[Cites 26, Cited by 0]
Bombay High Court
Ashish S/O. Gangadhar Lonare vs State Of Mah. Thr. Pso, Ps Imamwada, ... on 9 January, 2026
2026:BHC-NAG:250
1 apeal693.2023.odt
,IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.693/2023
Ashish S/o Gangadhar Lonare,
aged about 32 Yrs., Occu. Vegetable
Vendor, R/o Bidi Karkhana No.5,
Nagpur, Tq. and Distt. Nagpur.
(Presently at Central Prison, Nagpur) ... Appellant
- Versus -
1. State of Maharashtra,
through Police Station Officer,
Police Station, Imamwada,
District Nagpur.
2. X.Y.Z.
Crime No.9717,
P.S.O. Imamwada, Nagpur. ... Respondents
-----------------
Mr. Sandeep Naresh Singh with Mr. A.M. Chandekar, Advocates for
the Appellant.
Mr. Ujjwal R. Phasate, A.P.P. for Respondent No.1/State.
Ms. Kirti Wankhede, Advocate (appointed) for Respondent No.2.
----------------
CORAM: NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT: 6.1.2026.
DATE OF PRONOUNCING THE JUDGMENT: 09.1.2026.
JUDGMENT
This is the Criminal Appeal under Section 374(2) of the Code
of Criminal Procedure (henceforth referred to as "Cr.P.C." for short)
against the judgment and order dated 20.5.2022, passed by the
learned Additional Sessions Judge (Fast Track Court), Nagpur in
2 apeal693.2023.odt
Special Case No.70/2017 convicting and sentencing the Appellant as
follows:-
a) For the offence punishable under Section 363 of the Indian
Penal Code (henceforth referred to as "I.P.C." for short) and
sentencing to suffer rigorous imprisonment for 7 years and fine of
Rs.2,000/-, in default to pay fine, to undergo rigorous imprisonment
for 2 months;
b) For the offence punishable under Section 4 of the Protection of
Children from Sexual Offences Act, 2012 (henceforth referred to as
"POCSO Act" for short) and sentencing to suffer rigorous
imprisonment for 7 years and fine of Rs.2,000/-, in default to pay
fine, to suffer rigorous imprisonment for 2 months;
c) For the offence punishable under Section 6 of the POCSO Act
and sentencing to suffer rigorous imprisonment for 10 years and fine
of Rs.5,000/-, in default to pay fine, to suffer rigorous imprisonment
for 3 months.
2. The prosecution's case, as revealed from the police report, is as
under:-
The informant was residing with his family, comprising wife
and 2 minor daughters. The victim was the eldest daughter of the
informant. The victim was 12 years old and a 'special child'. The
informant used to leave home at 10.30 a.m. The informant noticed
that, from last some days, the victim was not present at home in the
afternoon and she returns home in the evening with one boy on the
motorcycle who drops her near the house. One week prior to
lodging the report, the victim was not at home for considerable time
and she returned home around 4.30 p.m. He enquired with the
3 apeal693.2023.odt
victim and she told that, she had accompanied the Appellant on his
motorcycle, who took her to one room, where the Appellant removed
her clothes. On 12.1.2017, it was noticed that the Appellant was
seen repeatedly roaming around his house on the motorcycle. The
registration number of the motorcycle was taken down by the
neighbourer. On 13.1.2017 the victim left home at 1.30 p.m. and
returned at 4.50 p.m. On enquiry, the victim told that, the Appellant
took her to one room and he raped her. The informant lodged the
report with the Imamwada Police Station against the Appellant and
crime bearing No.0009/2017 came to be registered for the offence
punishable under Sections 376(2)(i), 376(2)(j), 376(2)(l), 376(2)
(n), 354 and 363 of the I.P.C. and Sections 4, 6, 8 and 12 of the
POCSO Act.
The Investigating Officer referred the victim for medical
examination. Statement of the victim was recorded. The statement
of witnesses were recorded. The Appellant came to be arrested. The
clothes of the victim and that of the Appellant came to be seized. The
blood samples of the victim and that of the Appellant came to be
drawn. The seized articles were sent to the Chemical Analyst. The
relevant documents were collected. On completion of investigation,
the Appellant came to be chargesheeted. On committal, learned
trial Court framed the Charge against the Appellant below Exh.48 for
the offence punishable under Sections 363, 354, 376(2)(i), (j), (l)
and (n) of the I.P.C. and Sections 4, 6, 8 and 12 of the POCSO Act.
The Appellant denied the charge and claimed to be tried.
3. To prove the charge, the prosecution examined following 10
witnesses.
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1) The victim as P.W.1,
2) Father of victim who is also the informant as P.W.2,
3) The Medical Officer who examined the victim as P.W.3,
4) The Chemical Analyzer as P.W.4,
5) The owner of the house where the incident took place as P.W.5,
6) The Policeman who was the Head-Constable at the relevant
time and carried the parcels to the Laboratory as P.W.6,
7) The Station House Officer who recorded the report, registered
the crime and conducted the spot-panchanama as P.W.7,
8) The Panch witness as P.W.8,
9) The Panch witness as P.W.9 and
10) The Investigating Officer who conducted the investigation
from 14.1.2017 as P.W.10.
Through the evidence of the above referred witnesses, the
prosecution brought on record the relevant documents. After the
prosecution submitted the evidence closure pursis, the learned trial
Court recorded the statement of the Appellant under Section
313(1)(b) of the Cr.P.C. The Appellant denied the case and the
evidence brought on record by the prosecution. He stated that he
was falsely implicated. On appreciating the evidence available on
record, the learned trial Court convicted and sentenced the Appellant
as above.
4. Heard learned Advocate for the Appellant, learned A.P.P. for the
State and learned Advocate for the Respondent No.2/victim.
5. It is submitted by the learned Advocate for the Appellant that,
the prosecution failed to prove that the victim was the child at the
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relevant time. The medical evidence shows that history was given by
the victim's mother. The victims testimony shows that she was
tutored witness and, therefore, her testimony cannot be relied. The
report of Chemical Analyzer cannot be relied as the evidence on
record shows that there was possibility of tampering with the
samples collected for DNA. Considering the overall evidence on
record, the conviction and sentence recorded by the learned trial
Court against the Appellant be set aside and the appeal be allowed.
In support of his submissions, he relied on the following judgments:-
1) Pradip Devidas Dongre V/s. State of Maharashtra, through
Police Station Officer, 2019 DGLS (Bom.) 51,
2) Muskan Shaikh Rashid @ Rafiq and others V/s. State of
Maharashtra, 2017 DGLS (Bom.) 490 and
3) Chandu @ Chandrashekhar Keshaorao Chambhare V/s. State
of Maharashtra 2025 DGLS (Bom.) 590.
6. It is submitted by the learned A.P. P. that, by examining the
father of victim and bringing on record the birth certificate, the
prosecution proved the date of birth and age of the victim and
established that the victim was the child at the relevant time. The
identity of the Appellant was established through the testimony of
the victim. The vague admission by the victim in respect of her age is
of no assistance to the Appellant. The victim was not tutored as can
be seen from her testimony. The DNA report are incriminating in
nature. The overall evidence on record established the Charge and
the learned trial Court has rightly convicted the Appellant and the
Appeal be dismissed. In support of his submissions, he relied on the
following judgments.
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1) State of Rajasthan V/s. Chatra (2025) 8 SCC 613,
2) Nalin @ Narendra S/o Bhagwan Nitnaware V/s. State of
Maharashtra, through the Police Station Officer of Police Station
Wadi, Nagpur and another 2025 Supreme (Bom) 1701,
3) Omkar Dattatraya Dangat V/s. State of Maharashtra 2023
Supreme (Online) (Bom) 2621.
7. It is submitted by the learned Advocate for the Respondent
No.2 victim that, the prosecution proved that the victim was a child
at the relevant time. The Appellant was known to the victim. The
charge can be proved on the sole testimony of the victim. The DNA
report is incriminating in nature. No interference is warranted in the
judgment and the Appeal be dismissed.
8. When the charge is for the offence punishable under the penal
provisions of the POCSO Act, it is for the prosecution to establish that
the victim was a child as defined under Section 2(d) of the POCSO
Act. To establish that the victim, at the relevant time, was below 18
years of age and was a child, prosecution relied on the testimony of
the father of the victim who is examined as P.W.2. The evidence of
this witness nowhere shows that there is a challenge to the aspect
that he was the biological father of the victim. His evidence shows
that the victim's date of birth was 6.10.2004. His evidence shows
that he tendered the birth certificate of the victim and the same was
exhibited as Exh.60 by the learned trial Court. Undisputedly, no
witness from the office of the Municipal Corporation, which issued
the said birth certificate, was examined by the prosecution to prove
the authenticity of the said birth certificate (Exh.60). However,
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nothing has come in the evidence of this witness that the victim's
date of birth was different than the one deposed by this witness. This
witness being biological father of the victim, his evidence regarding
date of birth assumes importance. The date of birth deposed by this
witness before the trial Court find no direct challenge by the defence
in the cross-examination. On the basis of this evidence on record,
the prosecution proved the date of birth of the victim. Undisputedly,
the report was lodged by this witness to the concerned Police Station
on 13.1.2017 for the incidences prior to lodging the F.I.R.
Considering the date of birth of the victim and the date of lodging of
the F.I.R., it is clear that the victim was the child at the relevant time.
9. Though P.W.2, father of the victim, in his evidence deposed
that the victim was slow-witted child, his evidence shows that he had
not produced any medical certificate in respect of victim's mental
condition. The evidence of P.W.10 Investigating Officer shows that he
did not get the victim examined in respect of her Intelligent Quotient
(IQ). His evidence further shows that there was no certificate by the
Psychologist to show the mental illness of the victim. His evidence
further shows that while recording the statement, victim understood
the questions put to her. In absence of any other material or
evidence on record, the evidence of the victims father will not be
sufficient to accept that the victim was the slow-witted child.
10. The report is lodged by the father of the victim. He is not an
eye witness to any of the incident of sexual assault on the victim. He
set the criminal law in motion against the Appellant. However,
most of the evidence of the victim's father is an omission. His
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evidence shows that he had seen the Appellant wandering near his
house. The testimony of the victim shows that her parents came to
know that the Appellant used to take round near her house. Her
evidence shows that her parents were annoyed due to wandering of
the Appellant near their house. This evidence on record shows that
victim's father did not like the Appellant's wandering near their
house. The evidence of the victim's father show that he gave phone
call to the police and had gone to the police station and gave the
motorcycle number to the police. His evidence show that before the
Appellant was brought to the police station, police had shown the
photograph of the Appellant on the mobile and the victim identified
the photo. His further evidence shows that the police had shown two
to three photographs to the victim, out of which the victim identified
the photo of the Appellant. His evidence further shows that the
police showed him two photographs at the police station and on the
basis of the motorcycle of the Appellant, the address of the Appellant
was traced and his photograph was obtained by the police and on it's
basis he identified him.
11. The prosecution case largely hinges on the testimony of victim.
In State of Rajasthan (supra) the principles in respect appreciation of
evidence of the child are laid down. There is no dispute in respect
of the said principles. In Nalin @ Narendra (supra) this Court found
the testimony of the victim wholly trustworthy and reliable and
maintained the conviction recorded by the trial Court therein.
Evidence of victim shows that she knew the Appellant. The Appellant
used to take her on his two wheeler. The Appellant used to take her
at one room and commit sexual intercourse with her. According to
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the victim, said act was committed for 5 to 6 times by the Appellant
on her. From the cross-examination of the victim, it is clear that most
of the evidence of the victim was an omission or improvement,
except the evidence in respect of sexual intercourse. It is clear from
the cross-examination of the victim that her parents, maternal uncle,
paternal aunt and cousin brother accompanied her to the police
station. It has come in her cross-examination that when she had
gone to the police station, her signatures were taken on one paper
and she was not aware what was written on the same. It has come in
her cross-examination that her parents instructed her to give
statement against the Appellant in the Court and the F.I.R. was read
over to her by the parents and she was asked to give such statement
in the Court. According to the victim, her family members came to
know when she narrated the acts on the part of the Appellant at the
police station. If that be so, the possibility of false implication cannot
ruled out. These vital aspects in the cross-examination of the victim
clearly shows that she deposed under the influence of her parents.
This indicates that victim's testimony was not natural and she was
tutored by her parents. This being the position, the testimony of the
victim itself cannot form the basis to hold that the Charge was
proved against the Appellant. It is evident from the testimony of the
victim that she cannot be called the witness of sterling quality. This
being the evidence of victim, the judgments cited by learned A.P. P.
will not be of any assistance for the prosecution.
12. The evidence of P.W.3, Medical Officer, working at the
Government Medical College, shows that on 13.1.2017 the victim
was brought for medical examination. The mother of the victim gave
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the history to him. He examined the victim and found old healed
hymnal tear present at 6 O' clock and 4 O' clock position, edges of
the hymen were normal and there was no bleeding and rest of the
examination was found normal. He opined that the sexual assault
could not be ruled out and the final opinion was kept pending till the
Forensic Science Laboratory report. The cross-examination of the
Medical Officer clearly shows that the vaginal canal as well as vagina
of a 12 years old child was delicate and if a fully developed man
commits sexual intercourse with said child, the child will receive the
injury in the vaginal canal in the nature of 'lacerated wounds' and
'lacerated bruises'. It has clearly come in his evidence that he had
not seen any 'lacerated wound' or 'bruise' in the vaginal canal during
examination of the victim. It has further come in his evidence that if
such injury occurs, it might take some time to heal and it was very
difficult to show when the hymen of the victim was teared. His
evidence further shows that at the second time of penetration there
may be injury to the vaginal canal. His evidence further shows that if
the victim is medically examined within 24 hours from the forceful
sexual intercourse, the injuries on the vaginal canal can be seen and
even if the 'lacerated wounds' and 'bruises' in vaginal canal were
caused prior to 10 days of examination, then the evidence of it's
healing can be seen. He clearly deposed that he had not seen any
injury of 'lacerated wound' and 'lacerated bruise' in the vaginal canal.
His evidence shows that his opinion that possibility of sexual assault
cannot be ruled out was only based on the hymnal tear and as it was
old hymnal tear. It has come in his evidence that there are various
reasons for hymnal tear such as playing, cycling, running etc. This
medical evidence do not corroborate the prosecution's case in respect
11 apeal693.2023.odt
of sexual assault by the Appellant on the victim. Moreover, the
history was given to this Medical Officer by the mother of the victim
which again creates doubt about the prosecution's case.
13. Another evidence brought on record by the prosecution is DNA
report. Much emphasis is given by the learned A.P.P. on the DNA
report which is brought on record at Exh.67 in the evidence of P.W.4
Chemical Analyzer. Evidence of this witness shows that he
conducted analysis of DNA in the present case. On the analysis, he
opined that semen stains of the Appellant were found on the knicker
of the victim. It has come in his cross-examination that there was no
requisition from the police to provide DNA kit to keep the blood
samples and as per his knowledge no DNA kit was provided from the
laboratory. He received the samples on 19.8.2017 from the
Biological Section and he was unable to state the condition of
samples which was received by him. His evidence shows that the
samples are required to be preserved in proper condition till they are
submitted to the laboratory. It has clearly come in his
cross-examination that if the samples are not kept in proper
condition, it may affect the result of analysis and he was unaware as
to where the samples were kept in the police station prior to it's
deposit with the laboratory. In his cross-examination he volunteered
that he never received the semen samples of the Appellant. This
evidence itself is sufficient to discard the DNA report.
14. There cannot be any dispute on the settled legal position in
respect of evidentiary value to be given to the DNA report. The
prosecution is duty-bound to establish the complete chain of
12 apeal693.2023.odt
handling of the samples from its drawing till the analysis is done. On
this point, the judgment of Chandu @ Chandrashekhar (supra) cited
by the learned Advocate for the Appellant is relevant. The Division
Bench of Bombay High Court at Aurangabad in Nivrutti S/o Nagorao
Hange V/s. The State of Maharashtra and another 2024 ALL MR
(Cri.) 3445 which finds place in the said judgment, considered the
decisions of the Hon'ble Supreme Court in respect of DNA report.
Relevant observations from the said judgment are reproduced
below:-
"18. Before proceeding to appreciate the submissions it
would be appropriate to consider the law laid down by the
Apex Court and considered by this Court in a number of
cases on the point of admissibility and credibility of CA
and DNA reports. The Division Bench of the Bombay High
Court at Aurangabad has considered almost all the
decisions on this point in the case of Nivrutti S/o. Nagorao
Hange .v/s. The State of Maharashtra and another,
reported in, 2024 ALL MR (Cri.) 3445. It would be
appropriate to reproduce para 17 wherein this issue has
been dealt with. It is extracted below:
17. Another evidence, upon which, the Prosecution
laid emphasis and which weighed heavily with the learned
Trial Court to convict the Appellant, is the scientific
evidence in the nature of DNA reports. Following
Judgments are relied upon by the learned Advocates for
the Appellant on this aspect.
[I] In Pattu Rajan Vs. The State of Tamil Nadu;
MANU/SC/0439/2019:[2019 ALLSCR (Cri.) 1343], it is
observed as follows :-
"31. Shri Sushil Kumar also argued that a DNA test
should have been conducted in order to identify the dead
body, and identification merely on the basis of a
superimposition test, which is not a tangible piece of
evidence, may not be proper.
13 apeal693.2023.odt
One cannot lose sight of the fact that DNA
evidence is also in the nature of opinion evidence as
envisaged in Section 45 of the Indian Evidence Act.
Undoubtedly, an expert giving evidence before the Court
plays a crucial role, especially since the entire purpose and
object of opinion evidence is to aid the Court in forming its
opinion on questions concerning foreign law, science, art,
etc., on which the Court might not have the technical
expertise to form an opinion on its own. In criminal cases,
such questions may pertain to aspects such as ballistics,
fingerprint matching, handwriting comparison, and even
DNA testing or superimposition techniques, as seen in the
instant case.
32. The role of an expert witness rendering opinion
evidence before the Court may be explained by referring to
the following observations of this Court in Ramesh
Chandra Agrawal v. Regency Hospital Limited and Ors.,
MANU/SC/1641/2009 : (2009) 9 SCC 709:
16. The law of evidence is designed to ensure that the
court considers only that evidence which will enable it to
reach a reliable conclusion. The first and foremost
requirement for an expert evidence to be admissible is that
it is necessary to hear the expert evidence. The test is that
the matter is outside the knowledge and experience of the
lay person. Thus, there is a need to hear an expert opinion
where there is a medical issue to be settled. The scientific
question involved is assumed to be not within the court's
knowledge. Thus cases where the science involved, is
highly specialized and perhaps even esoteric, the central
role of an expert cannot be disputed....
Undoubtedly, it is the duty of an expert witness to
assist the Court effectively by furnishing it with the
relevant report based on his expertise along with his
reasons, so that the Court may form its independent
judgment by assessing such materials and reasons
furnished by the expert for coming to an appropriate
conclusion. Be that as it may, it cannot be forgotten that
opinion evidence is advisory in nature, and the Court is
not bound by the evidence of the experts. (See The State
14 apeal693.2023.odt
(Delhi Administration) v. Pali Ram, MANU/SC/ 0189/1978
: (1979) 2 SCC 158; State of H.P. v. Jai Lal and Ors.,
MANU/SC/0557/1999 : (1999) 7 SCC 280; Baso Prasad
and Ors. v. State of Bihar, MANU/SC/8723/2006 : (2006)
13 SCC 65; Ramesh Chandra Agrawal v. Regency Hospital
Ltd. And Ors. (supra); Malay Kumar Ganguly v. Dr.
Sukumar Mukherjee and Ors., MANU/SC/1416/2009:
(2010) 2 SCC (Cri.) 299).
33. Like all other opinion evidence, the probative value
accorded to DNA evidence also varies from case to case,
depending on facts and circumstances and the weight
accorded to other evidence on record, whether contrary or
corroborative. This is all the more important to remember,
given that even though the accuracy of DNA evidence may
be increasing with the advancement of science and
technology with every passing day, thereby making it more
and more reliable, we have not yet reached a juncture
where it may be said to be infallible. Thus, it cannot be
said that the absence of DNA evidence would lead to an
adverse inference against a party, especially in the
presence of other cogent and reliable evidence on record in
favour of such party".
[II] In Manoj and Others Vs. State of Madhya Pradesh;
MANU/SC/0711/2022: [2022 ALL SCR (Cri.) 1177], it is
observed as follows :-
"134. During the hearing, an Article published by the
Central Forensic Science Laboratory, Kolkata was relied
upon. The relevant extracts of the Article are reproduced
below:
.... ..... ..... ..... ......
.... ..... ..... ..... ......
.... ..... ..... ..... ......
.... ..... ..... ..... ......
.... ..... ..... ..... ......
.... ..... ..... ..... ......
.... ..... ..... ..... ......
Collection and Preservation of Evidence
15 apeal693.2023.odt
If DNA evidence is not properly documented,
collected, packaged, and preserved, It will not meet the
legal and scientific requirements for admissibility in a
court of law. Because extremely small samples of DNA can
be used as evidence, greater attention to contamination
issues is necessary while locating, collecting, and
preserving DNA evidence can be contaminated when DNA
from another source gets mixed with DNA relevant to the
case. This can happen when someone sneezes or coughs
over the evidence or touches his/her mouth, nose, or other
part of the face and then touches area that may contain
the DNA to be tested. The exhibits having biological
specimen, which can establish link among victim(s),
suspect(s), scene of crime for solving the case should be
Identified, preserved, packed and sent for DNA Profiling.
.... ..... ..... ..... ......
.... ..... ..... ..... ......
136. The Law Commission of India in its report,
observed as follows :
DNA evidence involves comparison between
genetic material thought to come from the person whose
identity is in issue and a sample of genetic material from a
known person. If the samples do not 'match', then this will
prove a lack of identity between the known person and the
person from whom the unknown sample originated. If the
samples match, that does not mean the identity is
conclusively proved. Rather, an expert will be able to
derive from a database of DNA samples, an approximate
number reflecting how often a similar DNA "profile" or
"fingerprint" is found. It may be, for example, that the
relevant profile is found in 1person in every 100,000. This
is described as the 'random occurrence ratio' (Phipson
1999).
Thus, DNA may be more useful for purposes of
investigation but not for raising any presumption of
identity in a court of law.
.... ..... ..... ..... ......
.... ..... ..... ..... ......
.... ..... ..... ..... ......
16 apeal693.2023.odt
141. This Court, therefore, has relied on DNA reports, in
the past, where the guilt of an Accused was sought to be
established. Notably, the reliance, was to corroborate. This
Court highlighted the need to ensure quality in the testing
and eliminate the possibility of contamination of evidence;
it also held that being an opinion, the probative value of
such evidence has to vary from case to case".
[III] In Naveen Vs. The State of Madhya Pradesh;
MANU/SC/1167/2023: [2023 ALLSCR (Cri.)1955], it is
observed as follows:
"18. The issue concerning evidentiary value of DNA
report has been considered by this Court in a recent
judgment reported in the case of Rahul v. State of Delhi,
Ministry of Home Affairs and Anr. MANU/SC/1455/2022 :
(2023) 1 SCC 83 wherein the following has been held in
Paragraphs 36 and 38 as under:
36. The learned Amicus Curiae has also assailed the
forensic evidence i.e. the report regarding the DNA
profiling dated 18-4-2012 (Ext. P-23/1) giving
incriminating findings. She vehemently submitted that
apart from the fact that the collection of the samples sent
for examination itself was very doubtful, the said forensic
evidence was neither scientifically nor legally proved and
could not have been used as a circumstance against the
Appellant-Accused. The Court finds substance in the said
submissions made by the Amicus Curiae. The DNA
evidence is in the nature of opinion evidence as envisaged
Under Section 45 and like any other opinion evidence, its
probative value varies from case to case.
38. It is true that PW 23 Dr B.K. Mohapatra, Senior
Scientific Officer (Biology) of CFSL, New Delhi had
stepped into the witness box and his report regarding DNA
profiling was exhibited as Ext. PW 23/A, however mere
exhibiting a document, would not prove its contents. The
record shows that all the samples relating to the Accused
and relating to the deceased were seized by the
investigating officer on 14-2- 2012 and 16-2-2012; and
they were sent to CFSL for examination on 27-2-2012.
17 apeal693.2023.odt
During this period, they remained in the malkhana of the
police station. Under the circumstances, the possibility of
tampering with the samples collected also could not be
ruled out. Neither the trial court nor the High Court has
examined the underlying basis of the findings in the DNA
reports nor have they examined the fact whether the
techniques were reliably applied by the expert. In the
absence of such evidence on record, all the reports with
regard to the DNA profiling become highly vulnerable,
more particularly when the collection and sealing of the
samples sent for examination were also not free from
suspicion. (Emphasis supplied)"
19. In the case of Manoj and Ors. v. State of M.P.
MANU/SC/0711/2022 :(2023) 2 SCC 353, it was held
that if DNA evidence is not properly documented,
collected, packaged, and preserved, it will not meet the
legal and scientific requirements for admissibility in a
court of law. Because extremely small samples of DNA can
be used as evidence, greater attention to contamination
issues is necessary while locating, collecting, and
preserving DNA evidence as it can be contaminated when
DNA from another source gets mixed with DNA relevant to
the case. This can happen even when someone sneezes or
coughs over the evidence or touches his/her mouth, nose,
or other part of the face and then touches the area that
may contain the DNA to be tested. The exhibits having
biological specimen, which can establish link among
victim(s), suspect(s), scene of crime for solving the case
should be identified, preserved, packed, and sent for DNA
Profiling.
20. In the case of Anil @ Anthony Arikswamy Joseph v.
State of Maharashtra MANU/SC/0124/2014 : (2014) 4
SCC 69, the following has been held in paragraph 18 as
under:
18. Deoxyribonucleic acid, or DNA, is a molecule that
encodes the genetic information in all living organisms.
DNA genotype can be obtained from any biological
material such as bone, blood, semen, saliva, hair, skin, etc.
Now, for several years, DNA profile has also shown a
18 apeal693.2023.odt
tremendous impact on forensic investigation. Generally,
when DNA profile of a sample found at the scene of crime
matches with the DNA profile of the suspect, it can
generally be concluded that both the samples have the
same biological origin. DNA profile is valid and reliable,
but variance in a particular result depends on the quality
control and quality procedure in the laboratory".
(Emphasis
supplied)
[IV] In Prakash Nishad Vs. State of Maharashtra;
MANU/SC/0613/2023; [2023 ALL SCR (ONLINE) 477],
one of the issue for consideration was whether DNA
evidence can form the solitary basis in determining the
guilt of the Appellant therein and it
observed as follows :-
"60. We may observe that the Maharashtra Police
Manual1, when speaking of the integrity of scientific
evidence in Appendix XXIV states -
The integrity of exhibits and control samples must
be safeguarded from the moment of seizure upto the
completion of examination in the laboratory. This is best
done by immediately packing, sealing and labeling and to
prove the continuity of the integrity of the samples, the
messenger or bearer will have to testify in Court that what
he had received was sealed and delivered in the same
condition in the laboratory. The laboratory must certify
that they have compared the seals and found them to be
correct. Articles should always be kept apart from one
another after packing them separately and contact be
scrupulously avoided in transport also.
61. In the present case, the delay in sending the
samples is unexplained and therefore, the possibility of
contamination and the concomitant prospect of
diminishment in value cannot be reasonably ruled out. On
the need for expedition in ensuring that samples when
collected are sent to the concerned laboratory as soon as
possible, we may refer to "Guidelines for collection,
storage and transportation of Crime Scene DNA samples
For Investigating Officers - Central Forensic Science
19 apeal693.2023.odt
Laboratory Directorate Of Forensic Sciences Services
Ministry Of Home Affairs, Govt. of India"2 which in
particular reference to blood and semen, irrespective of its
form, i.e. liquid or dry (crust/stain or spatter) records the
sample so taken "Must be submitted in the laboratory
without any delay."
62. The document also lays emphasis on the 'chain of
custody' being maintained. Chain of custody implies that
right from the time of taking of the sample, to the time its
role in the investigation and processes subsequent, is
complete, each person handling said piece of evidence
must duly be acknowledged in the documentation, so as to
ensure that the integrity is uncompromised. It is
recommended that a document be duly maintained
cataloguing the custody. A chain of custody document in
other words is a document, "which should include name or
initials of the individual collecting the evidence, each
person or entity subsequently having custody of it, dated
the items were collected or transferred, agency and case
number, victim's or suspect's name and the brief
description of the item."
[V] In Mukesh and Others Vs. State of NCT of Delhi
and Ors.; MANU/SC/0575/2017: [2017 ALLMR (Cri.)
2448 (S.C.], it is observed as follows :-
"216 In Pantangi Balarama Venkata Ganesh v.
State of Andhra Pradesh MANU/SC/1306/2009 : (2009)
14 SCC 607, a two-Judge Bench had explained as to what
is DNA in the following manner:
41. Submission of Mr. Sachar that the report of DNA
should not be relied upon, cannot be accepted. What is
DNA? It means:
Deoxyribonucleic acid, which is found in the
chromosomes of the cells of living beings is the blueprint
of an individual. DNA decides the characteristics of the
person such as the colour of the skin, type of hair, nails
and so on. Using this genetic fingerprinting, identification
of an individual is done like in the traditional method of
identifying fingerprints of offenders. The identification is
hundred per cent precise, experts opine.
20 apeal693.2023.odt
There cannot be any doubt whatsoever that there
is a need of quality control. Precautions are required to be
taken to ensure preparation of high molecular weight
DNA, complete digestion of the samples with appropriate
enzymes, and perfect transfer and hybridization of the blot
to obtain distinct bands with appropriate control. (See
article of Lalji Singh, Centre for Cellular and Molecular
Biology, Hyderabad in DNA profiling and its applications.)
But in this case there is nothing to show that such
precautions were not taken".
[VI] In Ananda Vs. The State of Maharashtra;
MANU/MH/3781/2024, one of the evidence was in the
nature of DNA reports and it is observed as under:
"39. The question is, based on the DNA reports,
whether the conviction and/or sentence passed by the trial
court would be sustainable. We have gone through the
impugned judgment. The trial court has relied on the
evidence of each and every witness. It also relied on the
evidence of the medical officer who collected blood of the
appellant for DNA analysis, even in breach of protocol in
that regard. The reason assigned for relying on the said
evidence is that the said witness is uninterested and
independent one. Before appreciating the evidence relating
to DNA, we must have a look at the guidelines for
collection, storage and transportation of the crime-scene
DNA samples. Those have been placed on record by
learned counsel for the appellant. Item No.10 therein
speaks of maintaining the chain of custody. It describes
what chain of custody means. Same reads as under:-
10. Maintaining the chain of custody:
• Chain of custody is a process used to maintain and
document the chronological history of the evidence.
• A `chain of custody' document should be maintained
which should include name or initials of the individual
collecting the evidence, each person or entity subsequently
having custody of it, dated the items were collected or
transferred, agency and case number, victim's or suspect's
name and the brief description of the item.
21 apeal693.2023.odt
Those were the guidelines issued by The Central
Forensic Science Laboratory, Chandigarh. PW 18 - Vaishali
admitted in cross-examination that the C.F.S.L.,
Chandigarh and Hyderabad are best in India."
15. In the case at hand there is no link evidence to show as to who
had drawn the samples, where they were kept and in what condition
before submitting to the laboratory. The prosecution examined
Panch witness on the point of samples of victim and the accused as
P.W.9. His evidence shows that police seized samples of the victim
and the accused which were brought from the hospital in his
presence. However, in the cross-examination he deposed that he did
not know who took the samples and who brought the same to the
police station, the police did not take the samples in his presence, the
samples were kept in the glass container and the police told him that
said samples were of the victim and the Appellant. His evidence
further shows that while preparation of the panchanama below
Exh.116 which was in respect of the bottles, the Appellant was not
present and only the victim girl was present. It has come in his
cross-examination that the seizure panchanama was prepared in the
police station itself and the samples mentioned in the panchanamas
were kept on the table in the police station. Though P.W.10, the
Investigating Officer, deposed that he seized the blood samples and
other samples of the victim which were taken by the Medical Officer
in presence of two Panchas, there is absolutely no evidence as to who
had drawn the samples for DNA. The evidence of P.W.6 shows that
on 21.1.2017 he carried 20 parcels to the laboratory as per the
instructions of his superior. There is absolutely no evidence as
required under the law to establish the chain of handling of the DNA
22 apeal693.2023.odt
samples. In absence of the link evidence in respect of handling of
DNA samples, the evidence available on record is not sufficient to
accept the DNA report. With the evidence available on record, the
DNA report cannot be accepted and the same is liable to be
discarded.
16. The other evidence on record is that of the house owner where
the accused had gone to take rest, the evidence of the Panch witness
and the evidence of the Carrier. This evidence do not take the case of
prosecution any further. As regards the C.A. Reports in respect of
articles seized during the course of investigation, those cannot form
the basis to uphold the conviction as the evidence of P.W.9 Panch
witness shows that the clothes of the victim and that of the accused
were kept on the table in the police station and the police informed
him that the clothes were seized. Suggestion is given in respect of
tampering of the articles. His evidence further shows that the clothes
were not in a sealed condition. Suggestions are given by the defence
that the articles were tampered and the semens were sprinkled on
the clothes of the victim.
17. The re-appreciation of the evidence available on record, as
above, result in recording the finding that, the evidence brought on
record by the prosecution to prove the charge is not free from doubt.
The evidence on record is not concrete and cannot form the basis to
uphold the conviction and sentence. The Appellant is therefore
entitled for acquittal. As the Appellant has already undergone the
sentence and set free from the jail, no orders are required for his
release. Hence, the following order:-
23 apeal693.2023.odt
ORDER
i) The appeal is allowed.
ii) The conviction and sentence recorded by the learned trial
Court against the Appellant by the impugned judgment and order for
the offence punishable under Section 363 of the I.P.C. and for the
offence punishable under Sections 4 and 6 of the POCSO Act is
quashed and set aside.
iii) The Appellant is acquitted of the offence punishable under
Section 363 of the I.P.C. and for the offence punishable under
Sections 4 and 6 of the POCSO Act.
iv) Fine amount paid by the Appellant, if any, be refunded to him.
v) The muddemal articles be dealt with as per the impugned
judgment and order.
vi) The record and proceedings be sent back to the learned trial
Court.
vii) The fees of the learned Advocate appointed for Respondent
No.2 is quantified at Rs.10,000/-. Same be paid accordingly by the
High Court Legal Services Authority.
(NEERAJ P. DHOTE, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 09/01/2026 14:31:01
