Bombay High Court
Saurabh S/O Anil Wankar vs State Of Mah. Thr. Pso Wardha (City) Tah. ... on 22 September, 2025
2025:BHC-NAG:9720
Judgment
471 apeal892.22 & 690.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.892 OF 2022
AND
CRIMINAL APPEAL NO.690 OF 2023
CRIMINAL APPEAL NO.892 OF 2022
Akash s/o Wamanrao Sathone,
aged about 27 years, occupation labourer,
r/o Yerangaon, tahsil Hinganghat,
district : Wardha. ..... Appellant.
:: V E R S U S ::
State of Maharashtra, through
PSO, Wardha City Police Station,
tahsil and district Wardha. ..... Respondent.
Shri Usaiduddin E.Quazi, Counsel for the Appellant.
Shri N.R.Rode, Additional Public Prosecutor for the State.
CRIMINAL APPEAL NO.690 OF 2023
Saurabh s/o Anil Wankar,
aged about 26 years, occupation:
nil, r/o Masala, Wardha (MH),
Convict No.C/11158, Central
Prison, Nagpur. ..... Appellant.
:: V E R S U S ::
.....2/-
Judgment
471 apeal892.22 & 690.23
2
State of Maharashtra,
through Police Station Officer,
Wardha (City), tahsil, district
Wardha. ..... Respondent.
Shri Piyush Rewatkar, Advocate h/f Shri C.R.Thakur,
Counsel for the Appellant.
Shri N.R.Rode, Additional Public Prosecutor for the State.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 11/08/2025
PRONOUNCED ON : 22/09/2025
COMMON JUDGMENT
1. By these appeals, appellant Akash s/o
Wamanrao Sathone, who is original accused No.2, and
appellant Saurabh s/o Anil Wankar, who is original
accused No.1, (hereinafter are referred as the accused
persons) have challenged judgment and order dated
20.10.2022 passed by learned Extra Joint Additional
Sessions Judge and Special Judge, Wardha (learned Judge
of the trial court) in Special (Child Act) Case No.27/2018.
.....3/-
Judgment
471 apeal892.22 & 690.23
2. By the said judgment impugned in these
appeals, accused No.1 Saurabh is convicted for offence
under Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (the POCSO Act) and sentenced to
suffer rigorous imprisonment for 10 years and to pay fine
Rs.5000/-, in default, to suffer further simple
imprisonment for 6 months.
Accused No.1 Saurabh and accused No.2 Akash
are convicted for offence under Section 367 read with 34
of the IPC and sentenced to suffer rigorous imprisonment
for 4 years and to pay fine Rs.3000/-, in default, to suffer
further simple imprisonment for 3 months.
They are also convicted for offence under
Section 324 read with 34 of the IPC and sentenced to
suffer rigorous imprisonment for 2 years and to pay fine
.....4/-
Judgment
471 apeal892.22 & 690.23
Rs.1000/- each, in default, to suffer further simple
imprisonment for 2 months.
3. Brief facts of the prosecution case are as under:
The victim girl aged about 17 years, residing
along with her parents, is working in Dafe Stores Wardha.
Accused No.1 Saurabh is a fruit seller and accused No.2
Akash is his maternal uncle. As accused No.1 Saurabh
was frequently visiting the said store, he developed
friendship with the victim. As per the allegations, the
victim was called by accused No.1 Saurabh in the month
of August 2017 near Government Hospital and accused
No.1 took her on his scooty to his rented room in Mahila
Ashram Area and on the promise of marriage, he
subjected her for the forceful sexual assault. Thereafter
also, he subjected her for the repeated forceful assaults on
various occasions. Due to the physical relationship
.....5/-
Judgment
471 apeal892.22 & 690.23
between accused No.1 Saurabh and the victim, the victim
got pregnant of five months. The victim disclosed about
her pregnancy to accused No.1 Saurabh telephonically.
On 7.2.2018, accused No.1 Saurabh called the victim to
Railway Station at Wardha. The victim went there and
disclosed about her pregnancy and insisted him to
perform marriage with her, whereupon accused No.1
Saurabh straightway refused to marry with her and told
her to terminate the pregnancy. On 8.2.2018, accused
No.1 Saurabh telephonically called the victim and asked
her to come at Bajaj Chowk, Wardha at about 7:00 pm.
At the relevant time, accused No.2 Akash was also present
along with him. They took the victim to Mohare Hospital
and she undergone sonography test. Dr.Mohare informed
that pregnancy of the victim cannot be terminated.
Accused No.1 Saurabh obtained the papers of sonography
test from the victim and dropped her near the railway
.....6/-
Judgment
471 apeal892.22 & 690.23
station. On 9.2.2018, he again called the victim near
Komal Medical Stores and gave her some pills for
termination of pregnancy. Both the accused persons
forcibly took her on two-wheeler. Though she shouted,
accused No.1 Saurabh pressed her mouth and put cutter
on her neck and carried her towards Deoli via Waigaon.
But, the accused persons took her in a field and accused
No.2 Akash caught hold of the victim and accused No.1
Saurabh inflicted injuries on her right leg with cutter. Her
pink colour salwar was torn at two places and it was
soaked with blood as had received bleeding injuries.
Thereafter, she was taken to the house of accused No.2
Akash at Hinganghat wherein her mobile phone was
snatched. As her salwar was soaked with blood and torn,
the wife of accused No.2 Akash gave her another salwar
of black colour to wear. The victim overheard the talk
between the accused persons that they would take her to
.....7/-
Judgment
471 apeal892.22 & 690.23
Madhya Pradesh and accused No.1 Saurabh left the place
and did not return back during the night. In the early
morning of 10.2.2018, the victim saw that accused No.2
Akash and his wife were in deep sleep, she eloped from
the house, came to the bus stop, made phone call to her
brother, and called him at Hinganghat. Thereafter, she
disclosed the incident to him and they approached to the
police station and lodged report.
4. On the basis of the said report, the police
registered the crime against the accused persons.
5. During the investigation, the investigating
officer has visited the alleged spot of the incident, drawn
spot panchanama, and also seized stained salwar of the
victim from the house of accused No.2 Akash. He has also
seized black colour salwar on the persons of the victim.
The other clothes of the victim are also seized. The
.....8/-
Judgment
471 apeal892.22 & 690.23
clothes of the accused are also seized. The victim has
shown spot of incident to the investigating officer as well
as panchas. Accordingly, spot panchanamas are drawn.
The victim was referred for medical examination and
medical examination was carried out. During medical
examination, injuries are found on her person. The
accused persons are arrested. The DNA Samples of the
victim as well as the accused are obtained. The medical
certificate from Dr.Mohare was collected. The extract of
PCPNDT register was also seized. The victim has
delivered a male child. After filing of the FIR on
16.6.2018, all incriminating articles as well as blood
samples are forwarded to the chemical analysis as well as
DNA examination and after completion of the
investigation, chargesheet was submitted.
6. Learned Judge of the trial court framed charge
vide Exh.52. The contents of the charge are read over to
.....9/-
Judgment
471 apeal892.22 & 690.23
the accused persons and they pleaded not guilty and
claimed to be tried.
7. In support of the prosecution case, the
prosecution examined in 9 witnesses, as follows:
PW Names of Witnesses Exh.
Nos. Nos.
panchanama as well as recovery
panchanama
3 Manoj Kharikar, pancha on spot 83
panchanama
6 Dr.Nitinkumar Nimodiya, Medical Officer 100
9 Babasaheb Thorat, the Investigating 115
Officer
8. Besides the oral evidence, the prosecution
placed reliance on seizure memo Exh.63, birth certificate
.....10/-
Judgment
471 apeal892.22 & 690.23
Exh.65, requisition for calling panchas Exh.72, letter by
forest office Exh.73, memorandum statement of accused
No.2 Akash Exh.75, recovery panchanama Exh.76,
electricity bill Exh.77, requisition to call panchas Exh.84,
spot panchanama Exh.87, spot panchanama of assault by
cutter Exh.86, requisition letter to the medical officer
Exh.91, injury report Exh.92, query letter Exh.93, query
letter Exh.94, requisition letter to the medical officer
Exh.96, medial report Exh.97, requisition letter to the
medical officer Exh.101, medical certificate Exh.102,
requisition letter Exh.105, extract of the register
maintained as per the provisions of the PCPNDT Act,
sonography report Exh.107, requisition Exh.112, arrest
panchanama of accused No.2 Akash Exh.117, letter to CA
for calling DNA Kit Exh.118, letter to CA for preserving
DNA samples Exh.119, arrest panchanama of accused
No.1 Saurabh Exh.120, seizure memo Exhs.121, letter to
.....11/-
Judgment
471 apeal892.22 & 690.23
the medical officer for obtaining samples of accused No.2
Akash Exh.123, letter to CA to obtain DNA kit to collect
samples of accused No.1 Saurabh Exh.124, seizure memo
as seizure of samples of accused No.1 Saurabh Exh.125,
letter to CA Exh.126, seizure of samples of victim
Exh.127, seizure memo of vehicle Exh.128, letter to CA
Exh.129, and CA reports Exhs.132 to 134.
9. On the basis of the said oral as well as the
documentary evidence, the prosecution claimed that the
prosecution has proved its case beyond reasonable doubt.
10. All incriminating evidence is put to the accused
persons in order to obtain their explanations regarding
the evidence appearing against them. The defence of the
accused persons is of total denial and of false implication.
.....12/-
Judgment
471 apeal892.22 & 690.23
11. Learned Judge of the trial court, after
appreciating the evidence, held the accused persons guilty
and convicted them as the aforesaid.
12. Heard learned counsel Shri Usaiduddin
E.Quazi for accused No.2 Akash, learned counsel Shri
Piyush Rewatkar for accused No.1 Saurabh, and learned
Additional Public Prosecutor Shri N.R.Rode for the State.
13. Learned counsel for accused No.1 submitted
that though the victim has stated that she was below 18
years of age, her age is not proved by the prosecution.
The entire evidence of the victim sufficiently shows that
out of love affair, she joined the company of accused No.1
Saurabh and physical relationship was developed between
them. Thus, it is consensual act and physical relationship
was by the consent of the victim. He further submitted
that mere breach of promise to perform the marriage is
.....13/-
Judgment
471 apeal892.22 & 690.23
not sufficient to attract offences under Section 6 of the
POCSO as well as under Section 376(2)(n) of the IPC.
The evidence of the victim is suffering from various
infirmities and the same infirmities are proved by the
defence during the cross examination of the investigating
officer. Learned Judge of the trial court has not
considered that the alleged incident has occurred out of
love affair and the victim herself had joined the company
of accused No.1 Saurabh. The DNA report is also not
supporting the prosecution case as the accused is
exonerated as biological father of the child delivered by
the victim girl. Thus, the entire prosecution case fails
and, therefore, the judgment impugned in these appeals
deserves to be quashed and set aside.
14. In support of his contentions, learned counsel
for accused No.1 Saurabh placed reliance on following
decision:
.....14/-
Judgment
471 apeal892.22 & 690.23
1. Criminal Appeal No.181/2019 (Bhaiyya s/o
Vijay Chakre vs. State of Maharashtra and anr)
decided by this court on 23.7.2024;
2. xxxxxxx vs. Inspector of Police, reported in
2025 SCC OnLine Mad 3178, and
3. Kattavellai @ Devakar vs. State of
Tamilnadu, reported in 2025 LiveLaw (SC)
703.
15. Learned counsel for accused No.2 Akash
submitted that as far as accusations against the accused
are concerned, the same are only to the extent of offence
under Section 367 of the IPC that the kidnapping or
abducting in order to subject a person to grievous hurt
and slavery etc. Even accepting the evidence of the victim
as it is, it nowhere shows that it was accused No.2 Akash
who either kidnapped her by using force and thereby
caused her any injuries. Therefore the offence against
accused No.2 Akash is not established. Learned Judge of
.....15/-
Judgment
471 apeal892.22 & 690.23
the trial court has not considered the same and
erroneously convicted the accused person.
16. In support of his contentions, learned counsel
for accused No.2 has placed reliance on following
decisions:
1. Shashipal alias Shishu vs. State (NCT of
Delhi), reported in (2022)9 782;
2. Gadadhar Chandra vs. The State of Bengal,
reported in 2022 ALL SCR (Cri) 690; and
3. Mohammad Iqhbal Mangu Ismail vs. The
State of Maharashtra, reported in 2024 ALL
MR (Cri) 711.
17. Per contra, learned Additional Public
Prosecutor for the State submitted that in order to prove
the charges, the prosecution has examined the victim who
narrated about the alleged incident, which is corroborated
by the medical evidence. The allegation of the victim,
.....16/-
Judgment
471 apeal892.22 & 690.23
that she was assaulted by the accused, is substantiated by
the medical report which shows that on medical
examination, two incised wound are found on her person.
The intention of accused No.1 Saurabh can be gathered
from the circumstance that on the false promise of
marriage, he subjected her for the forceful sexual assault
and when it revealed that the victim has not terminated
the pregnancy, he took the victim to the medical
practitioner PW7 Dr.Ujwala Mohare, who has also denied
to carry out termination of the pregnancy. Thereafter, he
attempted to administer her pills for termination of the
pregnancy. Thereafter, he took her at the house of
accused No.2 Akash. Prior to that, she was taken in field
and assaulted by accused No.1 Saurabh by using the cutter.
18. Another incriminating circumstance, that the
victim has testified that her salwar was soaked in a blood
and was torn at two places, is substantiated by the
.....17/-
Judgment
471 apeal892.22 & 690.23
evidence of the victim as well as the recovery of the said
blood stained salwar from the house of accused No.2
Akash.
19. Thus, there is not only the oral evidence of the
victim but also the said evidence is substantiated by the
circumstance of the recovery of blood stained salwar. The
medical certificate shows that the victim was subjected for
the forceful sexual assault which resulted into her
pregnancy. At the relevant time, she was 17 years of age.
Therefore, her consent was not relevant. Merely because
the DNA Report exonerated the accused is not sufficient
to acquit the accused as there may be several reasons for
not concluding the accused as biological father. When the
evidence of the victim is corroborated by the other
circumstances, the said evidence is to be acted upon and
the appeal being devoid of merits deserves to be
dismissed.
.....18/-
Judgment
471 apeal892.22 & 690.23
20. Accused No.1 Saurabh is charge for the offence
under Section 6 of the POCSO Act and accused No.1
Saurabh and accused No.2 Akash are facing charges
under Sections 367 and 324 of the IPC. As per the
allegations of the victim, accused No.1 Saurabh promised
her that would marry with her and subjected her for
sexual assault, which resulted into her pregnancy. It is
further alleged that she was forcefully taken by the
accused and assaulted her with the co-accused.
21. Whether the victim was minor at the time of
the incident, the victim has narrated her birth date as
13.10.1999. The alleged first incident of sexual assault
on her took place in August 2017.
22. To prove the age of the victim, the prosecution
placed reliance on the evidence of the victim. She
specifically narrated that her birth is 13.10.1999.
.....19/-
Judgment
471 apeal892.22 & 690.23
23. During the investigation, the investigating
officer has collected her birth certificate which is issued
by the Health Department of the Gram Panchayat,
Sawangi (Zade) and to prove the date of birth, PW8
Smita Thakare, Gram Sewak, who was serving as Gram
Sewak, was examined. As per her evidence, the victim
birth date was recorded as 13.10.1999. She received
requisition for issuance of said birth certificate. She
deposed that the register as to the entries of births and
deaths is maintained in her office. On the basis of the
information received, that birth of the victim took place at
Sawangi (Zade) at house, the entry was taken. The
grandfather of the victim has given the said information
on 26.10.1999 and accordingly, the entry was taken.
PW8 Smita Thakare, is cross examined and she
admitted that the signature of the person who gave the
information is to be obtained on the register. In the
.....20/-
Judgment
471 apeal892.22 & 690.23
present case, no such signature is obtained. Except that
admission, nothing incriminating is brought on record.
The birth date of the victim is not at all challenged during
the cross examination. The extract of the register
Exh.113 shows that on the basis of the information given
by the grandfather, entry as to the birth date was taken in
the register on 26.10.1999. As far as the birth date of the
victim is concerned, her evidence shows that she has
narrated her birth date as above. Though she is cross
examined at length, she is not cross examined as to her
age.
24. Thus, as far as the evidence of the victim as to
her age is concerned, the same is remained unchallenged.
The birth certificate, Exh.65, collected by the
investigating officer during the investigation, is issued
under Sections 12 and 17 of the Registration of Births
.....21/-
Judgment
471 apeal892.22 & 690.23
and Deaths Act, 1969 and Rules 8 and 13 of the
Maharashtra Registration of Births and Deaths Rules.
25. As per provisions of Rule 9 of the Maharashtra
Registration of Births and Deaths Rules, 1976, this
Certificate is issued by the Sub-Registrar acting under the
provisions of the Registration of Births and Deaths Act,
1969. Section 7 thereof deals with appointment of
Registrars for each local area comprising the area within
the jurisdiction of the Municipality, Panchayat or other
local authority. It is the duty of the Registrar to register
every birth and every death which takes place in his
jurisdiction. This Act mandates that the Registrar should
discharge his duties carefully. Section 8 of this Act
mandates each head of the house to report birth in the
family to the Registrar. The Act provides for maintenance
of register for recording birth and death within the local
area. That is how, certificate came to be issued by the
.....22/-
Judgment
471 apeal892.22 & 690.23
Sub-Registrar as per provisions of Sections 12 and 17 of
the said Act. The Birth Certificate, as such, is issued by
the Public Officer and it is a document forming the record
of the acts of the Public Officer and therefore the same is
a public document within the meaning of the said term as
per provisions of Section 74 of the Indian Evidence Act,
1872. The same is admissible in evidence by mere
production thereof in view of provisions of Section 77 of
the Evidence Act.
26. Section 17 of the Registration of Births and
Deaths Act, 1969, provides for search of Birth Register
and supply of extract thereof by certifying the same by
the Registrar or other authorized Officer. Section 17 of
the said Act provides that such extract shall be admissible
in evidence for the purpose of proving birth or death to
which the entry relates. The Birth Certificate is, in fact,
the extract of Birth Register in respect of entry of birth of
.....23/-
Judgment
471 apeal892.22 & 690.23
the victim child and as such, admissible in evidence.
Section 35 of the Evidence Act, 1872, makes it clear that
if entry is made by public servant in the official book in
discharge of his official duty, then such entry becomes the
relevant fact and admissible in evidence. Section 35 of
the Indian Evidence Act lays down that entry in any
public, official book, register, record stating a fact in issue
or relevant fact and made by a public servant in the
discharge of his official duty specially enjoined by the law
of the country is itself the relevant fact. To render a
document admissible under Section 35, three conditions
must be satisfied, firstly, entry that is relied on must be
one in a public or other official book, register or record,
secondly, it must be an entry stating a fact in issue or
relevant fact; and thirdly, it must be made by a public
servant in discharge of his official duty, or any other
person in performance of a duty specially enjoined by
.....24/-
Judgment
471 apeal892.22 & 690.23
law. It is, thus, clear that the Birth Certificate issued by
the statutorily appointed competent authority is relevant
and admissible. The birth certificate is a public
document and primary evidence which can be proved by
production in view of Section 77 of the Indian Evidence
Act.
27. The Hon'ble Apex Court, in the case of
Mahadeo vs. State of Maharashtra and anr, reported in
(2013)14 SCC 637 held that Rule 12(3) of the Juvenile
Justice (Care and Protection of Children) Rules, 2007 is
applicable in determining the age of the victim of rape.
Said Rule 12(3) reads as under:
"Rule 12(3) : In every case concerning a child or
juvenile in conflict with law, the age
determination inquiry shall be conducted by the co
urt or the Board or, as the case may be, the
Committee by seeking evidence by obtaining-
.....25/-
Judgment
471 apeal892.22 & 690.23
(a) i. the date of birth certificate from the s
chool (other than a play school) first
attended; and in the absence whereof;
ii. the birth certificate given by a
corporation or a municipal authority
or a panchayat;
iii. the matriculation or equivalent
certificates, if available;
(b) and only in the absence of either (i), (ii) or (iii)
of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child.
28. In case, exact assessment of the age cannot be
done, the court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them, may,
if considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side within
the margin of the one year, and, while passing orders in
such case shall, after taking into consideration such
.....26/-
Judgment
471 apeal892.22 & 690.23
evidence as may be available, or the medical opinion, as
the case may be, record a finding in respect of his age
and either of the evidence specified, in any of the clauses
(a)(i), (ii), (iii) or in the absence whereof, clause (b)
shall be the conclusive proof of the age as regards such
child or the juvenile in conflict the law.
29. Thus, in the present case, as per the evidence
of the victim and PW8 Smita Thakare, Gram Sewak, date
of birth of the victim is 13.10.1999, which remained
unchallenged and is corroborated by the birth certificate
as well as the extract of the birth register.
30. Thus, the prosecution is succeeded in proving
that the victim was below 18 years of age. Thus, when
the first incident of sexual assault occurred in August
2017, she was below 18 years of age.
.....27/-
Judgment
471 apeal892.22 & 690.23
31. The accused persons are also chargesheeted for
the offence punishable under Section 367 of the IPC.
32. Section 367 of the IPC reads as under:
"367. Kidnapping or abducting in order to
subject person to grievous hurt, slavery, etc. -
Whoever kidnaps or abducts any person in
order that such person may be subjected, or
may be so disposed of as to be put in danger of
being subject to grievous hurt, or slavery, or to
the unnatural lust of any person, or knowing it
to be likely that such person will be so
subjected or disposed of, shall be punished
with imprisonment of either description for a
term which may extend to ten years, and shall
also be liable to fine".
33. Thus, in view of Section 367 of the IPC,
whoever kidnaps or abducts any person in order that such
person may be subjected, or may be so disposed of as to
.....28/-
Judgment
471 apeal892.22 & 690.23
be put in danger of being subject to grievous hurt, or
slavery, or to the unnatural lust of any person, or knowing
it to be likely that such person will be so subjected or
disposed of, shall be punished with imprisonment of
either description for a term which may extend to ten
years, and shall also be liable to fine.
34. The evidence of the victim shows that on
8.2.2018 accused No.1 Saurabh called her at Bajaj Chowk
near Komal Medical Store. By informing her mother, she
left the house and went to meet the accused whereat both
the accused persons were present. They insisted her to sit
on two-wheeler and when she shouted, accused No.1
Saurabh pressed her mouth and put sharp cutter on her
neck. At the relevant time, accused No.2 Akash was riding
two-wheeler. They took her by Wardha-Waigaon Road at a
distance of two kilometers and brought her to a field.
Accused No.2 Akash caught hold her and accused No.1
.....29/-
Judgment
471 apeal892.22 & 690.23
Saurabh has given blow by that cutter on her right leg
thigh and calf portion. Due to which, she sustained
grievous injuries. Even her pink colour salwar was torn
and also blood stained. Both the accused persons have
taken her to the house of accused No.2 Akash wherein
wife of accused No.2 Akash provided her another salwar
and her blood stained salwar was at the house of accused
No.2 Akash.
35. To corroborate this version, the prosecution has
examined PW2 Siddharth Ghodke, who acted as a pancha
on memorandum statement of accused No.2 Akash and
recovery of articles at his instance. He deposed that on
15.2.2018 at the police station wherein another pancha
was also present. In their presence, accused No.2 Akash
gave memorandum statement that he will show the place
where he kept the cutter, blood stained salwar, mobile
phone, and the medical documents of the victim. The said
.....30/-
Judgment
471 apeal892.22 & 690.23
memorandum statement was reduced into writing at
Exh.75. Thereafter, the accused led them towards his
house and produced the blood stained salwar, one cutter,
sonography test report of the victim, and one mobile
phone which was of the victim. Accordingly, panchanama
was drawn. The victim sustained injuries, as per her
evidence, due to assault by accused No.1 Saurabh and to
prove this circumstance, the prosecution placed reliance
on the evidence of PW4 Dr.Shailaja Kale who examined
the victim on 10.2.2018. Her evidence shows that she
was serving as Medical Officer in General Hospital,
Wardha since 2006 to 2018. On 10.2.2018, she received
a requisition letter from Police Station, Sawangi (Meghe)
for medical examination of the victim. The requisition
letter is at Exh.19. On her examination, she found incised
wound at lower thigh lateral aspect oblique direction
downward and medial side. Size of injury was 10x2x1/2
.....31/-
Judgment
471 apeal892.22 & 690.23
cm brownish colour meaning thereby injury was not fresh
and incised wound on lower part of right knee joint
oblique direction downward and medial side. Size of
injury was 8x2x1/2 cm brownish colour. The injury was
grievous and caused due to hard and sharp object. She
further deposed that the above injuries could be caused
by cutter having sharp edge. Both the injuries might have
been caused before 24 hours of examination of the victim.
Accordingly, she has issued injury report. On 17.3.2018,
she received query report and the weapon was forwarded
to her. She has examined the weapon. The weapon was
a cutter having iron blade and plastic handle. The size of
the blade 6 cm x 1/2 cm and the handle was of the size
14 cm in length and 2 cm in breadth. It was of red colour.
It was sharp object. She replied to the query that injury
received by the victim may be possible by the said
.....32/-
Judgment
471 apeal892.22 & 690.23
produced object. The medical certificate is at Exh.92 and
query report is at Exh.94.
36. On this aspect, the victim is cross examined by
the defence. The attempt was made to bring on record
that there was love affair between her and accused No.1
Saurabh. During the cross examination, the fact of
assault on her was put in the form of denial, but the
victim specifically explained that the injury marks are on
her thigh as well as on her leg. Thus, as far as assault on
her by accused No.1 Saurabh in presence of accused No.2
Akash is concerned, the same was not shattered. On the
contrary, this aspect, that her salwar was blood stained, is
corroborated by the evidence of PW2 Siddharth Ghodke,
who stated that in his presence accused No.2 Akash has
made a memorandum statement and led them towards
his house and produced not only the cutter but also the
said blood stained salwar. Though he is cross examined
.....33/-
Judgment
471 apeal892.22 & 690.23
at length, as far as voluntary statement is concerned, the
cross examination nowhere affects the evidence of PW2
Siddharth Ghodke as far as voluntary statement by
accused No.2 Akash is concerned. The evidence of PW2
Siddharth Ghodke, as to the discovery of fact, that the
said incriminating articles were kept at the house of
accused No.2 Akash, is further established and no
effective cross examination was carried out to falsify the
said version. The said incriminating article, salwar, was
referred along with the requisition letter by the
investigating officer for chemical analysis. The CA Report
Exh.132 shows that Article-1 marked as A2 pyjama torn
was stained with blood which is human blood. The CA
Report Exh.132 shows that it has moderate number of
blood stains ranging from about 01 cm to 10 cm in
diameter from right portion and it is of Blood Group "A".
.....34/-
Judgment
471 apeal892.22 & 690.23
Exh.138 shows that Blood Group of the victim is Blood
Group "A".
37. Thus, the victim was taken by accused persons
by calling her on a pretext of meeting at Komal Medical
Store on 9.2.2018 and they have forcefully taken her on
two-wheeler, thereafter, taken her in agricultural field,
accused No.1 Saurabh assaulted her by cutter, and
accused No.2 Akash caught hold her at the relevant time,
due which she sustained grievous injuries, are established
by the evidence of the victim and by the evidence of PW4
Dr.Shailaja Kale who examined the victim. Though PW4
Dr.Shailaja Kale is cross examined, it was to the extent
that size size of injury No.1 was 10 cm in length and 2 cm
in breadth 1/2 cm in depth. Size of injury No.2 was 8 cm
in length and 2 cm in breadth and 1/2 cm in depth. The
general cross examination was carried out as to the fact
that breadth of injury may depend upon the thickness of
.....35/-
Judgment
471 apeal892.22 & 690.23
the object. She admitted that breadth of the injury
cannot be more than the thickness of the object. She has
not mentioned as to the thickness of the blade in her
report. She further admitted that in both the injuries scab
was formed. She further admitted that if scab is found
over the injury, depth cannot be measured, but she
explained that since the injuries were not fully filled up,
there was gap and, therefore, she could measure the
depth of the injuries.
Thus, the evidence of Medical Officer PW4
Dr.Shailaja Kale also corroborates the version that the
victim has sustained the injuries on her person.
38. Thus, not only the evidence of the victim but
also the evidence of pancha witness PW2 Siddharth
Ghodke, who proves seizure of blood stains on salwar and
cutter at the instance of accused No.2 Akash from his
.....36/-
Judgment
471 apeal892.22 & 690.23
house, wherein blood stains of Blood Group of the victim
were found and also corroborated by the medical
evidence.
39. To prove the charge of kidnapping for causing
grievous hurt, in view of Section 367 of the IPC, the
prosecution has adduced the evidence of the victim,
which shows that she was taken by both the accused
persons on two-wheeler by threatening her by means of
sharp weapon like cutter and by causing her injuries.
Though she is cross examined and the defence has denied
the fact, the evidence as to the recovery of her salwar
from the house of accused No.2 Akash is established by
PW2 Siddharth Ghodke and blood stains found on the
said salwar of Blood Group "A", which is of a victim, as per
CA Reports Exhs.132 and 133. The aspect of injury
sustained by her is also established by PW4 Dr.Shailaja
Kale, who observed the incised wound on the person of
.....37/-
Judgment
471 apeal892.22 & 690.23
the victim, which are two in numbers. Thus, the evidence
of the victim that on disclosure by her that she is pregnant
and Medical Officer PW7 Dr.Ujwala Mohare shown her
inability to terminate the pregnancy and also advised that
pregnancy cannot be terminated, accused No.1 Saurabh
made an attempt by calling her on 9.2.2018, by giving her
pills for termination of pregnancy, took her in agricultural
field, and assaulted her, took her to the house of accused
No.2 Akash, but somehow she rescued herself and
contacted her brother and returned the home. This
evidence sufficiently establishes that she was taken by
both the accused persons from lawful guardianship of her
parents. Admittedly, on receipt of call from accused No.1
Saurabh, when she came at the spot in front of Komal
Medical Store, she was forcefully taken by the accused.
40. The victim was minor at the relevant time. She
was taken by enticing her out of keeping of lawful
.....38/-
Judgment
471 apeal892.22 & 690.23
guardian. which is an essential ingredient of the offence
of kidnapping.
41. This aspect is considered by the Hon'ble Apex
Court in the case of S.Varadarajan vs. State of Madras,
reported in AIR 1965 SC 942 wherein it has been held
that taking or enticing away a minor out of the keeping of
a lawful guardian is an essential ingredient of the offence
of kidnapping. Admittedly, there is a distinction between
"taking" and allowing a minor to accompany a person.
The two expressions are not synonymous though we
would like to guard ourselves from laying down that in no
conceivable circumstance can the two be regarded as
meaning the same thing for the purposes of Section 361
of the IPC.
42. In the present case, the victim left her father's
protection till she reaches near Komal Medical Store.
.....39/-
Judgment
471 apeal892.22 & 690.23
Subsequent to that, there was no voluntarily joining the
accused persons, but these two accused persons have
taken her along with them by using force and caused her
injuries, which is established by the prosecution.
43. Thus, the allegation, that she was taken by
both the accused persons with an intent to cause grievous
hurt, is established by the prosecution.
44. The aspect of sexual assault on the victim, as
per the prosecution, is established on the basis of the
evidence of the victim and corroborated by the medical
evidence.
45. The evidence of the victim shows that in
August 2017 accused No.1 Saurabh called her near Civil
Hospital. At the relevant time, she was working in Dafe
Stores, Wardha. She met accused No.1 Saurabh who took
her in a rented room and on the promise of marriage with
.....40/-
Judgment
471 apeal892.22 & 690.23
her, he subjected her for forceful sexual assault and,
thereafter, on various occasions, he subjected her for the
forceful sexual assaults, which resulted into her
pregnancy. When accused No.1 Saurabh came to know
about the pregnancy, he took her to the hospital of
Dr.Ujwala Mohare. Dr.Mohare has carried out the
Ultrasound Sonography Test and disclosed that pregnancy
cannot be terminated. The accused obtained test report
and dropped her at the railway station. Again, on
9.2.2018, he called her near Komal Medical Store on the
pretext that he would give her some pills to terminate the
pregnancy. Thereafter, both the accused persons
forcefully took her in the field and accused No.1 Saurabh
assaulted her and at the relevant time, accused No.1
Akash was holding her hands, due to which she sustained
injuries on right thigh and on right leg. Her salwar was
blood stained due to bleeding injuries. The wife of
.....41/-
Judgment
471 apeal892.22 & 690.23
accused No.2 Akash provided her another salwar and that
blood stained salwar was in the house of accused No.2
Akash. accused No.1 Saurabh left her at the house of
accused No.2 Akash and did not return back. In the early
morning of 10.2.2018, she witnessed that accused No.2
and his wife are in sleep. She rescued herself, came at
Hinganghat Bus Stand, called her brother, her parents
came at Hinganghat Bus Stand, and took her at the
Sawangi Police Station. She was referred by the police for
medical examination. After witnessing the injuries on her
person, her statement was recorded. She has narrated the
said incident to the Medical officer.
Her cross examination shows that there was
love affair between her and accused No.1 Saurabh, but
she denied that physical relationship was developed with
her consent out of the love affair. She specifically stated
that accused No.1 Saurabh forcefully subjected her for
.....42/-
Judgment
471 apeal892.22 & 690.23
sexual assault. The fact of the assault on her was tried to
be denied by accused No.1 Saurabh. However, she
explained that the said marks of said injuries are still on
her left thigh and left leg. Thus, the defence of the
accused, that out of love affair physical relationship was
developed, is denied by the victim.
46. To corroborate her version of the sexual
assault, the prosecution has examined PW5 Dr.Manisha
Nasare and PW7 Dr.Ujwala Mohare.
The evidence of PW5 Dr.Manisha shows that on
12.2.2018 she received requisition from Wardha City
Police Station for medical examination of the victim. She
was brought by LPC Bakkal No.1356. The requisition
letter is at Exh.96. After obtaining her consent, she
examined her. The victim narrated the incident that she
was having love affair with accused No.1 Saurabh and
.....43/-
Judgment
471 apeal892.22 & 690.23
there was physical relationship with him. The last
intercourse was occurred prior to 2 months. As she
disclosed about her pregnancy to accused No.1 Saurabh,
he assaulted her on over right leg by knife on 9.2.2018 at
8:13 pm in the field. She was admitted in the
Government Hospital, Wardha on 11.2.2018. On
examination, PW5 Dr.Manisha has seen two sutured
wounds over right thigh of size 16 cm in length and 14
cm over right leg lateral to posterior aspect and third
wound was linear abrasion of size 15 cm x 0.5 cm over
right thigh adjacent to the above wounds present. On
examination, she found that the victim is carrying 21
weeks pregnancy. She collected the blood samples of the
victim for DNA analysis. She also advised for the
ultrasound sonography. Accordingly, she issued medical
certificate Exh.97. The victim was indoor patient in the
hospital from 11.2.2018 to 17.2.2018. On 15.2.2018, the
.....44/-
Judgment
471 apeal892.22 & 690.23
police have brought DNA kit along with identification and
declaration form. She filled the same form and obtained
blood samples of the victim in the presence of LPC Ranjita
and two nurses. The identification declaration form is at
Exh.98. During the cross examination, only it was
brought on record that she has not personally treated the
injuries of the victim. She admitted that the injury report
of the victim was not seen by her. Rest of the cross
examination is in the denial form.
PW7 Dr.Ujwala Mohare, is the private
practitioner practising at Wardha. As per her evidence, in
her hospital, the test of Ultrasound Sonography is carried
out and necessary register is maintained in view of the
provisions of PCPNDT Act. On 8.2.2018, the victim was
brought to her hospital and she conducted the Ultrasound
Sonography. She has taken entry in the said register at
Sr.No.47. The victim was unmarried. The entry in the
.....45/-
Judgment
471 apeal892.22 & 690.23
register was taken by nurse. On her examination, the
victim was found pregnant of 22 weeks. Accordingly, she
issued report Exh.107. She has also provided extract of
register to the Investigating Officer. Perusal of the extract
of the register Exh.106, name of the victim is at Sr.No.47
dated 8.2.2018. Though she is cross examined, nothing
incriminating is brought on record. She only admitted
that as per MTP Act, she cannot mention that the victim
came to her hospital for termination of pregnancy.
47. Thus, the evidence of the victim corroborated
by the evidence of PW5 Dr.Manisha and PW7 Dr.Ujwala
Mohare sufficiently shows that there was sexual activity
with the victim and the victim was pregnant of 22 weeks,
when she was examined.
48. Learned defence counsel vehemently submitted
that the DNA Report exonerate accused No.1 Saurabh as
.....46/-
Judgment
471 apeal892.22 & 690.23
biological father and, therefore, the version of the victim
is falsified. Perusal of the evidence of PW5 Dr.Manisha
shows that she obtained blood samples of the victim in a
DNA Kit as per requisition of the investigating officer.
49. PW6 Dr.Nitinkumar Nimodiya, is the another
Medical Officer, who has examined accused No.1
Saurabh. As per his evidence, he received requisition
letter from the Police Station, Wardha of accused No.1
Saurabh. The requisition letter is at Exh.101. The
accused has given history of the incident. As per the
history, he had friendship with the victim and the alleged
sexual assault with the victim for the period of September
2017 to November 2017. On his examination, he found
that there is nothing to suggest that the accused is not
capable of performing coitus.
.....47/-
Judgment
471 apeal892.22 & 690.23
50. The core of the submissions of learned counsel
for accused No.1 Saurabh is that as the analysis of DNA
Samples exonerated him as a biological father of the child
delivered by the victim, there is no material evidence to
connect him with the alleged offence.
51. The evidence of the victim shows that she was
examined by PW5 Dr.Manisha Nasare and her blood
samples are obtained by the Medical Officer. This fact is
also substantiated by PW5 Dr.Manisha Nasare which
shows that on examination, she found that the victim was
carrying 21 weeks pregnancy and, therefore, she collected
DNA Samples as per the police requisition and handed
over the same to the investigating officer.
52. The evidence of Investigating Officer PW9
Babasaheb Thorat also shows that he has communicated
with the Deputy Director, Forensic Science Laboratory,
.....48/-
Judgment
471 apeal892.22 & 690.23
Nagpur to obtain DNA Kit by communications dated
14.2.2018 and 20.2.2018 and obtained the DNA Kit for
obtaining samples. Admittedly, the said samples are
obtained vide panchanama Exh.125 dated 22.2.2018 and
18.2.2018. The said samples are forwarded on 22.2.2018
and the samples were analyzed from 22.2.2018 to
3.6.2019. There is no evidence that the samples obtained
were in intact condition and there is no chance of
tampering since it was seized till the same were
forwarded to the DNA Analysis.
53. The Hon'ble Apex Court in the case of Ranu
Thakur vs. Dayashanker, reported in 2015 ALL MR CRI
3676 held that having regard to the facts and
circumstances of the case, particularly the allegation of
rape against an unmarried helpless alleged minor girl in
consequence of which she begotten the child after the
rape committed by respondent No. 1, are the glaring
.....49/-
Judgment
471 apeal892.22 & 690.23
facts, which make us to exercise the power and grant of
permission to maintain the appeal by the appellant
herein. We are also not satisfied with the reason
assigned by the learned Division Bench of the High Court
in the impugned order in holding that DNA test of the
child was conducted, which reveals that the respondent
No. 1 was not the biological father of the child. We are of
the considered view that the High Court is required to
obtain second opinion of DNA by obtaining fresh samples
of respondent No. 1 and the child and get the DNA test
done afresh from the competent authority by taking all
necessary safeguards/steps in this regard for the reasons
mentioned supra.
54. In the case of xxxxxxx vs. Inspector of Police
supra, the Hon'ble Apex Court has dealt with the issue
value of the DNA evidence and by referring its earlier
decision in Mukesh v. State (NCT of Delhi), (2017) 6 SCC
.....50/-
Judgment
471 apeal892.22 & 690.23
1 to point out the value of the DNA evidence and
reproduced the observations, as follows:
"DNA technology accurately identifies
criminals that DNA profiling is not statutory
scheme under Section 53-A of the CrPC, and
such profiling is must in case of examination of
raped victim. As per Section 164-C of the
CrPC, DNA report deserves to be accepted
unless it is absolutely dented - if the sampling
is proper and if there is no evidence of
tampering of samples, DNA report is to be
accepted.
DNA analysis is 100% accurate and at present
a pre-dominant forensic technique for
identifying criminals. DNA is genetic blue print
of life - no two persons accept identical twins
have identical DNA that DNA finger print is
identical for every part of body whether it is
blood, saliva, brain, kidney or foot or any part
of body - a burning or cutting can change the
.....51/-
Judgment
471 apeal892.22 & 690.23
mistake of a finger print, but DNA cannot be
changed, no matter whatever happens to body.
DNA technology as a part of Forensic Science
and scientific discipline not only provides
guidance to investigation but also supplies the
Court accrued information about the tending
features of identification of criminals. The
recent advancement in modern biological
research has regularized Forensic Science
resulting in radical help in the administration
of justice. In our country also like several other
developed and developing countries, DNA
evidence is being increasingly relied upon by
courts. After the amendment in the Criminal
Procedure Code by the insertion of Section 53A
by Act 25 of 2005, DNA profiling has now
become a part of the statutory scheme. Section
53A relates to the examination of a person
accused of rape by a medical practitioner.
Similarly, under Section 164A inserted by Act
25 of 2005, for medical examination of the
.....52/-
Judgment
471 apeal892.22 & 690.23
victim of rape, the description of material
taken from the person of the woman for DNA
profiling is must.
From the aforesaid authorities, it is quite clear
that DNA report deserves to be accepted unless
it is absolutely dented and for non acceptance
of the same, it is to be established that there
had been no quality assurance. If the sampling
is proper and if there is no evidence as to
tampering of samples, the DNA test report is to
be accepted."
In paragraph Nos.15, 16, and 17, it is further
observed that "the prosecution case has two aspects -
firstly, the accused allegedly committed penetrative sexual
assault on the victim girl thrice and secondly, the victim
girl became pregnant through the accused. However, DNA
report contradicts the later claim. Despite this, the
prosecution may still prove the penetrative sexual assault
.....53/-
Judgment
471 apeal892.22 & 690.23
charge. The possibility remains that another individual
impregnated the victim, resulting in birth of male child.
It is shocking that despite the negative DNA
report, the prosecution has not sought court permission
for further investigation or pursued identifying the
individual responsible for the pregnancy. Two possibilities
exist: (1) two perpetrators, with one responsible for the
pregnancy, or (2) a single perpetrator responsible for both
the assault and pregnancy, potentially exonerating the
petitioner. Further investigation is crucial to determine
the actual culprit and the petitioner's involvement, if any.
The POCSO offences are serious in nature,
attracting more severe punishment and warrant
meticulous investigation to ensure justice. Unfortunately,
some cases exhibit casual and mechanical investigation,
disregarding consequences. It is high time for the
.....54/-
Judgment
471 apeal892.22 & 690.23
prosecution to ensure thorough and proper investigation
upholding the gravity of the cases".
55. The Hon'ble Apex Court in the case of
Kattavellai @ Devakar vs. State of Tamilnadu supra
issued guidelines for handling DNA evidence. These
guidelines mentioned in para No.44 are reproduced, as
under:
"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
.....55/-
Judgment
471 apeal892.22 & 690.23
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, 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
.....56/-
Judgment
471 apeal892.22 & 690.23
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
.....57/-
Judgment
471 apeal892.22 & 690.23
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.
56. Thus, in view of the said guidelines, the
collection of DNA samples shall be after due care and
compliance of all necessary procedure including swift and
appropriate packaging and the transportation of the DNA
evidence to the concerned police station. The DNA
samples are to stored pending trial appeal etc.. No
package shall be opened, altered or resealed without
.....58/-
Judgment
471 apeal892.22 & 690.23
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.
57. In the light of the above guidelines, if the
evidence in the present case is taken into consideration,
there is nothing on record to show that the samples of the
newly born child delivered by the victim were obtained
and forwarded to analysis. Merely because the DNA
report is negative and is not supporting the prosecution,
the prosecution may still prove penetrative sexual assault
charged.
58. In the present case, the evidence of the victim
which categorically states that on the promise of
marriage, she was called by accused No.1 Saurabh and
subjected for the sexual assault. When she disclosed the
.....59/-
Judgment
471 apeal892.22 & 690.23
fact of her pregnancy, on 9.2.2018, she was called by
accused No.1 Saurabh in front of Komal Medical Store
and she was forcefully taken by both the accused persons
in an agricultural field. Accused No.2 Akash has caught
hold of her and accused No.1 Saurabh caused injuries to
her. Thereafter, she was taken at the house of accused
No.2 Akash. Her evidence further shows that due to the
assault by accused No.1 Saurabh, with the help of accused
No.2 Akash, she sustained bleeding injuries and her
salwar was soaked with blood. The wife of accused No.2
Akash provided her another salwar. The circumstance,
that blood stained salwar was seized from the house of
accused No.2 Akash, during house search panchanama of
accused No.2 Akash, is proved by pancha PW2 Siddharth
Ghodke. The evidence of PW2 Siddharth Ghodke also
proved recovery of the cutter and seizure of the salwar of
the victim from the house of accused No.2 Akash. This
.....60/-
Judgment
471 apeal892.22 & 690.23
fact is further established by the prosecution by
examining Medical Officer PW4 Dr.Shailaja Kale who
immediately on 10.2.2018 examined the victim and
noticed the injuries on her person. The injuries are in the
nature of incised wound at lower thigh lateral aspect
oblique direction downward at medial side. Size of
injuries were 10 x 2 x 1/2 cm brownish colour meaning
thereby the injury was not fresh and incised wound of
right knee joint oblique direction downward and medial
side. Size of injury having 8 x 2 x 1/2 cm was brownish
colour. The injury was grievous and caused due to hard
and sharp object. This fact is further corroborated by the
medical certificate Exh.92 and by the evidence of PW5
Dr.Manisha Nasare who has also observed the said
injuries on the persons of the victim.
59. Thus, not only the evidence of the victim but
also the injury certificate proved by PW4 Dr.Shailaja Kale
.....61/-
Judgment
471 apeal892.22 & 690.23
and corroborated by PW5 Dr.Manisha Nasare, CA Reports
show that the salwar of the victim which was seized from
the house of accused No.2 Akash was stained with blood
on front right portion of Blood Group "A". The CA Report
is at Exh.132. Exh.133 shows that blood group of the
victim is of Blood Group "A". Though the defence of the
accused is of total denial and of false implication, cross
examination and explanation given by the accused No.1
Saurabh shows that there was a physical relationship
between him and the victim. His explanation shows that
it was the victim who was insisting him to perform the
marriage, but he has denied to perform the marriage.
Thus, this explanation and the cross
examination sufficiently establishes the nature of
relationship between the victim and accused No.1
Saurabh was having.
.....62/-
Judgment
471 apeal892.22 & 690.23
60. As per the prosecution case, minor girl was
subjected for sexual assault by the accused on the promise
of marriage. Whereas, as per the contention of the
defence, it was consensual act of the victim as she was
insisting accused No.1 Saurabh to preform marriage with
her.
61. Now, only question remains is, whether
consent of the victim can be taken into consideration.
62. Admittedly, the victim was below 18 years of
age at the time of the incident. It is not case of love affair
between the victim and the accused. The prosecution has
come with specific case that the victim was promised for
marriage and on the promise of marriage, her consent
was obtained and she was subjected for sexual assault.
.....63/-
Judgment
471 apeal892.22 & 690.23
63. Section 375 of the Indian Penal Code, defines
the offence of "rape" and enumerates six descriptions of
the offence.
The first clause states, where the woman is in
possession of her senses and, therefore, capable of
consenting, but the act is done against her will.
The second clause states, where it is done
without her consent and third, fourth and fifth clauses
operate when there is a consent, but it is not such a
consent as excuses the offender, because it is obtained by
putting her in fear of death or any hurt.
The expression "against her will" means that
the act must have been done in spite of the opposition of
the woman.
64. Section 90 of the Indian Penal Code defines
"consent", which is reproduced hereinunder:
.....64/-
Judgment
471 apeal892.22 & 690.23
"90. Consent known to be given under fear
or misconception. - A consent is not such a
consent as it intended by any section of this
Code, if the consent is given by a person
under fear of injury, or under a
misconception of fact, and if the person
doing the act knows, or has reason to
believe, that the consent was given in
consequence of such fear or misconception;
or
Consent of insane person.-- if the consent is
given by a person who, from unsoundness
of mind, or intoxication, is unable to
understand the nature and consequence of
that to which he gives his consent; or
Consent of child.-- unless the contrary
appears from the context, if the consent is
given by a person who is under twelve years
of age."
65. Thus, Section 90 of the Indian Penal Code
though does not define the term 'consent', but, in
negative terms it describes what does not amount to
consent. The "consent" may be express or implied, must
be actuated, obtained through deceit or fraud. If the
consent is given by the victim under misconception of
.....65/-
Judgment
471 apeal892.22 & 690.23
fact, it vitiates. The consent for the purpose of Section
375 of the Indian Penal Code, requires voluntary
participation not only after the exercise of intelligence
based on the knowledge of the significance and moral
quality of the act but after having fully exercised the
choice between resistance and assent. Whether there was
consent or not, is to be ascertained only on a careful
study of all relevant circumstances.
66. Whether there was consent or consent was
obtained under misconception of fact?
67. The Hon'ble Apex Court, in the of Uday vs.
State of Karnataka (2003)4 SCC 46, has considered a
wherein the victim aged about 19 years old had given a
consent for physical relationship with the accused with
whom she was deeply in love, on a promise that he
would marry her on a later date. She was subjected for
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471 apeal892.22 & 690.23
the sexual intercourse which resulted into her pregnancy.
The complaint was lodged on failure of the accused to
marry her. It was held that the consent cannot be said to
be given under the misconception of fact. It was held in
paragraph Nos.21 and 23 as under:
"21. It therefore appears that the consensus
of judicial opinion is in favour of the view
that the consent given by the prosecutrix to
sexual intercourse with a person with whom
she is deeply in love on a promise that he
would marry her on a later date, cannot be
said to be given under a misconception of
fact. A false promise is not a fact within the
meaning of the Code. We are inclined to
agree with this view, but we must add that
there is no strait jacket formula for
determining whether consent given by the
prosecutrix to sexual intercourse is
voluntary, or whether it is given under a
misconception of fact. In the ultimate
analysis, the tests laid down by the Courts
provide at best guidance to the judicial
mind while considering a question of
consent, but the Court must, in each case,
consider the evidence before it and the
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surrounding circumstances, before reaching
a conclusion, because each case has its own
peculiar facts which may have a bearing on
the question whether the consent was
voluntary, or was given under a
misconception of fact. It must also weigh
the evidence keeping in view the fact that
the burden is on the prosecution to prove
each and every ingredient of the offence,
absence of consent being one of them.
23. Keeping in view the approach that the
Court must adopt in such cases, we shall
now proceed to consider the evidence on
record. In the instant case, the prosecutrix
was a grown up girl studying in a college.
She was deeply in love with the appellant.
She was however aware of the fact that
since they belonged to different castes,
marriage was not possible. In any event the
proposal for their marriage was bound to be
seriously opposed by their family members.
She admits having told so to the appellant
when he proposed to her the first time. She
had sufficient intelligence to understand the
significance and moral quality of the act she
was consenting to. That is why she kept it a
secret as long as she could. Despite this, she
did not resist the overtures of the appellant,
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471 apeal892.22 & 690.23
and in fact succumbed to it. She thus freely
exercised a choice between resistance and
assent. She must have known the
consequences of the act, particularly when
she was conscious of the fact that their
marriage may not take place at all on
account of caste considerations. All these
circumstances lead us to the conclusion that
she freely, voluntarily, and consciously
consented to having sexual intercourse with
the appellant, and her consent was not in
consequence of any misconception of fact."
68. The Hon'ble Apex Court, in the case of Deelip
Singh vs. State of Bihar, reported in (2005)1 SCC 88
framed two questions relating to consent:-
(1) Is it a case of passive submission in the
face of psychological pressure exerted or
allurements made by the accused or was it a
conscious decision on the part of the
prosecutrix knowing fully the nature and
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471 apeal892.22 & 690.23
consequences of the act she was asked to
indulge in? and
(2) Whether the tacit consent given by the
prosecutrix was the result of a
misconception created in her mind as to the
intention of the accused to marry her?
While answering these questions, the Hon'ble Apex
Court held that the girl had taken a conscious decision,
after active application of mind to the events that had
transpired. It was further held that at best, it is a case of
breach of promise to marry rather than a case of false
promise to marry, for which the accused is prima facie
accountable for damages under civil law.
69. The Hon'ble Apex Court, in the case of Deepak
Gulati vs. State of Haryana, reported in (2013)7 SCC
675, has drawn distinction between "rape" and
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471 apeal892.22 & 690.23
"consensual sex" and held that the physical relationship
between the parties had clearly developed with the
consent of the prosecutrix, as there was neither a case of
any resistance, nor had she raised any complaint
anywhere at any time despite the fact that she had been
living with the accused for several days, and had
travelled with him from one place to another.
70. The Hon'ble Apex Court, in the case of
Shivashankar vs. State of Karnataka, reported in
(2019)18 SCC 204 held that it is difficult to hold sexual
intercourse in the course of a relationship which has
continued for eight years is 'rape'.
In Dr.Dhruvaram Murlidhar vs. The State of
Maharashtra and ors, reported in (2019)18 SCC 191, the
Hon'ble Apex by referring the above decision held that,
"thus, there is a clear distinction between rape and
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471 apeal892.22 & 690.23
consensual sex. The court, in such cases, must very
carefully examine whether the complainant had actually
wanted to marry the victim or had mala fide motives and
had made a false promise to this effect only to satisfy his
lust, as the later falls within the ambit of cheating or
deception. There is also a distinction between mere
breach of a promise and not fulfilling a false promise. If
the accused has not made the promise with the sole
intention to seduce the prosecutrix to indulge in sexual
acts, such an act would not amount to rape. There may
be a case where the prosecutrix agrees to have sexual
intercourse on account of her love and passion for the
accused and not solely on account of the misconception
created by accused, or where an accused, on account of
circumstances which he could not have foreseen or which
were beyond his control, was unable to marry her despite
having every intention to do. Such cases must be treated
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471 apeal892.22 & 690.23
differently. If the complainant had any mala fide
intention and if he had clandestine motives, it is a clear
case of rape. The acknowledged consensual physical
relationship between the parties would not constitute an
offence of "rape."
71. In the case of Pramod Suryabhan Pawar vs. The
State of Maharashtra, reported in (2019)9 SCC 608 also
the Hon'ble Apex Court held that, "where the promise to
marry is false and the intention of the maker at the time
of making the promise itself was not to abide by it but to
deceive the woman to convince her to engage in sexual
relations, there is a "misconception of fact" that vitiates
the woman's "consent". On the other hand, a breach of a
promise cannot be said to be a false promise. To establish
a false promise, the maker of the promise should have
had no intention of upholding his word at the time of
giving it. The "consent" of a woman under Section 375 is
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471 apeal892.22 & 690.23
vitiated on the ground of a "misconception of fact" where
such misconception was the basis for her choosing to
engage in the said act."
72. In the instant case, it is admitted position that
there was no love affair between accused No.1 Saurabh
and the victim. They were having acquaintance with
each other. It is also not the case that accused No.1
Saurabh expressed about his feelings for her. On the
contrary, he stated that it was the victim who was
insisting him to perform marriage with her, but he denied
for the same. The act of accused No.1 Saurabh, that
when it was disclosed to him that the victim is pregnant,
he took her with the help of accused No.2 Akash in
isolated field and assaulted her with the help of accused
No.2 Akash, was not honest. He kept promising that he
will marry with her and as soon as she disclosed that she
is pregnant, he kidnapped her from lawful guardianship
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471 apeal892.22 & 690.23
of her parents and assaulted her by causing her grievous
injuries. The consent obtained by accused No.1 Saurabh
under the promise of marriage cannot be said to be
consent because she was under misconception of fact that
accused No.1 Saurabh intends to marry her and,
therefore, she submitted herself for the physical
relationship. It is more than clear that accused No.1
Saurabh made a false promise that he would marry with
her, from the fact that no circumstances are brought on
record by accused No.1 Saurabh to show that at the
relevant time, he was intending to marry with her, but
the circumstances are such that he could not perform the
marriage with her. The contention of accused No.1
Saurabh, that it was the victim, who was insisting him to
perform the marriage, appears to be not bona fide since
beginning. Accused No.1 Saurabh completely misled her
by promising her for marriage. This kind of consent
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471 apeal892.22 & 690.23
taken by accused No.1 Saurabh with clear intention not
to fulfill the promise and he persuade a girl to believe
that he is going to marry and obtained her consent for
sexual intercourse under total misconception cannot be
treated to be a consent.
73. Where promise to marry is false and intention
of maker at the time of making promise itself was not to
abide by it but to deceive a girl to convince her to engage
in sexual relations, there is a "misconception of fact" that
vitiates girl's "consent". It is not merely a case of breach
of promise but it is a case only to seduce. The false
promise was made and the victim was subjected for
sexual assault on misconception of fact. Moreover, the
victim who was below eighteen years of age and her
consent is not relevant as it is not consent at all.
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471 apeal892.22 & 690.23
74. Thus, it is evident that at the initial stage itself
accused No.1 Saurabh had no intention to keep his
promise to marry the victim. Accused No.1 Saurabh has
not brought on record a circumstance to show that he
could not fulfill the promise due to unavoidable
circumstances. In such circumstances, the case of the
prosecution, that her consent was obtained under
misconception of facts, is established.
75. Accused No.2 Akash, is facing charge of the
offences punishable under Sections 367 and 326 read
with 34 of the IPC.
It is vehemently submitted by learned counsel
for accused No.2 Akash that merely because accused No.2
Akash is maternal uncle, he is implicated in the alleged
offence. He further submitted that there is no evidence
to show that he was sharing the common intention. In
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471 apeal892.22 & 690.23
support of his contentions, he placed reliance on the
decision in the case of Shashipal alias Shishu supra.
Perusal of the said decision reveals that the Hon'ble Apex
Court interpreted Section 34 and observed that Section
34 of the IPC creates a deeming fiction by infusing and
importing a criminal act constituting an offence
committed by one, into others, in pursuance to a common
intention. Onus is on the prosecution to prove the
common intention to the satisfaction of the court. The
quality of evidence will have to be substantial, concrete,
definite and clear. When a part of evidence produced by
the prosecution to bring the accused within the fold of
Section 34 of the IPC is disbelieved, the remaining part
will have to be examined with adequate care and caution.
What is required is, proof of common
intention. It is a team effort. The intendment of Section
34 of the IPC is to remove the difficulties in distinguishing
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471 apeal892.22 & 690.23
the acts of individual members of a party, acting in
furtherance of a common intention. There has to be a
simultaneous conscious mind of the persons participating
in the criminal action of bringing about a particular result.
A common intention qua its existence is a question of fact
and also requires an act "in furtherance of the said
intention. It is for the court to come to the conclusion on
cumulative assessment. In an offence committed
physically, the presence of an accused charged under
Section 34 of the IPC is required, especially in a case
where the act attributed to the accused is one of
instigation/exhortation. The word "furtherance"
indicates the existence of aid or assistance in producing
an effect in future. Thus, it has to be construed as an
advancement or promotion. There may be cases where all
acts, in general, would not come under the purview of
Section 34 of the IPC, but only those done in furtherance
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471 apeal892.22 & 690.23
of the common intention The existence of common
intention is obviously the duty of the prosecution to
prove.
76. On analyzing the evidence adduced by the
prosecution, the evidence of shows that it was both the
accused persons who took the victim on 9.2.2018 and at
the relevant time, accused No.2 Akash was riding two-
wheeler and accused No.1 Saurabh sat on two-wheeler
holding her pointing the cutter on her neck. They took
her at one agricultural field and accused No.2 Akash hold
her and accused No.1 Saurabh inflicted blows by the
cutter on her right leg. This evidence is substantiated by
the medical evidence i.e. the evidence of PW4 Dr.Shailaja
Kale and PW5 Dr.Manisha Nasare who witnessed the
injuries on the person of the victim. This fact is further
substantiated that as per the evidence of the victim, due
to the injuries, her salwar was soaked with blood. After
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471 apeal892.22 & 690.23
the incident, accused No.2 Akash took her at his house.
The wife of accused No.2 Akash provided her another
salwar and she fled from the house of accused No.2 Akash
when accused No.2 Akash and his wife were asleep. This
evidence is corroborated by the circumstance that the
cutter as well as blood stained salwar of the victim was
seized from the house of accused No.2 Akash. It is further
corroborated through the CA Report which shows blood
detected on Exh.1 pyjama, having blood stains of Blood
Group "A", i.e. of the victim.
77. Thus, ingredients of offence under Section 367
of the IPC that kidnapping or abducting in order to
subject a to grievous hurt is established by the
prosecution.
78. Learned Judge of the trial court has
appreciated the entire evidence and held that
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471 apeal892.22 & 690.23
presumption under Section 29 of the POCSO Act is
attracted. The said presumption is not rebutted. Section
30 of the POCSO Act speaks of presumption of culpable
mental state and it shall be the defence of the accused to
prove the fact that he had no mental state. The
presumption is applicable as the prosecution has proved
the charge beyond reasonable doubt. The charges
against accused No.1 Saurabh was of culpable mental
state which includes intention, motive, knowledge of fact
and belief. The charge against accused No.2 Akash is
that in furtherance of common intention he kidnapped
the victim from lawful guardianship of her parents and
assisted accused No.1 Saurabh to cause her grievous hurt,
is also established.
79. In the light of the above evidence, as discussed,
the prosecution has succeeded in proving the charge
against both the accused persons. Thus, no grounds are
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471 apeal892.22 & 690.23
made out by both the accused persons to interfere with
the findings recorded by learned Judge of the trial court.
80. In this view of the matter, the appeals being
devoid of merits are liable to be dismissed and the same
are dismissed.
81. Accused No.2 Akash, who is on bail, shall
surrender his bail bonds within a period of two weeks
from today. Else, learned Judge of the trial court shall
take appropriate steps to secure the presence of accused
No.2 Akash to serve the jail sentence.
Appeals stand disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 25/09/2025 10:44:31
