[Cites 12, Cited by 0]
Bombay High Court
Mohd. Yunus @ Zero @ Zeru Haji Mohd. ... vs State Of Maharashtra on 26 February, 2026
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2026:BHC-AS:10934-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.30 OF 2023
Mohd. Yunus @ Zero @ Zeru Haji Mohd.
Bashir Shah .... Appellant
versus
The State of Maharashtra & Anr. .... Respondents
.......
• Mr. Aditya Bapat, Advocate for Appellant.
• Mr. Tejesh Dande a/w Mr. Parth Talekar and Ms. Tanishka
Chavan, Advocate for Respondent No.2 (through Legal Aid).
• Ms. Supriya Kak, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL &
SANDESH D. PATIL, JJ.
DATE : 26th FEBRUARY, 2026
JUDGMENT :
(PER : SARANG V. KOTWAL, J.)
1. The Appellant has challenged the Judgment and Order
dated 14/12/2020 passed by the learned Additional Sessions
Judge, Thane, in Special (POCSO) Case No.97/2017. By the
impugned Judgment and Order, the Appellant was convicted
and sentenced as follows ;
MANUSHREE
NESARIKAR
(i) The Appellant was convicted for commission of
offence punishable u/s 376(1) of the Indian Penal
Nesarikar
2 / 36 902-APEAL-30-23.odt
Code and was sentenced to suffer imprisonment
for life and to pay a fine of Rs.5,000/-.
(ii) He was convicted for commission of offence
punishable u/s 363, 364 of the Indian Penal Code
and was sentenced to suffer rigorous
imprisonment for four years and to pay a fine of
Rs.2,000/-.
(iii) He was convicted for commission of offence
punishable u/s 302 of the Indian Penal Code and
was sentenced to suffer imprisonment for life.
(iv) He was convicted for commission of offence
punishable u/s 6 of the Protection of Children
from Sexual Offences Act, 2012. In view of
sentence u/s 302 of the Indian Penal Code, no
separate sentence was imposed on him for this
offence.
(v) He was convicted for commission of offence
punishable u/s 201 of the Indian Penal Code, but
no separate sentence in view of the above
sentence was imposed on him.
(vi) He was further sentenced to suffer rigorous
imprisonment for six months each under each
section, in default of payment of fine.
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(vii) All the substantive sentences were directed to run
concurrently.
2. There were other two accused besides the Appellant
i.e. accused No.2 Mohd. Rojan @ Langada Ishak Raini and
accused No.3 Jitendra @ Jitu Tirathprasad Rao. They were
convicted u/s 201 of the Indian Penal Code and were sentenced
to suffer rigorous imprisonment for four years each and to pay a
fine of Rs.3,000/- each and in default of payment of fine to
suffer further rigorous imprisonment for one month each. They
were acquitted from the charges of commission of offences
punishable u/s 363, 364, 376(1), 302 of the Indian Penal Code
r/w 6 of the Protection of Children from Sexual Offences Act,
2012.
3. The Appellant and the co-accused were granted set off
u/s 428 of Cr.P.C.
4. The fine amount, if deposited, was directed to be paid
to the complainant as compensation u/s 357(1) of Cr.P.C.
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5. There was the fourth accused, who was absconding
and did not face the trial.
6. It is not pointed out to us that whether the co-accused
have preferred any Appeal against the conviction.
7. Heard Mr. Aditya Bapat, learned counsel for the
Appellant, Mr. Tejesh Dande, learned counsel for the Respondent
No.2 and Ms. Supriya Kak, learned APP for the State.
8. The prosecution case is that the victim in this case was
a four year old child. On 09/01/2017, she went missing from
outside her house. According to the prosecution case, all the
accused took her to a shop. They bought some snacks and
chocolate for her. They took her to a secluded lane and
committed rape on her. According to the prosecution case, she
was assaulted with a wooden log on her head. As a result, she
died. Her dead body was buried under garbage and mud. In the
meantime, the victim's father had lodged his complaint with the
police station between the night of 09/01/2017 and
10/01/2017. The family members and others were searching for
her. It is the prosecution case that the shop owner and the Paan
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shop owner had seen the Appellant and the other accused with
the victim, at around 08.30 p.m. to 09.30 p.m. on 09/01/2017.
On 12/01/2017, in the afternoon, the victim's dead body was
seen by one witness. The victim's father was informed. He went
to that spot and identified the dead body. The police were
informed and the dead body was sent for post-mortem
examination. The accused were arrested on 14/01/2017.
9. The investigation was carried out. Various
Panchanamas i.e. Spot Panchanama and Inquest Panchanama
were conducted. The viscera and different swabs taken from the
private parts of the dead body were collected and sent for
chemical analysis. The victim's parents' samples were sent for
DNA analysis to fix the identity of the deceased. The blood
samples of all the three accused were collected and sent for DNA
analysis. As per the prosecution case, the DNA sample showed
presence of the the Appellant's DNA on the vaginal swab of the
deceased. The investigation was completed and the charge-sheet
was filed. The case was committed to the Special Court and was
tried before the learned Trial Judge as mentioned earlier.
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10. During trial, the prosecution examined 12 witnesses
including the parents of the deceased, the shop owners who had
seen the deceased with the Appellant and the other accused on
the night when the victim had disappeared, the witness who had
seen the dead body on 12/01/2017, the Panchas, the Medical
Officer who had conducted the post-mortem examination and
the Investigating Officers. Besides the oral evidence, the
prosecution tendered the C.A. Report. The defence of the
Appellant was of total denial. In addition, he stated that the
police had forced him to admit his guilt. He was innocent. He
had not committed any offence. He had shown willingness to
undergo a Narco Test. He further stated that he was also having
a daughter of the same age and therefore, as a natural instinct
he would not have committed such offence.
11. PW 1 is the father of the victim. He deposed that the
victim was 4 years of age at the time of incident. He owned a
tempo vehicle and was using it in his transport business. On
09/01/2017, at about 09.30 p.m. his wife informed him
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telephonically that the victim was missing. He rushed back to his
house and searched for the victim in the vicinity. He tried to
search for her till midnight. But he could not find her. He went
to the police station and lodged his report regarding missing of
the victim. He gave her physical description and description of
the clothes that she was wearing. He had lodged the complaint
that somebody had kidnapped the victim. The FIR was
registered. It is produced on record at Ex.21. The FIR was
lodged at Navghar Police Station vide C.R.No.I-7/2017 u/s 363
of the Indian Penal Code. He further deposed that on
10/01/2017 he was searching in Azad Nagar area by showing
her photographs to the people. PW 2, Ashok Ramina, was having
a shop in that area. He told PW 1 that on the previous night at
about 08.00 p.m. the Appellant and one Rajesh, had brought the
victim to his shop. The Appellant had purchased chocolate and
snacks for the victim and had given them to her. And then he
had taken her towards a paan shop next to his shop. He further
informed PW 1 that the co-accused, i.e. accused number 2 and
3, were already standing near the paan shop. Then all the four
of them had taken the victim towards the street near the paan
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shop. Since all four of them were residents of Azad Nagar, he did
not stop them. PW 1 then showed the victim's photograph to the
paan shop owner, PW 4 and other persons i.e. Naimuddin, Ram
Lotan, Akbar Ali and Rain Putthawala. All of them corroborated
what PW 2 had told him. On getting to know about this, he went
to Navghar Police Station and informed the police about this
fact. After that, he himself, the police and the relatives started
searching for the Appellant and the other accused, i.e. accused
Nos.2, 3 and the absconding accused. However, they were not
traced. His supplementary statement was recorded on
10/01/2017.
On 12/01/2017, at about 04.30 p.m., he received a
phone call from one Ibrar (PW 6). He was residing in the same
lane. Ibrar called PW 1 to that lane. PW 1 went there. Ibrar told
PW 1 that PW 5 Mohammad Niyaz and one Shahid Amin had
told him that they were playing in an open space near the
drainage at around 04.00 p.m. on 12/01/2017. They saw that
one cat was doing some activity at that spot. When they went
near the spot, they saw a hand and leg of a small child near that
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spot. PW 1, along with Ibrar, those two children and others,
went to that spot. The victim's clothes were seen near that spot.
PW 1 identified those clothes. He informed the police. Police
reached the spot with a doctor. They removed the soil and took
out the dead body. PW 1 identified the dead body as that of his
daughter. He suspected that she was sexually assaulted. There
were some injuries on her head. The police recorded his
supplementary statement on 13/01/2017. The police sent the
body for postmortem examination. The police prepared spot
Panchnama in his presence. Chocolate wrapper and the victim's
clothes were seized under that Panchnama. PW 1 further
deposed that he knew all the four accused as they were initially
residing in his lane. But about one year prior to the incident,
they started residing at some other place which was adjacent to
his lane. He identified the Appellant and the other two co-
accused. He identified the chocolate wrapper and the victim's
clothes.
In the cross-examination, he deposed that the
Appellant and accused No.2 used to come to him and used to
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work as labourers for loading scrap material in his tempo. He
knew both of them. On 09/01/2017, he had gone to the police
station at 11.00 p.m. and his statement was recorded in the
early hours of 10/01/2017. Before approaching the police, he
had searched for his daughter in the entire area. He admitted
that the victim used to occasionally go with accused Nos.1 and 2
whenever they used to offer chocolate to her. He further stated
that the accused used to come back in the evening, and
therefore, they could be seen in the evening. The victim
occasionally used to go to that shop. The same shop owner had
informed him about the accused having been seen with the
victim in that night. He had also searched for the victim towards
the direction shown by the shopkeeper. There was no quarrel
between the accused and himself at any time. He denied the
suggestion that he himself had assaulted his daughter and then
had tried to dispose off her dead body by himself. He stated that
the spot was a dumping place in their area. His FIR produced on
record described the fact that the victim was missing since 08.00
p.m. from 09/01/2017. The FIR was lodged against an unknown
person.
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12. PW 3 was the mother of the victim. She has
corroborated the evidence of PW 1. She has deposed about all
the facts which were disclosed by PW 1.
13. PW 2 Ashok Ramina had a grocery shop by the name
Mamta Provision Stores. He was residing at Azad Nagar. On
09/01/2017, he was in his shop throughout the day. He knew
the victim as PW 1 was his customer. On 09/01/2017 at about
07.30 to 08.00 p.m., the Appellant and one Rajesh came to the
shop with the victim. The Appellant purchased one chocolate
and a packet of snacks and gave it to the victim. The Appellant
then took her near a paan shop next to PW 2's shop, where the
accused Nos.2 and 3 were standing. After that, all the four
accused took the victim in the adjoining lane. He saw them
going towards that lane. He was under the impression that, they
might have taken her for night walk as was their routine. He did
not find it suspicious at that time. On the next morning, at about
10.00 a.m., PW 1 and 3 came to his shop with the victim's
photograph and told him that she was missing since the previous
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evening. PW 2 informed them that he had seen the victim with
the four accused on the previous evening. He stated that he
knew the Appellant and the other accused as they were residing
adjacent to his shop and used to sit in front of his shop. He
identified the Appellant and the three co-accused. On the same
day, his statement was recorded. His supplementary statement
was recorded on 15/01/2017 after he came to know about the
incident.
In the cross-examination, his attention was drawn to
the portion marked 'A' from his first statement dated
10/01/2017. He had stated before the police that the victim had
come to his shop at about 07.30 p.m. to 08.00 p.m. on
09/01/2017. This was slightly different from his evidence that
the Appellant and Rajesh had come to his shop with the victim.
He denied having stated portion marked 'A' before the police.
However, this portion is not proved through the evidence of the
Investigating Officer. In any case, nothing much turns on this
minor contradiction. He further deposed that the accused had
brought the victim to his shop on previous occasions also. He
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volunteered that he did not recollect whether the victim came
first or the accused came first to his shop. He also volunteered
that he had no idea as to whether the victim had accompanied
the accused to his shop on the previous occasions.
14. PW 4, Abdul Rehman Rajjan Khan, was the owner of a
paan shop adjacent to Ashraf Hotel, Azad Nagar, Bhayandar. He
deposed that between 08.00 p.m. to 09.00 p.m. on 09/01/2017,
the Appellant and one Rajesh went to Mamta ration shop. When
they returned, they brought one small girl with them. She had a
chocolate and a packet of snacks with her. She was with the
Appellant. The four accused then took the victim with them in a
lane adjacent to his shop. PW 4 knew the victim as the daughter
of PW 1. PW 4 was also residing in Azad Nagar area, but in
another lane. When the accused took the victim with them, he
did not say anything as the accused were residing in the same
area. He knew all the accused since about five years before the
incident. He identified the Appellant and his co-accused. On
10/01/2017 at about 10.00 a.m., PW 1 and his wife had come
to his shop. They had shown him the victim's photograph. At
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that time, he had informed them that he had seen the victim
with the Appellant and the other accused. His statement was
recorded on 11/01/2017 by the police.
In the cross-examination, he denied the suggestion that
he was deposing falsely, that he had seen the victim with the
accused.
15. PW 5, Mohammad Niyaz Mohammad Habib Shaikh,
had seen the dead body on 12/01/2017 at about 04.00 p.m. He
deposed that he along with one Sharif were wandering in that
area. They saw one cat was eating something from the drainage.
They went near the spot to see what she was eating. They saw a
palm and leg of a child. They thought that a child must have
been buried under the drainage. They went to Azad Nagar and
informed one Ibrar. PW 5 came to know that PW 1's daughter
was missing since two days. Ibrar then called PW 1. All of them
went to that spot. The victim's leg-wear was lying there. PW 1
identified it. The police were called. They came to that spot with
a doctor. The body was dug out. His statement was recorded on
13/01/2017.
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In the cross-examination, he deposed that he did not
know PW 1 personally. He denied the suggestion that the spot
from where the dead body was found was a cemetery. He
deposed that the body was decomposed.
16. PW 6, Ibrar Ahmad Shafi Mohammad, had informed
PW 1 about finding of the dead body as mentioned earlier. He
deposed the facts as were deposed by PW 1 and PW 5. He
corroborated their deposition. His statement was recorded on
13/01/2017. His evidence is hardly incriminating against the
Appellant. His evidence relates only to finding of the dead body.
17. PW 7, Mohammad Faruk Jalil Ahmed Rain, had a craft
shop in lane No.3, Azad Nagar. He deposed that he knew all the
accused as they were residing in the same area. On 09/01/2017,
at about 07.30 p.m. to 07.45 p.m., he went near a tea stall at the
corner of a lane adjacent to the paan shop. At that time, he had
seen the Appellant with a small girl with him. He was
accompanied by the accused No.2 and one Rajesh. The girl was
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having a snack packet and chocolate in her hand. He then went
to his shop. He came to know about the incident after two days.
On 10/01/2017, he informed PW 1 that he had seen the victim
with the Appellant, after PW 7 came to know about the fact that
the victim was missing.
In the cross-examination, he deposed that he knew the
accused by their names as they were from the same vicinity.
18. PW 8, Kali Renu Malik, had a hotel business by the
name Sai Bhojnalay. He was residing in that hotel itself. The
accused used to visit his hotel for having their meals. He
deposed that on 09/01/2017, after about 10.30 p.m., all the
accused including the Appellant had come to his hotel to have
dinner.
19. In the cross-examination, he denied the suggestion that
the police had shown all the accused to him, and that's how he
identified them.
17 / 36 902-APEAL-30-23.odt
20. PW 9, Jayaprakash Patil was a Pancha. He was called to
the police station on 17/01/2017. He deposed that the
Appellant gave his memorandum statement in his presence,
showing willingness to point out the place where he had
concealed the wooden log used in the offence. That statement
was recorded. It is produced on record at Ex.39. The Appellant
led the police to his hut and produced these clothes kept in a
plastic bag. Then the Appellant took them about thirty meters
away from his hut and produced a wooden log from the bushes.
It was also concealed. The Panchnama was conducted. It is
produced on record at Ex.40. However, there is no further
incriminating piece of evidence linking these two articles with
the offence in question. There is no CA report on record
regarding these two articles.
21. PW 10 Rajendra Patil was a Pancha for recovery
effected at the instance of the two accused. His evidence is not
relevant for the purpose of the present appeal.
22. PW 11, Dr. Shailendra Anande had conducted the post-
mortem examination. He deposed that he was attached to Sir
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J.J. Hospital, Mumbai. On 13/01/2017, at about 11:00 a.m. the
victim's dead body was brought for post-mortem. It was
decomposed with distension of abdomen, stomach, swelling of
the face, peeling of the skin, accompanied with foul odor. He
found injuries to the external genitals. Hymen was torn at 3, 7,
and 11 o'clock position. Vaginal cavity was released. Labia was
swollen. Brown, black fluid was oozing with foul odor.
According to him, the probable cause of death was because of
under scalp contusion. The post-mortem notes were produced
on record at Ex.53. The injuries mentioned in column No.15
indicated severe sexual assault, and they were antemortem. The
injuries referred in column No.17 were post-mortem injuries
caused due to animal bites. And the injury on the head
mentioned in column No.19 was possible due to hard and blunt
object. Column No.19 mentioned three under scalp contusions
of the size 4 x 4 cm, 5 x 3 cm, and 4 x 3 cm. There were no skull
fractures. After receipt of ancillary report, the final cause of
death was given as head injury with sexual assault. The death
certificate was produced on record at Ex.54.
19 / 36 902-APEAL-30-23.odt
In the cross-examination, he deposed that it would be
correct to say that the body was received about sixty hours after
the incident. And that the skull injury was possible due to fall on
hard and blunt object. Importantly, he deposed that he did not
find any indication of semen on the dead body.
Very significantly, he has not deposed about taking the
vaginal or other swabs, though the post-mortem notes mention
that viscera, teeth, scalp hair, femur, sternum bone, and vaginal,
cervical, perineal, and rectal swabs, and blood were taken in 8
sealed labeled bottles, which were handed over to police Naik
No.2492 of Navghar police station. The said police Naik is not
examined.
23. PW 12, PI Shrikant Padole was the Investigating
Officer. He deposed that he was attached to Navghar police
station at the relevant time. The investigation was handed over
to him on 12/01/2017. The SDPO had issued a letter to the
local Medical Officer that the post-mortem of the body should be
conducted by the Medical Officer at JJ Hospital. PW 12 had
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visited the spot. He deposed that the body was taken out, and it
was initially shifted to the local civil hospital and then to JJ
Hospital, Mumbai. The body was covered with mud when it was
taken out. It was identified by the parents. He further deposed
that he noticed some footprints where the body was found, and
therefore, the experts were called. However, there is no further
evidence as to what had happened to the footprints. He further
deposed that he conducted the spot panchnama, which is
produced on record at Ex.42. A sketch of the spot was prepared.
On 13/01/2017, DYSP Bhosle issued a request letter to Medical
Officer of JJ Hospital for obtaining samples for DNA and further
requested to issue advance death certificate. PW 12 recorded
supplementary statements of the parents of the victim. PW 12
obtained the birth certificate of the victim, which is produced on
record at Ex.68. On 13/01/2017 Police Naik had produced
clothes of the victim which were on the dead body. They were
sealed in the presence of Panchas. The Muddemal was handed
over to Muddemal clerk under a receipt. It is produced on record
at Ex.70. On 14/01/2017, local crime branch produced all the
accused before him. They were arrested formally under a
21 / 36 902-APEAL-30-23.odt
panchanama. It is produced on record at Ex.71. He recorded
statements of five witnesses on 15/01/2017. On 16/01/2017,
the Muddemal was forwarded to CA with a covering letter. It is
produced on record at Ex.72. On the same day, he recorded
statements of nine witnesses and sent the remaining Muddemal
articles for Chemical Analysis with two separate letters, which
are produced on record at Ex.73 and Ex.74. The accused were
then forwarded for medical examination, but since the Medical
Officer was not present, the medical examination could not be
held.
On 17/01/2017, again, the accused were sent for
medical examination. Their medical certificates were obtained.
They are produced on record at Ex.75 to Ex.77. On 17/01/2017,
at the instance of the Appellant, his clothes and the wooden log
were recovered, as mentioned earlier. On 20/01/2017, he sent
the sealed articles for examination with a covering letter. On
16/01/2017, he had sent a letter for laboratory at Kalina to send
DNA kits. On 23/01/2017, the accused were forwarded to Mira-
Bhayandar Hospital for obtaining their blood samples for DNA
22 / 36 902-APEAL-30-23.odt
test. Those samples were sealed and preserved in an ice box.
They were forwarded for Chemical Analysis on 24/01/2017,
with Police Constable D.K., with a covering letter, which is
produced on record at Ex.53. He caused the statements of
certain witnesses to be recorded under Section 164 of Cr.P.C.
After completion of investigation, he filed the charge sheet.
In the cross-examination, he deposed that according to
him, the accused had been to the said spot. He had based his
opinion on the basis of CA report, which tallied with the blood
samples taken from the spot and blood stains found on the
clothes of the accused. However, there is no such CA report
produced on record. He further deposed that the DNA of
accused No.1 matched with DNA on the clothes of the victim.
Even this is not supported by any CA report. He deposed that he
tried to trace the fourth suspect but could not trace him. He
denied the suggestion that the accompanying accused were the
main culprits.
24. This, in short, is the ocular evidence led by the
prosecution.
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25. In addition, the prosecution led some important
documentary evidence. Ex.68 is the birth certificate of the
victim, showing her date of birth as 10/12/2012. Ex.72 is the
covering letter dated 16/01/2017 when the victim's vaginal
swab and other swabs, teeth, hair, and blood were sent to CA for
DNA profiling, etc.
26. Ex.76 is the report of medical examination of the
Appellant dated 17/01/2017. At that time, his blood was
collected. Ex.80 is a covering letter dated 20/01/2017 asking for
opinion regarding the DNA profile. The prosecution, however,
did not take enough care to produce the DNA report on record
through any witness. The most important DNA report on the
basis of which the learned Judge has recorded the conviction,
was not proved through any witness, including PW 12, the
Investigating Officer. The said report is at Ex.96. The learned
Judge started dictating his judgment on 01/12/2020. It
continued on 02/12/2020.
24 / 36 902-APEAL-30-23.odt
27. The Roznama dated 03/12/2020 records a very
peculiar noting of the learned judge as follows.
"Before the court
Accused are not produced from jail
Adv for accused present
APP Smt Mohalkar present
00 Further judgment is given to steno
While delivering the Judgment the court has
noticed that though prosecution has filed DNA
report on record the same inadvertently remain
to be exhibited. Therefore concern clerk is
directed to exhibit it as on date
93 D N A report
94 D N A report
95 D N A report
96 D N A report
97 D N A report
98 D N A report
99 D N A report
100 D N A report
101 D N A report
102 D N A report
The accused are held guilty
hence Judgment is deferred to hear the accused
on the point of sentence
Issue Production warrant to accused to produced
before the court (Thane Jail)
Adj for hearing on point of sentence by accused
Case Adjourn for: Judgment"
25 / 36 902-APEAL-30-23.odt
28. The next date was given as 08/12/2020. Thus, it can
be seen that the most important documentary evidence, that is
the DNA report at Ex.96, was produced midway while dictating
the judgment. And immediately after the DNA reports were
exhibited, it was noted that accused were held guilty. This is
very significant in the context of the case. The Ex.96 is thus not
proved properly by the prosecution and the learned Judge was
equally careless in exhibiting it while dictating the judgment. No
questions were put to the Appellant in his examination u/ 313 of
Cr.P.C. regarding the report at Ex.96. The said report mentions
the opinion that the male haplotypes obtained from the vaginal
swab of the victim and the blood sample of the Appellant were
from the same paternal progeny.
29. The interpretation mentions that male haplotypes
obtained from the vaginal swab of the victim matched with the
male haplotypes of the blood sample of the Appellant.
30. The learned Judge has based his judgment mainly on
this particular document.
26 / 36 902-APEAL-30-23.odt
31. Mr. Aditya Bapat, the learned counsel for the Appellant
made the following submissions:
The prosecution has failed to prove its case beyond
reasonable doubt. There are only two circumstances against the
Appellant. The first is the 'last seen together' theory, and the
second is the opinion expressed in Ex.96. He submitted that the
'last seen together' theory is a weak piece of evidence, and the
conviction cannot be based on it. He submitted that there was a
long gap between the time when the victim was seen with the
Appellant and when the dead body was found. Therefore, it is
not safe to rely on that piece of evidence. In support of his
contention, he relied on the observations of the Honorable
Supreme Court made in the case of Kattavellai @ Devakar
versus State of Tamil Nadu, as reported in 2025 SCC OnLine SC
1439.
32. The learned counsel for the Appellant submitted that
Ex.96 is not proved. In any case, the opinion and interpretation
27 / 36 902-APEAL-30-23.odt
is unclear. No such questions were put to the Appellant to give
him an opportunity to explain this circumstance if it was an
incriminating piece of circumstance. He submitted that there is
no connecting link between obtaining the vaginal swab, handing
it over to a police constable and taking it to the laboratory. The
linking evidence is missing. The trail of the sample from the time
it was obtained until the time it was received in the laboratory, is
not established by the prosecution. There is a strong possibility
of tampering with the samples. Same is the case with the blood
sample obtained from the Appellant. There is no evidence to
show as to when and how the blood samples were drawn.
There's no reference whether DNA kit was used for storing the
sample. No Medical Officer is examined in that regard. The
evidence of the Investigating Officer is totally silent.
33. In support of his case, he relied on the judgment of the
Hon'ble Supreme Court in the case of Prakash Nishad@ Kewat
Zinak Nishad vs. State of Maharashtra, as reported in (2023) 16
SCC 357.
28 / 36 902-APEAL-30-23.odt
34. Ms. Supriya Kak, the learned APP for State and the
learned counsel, Shri Tejesh Dande, appearing for Respondent
No.2, made the following submissions :-
According to them, the prosecution has proved the
theory of 'last seen together'. There is no reason to disbelieve
that theory. The dead body was found in decomposed state.
Therefore, there was a strong possibility that immediately after
giving her a chocolate and snack, this offence was committed by
the Appellant and others, and therefore, last seen together
theory assumes importance. They submitted that there were at
least three witnesses who had seen the Appellant with the
deceased at around the time when she went missing from her
house. This is a very significant incriminating circumstance
against the Appellant.
35. They submitted that the DNA report cannot be doubted
at this stage. The learned Judge had observed that the
prosecution had submitted those reports, but only inadvertently,
those were not taken on record. The Appellant should not take
undue advantage because of this lapse.
29 / 36 902-APEAL-30-23.odt
Reasons and Conclusions -:
36. We have considered these submissions. As far as 'last
seen together' theory is concerned, there are three witnesses
who had seen the Appellant and the co-accused with the victim
on the previous evening. However, all these witnesses did not
find anything unusual or suspicious about the same. The
evidence shows that the Appellant was regularly visiting PW 1's
house and hence was known to the victim, and therefore, there
was nothing unusual if he had bought some chocolate or snacks
for her. Even otherwise, the Investigating Officer himself has not
spoken a word about any of the witnesses informing the police
about the victim having been seen with the Appellant on
09/01/2017 at about 08.30 p.m. This is important in the context
of the case because according to the prosecution case, the
Appellant and the other accused were residing in the same area
and therefore, PW 12, the Investigating Officer was the best
person to have explained as to what efforts were taken to search
for the Appellant and the other accused in that area after they
30 / 36 902-APEAL-30-23.odt
came to know that the victim was last seen with them on
09/01/2017. The evidence of PW 12 is completely silent on this
aspect.
37. Even assuming that the victim was seen with the
Appellant at that point of time, none of the witnesses found it to
be suspicious. As rightly submitted by the learned counsel for
the Appellant, that, such circumstance is intrinsically weak in
nature. In the case of Kattavellai @ Devakar versus State of
Tamil Nadu, the Hon'ble Supreme Court had referred to the
other judgments on this point and has, with approval, quoted
the following observations -:
"On its own, last seen theory is considered to be a
weak basis for conviction. When the time between the last seen
and the time of occurrence is significant, conviction thereon
would not be advisable or sustainable. The converse is that the
theory comes into play where the time gap between the point of
time when the accused and the deceased were last seen alive
and when the deceased is found dead is so small that possibility
31 / 36 902-APEAL-30-23.odt
of any person other than the accused being the author of the
crime becomes impossible."
38. In the present case, except for answering a suggestion
put by the defence, the time of death is not established by the
Medical Officer. The dead body was recovered on 12/01/2017 at
about 04.00 p.m. That was almost around sixty eight hours after
the deceased was 'last seen together' in the company of the
Appellant. The time gap is too long, and therefore, the
prosecution could not rule out the possibility of any person other
than the accused being the author of the crime. In this situation,
we do not feel it safe to rely on this particular circumstance as
an incriminating piece of evidence against the Appellant.
39. As far as the 'last seen together' theory is concerned,
the learned Judge has given benefit to the accused Nos.2 and 3
though they were also 'last seen together' in the company of the
deceased, but he has not held that circumstance against those
accused. This factor is also relevant in the present case in favor
of the present Appellant.
32 / 36 902-APEAL-30-23.odt
40. The other main circumstance against the Appellant was
in the form of DNA report, but as discussed earlier, the
prosecution has failed to prove that report. It was not produced
on record through any prosecution witness. It was not produced
through an application u/s 293 or 294 of Cr.P.C. either.
Moreover, the Appellant was not given an opportunity to explain
the opinion or interpretation expressed in that particular report.
Therefore, as it is, the said report cannot be used against the
Appellant. Even otherwise, as rightly submitted by the learned
counsel for the Appellant, the prosecution has miserably failed
to prove as to how these samples were collected, preserved, and
ultimately sent to forensic science laboratory.
41. As far as the victim's vaginal swab is concerned, PW 11
has not uttered a word in his deposition that he had taken the
vaginal swab. In his substantive evidence, he is totally silent
about it. The postmortem notes shows that the vaginal and other
swabs, viscera, teeth, scalp hair, etc. were handed over in eight
sealed and labeled bottles to PN No.2492 of Navghar Police
33 / 36 902-APEAL-30-23.odt
Station. PN No.2492 of Navghar Police Station is not examined.
PW 12, the Investigating Officer does not make any reference to
PN No.2492 at this police station.
42. The covering letter mentions Police Constable No.1928,
H.U. Ranshevare, who had carried these articles to the FSL. Even
Police Constable 1928 Ranshivare, is not examined. Therefore,
the prosecution has not established how the samples were
obtained by the investigating agency, how they were preserved,
and how they were ultimately sent to the FSL. A similar
situation arises in the case of blood sample of the Appellant. The
Medical Officer who had obtained the blood sample is not
examined. Though the Investigating Officer, PW 12, has deposed
about obtaining the DNA kit from the FSL at Kalina, there is no
further reference as to whether the same kits were used for
keeping the blood samples. Again, there is no linking evidence
to show how this blood sample for DNA profiling was carried
from the hospital, where the blood sample was drawn, to the
police station and then to FSL. The prosecution evidence is,
again, silent on that point. The learned counsel for the Appellant
34 / 36 902-APEAL-30-23.odt
rightly relied on the observations of the Hon'ble Supreme Court
in Prakash Nishad's case, wherein the necessary procedure
under the Maharashtra Police Manual was quoted with approval
by the Hon'ble Supreme Court in paragraph No.59, which reads
thus:
"59. We may observe that the
Maharashtra Police Manual, 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 up to the completion of examination
in the laboratory. This is best done by
immediately packing, sealing and labelling 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." ."
35 / 36 902-APEAL-30-23.odt
43. All these important aspects are missing in the present
case. Therefore, even the DNA analysis and the report in this
particular case, in the background of the facts discussed above,
becomes extremely doubtful, and it is not possible to hold these
circumstances against the Appellant. There is no other evidence
connecting the other recovered articles, i.e. the clothes and
wooden log, with the present crime.
44. In view of the above discussion, in our opinion, the
prosecution has not proved its case beyond reasonable doubt
against the Appellant. The benefit of doubt in this case must go
in favor of the Appellant. As a result, the Appeal is required to
be allowed.
45. Hence, the following order :
ORDER
(i) The Appeal is allowed.
36 / 36 902-APEAL-30-23.odt
(ii) The judgment and order passed by the learned
Additional Sessions Judge, Thane, in Special
(POCSO) Case No.97/2017, convicting and
sentencing the Appellant is set aside.
(iii) The Appellant is acquitted of all the charges.
(iv) The Appellant is in custody. He shall be released
forthwith, if not required in any other case.
(v) Before being released, the Appellant shall
execute PR bond in the sum of Rs.15,000/-
(Rupees Fifteen thousand only) to ensure his
presence, in case an Appeal is preferred as per
section 481 of BNSS.
(vi) Both the Appellant and the Respondent No.2
were represented by the counsel appointed by
the Legal Services Authority of this Court. Both
of them, as well as the learned APP, have assisted
us efficiently. We record appreciation of the
efforts put in by them.
(SANDESH D. PATIL, J.) (SARANG V. KOTWAL, J.)
