Distt. Wardha.
(Presently all at Central prison, Nagpur) .... APPELLANT
// V E R S U S //
The State of Maharashtra
Through P.S.O., P.S. Allipur,
District:- Wardha ... RESPONDENT
-----------------------------------------------------------------------------------------------
Mr M. V. Bute, Advocate for the appellants in Appeal Nos. 501 of 2011, 507 of
2011, 528 of 2011
Mr R. M. Daga, Advocate for the appellants in Appeal Nos. 500 of 2011 and 568 of
2011
Mr. M. K. Pathan, APP for the State in all connected appeals
-----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : 24.01.2025
OR AL JUDGMENT :
1 All these appeals arise out of the judgment and
order dated 30.09.2011 passed by the learned Additional
Cri.Apeal.500.2011.jud.+4.odt
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Sessions Judge, Wardha (for short, 'the learned Judge') and
therefore, the appeals are being disposed of by common
judgment. The particulars with regard to the accused numbers,
appeal numbers and sentence can be tabulated as follows:
Criminal Accused Name of accused Sentence
Appeal No. No.
500 of 1 Chandu @ Accused Nos. 1 to 8
2011 Chandrashekhar S/o. are sentenced to
Keshaorao Chambhare suffer rigorous
7 Shankar S/o. Kawduji imprisonment for ten
Tadas (10) years and to
pay a fine of
8 Ganesh S/o. Bapurao Rs.10,000/- each
Dhage and in default of
501 of 2 Prashant Ashokrao payment of fine to
2011 Satone suffer rigorous
507 of 3 Ganesh Kashirao Rade imprisonment for
2011 one (1) year each
for the offence
528 of 6 Pravin Santoshrao punishable under
2011 Surkar Section 376(2)(g) of
4 Sunil Vitthalrao the Indian Penal
Warghane Code.
568 of 5 Khushal S/o. Rambhau
2011 Masulkar
The accused Nos. 1 to 4, 7 and 8 are also sentenced
to suffer rigorous imprisonment for five (5) years and to pay a
fine of Rs.5000/- each and in default of payment of fine further
Cri.Apeal.500.2011.jud.+4.odt
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sentenced to suffer rigorous imprisonment for one (1) year each
for the offence punishable under Section 366 read with Section
34 of the Indian Penal Code (for short 'the IPC'). The accused
No.7 is further sentenced to suffer simple imprisonment for
one (1) month for the offence punishable under Section 341 of
the Indian Penal Code.
2 Background facts:
PW-1 (hereinafter referred to as 'the prosecutrix')
is the informant. The case of the prosecution, which can be
unfolded from the report lodged by the prosecutrix and other
materials, is that on 24.06.2010 she was not feeling well and
therefore, she went to Government Hospital Allipur. On that
day, the hospital was closed and therefore, in order to come
back to her village Pauni, she was waiting near Yeshwant
School Allipur for auto-rickshaw. At about 4:00 p.m., accused
No. 7 Shankar Tadas came to the said spot with his auto-
rickshaw. Four passengers were already sitting in his auto. The
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prosecutrix boarded the said auto. Accused No. 7 Shankar
Tadas did not stop the auto-rickshaw at village Pauni and took
the prosecutrix to Shirasgaon. On the bridge, he allowed the
remaining four passengers to alight from the auto-rickshaw.
Accused No.7 then took the prosecutrix in his auto-rickshaw to
Kanchangaon bus-stop. Accused No.4 Sunil Warghane was at
Kanchangaon bus-stop with his auto-rickshaw "Monalika". It is
stated that at the said place accused No.7 Shankar Tadas
forcibly made the prosecutrix to sit in the said auto-rickshaw of
accused No. 4 Sunil Warghane. Accused No. 7 alongwith
another accused No. 3 Ganesh Rade and accused No. 4 sat with
the prosecutrix. Accused No. 2 Prashant Satone was driving
said auto-rickshaw. Accused No.1 Chandu Chambhare and
accused No. 8 Ganesh Dhage proceeded ahead of the auto-
rickshaw on the motorcycle. They proceeded towards
Kanchangaon. The auto-rickshaw followed them. They took
the prosecutrix near a nallah situated between village Shirud
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and Yeranwadi road via Allipur. They instructed the
prosecutrix to get down from the auto-rickshaw but she
refused. Thereupon, accused No.1 assaulted and dragged her
in the nallah. Accused No.1 forcibly removed her clothes and
committed sexual intercourse with the prosecutrix. He used
condom. It is stated that thereafter, accused No.2 Prashant
Satone, accused No.3-Ganesh Rade, accused No.4-Sunil
Warghane and accused No.7 Shankar Tadas one after another,
by using condom, committed sexual intercourse with the
prosecutrix. In the meantime, accused No. 5 Khushal Masulkar
came in his auto-rickshaw alongwith accused No. 6 Pravin
Surkar. Accused Nos.5 & 6 also committed sexual intercourse
with the prosecutrix. Thereafter, at about 9:00 p.m., they
brought the prosecutrix at Bhagwa Phata in the auto-rickshaw
and dropped her there. Then, they fled from the spot.
3 It was a night time. The prosecutrix was alone at
Bhagwa Phata bus-stop. During night time there was no
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transport facility for the prosecutrix to go back to her village.
The prosecutrix, therefore, had no alternative but to spend the
whole night at the said bus stop. On the next day, i.e. on
25.06.2010, at about 6:00 a.m., she boarded the first bus that
was from Mansoli to Wardha and returned back to Pauni. After
coming back to her house, she narrated the incident to her
mother. The prosecutrix and her mother went to the Allipur
police station. The prosecutrix lodged the report. API PW-10
Raju Mendhe, on the basis of her report, registered the crime
bearing No. 55 of 2010 against the accused persons.
4 API Mendhe, after registration of the FIR,
accompanied by the prosecutrix and her mother, went to the
spot. He inspected the spot. He found seven condoms filled
with semen. He also found one packet of unused condoms and
pieces of condom packets. API drew the spot panchanama and
he seized the articles in presence of the panchas. After coming
back to the police station, he referred the prosecutrix for
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medical examination to General Hospital, Wardha. He seized
the clothes on the person of the prosecutrix. The accused
persons were arrested. They were also referred for medical
examination. The API sent the requisition to the learned
Judicial Magistrate First Class, Hinganghat, for recording the
statement of the prosecutrix. Learned Magistrate on
16.07.2010 recorded the statement of the prosecutrix. The
blood samples and other biological samples of the prosecutrix
and accused persons were collected and forwarded to the RFSL,
Nagpur. In due course, the API Mendhe received the CA
reports and DNA reports. On completion of the investigation,
he filed the charge-sheet against the accused persons.
5 Learned Additional Sessions Judge, Wardha framed
the charge against the accused persons. The accused persons
abjured their guilt. Their defence is of a false implication at the
instance of the prosecutrix and the police. The learned Judge,
on consideration of the evidence, held the accused persons
Cri.Apeal.500.2011.jud.+4.odt
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guilty of the charge and sentenced them as above. The accused
persons, being aggrieved by the said judgment and order, have
come before this Court by filing their appeals.
6 I have heard the learned Advocates for the
appellants and the learned Additional Public Prosecutor for the
State. Perused the record and proceedings.
7 Learned Advocate Mr R.M. Daga advanced the
lead arguments. Learned Advocate Mr. M. V. Bute for the
other accused persons has adopted his submissions. Learned
Advocate Mr R. M. Daga submitted that the prosecutrix and
her mother, who were the star witnesses for the prosecution,
have not supported the case of the prosecution. They were
declared hostile. It is pointed out that the learned Judge relied
upon the evidence of the hostile witnesses and held the accused
persons guilty. Learned Advocate submitted that the statement
recorded under Section 164 of the Code of Criminal Procedure
Cri.Apeal.500.2011.jud.+4.odt
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(for short 'the Cr.P.C.') is not a substantive piece of evidence.
It can be used for a limited purpose of contradiction. Learned
Advocate took me through the cross-examination of the
prosecutrix, conducted on behalf of the prosecutor, and
submitted that some part of the statement of the prosecutrix
recorded under section 164 of the Cr.P.C., reiterated by her in
a halfhearted manner, has been made the basis of conviction
and sentence. In the submission of the learned Advocate even
if that part of the statement is taken at its face value and
considered in totality with the other part of her evidence
relating to Section 164 statement, it could be said that she has
not supported her Section 164 statement. Learned Advocate
submitted that, in her cross-examination, she has given a sort of
clean cheat to all the accused. It is submitted that the learned
Judge has conveniently glossed over this vital part of her
evidence and has come to a wrong conclusion. Learned
Advocate submitted that the mother of the victim, whose
Cri.Apeal.500.2011.jud.+4.odt
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statement under Section 164 of the Cr.P.C. was not recorded,
has also not supported the case of the prosecution on material
aspects. Learned Advocate submitted that the evidence of the
medical officer has been used as a corroborative piece of
evidence by the learned Judge to the evidence of the
prosecutrix. It is submitted that since the prosecutrix has not
implicated the accused persons and categorically denied the
occurrence of the incident, the evidence of the medical officer
could not be said to be a substantive piece of evidence to
establish the complicity of the accused persons in the crime.
8 Learned APP Mr Pathan, with the inherent
limitations created on account of the halfhearted attempt of the
prosecutrix to support the case of the prosecution in its entirety,
submitted that the learned Judge was right in holding the
appellants guilty of the charge. Learned APP submitted that the
evidence of the hostile witnesses cannot be rejected in its
entirety. The part of the evidence, which proves the role of the
Cri.Apeal.500.2011.jud.+4.odt
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perpetrator if found to be credible, can be used though the
witness has turned hostile. Learned APP took me through the
evidence of the prosecutrix and pointed out that though in the
initial part of her examination-in-chief, she disowned her
statement in the FIR, she admitted in her cross-examination
conducted on behalf of the prosecutor the entire incident
narrated by her before the learned Magistrate at the time of her
Section 164 Cr.P.C. statement. Learned APP submitted that
she has admitted her signature on the said statement. She has
also stated that the learned Magistrate did not force her to make
the statement. In short, learned APP submitted that the
material part of the incident recorded in her Section 164
Cr.P.C. statement was reiterated by her in her cross-
examination. It is a substantive piece of evidence. Learned APP
submitted that therefore, that part of the evidence cannot be
eschewed from consideration. Learned APP took me through
the judgment and order passed by the learned Judge and
Cri.Apeal.500.2011.jud.+4.odt
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pointed out that the other evidence and circumstances
considered by the learned Judge to seek corroboration to the
testimony of the prosecutrix are consistent with the guilt of the
accused persons.
9 It is no doubt true that on the basis of the report of
the prosecutrix, the crime of gang rape was registered against
eight accused at Allipur Police Station. There was no delay, as
such, in lodging the report. The incident, as can be seen from
the report, was deplorable. As stated in the report, all the
accused persons came together and committed gang rape on the
prosecutrix. The prosecutrix, on the date of the incident, was
17 years of age. As the law stood, on the date of the occurrence
of the incident, there was no presumption of the guilt of the
accused persons akin to the one under Section 29 of the
Protection of Children From Sexual Offences Act, 2012 as well
as the provision of the Indian Evidence Act. The prosecution
was, therefore, duty bound to prove the guilt of the accused
Cri.Apeal.500.2011.jud.+4.odt
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persons beyond reasonable doubt. The accused persons, being
residents of village Allipur, were known to the prosecutrix.
Their identity has not been challenged. It needs to be stated
that during the pendency of the trial, all accused persons were
under trial prisoners. The learned Judge has observed that the
demeanor of the mother of the prosecutrix and of the
prosecutrix suggested that they were under a pressure. The
family members of the accused persons attended the court
proceedings. However, the fact remains that neither the
prosecutrix nor her mother at any time made grievance before
the learned Judge that they were either threatened or
pressurized by the family members of the accused persons to
depose in favour of the accused persons. Learned Judge was
required to consider all these facts and circumstances in totality.
10 It is evident on perusal of the judgment that the
learned Judge has relied upon the cross-examination of the
prosecutrix conducted by the prosecutor to base the conviction
Cri.Apeal.500.2011.jud.+4.odt
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against the accused persons. The prosecutrix did not identify
the accused persons before the Court being the perpetrators of
the crime. Even though their identity was not in dispute, it
was necessary in the backdrop of hostile animus to ask her
about the identity of these persons. The prosecutrix in her
examination-in-chief resiled from the contents of the FIR. In
her examination-in-chief, she has narrated the part of the
incident in a halfhearted manner. In her examination-in-chief,
she has stated that the report/FIR is incorrect. In her
examination-in-chief, her statement recorded under Section
164 of the Cr.P.C. was shown to her. She has admitted her
signature on the said statement. However, in her examination-
in-chief, she denied the contents of the statement and therefore,
it was not given an exhibit mark. Her signature was marked as
'Article B'. It is seen that the learned Judge, while granting
permission to the public prosecutor to conduct the cross of the
prosecutrix, recorded that she has resiled from her report, police
Cri.Apeal.500.2011.jud.+4.odt
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statement and the statement recorded before the Magistrate. It
is therefore evident that in her examination-in-chief she has
disowned the facts recorded in the report, her police statement
and the statement recorded by the Magistrate under Section
164 of the Cr.P.C. In my view, this fact needs to be borne in
mind while appreciating the submissions advanced by the
advocates for the accused and the learned APP.
11 In the initial part of her cross-examination, the
prosecutrix denied almost all the suggestions put to her
consistent with the case of the prosecution against the accused
persons. She has admitted that when the report of the incident
was lodged, her mother accompanied her and as per her
narration of the incident, it was scribed by the police. Further
part of her cross-examination, is very important. She has
admitted that her statement was recorded by the Magistrate.
Her mental condition was proper. She has stated that she made
a voluntary statement. She has stated that at the time of
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recording her statement she narrated the incident before the
Magistrate. In her further cross-examination, she has reiterated
the entire incident with the names of the accused.
12 It is necessary to mention that when the witness
turns hostile to the prosecution, it becomes very difficult to
bring on record the correct facts. It is trite that a witness is a
master of his or her version. Nobody can compel the witness to
depose one way or the other. Perusal of relevant cross-
examination of the prosecutrix would show that she has
vouched for the statement made before the Magistrate. The
important question that was required to be addressed by the
learned Judge was whether that part of the evidence would
form the substantive evidence. It appears on perusal of the
cross-examination that since the witness had turned hostile, the
prosecutor was apprehensive while framing the questions. A
wrong answer at a wrong time in such a situation could have
spoiled the entire exercise undertaken by the prosecutor. This
Cri.Apeal.500.2011.jud.+4.odt
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must be the apprehension in the mind of the prosecutor.
Therefore, the prosecutor did not ask the relevant questions to
this witness. The statement was not exhibited. Even if it is
assumed that it is not necessary to exhibit the said statement,
the substantive evidence must be a positive statement and there
should not be a dent to such a positive statement with regard to
the involvement of the perpetrators of the crime in any manner.
Such evidence brought on record in the cross-examination has
to be considered in totality of the evidence of the said witness.
It can not be considered in isolation. It seems that the
apprehension of the learned APP proved right when he put a
suggestion to this witness after reiteration of all the facts by the
witness. The witness has denied the suggestion put by the
prosecutor. This denial of the witness has spoiled the exercise
undertaken that far by the prosecutor. Whether that suggestion
was necessary or not could not be the issue at this stage ? It is
necessary for the Court is to see the answer to the suggestion.
Cri.Apeal.500.2011.jud.+4.odt
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The prosecutor suggested to the witness that the aforesaid
incident stated by her in her cross-examination took place with
her and therefore, she had stated the same on oath before the
Court. The witness has denied this suggestion. In my view,
this answer itself would be sufficient to show that even in
cross-examination this witness has resiled from this part of her
statement as well. She has caused further damage to the
prosecution. She has made a voluntary statement and stated
that as per the instructions of the police, she made a statement
before the Court and it was recorded. It is not out of place to
mention that the criminal prosecution is a serious matter. The
evidence adduced by the prosecution to prove the guilt of the
accused must be found to be credible and trustworthy. On the
basis of unreliable and broken pieces of evidence, the accused
cannot be sentenced. She has again stated that the Magistrate
correctly recorded her statement as per her say and she put the
signature on the said statement. Keeping aside her examination-
Cri.Apeal.500.2011.jud.+4.odt
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in-chief, it is to be noted that in her cross-examination itself
there are inherent inconsistencies and discrepancies. She was
not willing at all to stand by her own report. There could be
numerous reasons for the prosecutrix to change her stand. The
reason or reasons could not be material. What is material while
appreciating the evidence of such a witness is to look at the
core of the evidence of such a witness. If the evidence at core is
doubtful and dented, then consistent with the principle of
criminal jurisprudence the conviction cannot be based on such
evidence. The prosecutrix may have reasons to resile from her
own statement. It was not within the powers of the Court to
compel her to make a particular statement in a particular
manner. She was master of her version. She chose not to
come before the Court with the first hand account of the
incident and narrate before the Court, the ordeal suffered by
her at the hands of the perpetrators of the heinous crime.
13 The learned Judge, consistent with his duties, asked
Cri.Apeal.500.2011.jud.+4.odt
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one important question to her as to whether the accused
persons present before the Court had committed rape on her?
The answer given is very interesting. She has stated that they
might be. This question was asked to her by the Court in the
midst of her cross-examination by the learned APP. She did
not tell the truth to the court. She always tried to conceal the
correct facts. Her cross-examination has further damaged the
case of the prosecution. She has stated that the police taught her
about the statement to be made before the Court. She has
stated in her cross-examination conducted on behalf of accused
No.1 that he did not commit sexual intercourse with her. In
the cross-examination conducted on behalf of accused Nos.2, 3,
5 to 8 she has stated that she had never seen these accused
persons. The same is the case with accused No.4. Perusal of her
evidence would show that she has not even identified these
accused persons being the perpetrators of the crime. In her
cross-examination, the answers given by her suggest that
Cri.Apeal.500.2011.jud.+4.odt
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somehow or the other she wanted to save these accused persons
and give them a clean cheat. In my view, the learned Judge was
required to consider her evidence in totality. It needs to be
stated that on appreciation of the entire evidence of the
prosecutrix, the learned Judge was expected to record a finding
as to the part of the evidence which is found to be credible and
trustworthy. The credibility and trustworthiness of the
evidence of the witness has to be decided keeping in mind the
manner of giving evidence, willingness to suppress or to make a
disclosure of all the facts before the Court or to suppress some
immaterial facts and to narrate before the Court the material
facts. It is evident that the prosecutrix deposed in a topsy
turvey manner and tried to come out of Section 164 statement.
The learned prosecutor, despite the best possible efforts, could
not bring her on track. It seems that the consolation of the
prosecutor that the prosecutrix has reiterated the contents of
her Section 164 statement and shows the inclination to come
Cri.Apeal.500.2011.jud.+4.odt
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back on track was short lived. It is evident that the prosecutrix
in the very next breath by giving damaging answer derailed the
train of the prosecution. In my opinion, therefore, the learned
Judge was not right in placing implicit reliance on such a
broken piece of evidence. It is apparent that the prosecutrix did
not want to stand by her case. She resiled from her report and
even her Section 164 statement. It seems that the prosecutrix,
under some advice, tried to reiterate the incident recorded in
her statement but it was also not sufficient. At the end of her
statement, she denied the involvement of the accused persons.
The evidence of the witness, who smartly blows hot and cold
from the same pipe, needs minute scrutiny. The great care is
required to be taken. I have observed that criminal prosecution
is a serious matter. The prosecution is duty bound to prove its
case by leading cogent and concrete evidence. Learned Judge,
in this case, was not right in placing implicit reliance on the
evidence of the prosecutrix, who turned hostile to the
Cri.Apeal.500.2011.jud.+4.odt
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prosecution. She backed out from the prosecution. The
prosecutor did his best to bring on record true incident. The
prosecutor had his limitations. On perusal of her evidence in
its entirety, I am satisfied that the efforts of the prosecution did
not fructify.
14 There is evidence of the mother of the prosecutrix.
The mother of the prosecutrix was not an eyewitness to the
incident. The statement made by her before police was on the
basis of the narration of the incident to her by the prosecutrix.
Learned Judge has considered the circumstance of lodging the
report, the presence of the mother with the prosecutrix
throughout at the police station as well as at the time of her
medical examination as the relevant corroborative
circumstances. In my view, the very foundation of the case of
the prosecution came down the very moment the prosecutrix
resiled from her own statement. The prosecutrix was the star
witness for the prosecution. Her evidence was the prime
Cri.Apeal.500.2011.jud.+4.odt
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weapon for the prosecution to sustain the charge. The
prosecutrix resiled from her original statement. In view of this,
the very edifice of the case of the prosecution crumbled like
house of cards. In this case, to prove the main charge there is
no substantive evidence.
15 The evidence of the medical officer can be used as a
corroborative piece of evidence. Even if it is assumed for the
sake of argument that the medical officer noticed some injuries
on the body of the victim suggesting that she was subjected to
the incident of the nature stated by her, the same by itself
would not be sufficient to take the case of the prosecution
forward. The chain of the prosecution's case is broken the very
moment the link in the form of the prosecutrix is detached
from this chain. In this backdrop, I conclude that the learned
Judge was not right in holding the accused/appellants guilty on
the basis of the evidence of the prosecutrix and more
particularly, her cross-examination, which was reiteration of
Cri.Apeal.500.2011.jud.+4.odt
27
part of her Section 164 Cr.P.C. statement.
16 Another important piece of evidence considered by
the learned Judge to base the conviction of the appellants is in
the nature of CA reports and DNA reports. Learned Advocate
for the accused persons submitted that there are lacunae and
drawbacks in the case of the prosecution. The prosecution has
not adduced the link/chain evidence to establish that the
samples deposited with the RFSL, Nagpur were tamper-proof.
It is also submitted that the prosecution has not examined the
CA. The CA reports and DNA reports have been admitted at
the time of the evidence of the investigating officer PW-10. It is
submitted that the evidence adduced by the prosecution is not
sufficient to establish that there has been quality assurance as to
the DNA report. The procedure followed while collecting the
samples as well as preserving the samples leaves the scope for
tampering of the samples. It is submitted that the credibility of
the DNA report, in the absence of a chain or a link evidence,
Cri.Apeal.500.2011.jud.+4.odt
28
has been materially hampered. The medical officer while
collecting the samples did not adhere to the protocol. There is
a scope to doubt the possibility of contamination or tampering
of the samples. The learned Advocate submitted that the
learned Judge was therefore not right in placing implicit
reliance on the DNA report to convict and sentence the accused
persons.
17 Learned APP submitted that the evidence of the
investigating officer and other witnesses is sufficient to prove
the precautions taken while collecting the samples and the
storage and preservation of the samples. There was no
inordinate delay in forwarding the samples to the RFSL,
Nagpur. The medical officers, who had collected the samples,
were independent witnesses. They had no reason to create false
evidence. Learned APP submitted that the examination of the
CA is not necessary to prove the contents of the CA report. The
CA report or DNA report can be admitted in evidence by
Cri.Apeal.500.2011.jud.+4.odt
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taking recourse to Section 293 of the Cr.P.C. Learned APP
submitted that the complicity of the accused persons in the
crime has been established beyond doubt on the basis of the
DNA report.
18 Before proceeding to appreciate the submissions it
would be appropriate to consider the law laid down by the
Apex Court and considered by this Court in a number of cases
on the point of admissibility and credibility of CA and DNA
reports. The Division Bench of the Bombay High Court at
Aurangabad has considered almost all the decisions on this
point in the case of Nivrutti S/o. Nagorao Hange .v/s. The State
of Maharashtra and another, reported in, 2024 ALL MR (Cri.)
3445. It would be appropriate to reproduce para 17 wherein
this issue has been dealt with. It is extracted below:
17. Another evidence, upon which, the
Prosecution laid emphasis and which weighed heavily
with the learned Trial Court to convict the Appellant,
is the scientific evidence in the nature of DNA
reports. Following Judgments are relied upon by the
Cri.Apeal.500.2011.jud.+4.odt
30
learned Advocates for the Appellant on this aspect.
[I] In Pattu Rajan Vs. The State of Tamil Nadu;
MANU/SC/0439/2019:[2019 ALLSCR (Cri.) 1343],
it is observed as follows :-
"31. Shri Sushil Kumar also argued that a DNA
test should have been conducted in order to
identify the dead body, and identification merely
on the basis of a superimposition test, which is
not a tangible piece of evidence, may not be
proper.
One cannot lose sight of the fact that DNA
evidence is also in the nature of opinion evidence
as envisaged in Section 45 of the Indian Evidence
Act. Undoubtedly, an expert giving evidence
before the Court plays a crucial role, especially
since the entire purpose and object of opinion
evidence is to aid the Court in forming its
opinion on questions concerning foreign law,
science, art, etc., on which the Court might not
have the technical expertise to form an opinion
on its own. In criminal cases, such questions may
pertain to aspects such as ballistics, fingerprint
matching, handwriting comparison, and even
DNA testing or superimposition techniques, as
seen in the instant case.
32. The role of an expert witness rendering
opinion evidence before the Court may be
explained by referring to the following
observations of this Court in Ramesh Chandra
Agrawal v. Regency Hospital Limited and Ors.,
MANU/SC/1641/2009 : (2009) 9 SCC 709 :
16. The law of evidence is designed to
ensure that the court considers only that
Cri.Apeal.500.2011.jud.+4.odt
31
evidence which will enable it to reach a
reliable conclusion. The first and foremost
requirement for an expert evidence to be
admissible is that it is necessary to hear the
expert evidence. The test is that the matter
is outside the knowledge and experience of
the lay person. Thus, there is a need to hear
an expert opinion where there is a medical
issue to be settled. The scientific question
involved is assumed to be not within the
court's knowledge. Thus cases where the
science involved, is highly specialized and
perhaps even esoteric, the central role of an
expert cannot be disputed....
Undoubtedly, it is the duty of an expert
witness to assist the Court effectively by
furnishing it with the relevant report based on
his expertise along with his reasons, so that the
Court may form its independent judgment by
assessing such materials and reasons furnished
by the expert for coming to an appropriate
conclusion. Be that as it may, it cannot be
forgotten that opinion evidence is advisory in
nature, and the Court is not bound by the
evidence of the experts. (See The State (Delhi
Administration) v. Pali Ram, MANU/SC/
0189/1978 : (1979) 2 SCC 158; State of H.P.
v. Jai Lal and Ors., MANU/SC/0557/1999 :
(1999) 7 SCC 280; Baso Prasad and Ors. v.
State of Bihar, MANU/SC/8723/2006 :
(2006) 13 SCC 65; Ramesh Chandra Agrawal
v. Regency Hospital Ltd. And Ors. (supra);
Malay Kumar Ganguly v. Dr. Sukumar
Mukherjee and Ors., MANU/SC/1416/2009 :
Cri.Apeal.500.2011.jud.+4.odt
32
(2010) 2 SCC (Cri.) 299).
33. Like all other opinion evidence, the
probative value accorded to DNA evidence
also varies from case to case, depending on
facts and circumstances and the weight
accorded to other evidence on record,
whether contrary or corroborative. This is
all the more important to remember, given
that even though the accuracy of DNA
evidence may be increasing with the
advancement of science and technology
with every passing day, thereby making it
more and more reliable, we have not yet
reached a juncture where it may be said to
be infallible. Thus, it cannot be said that the
absence of DNA evidence would lead to an
adverse inference against a party, especially
in the presence of other cogent and reliable
evidence on record in favour of such party".
[II] In Manoj and Others Vs. State of Madhya
Pradesh; MANU/SC/0711/2022: [2022 ALL SCR
(Cri.) 1177], it is observed as follows :-
"134. During the hearing, an Article published
by the Central Forensic Science Laboratory,
Kolkata was relied upon. The relevant extracts of
the Article are reproduced below:
.... ..... ..... ..... ......
.... ..... ..... ..... ......
.... ..... ..... ..... ......
.... ..... ..... ..... ......
.... ..... ..... ..... ......
.... ..... ..... ..... ......
.... ..... ..... ..... ......
Cri.Apeal.500.2011.jud.+4.odt
33
Collection and Preservation of Evidence
If DNA evidence is not properly documented,
collected, packaged, and preserved, It will not
meet the legal and scientific requirements for
admissibility in a court of law. Because
extremely small samples of DNA can be used
as evidence, greater attention to contamination
issues is necessary while locating, collecting,
and preserving DNA evidence can be
contaminated when DNA from another source
gets mixed with DNA relevant to the case.
This can happen when someone sneezes or
coughs over the evidence or touches his/her
mouth, nose, or other part of the face and then
touches area that may contain the DNA to be
tested. The exhibits having biological
specimen, which can establish link among
victim(s), suspect(s), scene of crime for solving
the case should be Identified, preserved,
packed and sent for DNA Profiling.
.... ..... ..... ..... ......
.... ..... ..... ..... ......
136. The Law Commission of India in its report,
observed as follows :
DNA evidence involves comparison between
genetic material thought to come from the
person whose identity is in issue and a sample
of genetic material from a known person. If the
samples do not 'match', then this will prove a
lack of identity between the known person and
the person from whom the unknown sample
originated. If the samples match, that does not
mean the identity is conclusively proved.
Rather, an expert will be able to derive from a
Cri.Apeal.500.2011.jud.+4.odt
34
database of DNA samples, an approximate
number reflecting how often a similar DNA
"profile" or "fingerprint" is found. It may be,
for example, that the relevant profile is found
in 1person in every 100,000. This is described
as the 'random occurrence ratio' (Phipson
1999).
Thus, DNA may be more useful for purposes
of investigation but not for raising any
presumption of identity in a court of law.
.... ..... ..... ..... ......
.... ..... ..... ..... ......
.... ..... ..... ..... ......
141. This Court, therefore, has relied on
DNA reports, in the past, where the guilt of an
Accused was sought to be established. Notably,
the reliance, was to corroborate. This Court
highlighted the need to ensure quality in the
testing and eliminate the possibility of
contamination of evidence; it also held that being
an opinion, the probative value of such evidence
has to vary from case to case".
[III] In Naveen Vs. The State of Madhya Pradesh;
MANU/SC/1167/2023: [2023 ALLSCR (Cri.)1955],
it is observed as follows:
"18. The issue concerning evidentiary value of
DNA report has been considered by this Court
in a recent judgment reported in the case of
Rahul v. State of Delhi, Ministry of Home
Affairs and Anr. MANU/SC/1455/2022 :
(2023) 1 SCC 83 wherein the following has
been held in Paragraphs 36 and 38 as under:
Cri.Apeal.500.2011.jud.+4.odt
35
36. The learned Amicus Curiae has also
assailed the forensic evidence i.e. the report
regarding the DNA profiling dated 18-4-2012
(Ext. P-23/1) giving incriminating findings. She
vehemently submitted that apart from the fact
that the collection of the samples sent for
examination itself was very doubtful, the said
forensic evidence was neither scientifically nor
legally proved and could not have been used as a
circumstance against the Appellant-Accused. The
Court finds substance in the said submissions
made by the Amicus Curiae. The DNA evidence
is in the nature of opinion evidence as envisaged
Under Section 45 and like any other opinion
evidence, its probative value varies from case to
case.
38. It is true that PW 23 Dr B.K.
Mohapatra, Senior Scientific Officer (Biology) of
CFSL, New Delhi had stepped into the witness
box and his report regarding DNA profiling was
exhibited as Ext. PW 23/A, however mere
exhibiting a document, would not prove its
contents. The record shows that all the samples
relating to the Accused and relating to the
deceased were seized by the investigating officer
on 14-2-2012 and 16-2-2012; and they were
sent to CFSL for examination on 27-2-2012.
During this period, they remained in the
malkhana of the police station. Under the
circumstances, the possibility of tampering with
the samples collected also could not be ruled out.
Neither the trial court nor the High Court has
examined the underlying basis of the findings in
Cri.Apeal.500.2011.jud.+4.odt
36
the DNA reports nor have they examined the
fact whether the techniques were reliably applied
by the expert. In the absence of such evidence on
record, all the reports with regard to the DNA
profiling become highly vulnerable, more
particularly when the collection and sealing of
the samples sent for examination were also not
free from suspicion. (Emphasis supplied)
19. In the case of Manoj and Ors. v. State
of M.P. MANU/SC/0711/2022 :(2023) 2 SCC
353, it was held that if DNA evidence is not
properly documented, collected, packaged, and
preserved, it will not meet the legal and scientific
requirements for admissibility in a court of law.
Because extremely small samples of DNA can be
used as evidence, greater attention to
contamination issues is necessary while locating,
collecting, and preserving DNA evidence as it
can be contaminated when DNA from another
source gets mixed with DNA relevant to the
case. This can happen even when someone
sneezes or coughs over the evidence or touches
his/her mouth, nose, or other part of the face and
then touches the area that may contain the DNA
to be tested. The exhibits having biological
specimen, which can establish link among
victim(s), suspect(s), scene of crime for solving
the case should be identified, preserved, packed,
and sent for DNA Profiling.
20. In the case of Anil @ Anthony
Arikswamy Joseph v. State of Maharashtra
MANU/SC/0124/2014 : (2014) 4 SCC 69, the
following has been held in paragraph 18 as
under:
Cri.Apeal.500.2011.jud.+4.odt
37
18. Deoxyribonucleic acid, or DNA, is a
molecule that encodes the genetic
information in all living organisms. DNA
genotype can be obtained from any biological
material such as bone, blood, semen, saliva,
hair, skin, etc. Now, for several years, DNA
profile has also shown a tremendous impact
on forensic investigation. Generally, when
DNA profile of a sample found at the scene
of crime matches with the DNA profile of
the suspect, it can generally be concluded
that both the samples have the same
biological origin. DNA profile is valid and
reliable, but variance in a particular result
depends on the quality control and quality
procedure in the laboratory". (Emphasis
supplied)
[IV] In Prakash Nishad Vs. State of Maharashtra;
MANU/SC/0613/2023; [2023 ALL SCR (ONLINE)
477], one of the issue for consideration was whether
DNA evidence can form the solitary basis in
determining the guilt of the Appellant therein and it
observed as follows :-
"60. We may observe that the Maharashtra Police
Manual1, when speaking of the integrity of
scientific evidence in Appendix XXIV states -
The integrity of exhibits and control samples
must be safeguarded from the moment of
seizure upto the completion of examination
in the laboratory. This is best done by
immediately packing, sealing and labeling
Cri.Apeal.500.2011.jud.+4.odt
38
and to prove the continuity of the integrity of
the samples, the messenger or bearer will
have to testify in Court that what he had
received was sealed and delivered in the same
condition in the laboratory. The laboratory
must certify that they have compared the
seals and found them to be correct. Articles
should always be kept apart from one another
after packing them separately and contact be
scrupulously avoided in transport also.
61. In the present case, the delay in
sending the samples is unexplained and therefore,
the possibility of contamination and the
concomitant prospect of diminishment in value
cannot be reasonably ruled out. On the need for
expedition in ensuring that samples when
collected are sent to the concerned laboratory as
soon as possible, we may refer to "Guidelines for
collection, storage and transportation of Crime
Scene DNA samples For Investigating Officers -
Central Forensic Science Laboratory Directorate
Of Forensic Sciences Services Ministry Of Home
Affairs, Govt. of India"2 which in particular
reference to blood and semen, irrespective of its
form, i.e. liquid or dry (crust/stain or spatter)
records the sample so taken "Must be submitted
in the laboratory without any delay."
62. The document also lays emphasis on
the 'chain of custody' being maintained. Chain of
custody implies that right from the time of taking
of the sample, to the time its role in the
investigation and processes subsequent, is
Cri.Apeal.500.2011.jud.+4.odt
39
complete, each person handling said piece of
evidence must duly be acknowledged in the
documentation, so as to ensure that the integrity
is uncompromised. It is recommended that a
document be duly maintained cataloguing the
custody. A chain of custody document in other
words is a document, "which should include name
or initials of the individual collecting the
evidence, each person or entity subsequently
having custody of it, dated the items were
collected or transferred, agency and case number,
victim's or suspect's name and the brief
description of the item."
[V] In Mukesh and Others Vs. State of NCT of
Delhi and Ors.; MANU/SC/0575/2017: [2017
ALLMR (Cri.) 2448 (S.C.], it is observed as follows :-
"216 In Pantangi Balarama Venkata Ganesh v.
State of Andhra Pradesh MANU/SC/1306/2009 :
(2009) 14 SCC 607, a two-Judge Bench had
explained as to what is DNA in the following
manner:
41. Submission of Mr. Sachar that the report of
DNA should not be relied upon, cannot be
accepted. What is DNA? It means:
Deoxyribonucleic acid, which is found in the
chromosomes of the cells of living beings is the
blueprint of an individual. DNA decides the
characteristics of the person such as the colour of
the skin, type of hair, nails and so on. Using this
genetic fingerprinting, identification of an
individual is done like in the traditional method
Cri.Apeal.500.2011.jud.+4.odt
40
of identifying fingerprints of offenders. The
identification is hundred per cent precise, experts
opine.
There cannot be any doubt whatsoever that
there is a need of quality control. Precautions
are required to be taken to ensure preparation
of high molecular weight DNA, complete
digestion of the samples with appropriate
enzymes, and perfect transfer and
hybridization of the blot to obtain distinct
bands with appropriate control. (See article of
Lalji Singh, Centre for Cellular and Molecular
Biology, Hyderabad in DNA profiling and its
applications.) But in this case there is nothing
to show that such precautions were not
taken".
[VI] In Ananda Vs. The State of Maharashtra;
MANU/MH/3781/2024, one of the evidence was in
the nature of DNA reports and it is observed as under
:
"39. The question is, based on the DNA reports,
whether the conviction and/or sentence passed
by the trial court would be sustainable. We have
gone through the impugned judgment. The trial
court has relied on the evidence of each and
every witness. It also relied on the evidence of
the medical officer who collected blood of the
appellant for DNA analysis, even in breach of
protocol in that regard. The reason assigned for
relying on the said evidence is that the said
witness is uninterested and independent one.
Before appreciating the evidence relating to
Cri.Apeal.500.2011.jud.+4.odt
41
DNA, we must have a look at the guidelines for
collection, storage and transportation of the
crime-scene DNA samples. Those have been
placed on record by learned counsel for the
appellant. Item No.10 therein speaks of
maintaining the chain of custody. It describes
what chain of custody means. Same reads as
under:-
10. Maintaining the chain of custody:
• Chain of custody is a process used to
maintain and document the chronological
history of the evidence.
• A `chain of custody' document should be
maintained which should include name or
initials of the individual collecting the
evidence, each person or entity subsequently
having custody of it, dated the items were
collected or transferred, agency and case
number, victim's or suspect's name and the
brief description of the item.
Those were the guidelines issued by The
Central Forensic Science Laboratory,
Chandigarh. PW 18 - Vaishali admitted in
cross-examination that the C.F.S.L., Chandigarh
and Hyderabad are best in India."
19 It needs to be stated that there is a protocol for
selection and preservation of the samples for DNA analysis.
The precautions are necessary while collecting and preserving
Cri.Apeal.500.2011.jud.+4.odt
42
the samples for getting the right results. The possibility of
contamination cannot be ruled out considering the nature of
the samples. The prosecution is duty bound to adduce the
evidence to rule out the possibility of contamination or
tampering of the samples in any manner till the samples are
finally analyzed. The DNA reports could not be said to be
infallible inasmuch as it is an opinion evidence.
20 It needs to be stated at the outset that the
prosecution has not examined the CA. The prosecution has not
placed on record the plausible reasons for non-examination of
such an important witness. The record shows that the learned
Judge before admitting the CA reports in evidence did not pass
a specific order. I am conscious of the fact that the report of the
Government Scientific expert can be admitted in evidence
under Section 293 of the Cr.P.C. In this case, the DNA reports
are admitted in evidence by the learned Judge without passing
any specific order. Generally, in such a matter, the CA or the
Cri.Apeal.500.2011.jud.+4.odt
43
DNA analyst has to be examined. The CA must tell before the
Court the chain of custody of the samples and the precautions
taken to avoid contamination during analysis and upto the
completion of the analysis of the samples. This is one
important drawback in this case.
21 I have gone through the evidence of the other
witnesses to appreciate the submissions made by the learned
Advocate that there is a possibility of tampering with the
samples and as such, the contamination. It is undoubtedly true
that the samples collected during the investigation must be
forwarded to the forensic lab without delay. In this case, the
panch witness PW-3 Vitthal Surkar, in whose presence the
seven condoms had been seized from the spot, has not
supported the case of the prosecution. The evidence of the
investigating officer shows that they visited the spot on
25.06.2010 itself and in presence of two panchas and also in
presence of the prosecutrix seized seven condoms filled with
Cri.Apeal.500.2011.jud.+4.odt
44
semen. The evidence on record shows that PW-10 forwarded
those seven condoms to RFSL, Nagpur on 29.06.2010 vide
requisition letter dated 29.06.2010 Exh. 146. The record
shows that police constable Bakal No. 1293 carried those
samples to RFSL, Nagpur. The prosecution has not examined
the constable Anup Kawale, Bakal No. 1293. Exh. 147 is the
invoice of the challan issued from the office of RFSL, Nagpur.
It shows that the samples had been deposited on 29.06.2010.
The record shows that the samples were lying in the police
station for three days. The investigating officer PW-10 was
required to state the precautions taken to preserve the samples
during the period of three days. The prosecution has not
examined the Malkhana incharge of the police station.
Similarly, the malkhana register or the extract of the said
register to show the deposit of these samples in the malkhana
has not been produced. The investigating officer PW-10 is
silent about the custody of the samples during this period of
Cri.Apeal.500.2011.jud.+4.odt
45
three days. There is no reason put forth by PW-10 for
forwarding the samples to RFSL, Nagpur after three days. It has
come on record that accused - Shankar Tadas was arrested on
25.06.2010. The remaining accused persons were arrested on
26.06.2010. It is the defence of the accused persons that while
they were in police custody, their semen was obtained by the
investigating officer in condoms. In the backdrop of this
defence, the investigating officer was required to state the
reason for not forwarding the seven condoms to RFSL, Nagpur
immediately. There is also no evidence as to the custody of the
condoms during this period. In the absence of the
contemporaneous documentary evidence, there is a scope to
doubt the credibility of this evidence. There is a material lacuna
to this extent in the case of the prosecution.
22 The blood and other samples of the prosecutrix had
been collected by the medical officer PW-8 Dr. Manisha Nasare
on 25.06.2010. The samples were handed over by the doctor to
Cri.Apeal.500.2011.jud.+4.odt
46
LPC Ranjana Zilpe. Ranjana Zilpe is PW-7. The clothes of the
prosecutrix were seized on 25.06.2010. As far as the accused
persons are concerned, they were examined by the medical
officer Dr. Jaychand Moon PW-4 on 28.06.2010. The medical
officer had collected blood and other samples of the accused
persons on 28.06.2010. As far as the blood samples of the
accused persons are concerned, the evidence of the medical
officer PW-4 and evidence of P.C. Chandrashekhar Wadhve
(PW-5) is contradictory. PW-4 has deposed that after collection
of the samples he packed, labeled and sealed the samples and
handed over them to the concerned police constable. His
evidence shows that on the very same day i.e. on 28.06.2010,
the samples had been handed over to police constable Wadhve.
23 The evidence of PW-5 needs to be considered. He
has stated that on 30.06.2010 he collected blood and other
sample bottles in a sealed condition from the medical officer.
He has stated that he handed over the samples on 30.06.2010
Cri.Apeal.500.2011.jud.+4.odt
47
to police head constable Shahane and police head constable
seized the same. Exh. 93 to 100 are the seizure panchanamas
of the blood and other samples of the eight accused. The
panchanama would show that the samples had been seized on
30.06.2010. The evidence of PW-5 would show that from
28.06.2010 to 30.06.2010 the samples were lying in the
hospital. PW-4 medical officer has not uttered a word about the
custody of the samples and the precautions taken to preserve
the samples. The custody of samples for two days has not been
explained. This is a relevant circumstance to be borne in mind
while appreciating the DNA reports.
24 PW-10 Mendhe has deposed that vide requisition
letter dated 03.07.2010 Exh. 150 he forwarded the samples
through police constable Omprakash to RFSL, Nagpur. The
police constable Omprakash has not been examined. The blood
and other samples of the prosecutrix were lying in the police
station from 25.06.2010 to 03.07.2010. Similarly, the blood
Cri.Apeal.500.2011.jud.+4.odt
48
and other samples of the accused persons were lying in the
police station from 30.06.2010. As far as these samples are
concerned, the investigating officer has not deposed about the
custody of the samples. Malkhana incharge has not been
examined. The malkhana register has not been produced. It is
to be noted that the preservation of the samples in a proper
condition is necessary for accurate results. The samples which
are collected for DNA analysis are required to be preserved and
stored properly. There must be evidence on record as to the
custody of the samples before the samples are handed over to
the forensic lab. In this case, save and except the bare words of
the investigating officer, there is no contemporaneous
documentary evidence.
25 The DNA report is at Exh. 168. The analysis of the
samples in the lab started on 19.07.2010 and was completed on
02.11.2010. The CA reports of the analysis of the other
samples are at Exh. 158 to 167. Those reports are dated
Cri.Apeal.500.2011.jud.+4.odt
49
31.01.2011. The report of the analysis of the seven condoms is
at Exh. 168. Those condoms had been analyzed between
19.07.2010 to 02.11.2010. It is therefore evident that till the
final analysis of the samples up to 2.11.2010, the samples were
lying in the RFSL, Nagpur. The prosecution has not examined
the CA. There is no evidence as to the precautions taken to
maintain the purity of the samples during this analysis period of
the samples. There is no plausible explanation for non-
examination of the CA. It is not out of place to mention that
during the analysis period of samples, a chain of custody form is
maintained. Such evidence is the most important link in the
process of the analysis of the sample. The custody of the
samples and the precautions taken to preserve the purity of the
samples are very vital facts. These facts must be established by
leading evidence. The learned Judge, without examining the
CA, has admitted the CA and DNA reports in evidence. No
specific order was passed as to why the examination of CA was
Cri.Apeal.500.2011.jud.+4.odt
50
not necessary to admit these reports in evidence. If the learned
Judge had rejected the prayer for exhibiting the CA and DNA
reports, the prosecutor would have called the CA to depose
before the Court. In my opinion, in the backdrop of the above
evidence, the credibility and authenticity of the DNA reports
deserve consideration. The DNA report is nothing but an
opinion of an expert. It has to be proved like any other fact.
There is no presumption as to the credibility or admissibility of
CA or DNA reports. It is a settled position in law that mere
putting exhibit mark to document does not amount to proof of
the contents of the document. In my view, therefore, the CA
reports and DNA reports ought to have been properly
appreciated and considered. In this case, the prosecutrix has
not supported the case of the prosecution. The DNA report was
the only evidence to make good the charge against the accused
persons. The prosecution was therefore required to adduce a
proper link or a chain of evidence and establish all the above-
Cri.Apeal.500.2011.jud.+4.odt
51
stated relevant facts. In this case, there is no evidence to
establish the proper preservation and custody of the samples.
The custody of the samples during the police station has not
been established. The investigating officer PW-10 has stated
that the malkhana incharge was the custodian of the samples.
The malkhana incharge has not been examined. There is no
iota of evidence to establish the custody and precautions taken
to preserve the samples by the police before the deposit of the
samples in the forensic lab. Similarly, there is no evidence of
CA to establish custody of the samples and precautions taken
to preserve the samples during the period of analysis. In this
view of the matter, I conclude that the DNA report loses its
authenticity. Based on the DNA report, the accused persons
could not have been convicted and sentenced.
26 In view of the above, the settled position in law
supports the submissions advanced by the learned Advocate for
the appellants. The prosecution has miserably failed to prove
Cri.Apeal.500.2011.jud.+4.odt
52
the charge of gang rape against the accused persons. Similarly,
the authenticity of the DNA report has not been proved for
want of cogent, concrete and credible evidence. The learned
Judge, in my view, was not right in placing implicit reliance on
the DNA reports as well as on the evidence of the prosecutrix,
who resiled from her version before the Court. In this
backdrop, the accused deserves the benefit of the doubt. The
appeals, therefore, deserve to be allowed.
27 In view of this, I proceed to pass the following
order:
ORDER
i] All criminal appeals are allowed.
ii] The judgment and order of conviction and
sentence of accused persons passed by the learned Additional
Sessions Judge, Wardha dated 30.09.2011 is quashed and set
aside.
Cri.Apeal.500.2011.jud.+4.odt
iii] Accused No.1 - Chandu @ Chandrashekhar S/o.
Keshaorao Chambhare, accused No. 2 - Prashant Ashokrao
Satone, accused No.3 Ganesh Kashirao Rade, accused No. 4
Sunil Vitthalrao Warghane, accused No. 5 Khushal S/o.
Rambhau Masulkar, accused No. 6 Pravin Santoshrao Surkar,
accused No. 7 Shankar S/o. Kawduji Tadas and accused No. 8
Ganesh S/o. Bapurao Dhage are acquitted of the offence
punishable under Section 376(2)(g) of the Indian Penal Code.
iv] Accused No.1 - Chandu @ Chandrashekhar S/o.
Keshaorao Chambhare, accused No. 2 - Prashant Ashokrao
Satone, accused No.3 Ganesh kashirao Rade, accused No. 4
Sunil Vitthalrao Warghane, accused No. 7 Shankar S/o.
Kawduji Tadas and accused No. 8 Ganesh S/o. Bapurao Dhage
are acquitted of the offence punishable under Section 366 read
with Section 34 of the Indian Penal Code.
Cri.Apeal.500.2011.jud.+4.odt
v] Accused No. 7 Shankar S/o. Kawduji Tadas is
acquitted of the offence punishable under Section 341 of the
Indian Penal Code.
vi] Their bail bonds stand cancelled.
28 All criminal appeals stand disposed of, accordingly.
Pending applications, if any, also stand disposed of.
(G. A. SANAP, J.)
Namrata
Signed by: Miss Namrata Suryawanshi
Designation: PA To Honourable Judge
Date: 20/02/2025 15:53:06
