[Cites 19, Cited by 0]
Bombay High Court
Somnath Sadhu Birajdar vs The State Of Maharashtra And Another on 20 January, 2026
2026:BHC-AUG:2678
1 902.Cri.Appeal.307.2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 307 OF 2024
Somnath Sadhu Birajdar
Age. 26 years, Occ. Driver, Now : Nil,
R/o. Ganeshwadi, Tal - Shirur Anantpal, Dist. Latur
At present at Central Prison, Aurangabad. ...Appellant
Versus
1. The State of Maharashtra,
Through Police Inspector,
P.S. Shirur Anantpal.
2. ABC (Prosecutrix/Victim) ...Respondents
...
Advocate for Appellant : Mr. S.G. Bobade a/w. Mr. N.I. Deshmukh
APP for Respondent No. 1 : Ms. A.S. Deshmukh
Advocate for Respondent No. 2 : Mr. Rohit Gunale h/f. Mr. V.D. Gunale
...
CORAM : RAJNISH R. VYAS, J.
DATE : 20TH JANUARY, 2026
ORAL JUDGMENT :
1. This appeal is preferred by the accused challenging his
conviction awarded by Special Court, (POCSO Act), Assistant Sessions
Judge, Nilanga, dated 19.05.2023, passed in Special (POCSO) Case No.
07/2020, by which, the present appellant was convicted for commission
of offence punishable under Section 376 (2) (n) of the Indian Penal Code
(herein after would be referred to as 'the IPC' for sake of brevity) and
directed to suffer rigorous imprisonment for ten years and pay fine of Rs.
1,000/- in default to suffer rigorous imprisonment for one year.
2 902.Cri.Appeal.307.2024.odt
2. The appellant was also convicted for commission of offence
punishable under Section 376 (3) of IPC and directed to suffer rigorous
imprisonment for twenty years and pay fine of Rs. 2,000/- in default to
suffer rigorous imprisonment for two years.
3. He was also convicted for commission of offence punishable
under Section 4 read with Section 3 of Protection of Children from
Sexual Offences Act (herein after would be referred to as 'the Act of
2012' for sake of brevity) and directed to suffer rigorous imprisonment of
ten years and pay fine of Rs. 1,000 in default to suffer rigorous
imprisonment for one year.
4. He was also convicted for commission of offence punishable
under Section 6 read with 5 (j) (ii)(l) of the Act of 2012 and directed to
suffer rigorous imprisonment for twenty years and pay fine of Rs. 2,000/-
in default to suffer rigorous imprisonment for two years.
5. So far as conviction of offence punishable under Section 452
of the IPC, the appellant was directed to suffer rigorous imprisonment for
three years and pay fine of Rs. 500/- in default to suffer rigorous
imprisonment for six months.
6. He was also convicted for conviction of offence under
Section 506 of the IPC, and directed to suffer rigorous imprisonment for
three years and pay fine of Rs. 500/- in default to suffer rigorous
3 902.Cri.Appeal.307.2024.odt
imprisonment for six months. All the sentences were ordered to run
concurrently. Compensation of Rs. 6,000/- was directed to be paid to the
victim out of the fine amount.
7. In short, it is the case of prosecution that victim who at the
relevant time was 17 years old and residing with her sister in a house,
was subjected to forcible sexual intercourse by the appellant. It was the
case of prosecution that some time in the month of February 2020,
appellant who was the neighbour of the victim, came to victim's house at
night hours, at which time, the victim was sleeping in the kitchen along
with her sister. The appellant entered the kitchen, awoke her and took her
by holding her hand in another room, where he proposed the victim.
When victim asked him to go, he refused and threatened her, and
thereafter, forcibly kept physical relation with her. He also threatened her
that in case the incident is disclosed to anybody, he would take
appropriate steps.
8. It was the case of prosecution that on 03.09.2020, because
the victim was not feeling well, she was taken to the hospital i.e.
Government Hospital, Latur, by her father and step mother. Prior to that,
according to the victim, her sonography was conducted at Hi Tech
Hospital. At about 05:30 p.m. on 03.09.2020, victim delivered a girl child
who died on 04.09.2020 at 08:00 a.m.
4 902.Cri.Appeal.307.2024.odt
9. According to the prosecution's case, this triggered the
lodging of the First Information Report No. 131/2020 dated 05.09.2020,
as the victim's parents enquired about the incident, during which the
victim narrated the facts as stated above. The appellant was arrested on
08.09.2020.
10. During the course of investigation, the blood samples of the
appellant and the victim were seized along with the clothes. DNA
samples of the child also came to be collected. Those samples were
forwarded to the laboratory and laboratory by submitting report opined
that the appellant and the victim were concluded to be biological parents
of the child (exhibit 20). After completion of investigation, chargesheet
was filed and charge was framed on 06.04.2021, by Additional Sessions
Judge and Special Judge, Nilanga, to which the appellant pleaded not
guilty.
11. In order to bring home the charge, prosecution had examined
total twelve witness. The appellant, thereafter, was questioned under
Section 313 of Code of Criminal Procedure, wherein he stated that due to
earlier quarrels he was falsely implicated. In support of his defence, he
examined two witnesses. A witness i.e. D.W. 1 - Pundlik was examined
in order to support his contention that quarrel had taken place on earlier
occasions. D.W. 2 - Dr. Vivek was examined in order to buttress his
5 902.Cri.Appeal.307.2024.odt
contention that sonography performed, was of the step mother of the
victim, so also the child born was of the step mother of the victim and not
of the victim.
12. After considering the evidence on record, the trial Court
convicted the appellant and sentenced him to suffer imprisonment,
maximum of which is twenty years.
13. Learned counsel for the appellant Mr. Bobade, pointed out
that the entire evidence rendered by the prosecution is untrustworthy. In
fact, the prosecution had suppressed various documents which compelled
the appellant to examine D.W.-2. He submitted that if the documents
produced in the evidence through D.W.-2 are seen, it would reveal that in
the medial papers, pertaining to sonography, the name of step mother as a
patient is mentioned and not the name of victim of crime. He further
submitted that since a specific number was assigned to the patient for
medical treatment, all subsequent documents would demonstrate that the
child born was that of the stepmother and not of the victim. He submitted
that there was absolutely no explanation advanced by the prosecution as
to why those documents were not supplied to the Investigating Officer.
14. He further submitted that date of birth of the victim was not
proved in accordance with law, and therefore, the provisions of the Act of
2012, ought not to have been invoked.
6 902.Cri.Appeal.307.2024.odt
15. He submitted that the chain of custody which is required to
be proved by the prosecution on the basis of documentary evidence, is
not proved properly, and therefore, the DNA report is required to be
ignored. He further submitted that just because DNA report concludes
that the appellant and the victim are the biological parents, it does not
mean that the offence of rape is conclusively proved. He submitted that
delay in lodging First Information Report is not proved by the
prosecution. Accordingly to him, neither any First Information Report
nor any testimony advanced by the prosecutrix, a specific date of
incident is mentioned, and therefore, the prosecution had not proved the
case beyond reasonable doubt. He submitted that his client be acquitted
considering the nature of evidence brought on record.
16. Per contra, learned APP Ms. Deshmukh supported the
conviction awarded by the trial Court and contended that the testimony of
the prosecutrix is cogent and reliable. She submitted that there is
absolutely no reason advanced or brought on record by the appellant to
show that he was falsely implicated. According to her, the chain of
custody of collecting and depositing DNA sample is properly proved. She
thus submitted that the appeal be dismissed.
17. Mr. Gunale, learned counsel for the victim supported the
stand taken by the prosecutor. He submitted that at the time of incident
7 902.Cri.Appeal.307.2024.odt
victim was minor, who had categorically stated in her deposition that she
was subjected to forcible sexual intercourse. He submitted that offence is
proved beyond reasonable doubt, and therefore, interference at the hands
of this Court is not required.
18. Rival contentions for consideration :
P.W.-1 is the star witness who is prosecutrix. P.W.-2 is the
father of the victim. P.W.-8 is the Headmaster of the School where the
victim had taken education.
19. At this stage, since the appellant is convicted for
commission of the offences punishable under the Act of 2012, it is
necessary to scrutinize the evidence in order to arrive at the conclusion as
to whether the prosecution has proved that on the date of incident victim
was minor or not.
20. Act of 2012, more particularly Section 2 (d) defines child
which means any person below age of eighteen years.
21. If the testimony of P.W.-1 is perused, it would reveal that she
had stated her date of birth as 09.08.2005, whereas, the incident had
taken place in February, 2020. According to her, she had done her
education till 10th standard. If the cross-examination of the aforesaid
witness is perused, it would be crystal clear that no suggestion was given
to the said witness that 09.08.2005, was not her date of birth. There is no
8 902.Cri.Appeal.307.2024.odt
denial in cross-examination so far as date of birth is concerned.
22. Coming to the testimony of P.W.-2 who is father of the
victim, in his examination he had categorically stated that his daughter /
victim had passed her 10th standard examination in 2020. In his
deposition, he had stated that date of birth of the victim was 09.08.2005.
This witness had proved the birth certificate below exhibit 55. If exhibit
55 is perused, it would reveal that the said certificate is issued by the
concerned Municipal Council and date of birth of the victim is shown as
09.08.2005. The birth certificate also shows name of child / victim, name
of father i.e. P.W.-2 and name of mother.
23. The prosecution also relied upon testimony of P.W.-8, who
was the Head Master of the concerned school. P.W.-8 in the examination-
in-chief had stated that since 2018, he was posted as Head Master with a
Zilla Parishad School and in the year 2019, police had given a letter and
asked about extract of admission register. The said letter was marked at
exhibit 91. He submitted that he had supplied extract of admission
register along with his covering letter which was marked as exhibit 92,
whereas extract of admission register was marked as exhibit 93.
According to register, the date of birth of victim is 09.08.2005. In cross-
examination, he admitted that at the time of the victim's admission, he
was not the school's Head Master; he also admitted that the admission
9 902.Cri.Appeal.307.2024.odt
form does not mention the basis on which the date of birth was recorded.
He also admitted that he did not know the date whether the date of birth
was stated correctly or incorrectly.
24. Considering the testimony of P.W.-1, P.W.-2, and P.W.-8, it
can be said that prosecution had proved the age of victim as 09.08.2005,
for the reason that P.W.-1 and P.W.-2 had categorically stated the said
date as date of birth. P.W.-2 had proved exhibit 55 which is birth
certificate. Further, there is no denial to the date of birth in cross-
examination of P.W.-1 and P.W.-2. I, thus come to conclusion that
prosecution had proved the date of birth and consequently, the fact that
the victim was child as defined under the Act of 2012.
25. The appellant is convicted for commission of offence
punishable under Section 376 (2) (n) of the IPC. Section 375 defines the
rape. According to Section 375 of the IPC, a man is said to commit
"rape" if he penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a woman or makes her perform such an act with him or
any other person. Such penetration must be against the will of the
prosecutrix or without her consent. Section 376 prescribes punishment of
rape. Section 376 (2) (n) speaks about commission of rape repeatedly on
the same woman.
26. If testimony of P.W.-1 / victim is perused, it would be crystal
10 902.Cri.Appeal.307.2024.odt
clear that this offence has been proved beyond reasonable doubt by the
prosecution. The relevant portion of testimony of P.W.-1 is reproduced
herein below :
"In February 2020, he came to my house in the
night. I can not tell exact date. At that time, I along
with my sister sleep in kitchen. My father used to sleep
in the field. Second marriage of my father was
performed on 24.04.2020.
He came to Kitchen and awoke me and took me
by holding my hand in another room. He proposed me
as I like him and he loves him. I asked him to go, he
refused to go and threatened me. There he forcibly kept
physical relation with me and he threatened that if tell
anybody else then he will see me and he left.
After 5-6 days he came again from eastern wall.
It was about midnight 12.00 hours. At that time also he
kept physical relation forcibly with me. He kept
physical relationship with me till April 2020. In March
2020, menstrual cycle stop. After second marriage of
my father he stop coming to our house."
27. The cross-examination of the aforesaid witness was done at
length by the learned counsel for the appellant. In the cross-examination,
it was brought on record that the biological mother of the victim had died
due to burn in the year 2013 and sister, brother and the mother of the
victim used to visit house of mother of accused on various occasions. It
11 902.Cri.Appeal.307.2024.odt
was also brought on record that even after the death of the mother of the
victim, same continued. It was brought on record that father of victim
was married to two women, thereafter. One of it was Sangita. It was
suggested to the victim that there used to be a quarrel between the
appellant and the father of the victim due to which a false case was filed.
She denied the fact that on 03.09.2020, she along with her father and
mother went to doctor at Hippalgaon for medical checkup at clinic. She
shown her ignorance whether doctor had referred her mother Sangita to
Hi Tech Hospital, Latur, for sonography. It was also suggested that date
due to lock down the appellant was at Pune from February, 2020 till
December, 2020.
28. The main thrust of the argument advanced by the appellant
is that no specific date and time was given by the prosecutrix regarding
the incident, and therefore, same should not be believed. In this regard, it
is necessary to mention here that victim, at the time of the offence was a
girl of hardly 16 years who was residing in a village. Even otherwise, it is
not expected from the prosecutrix that she would give the details of the
incident. Nothing has been brought on record by way of substantial
evidence that there was any reason for false implication of the applicant.
29. Learned counsel for the appellant contended that there was
delay in lodging first information report since even according to P.W.-1,
12 902.Cri.Appeal.307.2024.odt
the act was committed in the month of February 2020, but the First
Information Report was lodged on 05.09.2020, and therefore, the case is
not proved by the prosecution beyond reasonable doubt. It is necessary to
mention here that according to testimony of P.W.-1, in the month of
March 2020, her menstrual cycle stopped and thereafter on 03.09.2020,
she delivered a baby (female) child. On 04.09.2020, the child expired.
30. If the aforesaid dates are taken into consideration then it
cannot be said that there was no delay in lodging First Information
Report. The victim was a minor girl. On 03.09.2020, she delivered the
baby girl, who died on 04.09.2020, and consequently, the First
Information Report was filed on 05.09.2020.
31. There is one more reason to disregard the argument
advanced by the appellant regarding the delay and that is the testimony of
father P.W.-2. The relevant part of the testimony is reproduced as below :
"On that day at around 5.00 to 5:30 p.m, she delivered
and gave birth to female child. After some time to
myself and my wife taken her in confidence and
inquired. At that time she told that, our neighbour
accused Somnath had entered into house on climbing
wall in month of February. She told that, at that time
Sakshi was in sleep with another daughter. Then
accused took her by holding her hand in another room.
At that time he had forcibly established physical
13 902.Cri.Appeal.307.2024.odt
relations and threatened while leaving that if you tell
incidence to anybody then will kill you. Then after
some days similar incidence occurred."
32. If testimony of P.W.-1 and P.W.-2 is seen, it would be crystal
clear that it is for the first time on 03.09.2020, incident was noticed by
the parents, and therefore, the criminal law was set in motion on
05.09.2020. Thus, I come to conclusion that there is absolutely no delay
in lodging the First Information Report.
33. The applicant is also convicted for commission of offence
punishable under Section 376 (3) of the IPC. 376 (3) speaks about
commission of rape on a woman under 16 years of age. In view of
discussion made (supra), it is proved that the victim at the time of
incident was less than 16 years, hence I come to conclusion that the
prosecution has proved the offence punishable under Section 376 (3) of
the IPC.
34. As the appellant is also convicted for commission of offence
punishable under Section 4 as defined under Section 3 of the Act of 2012,
it is necessary to see what Section 3 speaks about. Section 3 speaks about
penetrative sexual assault, which reads as under :
"3. Penetrative sexual assault.-- A person is said to
commit "penetrative sexual assault" if--
(a) he penetrates his penis, to any extent, into the
14 902.Cri.Appeal.307.2024.odt
vagina, mouth, urethra or anus of a child or makes the
child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra
or anus of the child or makes the child to do so with
him or any other person; or
(c) he manipulates any part of the body of the child so
as to cause penetration into the vagina, urethra, anus
or any part of body of the child or makes the child to
do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus,
urethra of the child or makes the child to do so to such
person or any other person.
35. Section 4 is the punishment for penetrative sexual assault.
No more discussion regarding applicability of Section 3 and 4 would be
necessary, since the prosecution has already proved that the appellant had
committed rape which will also cover definition of penetrative sexual
assault, in the facts and circumstances of the case. Since I have already
observed that the victim at the time of the commission of offence was a
child as defined under Section 2 clause (d) of the Act of 2012 and thus
was below 16 years of age, the conviction of the appellant under Section
4 has also been proved by way of evidence by the prosecution.
36. The appellant is also convicted for commission of offence
punishable under Section 6 of the Act, in the light of definition of
15 902.Cri.Appeal.307.2024.odt
aggravated penetrative sexual intercourse more particularly Section 5 (j)
(ii) and (l). Section 5 of the Act of 2012, speaks about aggravated
penetrative sexual assault. Obviously, when offence under Section 5 is
required to be proved, even ingredients of Section 3 i.e. penetrative
sexual assault will have to be proved. As the penetrative sexual assault is
proved, since the accused had inserted his penis into the vagina, Section 5
also comes into the picture. As per clause (j) (ii), in case the prosecutrix /
female child is made pregnant, as a consequences of sexual assault, the
punishment triggers. Coming to clause (l) of Section 5, suffice it to say
that it belongs to the family of Section 376 (2) (n), where as Section 376
(2) (n) speaks about commission of rape repeatedly on the same woman.
Further, clause (l) Section (5) of the Act of 2012, speaks about
commission of penetrative sexual assault on the child more than once or
repeatedly.
37. Since the testimony of P.W.-1 clearly shows that she was
subjected to forcibly sexual intercourse on various occasions, it logically
follows that even the offence under Section 5 is duly proved.
38. The appellant was also convicted under the provision of
Section 452 of the IPC. Section 452 of IPC, speaks about house trespass
after preparation for hurt, assault, wrongful restraint. House trespass is
defined under section 452 of the IPC, which speaks that whoever
16 902.Cri.Appeal.307.2024.odt
commits house-trespass, having made preparation for restraining any
person, or for putting any person in fear of hurt, would be punished for a
term which may extend to seven years, and shall also be liable to fine.
39. Criminal trespass is defined under Section 441 of the IPC,
which says that whoever enters into or upon property in possession of
another with intent to commit an offence or to intimidate, insult or annoy
any person in possession of such property or having lawfully entered into
or upon such property, unlawfully remains there with intent thereby to
intimidate, insult or annoy any such person, or with intent to commit an
offence, is said to commit "criminal trespass".
40. Thus it is proved by the prosecution that the accused had
criminally trespassed the house of the victim in order to commit the
offence i.e. act of commission of rape, and therefore, even conviction
awarded by the trial Court under Section 452 of the IPC, is required to be
maintained.
41. The appellant was lastly convicted under Section 506 of the
IPC. The trial Court had relied upon Part II of Section 506 of the IPC.
Section 506 of the IPC, speaks about the punishment regarding criminal
intimidation. The definition of criminal intimidation originates from
Section 503 of the IPC. Criminal intimidation is defined by the IPC, as
whoever threatens another another with any injury to his person,
17 902.Cri.Appeal.307.2024.odt
reputation or property, or to the person or reputation of any one in whom
that person is interested, with intent to cause alarm to that person, or to
cause that person to do any act which he is not legally bound to do, or to
omit to do any act which that person is legally entitled to do, as the
means of avoiding the execution of such threat, commits criminal
intimidation.
42. If the testimony of the said P.W-1 is perused, it would reveal
that the said offence is also made out. The relevant part of the testimony
of P.W.-1 is reproduced herein below :
"He came to Kitchen and awoke me and took me by
holding my hand in another room. He proposed me as I
like him and he loves him. I asked him to go, he refused
to go and threatened me. There he forcibly kept
physical relation with me and he threatened that if tell
anybody else then he will see me and he left."
43. In view of the testimony of P.W.-1, it is crystal clear that
prosecution proved the ingredients of Section 506 of IPC.
44. At this stage, it is necessary to mention here that counsel for
appellant argued that the DNA report cannot be taken into consideration,
since the chain of custody is not proved. He submitted that the Court
ought not to have convicted the appellant for commission for the offences
for which he was charged. I would like to clarify that even the DNA
18 902.Cri.Appeal.307.2024.odt
evidence is ignored, the testimony of victim is enough to arrive at the
conclusion that the prosecution proved the case beyond reasonable doubt.
But I will discuss the DNA evidence also, so that a complete justice can
be done to the accused.
45. On 03.09.2020, delivery of the child of the victim / P.W.-1
occurred at Government Hospital, Latur. Prior to that, a sonogrpahy was
conducted at Hi Tech hospital. If the medical documents of Hi Tech
hospital, which are proved by the defence and produced below exhibit
138 are perused, it would reveal that same are not in the name of victim
but are the in the name of her step mother 'Sangita'. Even exhibit 139,
which is a form required to be filled in for all diagnostics procedures,
shows that the name mentioned is Sangita. The prosecution submitted
that by mentioning name of Sangita a precaution was taken by the P.W.-2
and P.W.-5 Sangita (step mother) so as to protect identity of the victim
who was minor.
46. Learned prosecutor thus submitted that the said two
documents at exhibit 138 and 139, should be read in favour of the
prosecution and not in favour of the accused/appellant. I am afraid I can
accept the arguments advanced by the prosecution. I am of the opinion
that since there is a conflict between documentary evidence and oral
evidence, it is the documentary evidence which would prevail. As the
19 902.Cri.Appeal.307.2024.odt
aforementioned documents/aforesaid exhibits bear the name of Sangita, I
conclude that documents were not pertaining to the victim.
47. This takes me to several other documents. As already stated
victim was taken to the Government Hospital, Latur, on 03.09.2020,
where she delivered a baby child. At this stage, testimony of P.W.10 - Dr.
Ramdas Panchal, is required to be taken into consideration. This witness
stated that he holds qualification of MBBS, MS and was posted at the
said hospital since 21.08.2020. On 03.09.2020, when he was on duty
victim came along with P.W.-2 and P.W.-5 i.e. mother. As it was found
that victim was 16 to 17 years old and unmarried, the Chief Medical
Officer was informed about Medico Legal Case and it was registered as
MLC No. 7611/SST/2020.
48. On 04.09.2020, police came and they recorded statement of
victim and victim was stable and conscious. The victim was admitted on
03.09.2020, and was discharged on 07.09.2020. On 15.09.2020, he
received one letter in which query was raised by Investigating Officer. He
proved that letter below exhibit 103. He submitted that one Dr. Ashwini
Jadhav, was junior resident. According to him, fetus of victim was about
26 to 28 weeks. After delivery, the baby was handed over to Paediatrics
as said baby was pre-matured, who died on 04.09.2020.
49. If exhibit 103 is perused, it is the letter issued by Police Sub
20 902.Cri.Appeal.307.2024.odt
Inspector, attached to police station Shirur Anantpal, Latur, to the
Medical Officer, District Hospital, Latur, in which, certain queries were
made regarding the age of baby and the names of Medial Officer who
treated the victim. In this letter, it was stated that since the post mortem
of baby was performed, the request was made to the concerned Medical
Officer to preserve piece of sternum bone for DNA sample. Exhibit 104
is the query answered by P.W. 10 - Dr. Ramdas Panchal, in which he has
given the necessary answers and stated that the gestation age of
delivered baby (fetus) is around 26 to 28 weeks clinically.
50. At this juncture, it is necessary to go through the exhibit
105. It is discharge summary issued by Government Medical College and
General Hospital, Latur. It bears the name of victim. Thus, the contention
of the learned counsel for the appellant that it was step mother Sangita
who was treated in the hospital and the fetus was of Sangita, is falsified
by the evidence.
51. Various suggestions were put to P.W.-10, by the defence.
This witness had stated that name entered at the registration would
continue for the entire treatment till discharge. It was admitted by this
witness that he came to know that patient was unmarried as informed by
relatives. He admitted that in report which was proved at exhibit 106
name of Sangita appears. The report below exhibit 106 is the sonography
21 902.Cri.Appeal.307.2024.odt
report submitted by Hi Tech Institute. This piece of evidence is already
discussed by me in earlier part of judgment. Cross-examination of this
witness indicates an attempt by the defence to establish that the baby was
of Sangita and it was Sangita who received treatment; however, the
witness's testimony, along with Exhibit 105, falsifies this story.
52. Now coming to the testimony of a Medical Officer, who had
conducted the post mortem report is required to be seen. P.W.-9 is the
person who had conducted the post mortem report. He stated in
examination-in-chief that on 04.09.2020, he was on duty as a Post
Mortem Medical Officer and was attached to the Government Medical
College, Latur. He submitted that dead body of the baby of the victim
was brought by Police Head Constable S.G. Hogade, Gandhi Square,
Police Station, Latur. Prior to conducting of post mortem report, he
received inquest panchnama along with the dead body duly signed by
Casualty Medical Officer. Covering letter was included with the inquest
panchnama. Police had requested the sample for DNA for further
investigation, by way of letter which was marked as exhibit 97.
53. P.W.-9 had further deposed that he conducted the post
mortem and had taken sample of sternum bone for DNA analysis and
further comparison, if any. The same was sent and handed over to police
on the same date. He also prepared P.M. report and handed over to the
22 902.Cri.Appeal.307.2024.odt
police. The P.M. report was proved below exhibit 98.
54. Thus, it is clear that a request was made to take sample for
DNA purpose of the baby. The sample was taken and it duly sealed. This
witness in cross-examination had admitted that he had not undergone
training for DNA sample and no specific training for collecting sample
and sealing. He could not say exactly whether the said baby was of
Sangita or victim. Various suggestions were given to him that he had
deposed falsely that Casualty Medical Officer had received a letter and
inquest panchmnama and handed over it to him along with dead body for
post mortem. It was further suggested that he had not taken the sternum
bone for DNA sample and further comparison, if any. Thus, the defence
submitted that the chain of custody was not proved as there is no
document to show that the sternum bone was handed over to the police.
55. At this juncture, it is necessary to take into consideration the
testimony of DNA carrier P.W.-7, who is one Satyawan Banshi Kamble,
attached to Shirur Anantpal police station, Latur, and on 09.09.2020, he
was working as Police Head Constable. His senior P.S.I. Swami,
Investigating Officer of the crime in question, directed him to bring DNA
kit from FSL, Aurangabad, and accordingly, letter was given to him. The
said letter dated 09.09.2020, was at exhibit 83.
56. According to him, he brought the DNA kit and came to
23 902.Cri.Appeal.307.2024.odt
police station and handed over to P.S.I. Swami. He categorically deposed
that in DNA kit dated 15.09.2020, there was a piece of chest bone of the
baby and along with it he went to FSL on 16.09.2020. At that time, a
letter was given to him, so also blood samples were given to him. The
letter bearing signature of P.S.I. Swami and aknowledgment of FSL was
marked at exhibit 84.
57. Exhibit 84 produced on record (more particularly page no.
144), clearly shows that it is communication issued by Police Sub
Inspector, Police Sation Shirur Anantpal, Latur, to the Deputy Director of
Original Forensic Science Laboratory, Aurangabad. It shows that various
exhibits that exhibit A, B and C were forwarded along with the
questionnaire to the laboratory. Exhibit A was the sternum bone of the
baby, which was forwarded. Exhibit B was the blood sample of the
victim, where as exhibit C was the blood sample of the accused. All these
samples were forwarded for obtaining the DNA report. This
communication is dated 15.09.2020 and the acknowledgment given by
the forensic laboratory is dated 16.09.2020.
58. If the DNA report below exhibit 20 is perused, it would
reveal that it refers to the letter dated 15.09.2020, issued by Police Sub
Inspector, Police Station Shirur Anantpal. Letter dated 15.09.2020, bears
outward no. 770/2020, whereas exhibit 20, DNA report also speaks about
24 902.Cri.Appeal.307.2024.odt
receipt of letter bearing outward no. 770/2020 dated 15.09.2020. in
connection with crime in question. This DNA report opines that the
victim and the appellant are concluded to be the biological parents of the
baby.
59. Thus, it is crystal clear that there is absolutely no break in
chain of custody of the material. Contention of learned counsel for the
appellant that there is no document to show that the bone of the baby was
handed over by the Medical Officer to the Investigating Officer stands
meritless in view of the discussion and more particularly the document
which was at exhibit 84.
60. Learned counsel for the appellant has relied upon a law laid
down by the Hon'ble Apex Court in the case of Rahul v. State of Delhi,
Ministry of Home Affairs, (2023) 1 SCC 83. In the case of Rahul
(supra), Hon'ble Apex Court had discussed various aspects regarding the
chain which is required to be established while forwarding the DNA
sample, preservation of DNA sample. No doubt when scientific
investigation is carried out the custody is required to be proved. It is also
stated by the Hon'ble Apex Court that DNA report is just an opinion. As
already stated there is nothing to disbelieve that the samples were not
properly preserved and the chain of custody was not proved. The
communication discussion (supra) clearly shows that DNA samples were
25 902.Cri.Appeal.307.2024.odt
properly taken and forwarded to the laboratory.
61. The trial Court has appreciated the evidence in just and
proper manner and by keeping in mind the principle of proving the case
beyond reasonable doubt awarded the conviction to the appellant. The
prosecutrix's testimony inspires confidence and in view of the Sections
29 and 30 of the Act of 2012, which speaks about presumption which is
required to be raised, I am of the opinion that prosecution has proved the
case beyond reasonable doubt, whereas the accused / appellant has not
rebutted the presumption. In that view of the matter, Criminal Appeal is
dismissed.
( RAJNISH R. VYAS, J. )
SPC
