Bombay High Court
Ganesh Shahaji Parkale vs The State Of Maharashtra And Another on 13 October, 2025
2025:BHC-AUG:28711
1 APEAL821.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 821 OF 2022
Ganesh S/o Shahaji Parkale,
Age : 30 years, Occup. : Agri.,
R/o. Pimpri Ghumari,
Tq: Ashti, Dist. Beed. ...Appellant
[Orig. Accused]
Versus
1. The State of Maharashtra,
Through: The Police Station Officer,
Bhingar Camp Police Station,
Ahmednagar, Dist. Ahmednagar.
2. Victim 'S' ...Respondents
.....
Mr. Ajit B. Chormal - Advocate for the Appellant
Mr. B. B. Bhise - APP for the State
.....
WITH
CRIMINAL APPLICATION NO. 3125 OF 2025
IN
CRIMINAL APPEAL NO. 821 OF 2022
.....
CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : 24.09.2025
PRONOUNCED ON : 13.10.2025
JUDGMENT :
-
1. This is the Appeal against Conviction under Section 374(2)
of the Code of Criminal Procedure [for short "Cr.P.C."], as the Appellant
is convicted by the learned Additional Sessions Judge, Ahmednagar, vide
the Judgment and Order dated 22.09.2022 in Special Case No. 264 of
2019, for the offences punishable under Sections 376(2)(n) of the
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Indian Penal Code [for short "IPC"] and Sections 4, 6 and 8 of the
Protection of Children from Sexual Offences Act [for short "POCSO
Act"], and sentencing him to suffer Rigorous Imprisonment for a period
of ten [10] years and fine of Rs.5,000/-, in default, to suffer Simple
Imprisonment for one [1] month under Section 6 of POCSO Act.
2. The case of the Prosecution, as revealed from the Police
Report, is as under : -
[a] The Informant resides at Burhannagar, Tal. & Dist.
Ahmednagar, with his family comprising wife and two
daughters. His younger daughter (Victim) was studying in
12th std., in March-2019. On 14.03.2019, the Informant
and his wife left home at 09:00 am for work. The Victim
had come home a day prior as her exam was over and
therefore, she was at home. In the evening at 07:00 p.m.,
when the Informant and his wife returned home, they did
not find Victim in the house. They inquired about the
Victim, however, she could not be traced. The Informant
went to Bhingar Camp Police Station and lodged report at
Exh. 19. After five (5) months, the Informant's daughter
was found with the Appellant at Bolhegaon Shirur and the
Police brought the Victim and the Appellant to the Police
Station. The Informant went to the Police Station. It was
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revealed that the Appellant took the Victim with him and
they went to different places where the Appellant
established sexual relations with the Victim. The Appellant
was known to the Informant as he was the resident of the
village where the maternal uncle of the Victim was residing.
[b] The statement of the Victim was recorded and the Victim
was sent for medical examination. The clothes of the Victim
were seized. The Appellant was sent for medical
examination. The clothes of the Appellant came to be
seized. The Victim showed the places where she went with
the Appellant. The statement of witnesses were recorded.
The Victim was found to be pregnant. Pregnancy was
terminated under medical advice. The blood samples of the
Victim and the Appellant and the samples of foetus were
collected and sent for Chemical Analysis. The articles
collected during the investigation were also sent for
Chemical Analysis. The necessary documents were collected
including the C.A. report showing the Appellant and the
Victim as the biological parents of the foetus, and the
Appellant came to be Charge-sheeted for the offence
punishable under Sections 363, 376(2)(N) of the IPC and
Sections 4, 5(2)(J)(L)/6 and 8 of the POCSO Act.
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3. The learned Trial Court framed the Charge against the
Appellant vide Exh. 6 for the offence punishable under Sections 363,
376(2)(n) of the IPC, Sections 4, 6 and 8 of the POCSO Act, to which
the Appellant pleaded not guilty and claimed to be tried. To prove the
Charge, the Prosecution examined in all eighteen (18) witnesses and
brought on record the relevant documents. The witnesses examined by
the Prosecution were cross-examined on behalf of the Appellant. After
the Prosecution filed Evidence Closure Pursis at Exh. 124, the learned
Trial Court recorded the statement of the Appellant under Section
313(1)(b) of the Cr.P.C. at Exh. 125. The Appellant denied the evidence
and the case of the Prosecution. After hearing both the sides and
appreciating the evidence on record, the learned Trial Court convicted
the Appellant as above.
4. It is submitted by the learned Advocate for the Appellant
that, the evidence of the Victim does not show that she was subjected to
sexual assault by the Appellant. The age of the Victim was not
established. The Victim was major at the time of the incident. The
samples for DNA were not collected as required under the prescribed
procedure and, therefore, the DNA report cannot be taken into
consideration. The Appellant has denied his case in the statement
recorded under Section 313 of Cr.P.C. The learned Trial Court did not
appreciate the evidence in right perspective and the Appeal be allowed
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by setting aside the Conviction and the Sentence. In support of his
submissions, he cited Judgments, which would be considered at the later
point.
5. It is submitted by the learned APP for the State that, the
evidence on record goes to show that, the Victim was minor at the
relevant time. The birth certificate of the Victim is admitted by the
Appellant. The age of the Victim was proved by the relevant evidence of
the Informant and the School record. The Victim's evidence is material
and her evidence has proved the case against the Appellant. After the
samples were collected, they were sealed and sent for examination. The
DNA report and the medical papers brought on record support the
Prosecution's case. The learned Trial Court has rightly considered the
evidence on record and, therefore, the Appeal be dismissed. In support
of his contention, he cited the judgments, which would be considered at
later point of time.
6. It is submitted by the learned Advocate for the Victim that,
the Victim took U-turn from her statement given to the Investigating
Officer, and the evidence on record does not establish the Charge against
the Appellant and the Conviction be set aside. He submitted that, being
the Officer of the Court it was his duty to point out the proper aspects of
the matter.
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7. Heard all the sides. Scrutinised the evidence available on
record.
8. The foremost aspect is the age of the Victim, as the Charge
and Conviction is under penal Section of POCSO Act. Section 2(d) of
the said POCSO Act, defines the term 'Child' as under :
2(d). "Child" means any person below the age of eighteen years.
9. The Informant is the father of the Victim. His evidence
show that, the Victim's date of birth was 27.06.2002. The said date of
birth is not specifically challenged in his cross-examination. The birth
certificate showing birth of female child, which is the part and parcel of
the record show that it was admitted by the Defence, and the same was
marked as Exh. 37. The date of birth in the said birth certificate is the
same which is deposed by the Informant as that of the Victim. The
evidence of PW11 - Kashinath Maruti Hafse show that he was the
Headmaster of the School where the Victim took admission in 5 th Std.,
on 15.06.2011. His evidence show that, at the time of taking admission,
the School Leaving Certificate of previous school was submitted. The
entry at Sr. No. 4379 in the register of their school was in respect of the
Victim showing her parents name and the date of birth as 27.06.2002.
Except denial, nothing has come in his cross-examination so as to
discard his testimony. True it is, that the school record of the first school
attended by the Victim is not brought in evidence by the Prosecution,
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however, that would not be fatal for the Prosecution in this case as the
evidence discussed above is not seriously challenged by the Appellant.
The evidence of PW8 - Dr. Yogesh Sakhari Sonawane, Medical Officer,
show that, on 06.08.2019, his opinion for Victim's age was called and on
the basis of X-ray report, he opined that the Victim was less than 18
years of age. Further, he accepted that the opinion relating to the age of
the Victim was not conclusive. The date of incident is after 14.03.2019,
which goes to show that at the relevant time, the Victim was nearing 17
years of age. From the evidence on record, it is established that the
Victim was below the age of 18 years and, therefore, was the child at the
relevant time.
10. The father of the Victim is examined as PW1 - Mubarak
Khajubhai Shaikh. His evidence show that, he was not the witness to
any of the incident constituting an offence. On 14.03.2019, after he and
his wife left for the work and returned home in the evening, the Victim
was not at home. The Victim was not located though searched by him.
He went to the Police Station and lodged the report at Exh. 19. After
five (5) months, the Police brought the Victim and the Appellant to the
Police Station where Informant met Victim. The Victim told him as to
what happened with her. The Victim told him about the sexual relations
by the Accused with her. He knew the Appellant, as the Appellant was
the resident of village of the Victim's maternal uncle. This witness set
the criminal law in motion.
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11. The Victim is examined by the Prosecution as PW2. The
Prosecution's case mainly rests on her testimony. She is the prime
witness of the Prosecution. Her evidence show that, she knew the
Accused as he was the resident of the village of her maternal uncle
where she used to visit during holidays. The Accused was married. On
15.08.2018, the Appellant threatened that, if she did not accompany
him, he would kill her parents. The said incident was of Pimpri
Ghumari. Thereafter, the Victim returned to her native. The Accused
used to come to her native place. On 14.03.2019, the Appellant called
her to the State Bank Square and she went. From there, the Appellant
took her to Belwandi Phata, Taluka Shrigonda, where one room was
hired and they both stayed there for five (5) months. At that place, the
Appellant committed forcible sexual intercourse with her without her
wish. Thereafter, the Appellant took her to Ozar on motorcycle, where
the Appellant garlanded her. Thereafter, the Appellant took her to
Golhegaon, Taluka Shirur, where one room was hired and they both
stayed there for one (1) month. The accused established forcible sexual
intercourse with her wherever they went. Thereafter, on 05.09.2019, the
Police from Bhingar Camp Police Station came there and they brought
both of them at Bhingar Camp Police Station. Her further evidence
show that, on 05.09.2019, the Police recorded her statement. She
identified her clothes, which were seized by the Police. She was
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medically examined at the Civil Hospital where the Doctor told that she
was pregnant of 16 weeks. She was hospitalised and underwent
abortion.
12. It has come in the evidence of the Victim that, she had not
stated correctly in her statement dated 05.09.2019, as the Accused had
threatened her. She admitted that she never made any complaint to the
Police or to the Court that, she had given incorrect statement on
05.09.2019. Her evidence that, the Accused threatened her was an
omission/improvement. It has come in her cross-examination that,
when Appellant inquired with her whether she was ready to go to her
parents, she declined to go with her parents or anybody, though
subsequently she made an application to go to her parents. Her evidence
further show that, they both resided together like a married couple. She
admitted that, during the period of five (5) months, she never contacted
her family members. Her testimony show that, wherever she and
Appellant resided, it was the residential area and she did not tell the
owner that she was forcibly brought by the Appellant. Her further
evidence show that, she eloped with the Appellant and, therefore, her
testimony that, the Appellant threatened her to kill her parents if she did
not accompany him is required to be seen with doubt. She further
admitted that, she did not complain against the Appellant with Shirur
Police Station. Her evidence further show that, her evidence that, the
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Accused threatened her to kill her parents if she did not accompany him
and took her to Belwandi Phata, Taluka Shrigonda, and hired one room
and kept there for five (5) months during which period the Appellant
established physical relations with her without her wish and the aspect
of the Appellant established forcible physical relations with her, was an
omission/improvement. The evidence of the Investigating Officer PW15
- Mangesh Kashinath Bendkoli show that the statement of the Victim
was recorded on 05.09.2019 by lady Police Inspector Jayashri Kale,
however, the said lady Police Officer is not examined by the Prosecution
and, therefore, the defence lost an opportunity to prove the
omissions/improvements.
13. The evaluation of the evidence of PW2 Victim goes to show
that, she is not the witness of sterling quality. Her evidence show that,
on material aspects there are omissions. The evidence of Victim goes to
show that, though minor, she was of matured understanding. It is true
that the consent by the minor for sexual intercourse is not a consent in
the eye of law, however, her testimony cannot form the basis to maintain
the Conviction. Her evidence is not concrete and is shaky. The Victim's
evidence in respect of the Appellant committed forcible intercourse with
her against her wish while they stayed in a rented room for five (5)
months at Belwandi Phata, is inconsistent with her narration given by
her to the Medical Officer while she was medically examined
11 APEAL821.2022.odt
on 05.09.2019. The Victim admitted that the MLC papers were based on
her information, and thereafter, the Doctor has taken her signature. The
said MLC papers were confronted to the Victim and marked Exh. 25, as
she identified her signature on the same and also deposed of the same.
The said MLC papers were also given Exh. 43 in the evidence of PW5 -
Sandeep Jagnnath Ghugare, the Medical Officer, and also referred to
PW10 - Dr. Nandkumar Dnyanehwar Pokharkar, who examined the
Victim on 05.09.2019. The evidence of PW5 - Sandeep Jagnnath
Ghugare show that, there were no symptoms of sexual assault and no
genital injury on the Victim's body. Further, the evidence of PW9 - Dr.
Rajashri Mishrilalji Pagariya, Medical Officer, Civil Hospital, where the
Victim was hospitalised for termination of pregnancy, show that the
Victim did not complain of forceful sexual intercourse on her. Further, it
has come in the evidence of PW10 - Dr. Nandkumar Dnyanehwar
Pokharkar that, in the history, the Victim did not narrate any forceful
sexual assault on her. Therefore, the evidence of Victim by itself will not
be sufficient to prove the Charge.
14. The evidence of PW10 - Dr. Nandkumar Dnyanehwar
Pokharkar shows that, he was the Medical Officer at the Civil Hospital,
Ahmednagar. On 05.09.2019, the Victim was brought for medical
examination. He recorded the history and examined the Victim. He
referred the Victim to the Gynaecologist, Dentist, Radiologist, and
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Psychiatrist. The cross-examination of this Medical Officer shows that,
his evidence was not disputed. The medical evidence further show that
the Victim was found to be pregnant of 15 to 17 weeks. The Victim was
admitted for the purpose of abortion and the abortion was done on
18.09.2019. The evidence of PW6 - Dr. Swati Maruti Fadtare, who was
attached to the Civil Hospital at Ahmednagar, as Gynaecologist, where
the Victim was admitted for abortion, show that she examined her and
found her to be pregnant and the abortion process was started on
17.09.2019. The evidence of PW9 - Dr. Rajashri Mishrilalji Pagariya
shows that, she was the Medical Officer in the Civil Hospital,
Ahmednagar, where the Victim was admitted. She examined her on
13.09.2019 and gave opinion for medical termination of the Victim's
pregnancy. The other Medical Officer PW7 - Dr. Mangesh Bhagwan Raut
deposed that, on 18.09.2019, the process of abortion was already going
on by prescribing medicine and on 18.09.2019, the Victim was
spontaneously aborted. The medical evidence is not seriously challenged
by the Defence. From the above referred medical evidence, it is
established by the Prosecution that the Victim was medically examined
and she was found to be pregnant and thereafter her pregnancy was
terminated on medical advice.
15. The other evidence is in the nature of Chemical Analyzer
report (for short 'CA report') at Exh. 123, showing that the Appellant
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and the Victim were the biological parents of the abortus. The said CA
report is brought on record in the evidence of PW18 - Dipak Yadav
Kudekar, who was the Chemical Analyzer at Nashik. His evidence show
that, on 11.09.2019, he received two sealed envelopes and two sealed
plastic container containing blood sample of Victim and Accused for
DNA test along with necessary papers. He extracted DNA from sample
of abortus. On 19.09.2019, his office received one sealed plastic
container containing abortus of Victim and found that the Appellant and
the Victim were the biological parents of the Victim child. His cross-
examination show that, collection of sample and transport is the
important factor in the analysis of DNA test. He was not aware as to
what procedure was followed by the Medical Officers while taking DNA
sample. It has come in his evidence that the procedure followed for
taking blood samples for general examination and for DNA analysis was
different. Touching the samples by plastic or mouth also affect its
analysis. He received the samples in plastic container. He did not
receive any document as to in what condition the samples were
preserved. 99.97% genes of human body were similar. Before receipt of
the sample in the laboratory, he had no occasion to see the same. It has
come in his evidence that the DNA science is based upon the theory of
probability. It has further come in his evidence that he had not sent
empty DNA kit to the concerned Police Station.
14 APEAL821.2022.odt
16. The learned Advocate for the Appellant placed reliance on
the judgments in Kattavellai @ Devakar versus State of Tamilnadu, 2025
LiveLaw (SC) 703 and Nivrutti Nagorao Hange Versus State of
Maharashtra and Another, 2024 All.M.R. (Cri) 3445, to contend that the
protocol for selecting and preserving the samples for DNA analysis is
required to be followed and the chain of custody of samples is required
to be established to rule out the possibility of contamination or
tampering with samples and necessary precautions are required to be
taken right from the beginning of samples for DNA till the final result of
the analysis. According to him, the evidence on record nowhere show
that, the said aspects were taken care of. According to him, the
prosecution failed to establish the chain of custody of samples from the
beginning to end.
17. The relevant observations from the judgment in Nivrutti
Hange (supra) are reproduced as under :
[I] In Pattu Rajan Vs. The State of Tamil Nadu;
MANU/SC/0439/2019, 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
15 APEAL821.2022.odt
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 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 : (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
16 APEAL821.2022.odt
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, 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:
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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.
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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
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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
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 1
person 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.
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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, 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:
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
18 APEAL821.2022.odt
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 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:
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
19 APEAL821.2022.odt
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, 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 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 complete, each person
20 APEAL821.2022.odt
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, 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 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
21 APEAL821.2022.odt
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 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."
18. The relevant observations from the judgment in Kattavellai
@ Devakar (supra) are reproduced as under : -
DNA- A NECISSITATED ADDENDUM:
43. As we have discussed earlier in this judgment, the DNA evidence
collected has been rendered unusable. It suffers from various
shortcomings in as much as there is large amount of unexplained
delay; the chain of custody cannot be established; possibility of
contamination cannot be ruled out etc. We have also referred to
instances in the recent past where, similar to the case at hand
the DNA evidence was rendered unusable on account of similar
lapses. A perusal of the various documents released by a number
of bodies such as the Standard Operating Procedure for Crime
Scene Investigation issued by the Directorate of Forensic Science
Service, Ministry of Home Affairs and Government of India48;
22 APEAL821.2022.odt
Guidelines for collection, storage and transportation of Crime
Scene DNA samples issued by the Central Forensic Science
Laboratory, Directorate of Forensic Science Service, Ministry of
Home Affairs and Government of India49; a Forensic Guide for
Crime Investigators (Standard Operating Procedures) issued by
LNJN National Institute of Criminology and Forensic Science,
Ministry of Home Affairs, Government of India50 show that,
although, procedures have been suggested, there is no
uniformity nor there is a common procedure which is required to
be followed by all investigating authorities. This, obviously, has
the potential to have an impact on the cases investigated. When
it comes to procedure followed by the police generally,
differences therein are understandable keeping in view the
difference in society, regional complexities as also other factors
given the wide length and breadth of the Country, however, the
same yardstick cannot be applied when it comes to sensitive
evidence such as DNA for the concerns, causes of its dilution in
evidentiary value and requirements for it to be collected and
maintained in pristine condition is not subject to the same
factors. So, even though 'Police', 'Public Order' are subjects
mentioned in List-II of the Seventh Schedule of the Constitution
of India that in itself cannot permit differing procedures and
sensitivities to such evidence, to rule the roost. The aspects in
which we find there to be errors committed regularly are in fact
procedural aspects which aid the sanctity of the evidence.
44. This lack of a common procedure to be followed, is concerning.
As such, we issue the following directions which shall be
followed henceforth, in all cases where DNA Evidence is
involved:
1. The collection of DNA samples once made after due
care and compliance of all necessary procedure
including swift and appropriate packaging including
a) FIR number and date; b) Section and the statute
involved therein; c) details of I.O., Police station;
and d) requisite serial number shall be duly
documented. The document recording the
collection shall have the signatures and
designations of the medical professional present,
the investigating officer and independent witnesses.
Here only we may clarify that the absence of
independent witnesses shall not be taken to be
compromising to the collection of such evidence,
23 APEAL821.2022.odt
but the efforts made to join such witnesses and the
eventual inability to do so shall be duly put down in
record.
2. The Investigating Officer shall be responsible for
the transportation of the DNA evidence to the
concerned police station or the hospital concerned,
as the case may be. He shall also be responsible for
ensuring that the samples so taken reach the
concerned forensic science laboratory with dispatch
and in any case not later than 48- hours from the
time of collection. Should any extraneous
circumstance present itself and the 48-hours
timeline cannot be complied with, the reason for
the delay shall be duly recorded in the case diary.
Throughout, the requisite efforts be made to
preserve the samples as per the requirement
corresponding to the nature of the sample taken.
3. In the time that the DNA samples are stored
pending trial appeal etc., no package shall be
opened, altered or resealed without express
authorisation of the Trial Court acting upon a
statement of a duly qualified and experienced
medical professional to the effect that the same
shall not have a negative impact on the sanctity of
the evidence and with the Court being assured that
such a step is necessary for proper and just outcome
of the Investigation/Trial.
4. Right from the point of collection to the logical end,
i.e., conviction or acquittal of the accused, a Chain
of Custody Register shall be maintained wherein
each and every movement of the evidence shall be
recorded with counter sign at each end thereof
stating also the reason therefor. This Chain of
Custody Register shall necessarily be appended as
part of the Trial Court record. Failure to maintain
the same shall render the I.O. responsible for
explaining such lapse.
The Directors General of Police of all the States shall prepare
sample forms of the Chain of Custody Register and all other documentation
directed above and ensure its dispatch to all districts with necessary
instruction as may be required.
24 APEAL821.2022.odt
19. PW7 - Dr. Mangesh Bhagwant Raut was the Medical Officer
in the Civil Hospital at Ahmednagar and was on duty on 18.09.2019.
On that day, after the Victim spontaneously aborted, he took samples of
product of conception and sealed the same as per manual and handed
over the same to the Police Constable Adsul. Evidence of PW12 - Adsul
show that, he was the Policeman attached to Bhingar Camp Police
Station and was deputed to deposit DNA sample of product of
conception and accordingly, on 18.09.2019, at 11:30 a.m., he took
samples in sealed condition from the Medical Officer, Civil Hospital,
Ahmednagar, and came to the Police Station, and I.O. prepared report
and thereafter he went to Nashik with sample report by S.T. bus and
deposited the same with the concerned Clerk, who gave
acknowledgement to that effect. This evidence on record goes to show
that, after collecting the samples of conception by PW7 - Dr. Mangesh
Bhagwan Raut, it was handed over to PW12 - Santosh Bhausaheb Adsul,
who deposited the same to the concerned Clerk. However, the said
concerned Clerk is not examined by the Prosecution.
20. The evidence of PW16 - Dr. Shritej Ashok Jejurkar show
that, he was attached to Civil Hospital at Ahmednagar as Medical Officer
and on 10.09.2019, he was on duty. The Appellant was brought at
Bhingar Camp Police Station for DNA samples. Accordingly, he collected
the samples by preparing the papers. He took the blood samples of
25 APEAL821.2022.odt
Appellant in an empty kit sent by Laboratory of Chemical Analyzer and
after preparing necessary documents, sealed the kit and handed it over
to Police Constable of Bhingar Camp Police Station. It has come in his
cross-examination that there was scored portion in date and time, and
the MLC number and FIR number were not mentioned. He admitted
that, the samples drawn from the patient are required to be preserved in
proper condition and he was not knowing whether the facility of
preserving blood samples was available in the Civil Hospital. The
evidence of this witness do not show as to who was the Police Constable
to whom the sample was handed over. The said Police Constable is not
examined.
21. The evidence of PW17 - Dr. Ashojk Ramchandra Khatke
show that, he was attached to the Civil Hospital at Ahmednagar as
Medical Officer, and on 10.09.2019, he was on duty. The Police
Constable Adsul brought the Victim for collection of DNA samples. He
took the DNA samples in the kit, which was brought by the Police,
prepared papers and handed over the sealed packet to the Police
Constable. It has also come in his cross-examination that, the samples
drawn from the patient are required to be preserved in proper condition
and he did not know whether the facility of preserving blood samples
was available in the Civil Hospital. It has come that, the MLC number
and FIR number were not mentioned and he cannot tell whether the
26 APEAL821.2022.odt
MLC number was written on the kit when he received the same.
However, the evidence of PW12 - Adsul, discussed in Paragraph No. 19,
show that, he had collected the samples in a sealed condition from the
Medical Officer, Civil Hospital at Ahmednagar on 18.09.2019 and
deposited the same with the concerned Clerk. His evidence nowhere
show that he collected the samples of the Victim from PW17 - Dr. Ashojk
Ramchandra Khatke on 10.09.2019. Thus, his evidence gives rise to two
possibilities. One, that he collected only the samples in respect of
product of conception on 18.09.2019 from PW7 - Dr. Mangesh Bhagwan
Raut. Two, that he collected the samples from PW7 - Dr. Mangesh
Bhagwan Raut and PW17 - Dr. Ashojk Ramchandra Khatke on the same
day. If that is so, the samples of the Victim drawn by PW17 - Dr.
Mangesh Bhagwan Raut on 10.09.2019 remained in the Civil Hospital
for eight (8) days i.e. till 18.09.2019.
22. The evidence of PW15 - Mangesh Kashinath Bendkoli, the
Investigating Officer, show that, on 11.09.2019, the DNA samples of the
Appellant and the Victim and the clothes were sent to the Chemical
Analyzer for analysis through Police Hawaldar Ghorpade.
23. The evidence of PW13 - Sanjay Karbhari Ghorpade show
that on 11.09.2019, he was deputed for depositing muddemal i.e.
clothes of the Victim and the Accused, four sealed bottles and DNA
sample of the Victim and the Accused and two sealed packets which
27 APEAL821.2022.odt
were in DNA kit to the Chemical Analyzer and accordingly, he went to
Nashik and deposited the same. On the contrary, the evidence of PW18
- Dipak Yadav Kudekar, who was the Chemical Analyzer at Nashik
Laboratory, show that on 11.09.2019, he received two sealed envelopes
and two sealed plastic containers containing blood samples of the Victim
and the Appellant for DNA. This evidence show variance in the number
of articles as deposed by PW13 - Sanjay Karbhari Ghorpade and PW18 -
Dipak Yadav Kudekar.
24. The above discussed evidence show that, the complete
chain of handling the samples for the DNA is not established. There are
missing links to complete the chain of handling the samples for DNA
right from drawing the samples till the report of its analysis.
Considering the above referred evidence in respect of DNA samples in
the light of the above referred legal position, it will not be possible to
accept the DNA report showing the Appellant as the biological father of
the abortus of the Victim.
25. The learned APP in support of his submissions relied on the
judgments in (1) Ganesan v. State Represented by its Inspector of Police,
AIR 2020 SC 5019, (2) Jarnail Singh v. State of Haryana, 2013 Cri. L. J.
3976, (3) Sunil s/o Fattesing Sable Versus The State of Maharashtra,
Criminal Appeal No. 718 of 2016 decided by the Division Bench of this
Court on 3rd October, 2023, and (4) Anil Vs. The State of Maharashtra
28 APEAL821.2022.odt
and Ors., MANU/MH/3187/2024, on the point that the Conviction can
be maintained on the sole testimony of the Victim when found to be
trustworthy and reliable, and the consent in rape is incomprehensible.
The said judgments are on the evidence available in the respective cases.
At the case at hand the testimony of the Victim is not accepted for not
meeting the standard of the sterling witness, and the other corroborated
evidence not taking the case of prosecution any further, the presumption
under Section 29 of the POCSO Act will not come into play. The other
evidence of the panch witnesses do not take the case of the Prosecution
any further to prove the Charge. The other C.A. reports at Exh. 71, 72
and 73 in respect of the clothes, blood samples and the nail-clippings of
the Appellant and the Victim also do not take the case of the Prosecution
any further in proving the Charge. On re-appreciation of the evidence
available on record, as discussed above, it is not possible to maintain the
Conviction recorded by the learned Trial Court against the Appellant.
Interestingly, the learned Trial Court has acquitted the Appellant of the
Charge for the offence punishable under Section 363 of the IPC. Hence,
the following order is passed:
ORDER
[i] The Appeal is allowed.
[ii] The Judgment and Order dated 22.09.2022 passed by
learned Additional Sessions Judge, Ahmednagar, in Special
Case No. 264 of 2019, convicting and sentencing the
Appellant, is hereby quashed and set aside.
29 APEAL821.2022.odt
[iii] The Appellant is acquitted of the offences punishable under
Sections 376(2)(n) of the Indian Penal Code and Sections 4,
6 and 8 of the Protection of Children from Sexual Offences
Act, 2012.
[iv] Fine, if paid by the Appellant, be refunded to him.
[v] The Appellant be released forthwith, if not required in any
other Crime.
[vi] Muddemal articles be dealt with as per the operative order
of the learned Trial Court.
[vii] Fees of learned Advocate, Mr. R. C. Bora, appointed to
represent Respondent No. 2, is quantified at Rs. 10,000/-
[Rupees Ten Thousand], which shall be paid by the High
Court Legal Services Sub-Committee, Aurangabad Bench.
[viii] Pending Application, if any, stands disposed off.
[NEERAJ P. DHOTE]
JUDGE
SG Punde
Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 13/10/2025 14:33:34
