Bombay High Court
Manpritsingh Kashmirsing Gill vs The State Of Maharashtra on 5 May, 2026
Author: Bharati Dangre
Bench: Bharati Dangre
2026:BHC-AS:21298-DB CR. APEAL 229 OF 2017 COMMON, J.ODT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 191 OF 2018
WITH
INTERIM APPLICATION NO. 1539 OF 2024
WITH
INTERIM APPLICATION NO. 3078 OF 2024
WITH
INTERIM APPLICATION NO. 1147 OF 2023
IN
CRIMINAL APPEAL NO. 191 OF 2018
Ajay Mahavir Gechand ...Appellant/
Applicant
Versus
The State of Maharashtra ... Respondent
CRIMINAL APPEAL NO. 1260 OF 2022
WITH
INTERIM APPLICATION NO. 3475 OF 2024
WITH
INTERIM APPLICATION NO. 428 OF 2023
IN
CRIMINAL APPEAL NO. 1260 OF 2022
Wahid Kayyum Khan @ Kalu ... Appellant/
Applicant
Versus
The State Of Maharashtra ...Respondents
WITH
CRIMINAL APPEAL NO. 229 OF 2017
Mahesh Ramchandra Maragaj ... Appellant
Versus
The State Of Maharashtra ...Respondent
Digitally
signed by WITH
RAJESHRI
RAJESHRI PRAKASH
PRAKASH AHER CRIMINAL APPEAL NO. 254 OF 2017
AHER Date:
2026.05.05 WITH
18:48:18
+0530 INTERIM APPLICATION NO. 1918 OF 2021
IN
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CR. APEAL 229 OF 2017 COMMON, J.ODT
CRIMINAL APPEAL NO. 254 OF 2017
Dastagir Abdul Khan ...Appellant/
Applicant
Versus
The State Of Maharashtra And Anr. ...Respondents
WITH
CRIMINAL APPEAL NO. 305 OF 2017
WITH
INTERIM APPLICATION NO. 3247 OF 2024
WITH
INTERIM APPLICATION NO. 2154 OF 2024
IN
CRIMINAL APPEAL NO. 254 OF 2017
Vishal Ashwini Sood ...Appellant/
Applicant
Versus
The State Of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO. 1082 OF 2017
WITH
INTERIM APPLICATION NO. 1254 OF 2025
IN
CRIMINAL APPEAL NO. 1082 OF 2017
Wasim Samand Shaikh ...Appellant/
Applicant
Versus
The State Of Maharashtra And Anr. ...Respondent
WITH
CRIMINAL APPEAL NO. 1187 OF 2018
Manpritsingh Kashmirsing Gill ... Appellant
Versus
The State Of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO. 1075 OF 2022
WITH
INTERIM APPLICATION NO. 3381 OF 2022
Page 2 of 73
Rajeshri Aher
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CR. APEAL 229 OF 2017 COMMON, J.ODT
WITH
INTERIM APPLICATION NO.1742 OF 2023
WITH
INTERIM APPLICATION NO. 1772 OF 2024
IN
CRIMINAL APPEAL NO. 1075 OF 2022
Dhiraj @ Dhiru Prakash Panchal ...Appellant/
Applicant
Versus
The State Of Maharashtra And Anr. ...Respondents
WITH
CRIMINAL APPEAL NO. 229 OF 2018
WITH
INTERIM APPLICATION NO. 2800 OF 2025
WITH
INTERIM APPLICATION NO. 38 OF 2023
IN
CRIMINAL APPEAL NO. 229 OF 2018
Bhuvan Lalbahadur Hamal ... Appellant/
Applicant
Versus
1. The State of Maharashtra
Through Public Prosecutor Sessions
Court, Mumbai.
2. Victim X
(Name, Age, Identity of victim
concealed to protect identity) ...Respondents
Through Senior Police Inspector,
Mulund Police Station, Mumbai.
...
Mr. Vinod Kashid a/w Mr. Abdul Shaikh, for Appellant in Cri.
Appeal/191/2018.
Mr. Veerdhawal Deshmukh, appointed Advocate, for the
Appellant in Cri. Appeal/1260/2022.
Ms. Anima Mishra a/w Mr. Anuj Singh, Mr. Vinod Patil, i/by
Dhaara Legal, for Appellant in Cri. Appeal/305/2017.
Page 3 of 73
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CR. APEAL 229 OF 2017 COMMON, J.ODT
Ms. Ilsa Shaikh a/w Mr. Husen Shaikh i/by Mr. Shantanu
Phanse, for the Appellant in Cri. Appeal /1082/2017.
Mr. Rajesh Bhosle, appointed Advocate, for the Appellant in
Cri. Appeal/1075/2022.
Mr. Abbas Z. Mookhtiar a/w Mr. Bhushan Ove, for the
Appellant in Cri. Appeal/229/2018.
Ms. Anjali Patil a/w Mr. Tohid Shaikh and Mr. Onkar Gurav,
for the Appellant in Cri. Appeal/229/2017.
Mr. Kartik Garg, Appointed Advocate a/w Aashka Shell, for
the Appellants in Cri. Appeal/1187/2018 and Cri.
Appeal/254/ 2017.
Mr. Tanveer Khan, APP for the Respondent-State.
...
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
RESERVED ON : 4th FEBRUARY, 2026.
PRONOUNCED ON : 5th APRIL, 2026.
ORDER/JUDGMENT (PER MANJUSHA DESHPANDE, J.) :-
1. All these appeals are arising out of common judgment of conviction passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No. 78 of 2014 (old 537 of 2014), recorded vide judgment dated 22nd February, 2017 convicting Accused Nos. 1, 2, 4, 5, 6, 7 and 8 under Section 235(1) of Cr.P.C., for offence punishable under Section 376(D) read with 120(B) of the IPC, and sentenced to suffer rigorous imprisonment for 20 years with fine of Rs.25,000/- each, in default to suffer rigorous imprision of one year each. Page 4 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:20 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT Accused Nos. 3 and 9 are convicted under Section 235(1) of Cr.P.C. for offence under Section 376(D) read with 120(B) of IPC and sentenced to suffer rigorous imprisonment for life, which shall mean the imprisonment of remainder of their lives, and to pay a fine of Rs.25,000/-, each, in default to suffer rigirous imprisonment for one year each. Accused Nos. 1 to 9 have been convicted under Sections 235(1) of the Cr.P.C. for the offence punishable under Section 366 and 377 read with 120(B) of the Indian Penal Code (IPC), sentencing them to undergo rigorous imprisonment for 10 years for each offence, and also to pay fine of Rs. 20,000/- each, and in default of payment of fine to undergo further rigorous imprisonment for one year; with conviction for the offence, punishable under Section 354 read with 120 B of the IPC, sentencing them with rigorous imprisonment of five years, each and a fine of Rs.5000/- each and in default of fine, to further undergo rigorous imprisonment, for three months. All the accused are also convicted under Section 235(1) of Cr.P.C. for the offence punishable under Sections 341, 342, read with 120(B) of the IPC, and are sentenced to undergo rigorous imprisonment of one year and fine of Rs.500/- each, Page 5 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:20 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT and in default of payment of fine, to undergo rigorous imprisonment for one month each. Conviction is also recorded under Section 235(1) of Cr.P.C. for offence punishable under Section 323, read with 120(B) of the IPC with rigorous imprisonment for one year and fine of Rs.1000 each and in default of payment of fine, to undergo rigorous imprisonment for further one month each. All the accused are convicted under Section 235(1) of Cr.P.C. for the offence punishable under Section 506(II) read with 120(B) of the IPC and sentenced them to undergo rigorous imprisonment for five years each and also to pay fine of Rs.1,000/- each, in default of payment of fine, to undergo rigorous imprisonment for further six months each.
Accused nos. 1, 2 and 4 to 8 are further convicted as per section 235(1) of Cr.P.C. for the offence punishable, under Section 120-B of Indian Penal Code and sentenced to suffer Rigorous Imprisonment for twenty years each.
Accused Nos. 3 & 9 are further convicted as per section 235(1) of Cr.P.C. for the offence punishable under Section Page 6 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:20 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT 120-B of Indian Penal Code and sentenced to suffer Rigorous Imprisonment for life each.
All the accused are held to be entitled for set off under Section 428 of the Code of Criminal Procedure (Cr.P.C.) for the period already undergone in jail except Accused No.3 and Accused No.9 punishment under section 376D as it implies that life imprisonment shall mean imprisonment for remainder of their life.
In view of the conviction recorded against them all the accused have approached this court by preferring independent Appeals, which are heard and decided analogously.
2. The conviction recorded against the appellants is arising out of alleged offence of Gang rape, on the prosecutrix aged 38 years on the night of 20th September, 2013. The prosecutrix lodged report at the Mulund Police Station informing that she was originally resident of a village Nandi, Tahsil Loha, District Nanded. Her husband had expired long ago, she was having two sons and one daughter. Since last few years, she was visiting Mumbai to earn her livelihood, by Page 7 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:20 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT collecting scrap. Intermittently, she used to visit her native place after purchasing some clothes etc., for her children. Recently she had stopped visiting Mumbai as she was receiving sufficient income from the work at her native place. However, on account of being annoyed with the behaviour of her elder son, who was under continuous influence of liquor and was constantly demanding more money from her, she left her house due to his abuses and came to Mumbai.
3. When she came to Mumbai, she came to know that her friend Rajshree, with whom she used to reside while in Mumbai, had got married, therefore, she started staying in a tempo in front of Hill residency at Amar Nagar Dargah Road, Mulund. During the day, she used to collect scrap and after selling it, she used to buy her dinner and have it at the house of one Sumanbai and then came back to the tempo for spending her night. She used to spend her night in the tempo, which was parked in the street.
4. On 20th September, 2013, as usual, after completing her entire work, she went to tempo at about 9 PM for sleeping. At about 03:00 a.m. in the morning, due to the noise of the Page 8 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:20 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT approaching milk van, she woke up. After sometime she noticed that 5 to 6 boys were peeping inside the tempo. Out of those boys, she knew the name of one Vishal. She enquired the reason for their peeping inside the tempo, she scolded them and ordered them to leave immediately, but accused Vishal entered the tempo, and called upon the co-accused Ajay by uttering the words, 'Ae Ajay tiche pay pakad aani baher khech'. Thereafter, Vishal and Ajay dragged her out of the tempo, and Vishal told Wasim 'tu age chal' and then took her at a distance of 25 to 40 feet from the tempo, beside one Om Sai Chinese hotel. Accused Vishal removed her sari and petticoat and threw it away. He thereafter told Ajay to remove her blouse, Ajay removed her blouse. Accused Vishal was the first to commit sexual assault on her, during which 5 to 6 boys were standing around her. All of them one after the other committed forcible sexual assault on her. After that, Vishal made phone calls to some other boys. During commission of offence, they were calling each other by names as Ajay, Vishal, Kalu, Wasim, Dastagir. All these boys committed rape on her near Om Sai Chinese hotel, but she did not remember the names of remaining boys. She further Page 9 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:20 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT stated that Vishal told Kalu to take her in Jungle. After which, she was made to wear her blouse and saree, her petticoat remained on the roof of Om Sai Chinese Centre. Out of these boys, two of them took her near the building behind Chinese hotel and forcibly made her sit on one bike and took her to Rahul Nagar jungle.
5. At the Rahul Nagar jungle, two more boys joined them. In the Jungle, all of them, one by one, had sexual intercourse with her. During this forceful sexual intercourse, her 'Kali poat' and ' bead poat' (string of beads), were broken and it was thrown on the spot in the forest area. While committing the act of forcible sexual intercourse, they were calling each other's names as, 'Kalu', Wasim, Dastagir, Viru, etc. Kalu repeatedly inserted a stick in her vagina and took it out, as a result, she started bleeding profusely from her vagina, which stained her saree, and because of the act, she felt dizzy and became unconscious. When she regained consciousness it was dawn and all the accused had already fled away from the spot. She was having persistent pain in her abdomen, but she somehow managed to reach the police station by asking directions from the people present on the road. She reported Page 10 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:20 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT the incident to the police and gave description of the accused, Vishal, Ajay, Kalu, and Dastagir. She stated that, she can identify those 8 to 9 persons if shown to her, and also volunteered to show the spot of incident. Based on the aforesaid allegations, First Information Report (FIR) came to be registered in the Mulund Police Station vide Crime No. 426 of 2013.
6. The offence was investigated by two police officers, P.W. 46, Senior Police Inspector R. R. Sawant and P.W. 47 Mustaq Liyabhai Shaikh, P.W. 43 Prakash Mansukh. After visiting the spot of incident, the saree, petticoat, blouse, 'Bead poat', 'kali poat' and one stick were seized from the spot in presence of Panch witness. The prosecutrix was referred for medical examination; her statement under Section 164 of the Cr.P.C. was duly recorded; the TI Parade was conducted and the CDRs of the mobile phones of some of the accused were collected. The motorbike used during the offence was seized. After collecting evidence against the accused, charge-sheet was filed in the Court. After framing of charge, the accused pleaded not guilty and claimed to be tried, their defence was Page 11 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:20 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT of total denial, they claimed that they have been falsely implicated in the offence.
7. The following charge is framed against the respective accused:
Accused Nos. 1 to 8 have been charged with offences under Sections 323, 354, 366, 376, 376 D, 377, 375B, read with 120 B of IPC, 341, 342, 323 read with 120 B of the IPC.
All of the accused have been charged under section 376, whereas Accused Nos. 2, 3, 4, 5, 6, 7, 8 and 9 have been charged under Section 377 of the IPC. All the accused pleaded not guilty and claimed to be tried. After the trial, the learned Additional Sessions Judge, Greater Bombay, has convicted all the accused vide its judgment and order dated 22nd February, 2017.
8. During the trial, the prosecution has examined 47 witnesses and various documents were placed on record to establish the guilt of the accused, including the statement of the prosecutrix recorded under Section 164 of the CRPC at Exhibit 47 recorded on 23 September 2013.
Page 12 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:20 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT Ajay Ghechand, is the accused 1, and appellant in appeal no 191 of 2018, Mr. Vinod Kashid, advocate, appearing for him submitted that, there is no evidence about involvement of accused Ajay Ghechand in the offence, he has been falsely implicated in the offence. His name does not appear in the FIR, his description given by the prosecutrix also does not match. There is no specific role attributed to him. He further submits that the incident has allegedly taken place at about 3 AM in the morning when, it was pitch dark, therefore identification of the accused by the prosecutrix is not reliable. It is submitted that if the prosecutrix was knowing the accused prior to the incident, there was no necessity of conducting TI parade.
9. The learned Advocate has drawn our attention to the cross examination of the prosecutrix, where she admits that she had never met, A-1 and A-8 before the incident. She also admits that, she did not know names of the accused prior to the incident. Except the statement of the prosecutrix which is full of omissions, and contradictions there is no other corroborating evidence, against the accused no.1. It is submitted that the conviction is based solely on the Page 13 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT statement of prosecutrix, who was in the habit of lodging false complaints. The prosecutrix had lodged a similar complaint of rape against one, Kushal Patil and Suresh Mukadam at Wadhwane Police Station, a copy of the complaint is part of record at Exhibit 355, and this aspect has not been appropriately appreciated by the learned Additional Session Judge, Greater Bombay. Even the medical evidence is not consistent with the statement of the prosecutrix. Most importantly, the blood sample of accused no.1 did not match with the hymenal and blood swab of the prosecutrix. The stains of blood mixed with semen on the saree and petticoat of the prosecutrix, did not match with the blood sample of accused no.1. It is thus submitted that in absence of cogent and reliable evidence, the appellant has been wrongly convicted for the offences.
10. Ms. Anjali Patil representing accused no 2 namely Mahesh Ramchandra Margaje in appeal number 229 of 2017, submitted that, name of the appellant neither appears in the FIR nor in the statement of the prosecutrix recorded under Section 164 of the Cr.PC. She submits that heavy reliance is placed on the Test Identification Parade (TI Parade) at Page 14 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT Exhibit 193, by the prosecution to establish the identity of the Accused No.2. However, the TI Parade itself is unreliable, since it was conducted by PW 20 Naib Tahsildar, who had no authority to conduct such parade. P.W. 20 has not produced any order of delegation authorising him to conduct the TI Parade. The dummies used in the T.I. Parade were of different ages and appearance, who did not match the appearance of accused. Some of the dummies were even repeated in the other set of TI Parade, conducted for the co-accused. The TI Parade looses its credibility since the prosecutrix had already seen the accused in the police station on 21 st, 22nd and 23rd September 2013, while the accused were in the police custody. Thus, the TI Parade gets vitiated and becomes unreliable piece of evidence, which does not inspire confidence.
11. Ms. Anjali Patil further submits that, the medical as well as the forensic evidence, does not support the case of prosecution. The DNA report Exhibit 126 records that, the DNA profile of A-2 does not match with the DNA of the prosecutrix. The Chemical Analysis Report (C.A. Report) also does not reveal any incriminating biological material, Page 15 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT connecting the appellant with the alleged offence. The medical examination of A-2 did not reveal any injuries on his body, which is not consistent with the allegations of violent sexual assault made against him.
Relying on the testimony of PW 10 Dr. Ahire, PW 11 Dr. Phad, and PW 13 Dr. Bhise, it is submitted that the medical examination by all these Doctors did not find any bite marks, assault, or injuries, suggesting of insertion of foreign object as alleged by the prosecutrix. Thus, there is no corroborative medical and scientific evidence, supporting the allegations against Accused No.2.
12. It is further submitted that, the testimony of the prosecutrix suffers from serious contradictions and omissions, rendering it unreliable and unsafe for recording conviction, solely on the basis of her statement. In her cross- examination, the prosecutrix has admitted that, she had not seen A-2 prior to the incident. She has not stated his name to the police, nor in her statement under Section 164 of the Cr.P.C. The prosecution has failed to examine natural and independent witness, more, particularly Sumanbai and Page 16 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT Rajeshree, with whom she was friends. Failure to examine the material witnesses, weakens the case of the prosecution.
13. Our attention is also invited to the admission of the investigating officer, PW 46 senior PI Sawant, who admitted that except the accused named in the FIR, no other accused were involved in the offence. Hence, conviction against A-2 cannot be sustained.
14. Coming to the next accused, Advocate Mr. Veer, Dhaval Deshmukh. for Accused no. 3, Wahid Kayyum Khan alias 'Kalu'. submits that, there are following material omissions in the evidence of prosecutrix, which are duly proved by the P.W. 41 Investigating Officer who has admitted that, (i) the prosecutrix has not stated that it was a day of Ganpati Visarjan and the boys peeping inside the tempo were Ajay, Vishal, Wasim and Dastagir; (ii) there is a material omission in the statement of the proseturix, where she omitted to state the words uttered by the passerby milkmen who said 'mat re kalu mat mar' (iii) the prosecutrix had not given description of her Saree, blouse and petticoat as well as the description of the clothes of the accused, worn by them at the time of Page 17 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT incident; and (iv) omission by the prosecutrix that, at the time when she was taken beside Om Sai Chinese Hotel, Wasim, Ajay, Dastagir and Vishal, were present.
15. Mr. Deshmukh submits that the aforementioned material omissions cast doubt about the credibility and truthfulness of the testimony of the prosecutrix. The prosecutrix has admitted that, she did not know the names of the accused, but could gather it since they were addressing each other by names. However, she could not explain how she connected 'Kalu' with Wahid Kayyum Khan. The prosecutrix had not given any identification or description of the accused, so as to identify them. Hence, the identification of the accused itself is doubtful. There is no evidence to connect accused Wahid Kayyum Khan with the name 'Kalu'.
He submitted that, the glaring discrepancy in evidence is that, the prosecutrix in her compliant has stated that Kalu inserted stick in her private part, but has failed to mention it in her statement under Section 164 of the Cr.P.C. P.W.No.9 (milkman), was not called upon to identify the accused in TI parade.
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16. It is submitted that the medical evidence is brought on the record by the prosecution, through P.W.10 Doctor at J.J. Hospital. P.W.11 Doctor, at Nagpada Police Hospital, P.W. 17 Doctor, who examined the prosecutrix at J.J. Hospital at the request of P.W.10 and P.W.13 i.e. the Doctor, who examined the prosecutrix at J.J. Hospital. It is submitted that inspite of being examined by the four Doctors, none of the Doctors have positively stated that, there was forceful sexual assault on the prosecutrix. The prosecutrix has given an admission that she has failed to identify the accused namely, Kalu, Manu, Vishal and Hamal at the TI Parade. The only evidence available against A-3, is the report of the DNA Test, which matched with the blood and semen on the saree of the prosecutrix and the stick, allegedly inserted in her vagina by him.
However, the whole process of seizure, sealing, collection, storage and transport of blood samples for conducting the DNA analysis is doubtful and not fully proved by the prosecution, by examining witnesses. Therefore, merely matching the samples of the blood of the A-3 with the DNA samples of the prosecutrix is not sufficient. Page 19 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT
17. In this context, the learned advocate is relying on the judicial pronouncement of the Hon'ble Supreme Court in the case of Manoj Vs. State of M.P.1. He further submits that, DNA report is a corroborative evidence therefore it is not sufficient to sustain conviction. In view of the admission given by the prosecutrix that she did not identify the accused no. 3 during the TI Parade, itself is sufficient to demolish the case of the prosecution. In absence of cogent and reliable evidence against A-3, the conviction of the accused cannot be sustained.
18. Mr. Kartik Garg, learned advocate represents Accused Nos.4 and 6 i.e. Dastagir Abdul Khan and Manpreet Singh Kashmir Singh Gill, respectively, the Appellants in Appeal Nos. 1187 of 2018 and 2054 of 2017. He submitted that although the prosecutrix has named Accused No. 4 Dastagir in the complaint as well as in her testimony before the Court, it is admitted fact that she was not knowing the names of the accused before the incident. She has admitted that she had not given description of the accused, and she has failed to identify Manu i.e. Manpreet Singh Gill during the TI Parade. 1 2023 2 SCC 353.
Page 20 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT Thus, the question that arises is that on what basis the accused has been arrested.
Relying on the guidelines for test identification, provided in the Criminal Manual, it is submitted that various irregularities have been committed during the TI Parade. Referring to Clause 16 Sub-clause (iii) of the Criminal Manual it is submitted that P.W.20, has failed to verify whether the witnesses in the IT Parade are independent and not connected with the Mulund Police Station, Mumbai.
19. Relying on Clause 5 of the Criminal Manual, it is submitted that, for one accused at least six dummies are required. Similarly, for two accused atleast 10 to 12 dummies are necessary. It is required to be ensured that such dummies are more or less of same physical appearance and approximately of same age, of that of the accused. P.W. 20 admitted that he did not select dummy's himself, but the Jailer selected them. The physical resemblance of dummies is important aspect of the TI Parade. There is an admission by P.W. 20 that, he has not mentioned that the dummies are of same height, complexion and physique and further same Page 21 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT set of dummies were repeated in the two set of TI Parade for all the accused. In this context reliance is placed on the judicial pronouncement of the Hon'ble Supreme Court in the case of Gireesan Nair & Ors. v. State of Kerala2.
20. It is further submitted by Mr. Garg that, isolation and privacy during the TI Parade is required to be ensured. Clause 6 of the Criminal Manual provides that, except two respectable persons and the accused, no one else is allowed to remain in the room during TI Parade. P.W.20, admits that, there was a wall only on one side of the room while rest of the three sides of the room, were enclosed with grills above the level of three feet. As a result, the person standing outside the room, were visible from inside, leading to an inference that there were no safeguards and isolation. P.W.20 has also failed to question the prosecutrix whether she had the occasion to see the accused at any time subsequent to or after their arrest. He also failed to question the accused whether they were shown to the prosecutrix after their arrest. Thus, the above fatal irregularities in the IT Parade makes it unreliable.
2(2023) 1 SCC 180 Page 22 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT Even after the completion of TI Parade, P.W.20 has failed to make an endorsement on the memorandum of TI Parade, to the effect that it was conducted by him personally, and he obtained signatures of witnesses. No such endorsement certifying the correctness of memorandum of TI Parade is placed on record.
It is, therefore, submitted that, from the aforementioned blatant irregularities, whole TI Parade stands vitiated, and cannot be read in evidence.
21. Mr. Shantanu Phanse, advocate for accused no.5 Wasim Samand Shaikh in Criminal Appeal No.1082 of 2017 submitted that, there is a specific charge under Section 377 of the IPC against the accused no.5 alongwith the other charges. Though there are charges of carnal unnatural intercourse with the prosecutrix, the medical evidence is completely silent about any such act being committed by the A-5. He relies on the following material omissions in the testimony of the prosecutrix, such as, (i) the accused persons were peeping inside the tempo; (ii) the act of accused no.1 committing unnatural act; (iii) about knowing the accused Page 23 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT merely by face and not by name; (iv) about asking help from the milkman and his presence on the spot; (v) about the accused following prosecurtix to the forest and assaulting her; (vi) the prosecutrix naming the accused, without their description while registering the FIR.
It is submitted that, irrespective of the fact that, the prosecutrix named the accused no.5 in the FIR, while recording the medical history, she attributes the assault to unknown persons, this amounts to major inconsistency in the evidence of the prosecution.
22. Ms. Phanse has submitted that the testimony of the prosecutrix is full of omissions and contradictions and not supported by any evidence. Relying on the testimony of P.W.41 Sarita Sarjerao Bhosale, he submits that she has stated that, even after enquiring about the details of the accused persons, prosecutrix was unable to provide any clue . She also admits that, the prosecutrix did not inform her that she knows A-5 Wasim by face. As regards medical evidence, the learned advocate points out the inconsistencies in the Medical opinion given by the Doctors after examining Page 24 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT the prosecutrix. The prosecutrix was examined by P.W. 11 Dr. Suchita Phad at 05:00 p.m., at the Nagpada Police Hospital. As per her report there were multiple tears on vaginal walls. However, no bruises or body injuries are mentioned in it, which is not consistent with the version of the prosecutrix. When the prosecutrix was referred to J.J. Hospital, P.W.10 Dr. Prajakta Ahire, has examined her, according to her, vaginal walls were normal with few bruises and scratch mark on her body. Thus, there is a contradiction about presence of vaginal tears in the version of P.W.11 and P.W.10. He further refers to the medical opinion at Exhibit-183 given by P.W. 17 Dr. Aftab Shaikh, who has given an opinion to obtain Forensic Report for confirming possibility of rape, thereby referring the prosecutrix to forensic medicine department of J.J. Hospital. Pursuant to which, P.W. 13 Dr. Sadanand Bhise, conducted the examination at 09:25 p.m. on the same day. According to his report at Exhibit-178, there are 26 injuries, her mucosa was reddish with small tears and odema, multiple tears with blood infiltration on vaginal mucosal walls. It is submitted that this report at Exhibit 178, does not mention about genital injuries, due to sexual intercourse or Page 25 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT foreign object. On the contrary, the injuries no.2, 4, 11 and 12 are mentioned to be caused by nails. Importantly, no traces of foreign object are detected despite allegation of insertion of foreign object i.e. the stick, as reported by the prosecutrix. Thus, according to him, there is no consistency in the medical evidence produced by the prosecution, in the backdrop of the allegations made by the prosecutrix. Thus, in view of the inconsistencies in the medical opinion by the respective Doctors, it is not safe and reliable corroborative evidence.
23. As regards identification of A-5, he would submit that, A-5 is having a mole on the upper side of the left lip. Inspite of this distinct mark, the prosecutrix has not mentioned the identifying mark of the accused, which weakens the reliability of identification of the accused. As regards TI Parade, he would point out the various lapses and discrepancy in the procedure undertaken by the authority conducting the TI Parade. He submits that same set of dummies were used for all the accused, which is a serious procedural lapse, and creates doubt about genuineness of the procedure. It is submitted that the Accused no.5 was Page 26 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT arrested on 21st September, 2013, while he was in police custody, and thereafter the prosecutrix had visited the police station more than once due to which there is every possibility that, she had seen the accused prior to the TI Parade.
24. About the other corroborative evidence that is the DNA profile, it is submitted that, the semen on petticoat of the prosecutrix matched with the accused no.5, but the DNA on the saree and blouse did not match with his DNA. There is no possibility of any semen being found on the petticoat of the prosecutrix for the reason that, as per her own testimony, her petticoat was removed by the accused persons before committing the sexual assault. The prosecution has also failed to establish that appropriate procedure during the collection, storage and forwarding/sending of the blood sample of the prosecutrix has been followed. The extraction sealing, and storage of the samples is required to be done by conducting due panchanamas, which is not proved by examining the witnesses, which makes the DNA report unreliable.
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25. It is alleged that A-5 was using mobile number 9987968668. The tower location and call details of the calls made from that number are brought on record, however, the prosecution has failed to establish that the said mobile number belongs to A-5. It is therefore submitted that considering the inconsistency and omissions in the statement of prosecutrix, coupled with the unreliable corroborating evidence, prosecution has failed to establish complicity of the Accused No.5.
26. Mr. Kashid, the learned advocate for Accused no. 7 Bhuvan Hamal in Criminal Appeal No. 229 of 2018, submitted that the accused is shown to be arrested on 23 rd September, 2013 at 13:30 hrs. However, the arrest memo is signed by the police officer on 22nd September, 2013. It is submitted that the description and photograph of A-7 clearly shows that he is of Nepal origin with distinct features, which distinguishes him from other accused. Inspite of that the prosecutrix has failed to give his description. Since the prosecutrix had visited the police station on 23rd September, 2013, hence, there is every likelihood that, she has seen A-7 at the police station. He further submits that, A-7 is neither Page 28 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT named in the FIR, nor in the statement of the prosecutrix recorded under Section 164 of the Cr.P.C. Although the prosecution claims to have identified the accused in the TI Parade, however, in the cross-examination, she admitted to have failed to identify the accused. She has also given an admission that she had not seen A-7 prior to the incident therefore she has not given his name in her statement under Section 164 of Cr.P.C.
27. It is submitted that most importantly, the conduct of A-7 after the incident needs consideration. The CDR of the accused indicates that he did not abscond after committing offence, but remained at his workplace, this conduct fortifies his stand of innocence. As per the DNA report, the specimen of A-7 did not match with the blood mixed with semen on the saree of the prosecutrix. He is alleged to be using cell no. 7738252467. As per the CDR placed on record, the last call received on the said cell number was at 00.48.21 hrs. on 21 st September, 2013, from a Mobile No. 9004629880, which does not belong to any of the accused. After the call received on 00.48.21 hrs, till 10.09.38 on 21 st September, 2013, there was no call made or received on the said number. Although, it Page 29 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT is alleged that A-7 was using mobile number 7738252467, the learned trial judge has committed an error by linking mobile no. 7738236490 to A-7. Thereby, linking the call received from accused no. 3 Wahid @ Kalu to A-7 is a serious error committed by the learned trial Judge. Hence, it is submitted that, considering the serious discrepancies in the evidence, complicity of A-7 is doubtful, which makes conviction unsustainable.
28. Dhiraj @ Dhiru Prakash Panchal accused no. 8 (A-8), has filed Criminal Appeal No.1075 of 2022. Advocate Mr. Rajesh Bhosle, representing him would submit that, in the FIR as well as in her statement under Section 164 of Cr.P.C., the prosecutrix has named one 'Viru' and had not specified his role. The name of the accused no. 8 is Dhiru @ Dhiraj. There is no evidence placed on record to prove that 'Dhiru', is erroneously named as, 'Viru'. There is one more accused named, Gurumukh @ Guru, who is still absconding. Therefore, there is a lot of confusion about the names of the accused given by the prosecutrix and their identity making their complicity doubtful.
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29. He submits that in her testimony, the prosecutrix has stated that A-8 Dhiru @ Dhiraj had committed rape on her, whereas she has identified him as 'Viru'. The only specific allegation made against Dheeru is that, he has forced her to sit on a motor cycle between himself and Kalu. Although, the prosecutrix is claiming that Dheeru had carried her on the motor cycle, in the memorandum statement of A-9, he has stated that Ajay and Kalu took the prosecutrix to hilly area. Even while framing charges, it is alleged that Kalu alongwith Vishal forced the prosecutrix to sit on the motor cycle. Thus, there is no consistency in the evidence of the prosecution about the role of A-8, coupled with a lot of confusion in the names mentioned by the prosecutrix. Neither the medical report nor the DNA report of A-8 matches with the prosecutrix; no mobile instrument has been recovered from A-8. Although P.W. 25 Mr. Ajay Utekar, has stated that Dhiru was possessing Mobile No. 8452850970, investigation revealed that the SIM card with that number was registered in the name of one Mr. Manoj Sindhu Bhagwat Tadpe, and the location of the said number was not traceable. Thus, the prosecution could not establish that, A-8 had made calls Page 31 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT from the spot of the incident. Hence, the prosecution has failed to make out any case against A-8. Therefore, his Appeal needs to be allowed by setting aside the sentence of conviction. In support of his submissions, reliance is placed on the judicial pronouncement of the Hon'ble Supreme Court in the case of Ganga Singh Vs. State of Madhya Pradesh3.
30. Advocate, Ms. Anima Mishra, for accused no.9 (A-9) Vishal Ashwini Sood in Appeal No.305 of 2017, submitted that, the major allegations against A-9 are that, he alongwith 5 to 6 boys were peeping inside the tempo and the prosecutrix was knowing his name as Vishal. He entered the tempo and closed her mouth with his hands. After pulling her outside the tempo, he has removed her saree and petticoat and committed forcible sexual assault on her. After some time, Vishal has asked Kalu to take prosecutrix to jungle. It is submitted that, even though the prosecutrix has categorically named Vishal, he is not the only person in the village or vicinity with the name Vishal. The claim of the prosecutrix that she knew his name, as he frequently purchased Vadapav in a nearby stall, is not established by 3 (2013) 7 SCC 278 Page 32 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT examining the owners of the nearby stalls. There is delay in conducting the TI Parade, due to which there is every possibility that the prosecutrix had an opportunity to see the accused prior to the TI Parade, while she visited the police station.
31. It is further submitted that, though the prosecutrix has named A-9 in the FIR and attributed a specific role, it is surprising that in the medical history recorded as per her say it is stated that, she has been sexually assaulted by unknown persons. The CDR of the accused creates doubts since his call record discloses that, A-9 had dialed number 100, which is not a natural conduct of an offender to call police after committing an offence. The allegation of the prosecution that A-9 had made calls to the other accused persons is not supported by his CDR. The allegation that the motor cycle used in the offence belong to him is shattered during cross-examination of P.W.40, who admitted that, panchanama was not conducted in his presence, while seizing the said motorcycle, and he has also failed to identify the bike.
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32. It is submitted that, irrespective of the specific allegations in the FIR against him, the DNA report of A-9 did not match with the specimen on the petticoat and saree of the prosecutrix. It is submitted that he has been arrested after a gap of 8 months, on suspicion, when the Mulund police were in search of an accused, in some other offence. After his arrest, when he disclosed his name as, 'Vishal Sood', he was mistakenly identified as wanted accused in the C.R. No. 426 of 2013. The learned advocate therefore submits that conviction of Accused No. 9 is based totally on suspicion without any concrete evidence. In fact, there are major contradictions in the evidence of the prosecution which results in failure to establish complicity of Accused No.9.
33. The learned APP Mr. Khan has vehemently opposed the Appeals. He submitted that the prosecutrix has identified accused nos. 1 to 9 in the Court. She has specifically named Vishal A-9, Ajay A-1, Dastagir A-4 and Wasim A-5 in the FIR, therefore, identification of these accused persons cannot be doubted. There is no confusion in the mind of prosecutrix about identification of all the accused, she could very well remember them, and has identified all the accused persons. Page 34 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT He further submits that a specific role is attributed by the prosecutrix to Accused No. 1-Ajay Mahavir Gechand, Accused No. 2-Mahesh Ramchandra Maragaj, Accused No. 3- Wahid Kayyum Khan, Accused No. 4-Dastgir Abdul Khan, Accused No. 6-Manpritsingh Kashmirsing Gill, Accused No. 7-Bhuvan Lalbahadur Hamal and Accused No. 9-Vishal Ashwini Sood+. He submits that, she has narrated the incident in detail attributing specific role to each of the accused.
34. The first incident is near the Chinese hotel, after she was dragged from the tempo towards the hotel, which was much below the ground level, from where the passer by on the road could not view the spot. She has specifically stated as to who initiated the sexual assault, followed by the other accused persons. During the incident, phone calls were made by A-9 and after his call, some more boys had arrived on the spot. She was thereafter taken to the jungle by A-3 and A-8 on the motor cycle of A-9. There is consistency in the statement of the prosecutrix recorded during her testimony before the Court as well as under Section 164 of the Cr.P.C. He further submits that, so far as the FIR is concerned, the Page 35 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT prosecutrix, who has undergone an harrowing experience is not expected to provide minute details in the FIR. Hence, it may lack certain details; however, in her testimony, she has remained consistent and has maintained her version in her cross-examination that, accused were never shown to her prior to conduct of the TI Parade. P.W. 20 has also supported the prosecution by confirming that, all the accused have been identified by the prosecutrix during the TI Parade.
Relying on the testimony of P.W.13, Dr. S.S. Bhise, more particularly, on his report, where 26 injuries are reported by him, it is submitted that, the opinion of P.W. 13 suggests sexual assault by multiple persons; he has opined that the injuries are possible by the stick, Article 'E', which was shown to him. The first Doctor, P.W. 11 Dr. Phad who examined the prosecutrix, immediately after the incident had noticed that there are multiple tears and tenderness on the vaginal wall, therefore, the prosecutrix was immediately referred her to J.J. Hospital for further examination. Dr. Hemlata Pande, P.W. 12 examined the prosecutrix and found bite marks on her right cheek, left lower bottom jaw, left and right breast, which is consistent with her statement. Page 36 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT Upon analysis of the injury on the right cheek of the prosecutrix, which was alleged to be as a result of bite by accused Kalu, on its comparison with Kalu's Dentition, it matched and coincided with the prosecutrix. Thus, it unequivocally proves the allegation that, Kalu had bitten her on the cheek. As regards the DNA report, it is submitted that the DNA report of A-3 matched with the vaginal swab, and the semen found on the saree of the prosecutrix and the semen sample on the petticoat, matched with A-4, A-5 and A-6.
35. Mr. Khan further submits that, the prosecutrix has clearly mentioned names of names A-9, A-1, A-3, A-4 and A-8 in her statement, and has also given description about their approximate age, built and clothes. She has specifically named them in her statement recorded under Section 164 of the Cr.P.C. She has maintained consistency while naming the accused; therefore, the identity of the accused persons cannot be doubted. He submits that the appellants are now raising doubts about the validity of the DNA report; however, no such objection was raised during the trial. He submits that in view of Section 292 of the Cr.P.C. the DNA test has an Page 37 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT evidentiary value, which is admissible in evidence, and is not required to be proved by examining the officer submitting the report. He, therefore, submits that a minor infirmity here and there in the testimony of the prosecutrix is required to be ignored, in view of the consistency in her statement given in the FIR, her testimony before the Court and her statement recorded under Section 164 of Cr.P.C. The complicity of all the accused has been thoroughly proved by the prosecution by leading cogent evidence, which is reliable and credible. The prosecution has established the guilt of all the accused, through the testimony of the prosecutrix; the medical evidence; the DNA report; the TI Parade and the CDRs of the respective accused. Thus, the prosecution has fully proved the complicity of all the accused, as such, the judgment recording conviction against the accused does not deserve any interference, and all the Appeals deserve to be dismissed.
36. We have heard elaborate submission of the respective counsel for the Appellants and the learned Assistant Public Prosector for the State, we have also perused the record with their able assistance.
Page 38 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT All the Appeals are directed against the order of conviction recorded against the respective accused under Sections 376D, 377, 366, 354, 341, 342, 323, 506 Part II read with 120 B of the IPC. All the accused have been convicted with a maximum punishment of life imprisonment as provided under Section 376(D) of the IPC. The conviction is based on the evidence produced by the prosecution primarily relying on the testimony of the prosecutrix and the following corroborative evidence namely, (i) the test Identification Parade; (ii) Medical evidence; (iii) DNA Test; and; (iv) CDRs of the phone calls of some of the accused. Therefore, we may now proceed to examine whether the above evidence has been rightly appreciated by the learned Additional Sessions Judge, Greater Bombay, while convicting all the accused.
Testimony of the prosecutrix.
37. The primary evidence relied upon by the prosecution is the evidence of the prosecutrix i.e. her complaint, her statement under Section 164 of the Cr.P.C., and her testimony recorded in the witness box. To corroborate her version, Page 39 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT prosecution has examined P.W.14, who was residing near the spot, P.W.41 officer who recorded complaint of prosecutrix, P.W. 2 and P.W. 3 panch witnesses for the spot panchanama, P.W. 10 Dr. Prajakta Ahire, P.W. 11 Dr. Suchita Phad, P.W. 12 Dr. Hemlata Pandey and P.W.13 Dr. Sadanand Bhise in support of medical examination for establishing sexual assault.
38. There is no dispute about the settled position of law that the testimony of the prosecutrix is the most reliable piece of evidence and conviction can be recorded solely on its basis. However, it is necessary that such testimony of the prosecutrix should be of a sterling quality, and it should qualify the strict scrutiny of well settled legal principles. The evidence led by the prosecutrix should leave no room for any doubt or suspicion, whatsoever about the complicity of the accused persons, and most importantly, the evidence itself should inspire confidence and it should not require corroboration in material particulars.
In the light of the above settled legal position, we have to examine the evidence of the prosecutix. She has given names of accused Ajay, Vishal, Dastagir and Wasim, in the Page 40 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT complaint. According to her, she knew four of them since they were also residing in Amarnagar area, yet she has not described them, by giving any specific identification marks. She has admitted in her cross-examination that, she had not stated about specific identification of any of the accused to the police. Thus, the question that arises is that, if the prosecutrix was already knowing the accused was there any necessity to conduct the Test Identification parade. She admits that she already knew the four accused and they were addressing each other by their names, at the time of incident. During the TI Parade, she has identified accused Vishal. According to her, there were two incident of sexual assault, one near the Om Sai Chinese Hotel, where accused namely, Vishal, Ajay, Dastagir, Wasim, Mannu, Mahesh and Hamal have committed the offence. In the second incident at Rahulnagar Jungle, allegations are against Dhiru and Kalu, where they have repeatedly committed sexual assault on her. In the second incident she made specific allegations against Kalu of inserting a stick in her Vagina repeatedly, as a result of which she started bleeding. There were bruises on her face, chest and breast.
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42. In her cross-examination, the prosecution has succeeded in bringing certain omissions which are material, such as, (i) her statement that it was day of Ganpati Visarjan and the boys peeping inside the tempo were Ajay, Dastagir, Vishal and Wasim; (ii) her statement about Ajay inserting his penis in her mouth; (iii) name of the accused Dhiru is also absent from her statement; (iv) She had stated to the police that all the accused persons followed her in the Jungle, does not appear in her statement recorded under Section 164 of the Cr.P.C.; (v) Omission that she was made to sit between Dhiru and Kalu on the motorcycle; (vi) Omission about the prosecutrix making efforts to get help from Milkman PW 9 (who also turned hostile); (vii) Omission about P.W. 9 saying "mat re Kalu mat mar"; (viii) Omission that she was not in a position to talk due to teeth marks on her cheek and lips.
43. Apart from the above omissions, there are other inconsistencies in the statement of the prosecutrix. While on one hand she claims that she knows the names of the accused since they were addressing each other with names during the Page 42 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT incident, yet she has attributed the sexual assault to unknown 9 to 10 persons in the medical history (Exhibit-
120) recorded by PW-10-Dr. Prajakta Ahire. This creates doubt whether the prosecutrix was knowing the names of accused.
44. In her cross-examination, she has admitted that while narrating the incident to the police, she had stated that though Zulawala people and one lady with them were residing at some distance, from the tempo in a hut, yet she has not called them for help. This conduct of the prosecutrix, is contrary to the natural human conduct, when faced with such situation. Even while she was being carried to the Rahul Nagar Jungle, she admits that she did not resist the accused by shouting or bitting. Although she raises a defence that, her mouth was closed by the accused persons, at the same time she also admits that she never tried to bite any of them during the incident. She admits that though she had named four persons, she was not knowing them, and she has failed to identity accused Kalu, Mannu, Vishal and Hamal during the TI Parade.
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45. These material omission and admissions in her cross examination are fatal to the case of prosecution and cast doubt about the credibility and truthfulness of the testimony of the prosecutrix. Undoubtedly, the prosecutrix after undergoing such a trauma is not expected to give finer details of the incident, yet if we look at the material omissions in her statement, as well as her evidence, it is not sufficient for recording conviction of the accused. Therefore, it is necessary to examine the credibility of her evidence from the surrounding circumstances and corroborative evidence, to establish the complicity of the accused in the offence.
The basic principle laid down in various judicial pronouncements about evidentiary value of the testimony of prosecutrix is that it should not be doubted, since it is treated at par with an injured witness, provided it is reliable and needs no corroboration. In case the version of prosecutrix is inconsistent, and not supported by surrounding circumstances and medical evidence, Court cannot act solely on the evidence of the prosecturix. Undoubtedly the offence of rape causes great anguish to the prosecutrix, but at the Page 44 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT same time it is also required to be borne in mind that false allegations against an accused also result in serious consequences as person spoils his life, and he faces lifetime social stigma and humiliation. Thus, in such case, it is necessary to tread very carefully and examine the complicity of the accused with no room for any doubt.
46. In this context, we may profitably refer to the observations of the Hon'ble Supreme Court in case of Sadashiv Ramrao Hadbe Vs. The State of Maharashtra 4, which reads thus:
"8. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
Similarly, we may also profitably refer to the following observations made by the Hon'ble Supreme Court in case of Krishan Kumar Malik Vs. State of Haryana5, which is 4 (2006) 10 SCC 92 5 (2011) 7 SCC 130 Page 45 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT reproduced as under:
"19. The prosecutrix admitted in her cross-examination that she had come to know the names of all the accused during the course of the occurrence, as they were taking each other's names. If that be so, then why she did not name the appellant in the FIR is a million dollar question? These omissions speak volumes against her and her credibility stands shaken. It is also to be noted that initially she reported that there were in all 10 persons but later on she deposed that there were only eight persons and at some place she narrated that only 7 persons were there. When she had ample time to count the number of persons then why this wavering in the number of persons. These acts or omissions of the prosecutrix cannot be said to be minor contradictions as these are very relevant pieces of evidence. Because of such contradictions, an agile and active court can differentiate between genuine cases from the frivolous and concocted ones. The role of courts in such cases is to see, whether the evidence available before the court is enough and cogent to prove the accused guilty."
Thus, it is necessary to examine the corroborative evidence to confirm the allegations against all the accused. Medical evidence:-
47. According to the DNA report, the specimen of A-7 did not match with the blood mixed with semen on the saree of the prosecutrix. Medical evidence is one of the best piece of evidence apart from the statement of the prosecutrix herself, to establish commission of offence of rape. The prosecution Page 46 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT has examined PW-10, PW-11, PW-13 and PW-17, the Doctors who examined the prosecutrix, and gave their respective opinions at Exhibits-119, 153, 177 and 183. After narrating the incident to the police officer (PW-41) Sarita Sarjerao Bhosale, the prosecutrix was referred for medical examination to the PW- 11 Dr. Suchita Ambhajirao Phad, Medical Officer attached to Nagpada Police Station. According to her, she noticed multiple tears on the vaginal wall with severe tenderness and recorded insertion of foreign body.
Hence she referred the prosecutrix to J. J. Hospital for further treatment and examination. PW-10 Dr. Prajakta Ahire is the Doctor in the Department of Obstetrics and Gynecology at Sir J.J. Group of Hospitals, Mumbai. The medical history recorded by her, as narrated by the prosecutrix reveals sexual assault by 9 to 10 unknown persons, with a history of insertion of stick of a size of 10 c.m in length to 5 c.m. in diameter. Upon examination by her, it was noticed that there were bruise marks over right breast and scratch marks over both breasts. On local examination, the labia minora vaginal mucosa were normal. No external injuries were found. Upon rectal examination there was no Page 47 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT injury. It is admitted that no foreign object is present in the vagina, which does not support allegation of repeated insertion of stick attributed to accused Kalu and allegation of carnal sex.
48. The victim was thereafter referred to PW 17 Dr. Aftab Shaikh on the recommendation of Dr. Prajakta Ahire (PW-
10). He did the rectal examination and proctoscopy, which is reflective of normalcy. No evidence of bleeding was seen. He therefore advised, ultrasonography and forensic opinion to confirm the possibility of rape. He has accordingly given his opinion. He has also admitted that there were no bite marks on the person of the prosecutrix, which does not support her allegation of bite marks on her cheek and lips by A-5. The medical report only disclose bruise and scratch marks on her body. In the patient history at Exhibit 183, PW 17 has recorded that the prosecutrix has not taken bath or changed clothes since assault, which is contrary to the testimony of prosecutrix herself, who has admitted that, she had a change of clothes in the police station, which is confirmed by the testimony of PW 41, API Sarita Sarjerao Bhosle, who has stated that after recording the statement of prosecutrix, her Page 48 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT clothes were seized, and she was given another saree and blouse. Thus, the medical history recorded by PW 17 and the testimony of PW 41 are inconsistent with each other.
The prosecutrix was referred to P.W.13 Dr. Sadanand Bhise by P.W. 10 Dr. Prajakta Ahire. In his testimony, he spoke of injury Nos. 1 to 26 on her person including injuries on her private parts. In his cross-examination, he has admitted that injury nos. 2, 4, 11 and 12 is possible by nails. He further admits that he has not mentioned in the report that the injuries in genital area can be caused due to sexual intercourse. He also admitted that he failed to mention that injuries can be caused due to insertion of foreign object such as stick an he did not find any traces of foreign object. As regards the allegation of insertion of stick in her vagina by A-5 Kalu, he admitted that the Article-E i.e. the stick was not shown to him and his opinion was not sought and if such insertion is caused in the vagina, some particles of stick can be found in it, which was not found in case of the prosecutrix. These fatal admissions are inconsistent with the allegation of the prosecutrix. Even though the prosecutrix was examined by four Doctors, P.W. 10, 11, 13 and 17 immediately after the Page 49 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT incident, on very day, the opinion given by the Doctors is not consistent with each other.
In view of the inconsistency in the testimony of the Doctors examined to establish the commission of sexual assault, it becomes doubtful an unreliable piece of evidence, which does not corroborate the testimony of prosecutrix.
In view thereof, in our opinion that benefit of doubt needs to be given to the accused.
Test Identification Parade :-
The prosecution has heavily relied on TI Parade, to establish the complicity of all the accused in the commission of offence.
49. P.W.20 Naib Tahsildar has conducted the TI Parade, for A-1 to A-8, memorandum of TI Parade dated 09.10.2013 is at Exhibit 193 and P.W. 19 has conducted it for A-9 which is at Exhibit 189. There is no material brought on record by the prosecution for the basis of arrest of the accused. The prosecutrix has merely given the first name of accused. The prosecutrix has admitted in her cross-examination that, she Page 50 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT has not given description of the accused, thus, it was necessary for the prosecution to establish the identification of all the accused. Considering that, allegations of sexual assault against number of persons, and the time of incident i.e. the wee hours of night, it is necessary to establish identity of the accused. The offence is allegedly committed on 21.09.2013 at 03:00 a.m. in the morning and the TI Parade has been conducted on 09.10.2013, i.e. 18 days after the incident. A-1 to A-5 have been arrested on 21.09.2013, A-6 on 22.09.2013, A-7 on 23.09.2013 and accused No. 8 was arrested 26.09.2013. While A-9 was arrested after 8 months of the offence, i.e. 26.05.2014 and his TI parade was conducted on 08.07.2014.
50. PW-20 is the Naib Tahsildar, who conducted the TI Parade. He admits in his cross-examination that the Collector had authorized the Tahsildar to conduct the TI Parade. While the Tahsildar had given him the letter to conduct the TI Parade, however, he had not seen the authorization given by the Collector to the Tahsildar and he was also not sure whether the Tahsildar can further delegate his powers. He also admits that, he did not possess the order issued by the Page 51 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT Court directing him to hold the TI Parade. According to him, when he arrived outside the jail, the prosecutrix was already present with the Panchas and police officer. He obtained the names addressee, etc. of Panchas, while Clause 11 of the Criminal Manual mandates the Executive Magistrate to ascertain, whether the witness had an opportunity to see the accused any time subsequent to the offence or after the arrest and record a separate statement, but he has not undertaken any such exercise. He did not question the Panchas, whether they had acted as Panch in any other case, or they are in any manner connected with the present case. He has failed to produce dummies resembling the accused in age, height, weight etc. In all there were eight accused to be identified by the prosecutrix. Clause 5 of the Criminal Manual provides ratio of dummies to be followed, at least six dummies are necessary for one accused. The above proportion is required to be maintained depending on number of accused to be identified. He has failed to follow this ratio in TI Parade of 8 accused.
51. He has admitted that, the first four accused were of different appearance, complexion and height. Four accused Page 52 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT at the same time were made to stand alongwith the dummies in four different groups during single TI parade. The same exercise was repeated in respect of the rest of the four accused. The dummies in the first set were repeated while conducting the the TI Parade, for the second set of accused, though serial numbers and the groups of the accused was changed. Thus, he has failed to conduct the TI Parade, by producing dummies of similar height, weight and complexion, to that of each accused. In fact, he admits that the first four accused were of different height, weight and complexion, yet they are made to stand in the same TI parade. As a result of several irregularities are committed by him while conducting the TI Parade, by failing to adhere to the procedure prescribed in Criminal Manual.
52. Apart from the irregularities in the procedure during the TI parade, the prosecutrix has failed to identify A-3, A- 6, A-7 and A-9 during the TI parade. Although the prosecutrix had claimed to have identified A-7 in the TI parade, during her cross-examination, she has admitted that, she has not identified A-7. Inspite of irregularities in the TI parade being pointed out during the trial, the learned judge Page 53 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT has held that, such irregularities would not cause any hurdle in the evidentiary value of the report submitted by the Competent Authority conducting the TI Parade.
In fact, the TI parade is required to be conducted as per the procedure set out in the Criminal Manual, in order to maintain the fairness, confidentiality, impartiality and reliability of the process, by producing the dummies of similar height, age, weight and complexion of the accused persons. Conducting the TI Parade of four accused at a time is not recommended, as it is bound to create confusion in the mind of witness. The TI parade though not a substantive piece of evidence in itself but, it is one of the methods provided under Section 9 of the Evidence Act to establish complicity of accused. Properly conducted TI parade, lends credibility to the case of prosecution, while improperly conduct TI parade fails to corroborate the identification of the accused. Thus, in our view, the whole TI Parade stands vitiated and becomes unreliable piece of evidence.
Upon consideration of the evidence led by the prosecution, we find that the TI Parade has been conducted contrary to the procedure in the Criminal Manual. Various Page 54 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT judicial pronouncements on this issue hold that sufficient precautions are to be taken to ensure that the witness who participate in the TI Parade do not have an opportunity to see the accused before the TI Parade. The prosecution should establish before the Court that right from day of his arrest, the accused was kept in seclusion to rule out the possibility of his face being seen while in police custody. If the procedure prescribed by the rules is not followed, the very efficacy of conducting the TI Parade is lost and it becomes a mere formality. In case of failure to take necessary precautions and measures before the TI Parade, renders it inadmissible in evidence. We may profitably refer to a decision of the Hon'ble Supreme Court in Gireesan Nairs Vs. State of Kerala (Supra), where the Hon'ble Supreme Court has following observations:
"31. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept "baparda" to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form i.e. physically, through photographs or via media (newspapers, television, etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh v. State of U.P. [Lal Singh v. State of U.P., (2003) 12 SCC 554 : 2004 SCC (Cri) Supp 489] and Suryamoorthi v. Govindaswamy [Suryamoorthi v. Govindaswamy, (1989) 3 Page 55 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT SCC 24 : 1989 SCC (Cri) 472] ).
32. If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Sk. Umar Ahmed Shaikh v. State of Maharashtra [Sk. Umar Ahmed Shaikh v. State of Maharashtra, (1998) 5 SCC 103 : 1998 SCC (Cri) 1276] ). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh [Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733 :
(2021) 1 SCC (Cri) 9] and Ramkishan Mithanlal Sharma v.
State of Bombay [Ramkishan Mithanlal Sharma v. State of Bombay, (1955) 1 SCR 903 : AIR 1955 SC 104] ).
33. It is significant to maintain a healthy ratio between suspects and non-suspects during a TIP. If rules to that effect are provided in Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio to be maintained, then such rules/guidelines shall be followed. The officer conducting the TIP is under a compelling obligation to mandatorily maintain the prescribed ratio. While conducting a TIP, it is a sine qua non that the non-suspects should be of the same age-group and should also have similar physical features (size, weight, colour, beard, scars, marks, bodily injuries, etc.) to that of the suspects. The officer concerned overseeing the TIP should also record such physical features before commencing the TIP proceeding. This gives credibility to the TIP and ensures that the TIP is not just an empty formality (Rajesh Govind Jagesha v. State of Maharashtra [Rajesh Govind Jagesha v. State of Maharashtra, (1999) 8 SCC 428 : 1999 SCC (Cri) 1452] and Ravi v. State [Ravi v. State, (2007) 15 SCC 372 : (2010) 3 SCC (Cri) 730] )."
The aforementioned observations squarely apply to the present case, hence, we are of the opinion that the Page 56 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT irregularities during the TI Parade vitiates the entire process and the trial Court has committed a serious error in placing heavy reliance on it to corroborate the evidence of prosecutrix for recording conviction against the accused. DNA Test:-
53. The next piece of corroborative evidence to establish the complicity of accused, is the DNA test. The prosecution has relied on testimony of P.W.15, who is carrier of samples of prosecutrix to FSL Kalina, Mumbai, P.W.18 is the Store Hawaldar who carried the 14 sealed articles in the office to FSL, Kalina, Mumbai, and P.W. 22, police constable who carried 15 sealed samples of blood, nail clippings etc., of the accused to the FSL Kalina, Mumbai. Alongwith the C.A. report Exhibits-21 to 25 and DNA report Exhibits-126.
For conducting the DNA Analysis, the following specimen were sent by the prosecution : (i) the hymenal swab and vaginal swab of the prosecutrix; (ii) her Saree and Petticoat, containing the blood mixed with the semen; (iii) The piece of branch/stick; (vi) blood detected on half pant of A-5; (v) semen detected on underwear of A-3; (vi) semen Page 57 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT detected on pant of A-6; (vii) blood detected on full pant of A-5; (viii) and blood samples of prosecutrix alongwith the blood sample of all the accused Nos. 1 to 9.
54. The result of the DNA profile of prosecutrix matched with the blood samples of A-3 to A-6, however it did not match with the rest of the accused. So far as A-3 and A-6 are concerned, the prosecutrix was not able to identify them in the TI parade. The reliability of DNA report itself has been challenged by all the accused, contending that, no panch witness has been examined by the prosecution to prove the collection, sealing, storage and transport of the blood samples for the DNA Analysis so as to prove that at every stage the procedure has been meticulously followed. If the specimen for conducting DNA Analysis is not properly documented, collected, packaged and preserved, it does not meet the scientific requirement for admissibility in the court of law. There is every possibility of the specimen, getting contaminated and being tampered, during the process. The importance of maintaining the procedural standards has been underscored by the judicial pronouncements of the Hon'ble Supreme Court in case of Prakash Nishad Alias Page 58 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT Kewat Zinak Nishad Vs. State of Maharashtra 6. Referring to the guidelines for collection, storage and transportation of DNA samples by Investigating Officers issued by the "Central Forensic Sciences Services, Ministry of Home Affairs, Government of India". It is held that the specimen sample must be submitted to the laboratory without any delay.
55. In the present case, the blood samples for examination has been extracted from the prosecutrix and A-1 to A-7 on 25.09.2013. The report is prepared on 02.12.2013. However, the prosecution has not examined any witness to prove the extraction of blood samples of prosecutrix and the accused persons. PW 15, 18, 21 and 22 are the panch witnesses who are the carriers of samples of prosecutrix. Except these carriers, no other witness has been examined to prove the procedure undertaken before conducting the DNA Test.
56. In the case of Manoj Vs. State of MP.7, it is held by the Hon'ble Supreme Court that mere exhibiting a document, i.e. the DNA report profiling would not prove its contents, which 6 (2023) 16 SCC 357;
7 232 (2) SCC 353 Page 59 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT reads thus:
"151. Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, It will not meet the legal and scientific requirements for admissibility in a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be identified, preserved, packed and sent for DNA profiling."
57. One more glaring aspect of the DNA profile which warrant consideration is that, according to the prosecutrix, her petticoat was removed by the accused Vishal before committing the offence of rape near the Chinese hotel and it was recovered during the spot inspection, yet the DNA report shows blood mixed with semen on her petticoat, which matched with A-5, A-4 and A-6, which is inconceivable as it is inconsistent with the narrative of the prosecutix thus raising serious doubts about its reliability.
58. The most crucial aspect of a DNA test is the Page 60 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT examination of the expert who conducted the DNA Test. In the present case, the expert who conducted the DNA test has not been examined. The letter sent to C.A. for DNA analysis at Exhibit 300 has been produced by the Investigating Officer (PW-46). In the decision of Karandeep Sharma alias Razia alias Raju Vs. State of Uttarakhand8, the Hon'ble Apex Court observed that non-examination of the scientific expert, who conducted the DNA profiling, is fatal to the prosecution.
"39. The first flaw in the prosecution case on the aspect of DNA profiling is that the expert who conducted the DNA examination was not examined in evidence and the DNA report was merely exhibited in evidence by the Investigating Officer (PW-14) who undeniably is not connected with the report in any manner. This Court in the case of Rahul v. State of Delhi, Ministry of Home Affairs, while dealing with the issue concerning evidentiary value of DNA report, has held that DNA profiling reports cannot be admitted in evidence ipso facto by virtue of Section 293 CrPC and it is necessary for the prosecution to prove that the techniques of DNA profiling were reliably applied by the expert. The relevant excerpts from the said judgment are reproduced hereinbelow for the sake of ready reference:-
"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 8 2025 SCC OnLine SC 773 Page 61 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT 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. 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 underlving 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)
59. Thus, in view of the above legal position, it would not be advisable to rely on the DNA report since it has not been appropriately proved by examining the expert who prepared it as well as the Panch witnesses to the extraction of samples, its sealing, transportation etc. In view of the various missing Page 62 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT links in the chain of testing of DNA profile, credibility of this piece of evidence becomes doubtful.
CDR of the Accused:-
57. The other corroborative evidence produced by the prosecution is in the nature of CDR. The prosecution has relied on testimony of service provider companies of the cell phone i.e. P.W. 33, Nodal Officer of Reliance, P.W. 36, a Nodal Officer of Vodafone and P.W. 37, Nodal Officer of Bharati Airtel, P.W. 38 Nodal Officer of Idea Cellular to prove the CDR and Tower Location of the accused nos. 1 to 5.
The mobile SIM-Card 9320307546 is in the name of Rakesh Mahavir Ghechand who is the brother of A-1 Ajay Ghechand. As per prosecution, the said cellphone was in possession of the A-1 Ajay at the time of incident. The CDR of the said number discloses that calls were made and received on the said number 21st September, 2013 at 02:59:02 hours on 9987968668 and this number was alleged to be possessed by Wasim Shaikh A-5.
One Charushila Jadhav, P.W.16, sister of A-2 Mahesh Page 63 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT Margaj has been examined to prove that sim-card 9920749575 belongs to A-2, and the CDRs disclose that outgoing calls were seen at 02.31.01, 03.12.23 and 03.18.49 and some more called were made during the night.
In respect of CDR of A-3 Wahid Khan alias Kalu, the prosecution has examined PW- 27. One Bharat Kup Mishra, who has stated that SIM card 9769591764 stands in his name. He had lost the phone with sim card, but he had not bothered to lodge any report with the police. Except the statement that he had lost the sim-card, nothing has been stated by the said witness that would connect the A-3 with the said sim-card.
Similarly, in case of accused No. 5, namely, Wasim Shaikh, PW- 26- Mohammad Mehmoob Shaikh, has been examined to establish the connection of the SIM Card, with number 9004479612 with accused no.5. According to him, he had given the SIM Card for the use of A-5, except this nothing could be elicited from this witness. The prosecution has failed to establish that this mobile number belongs to A-5.
Page 64 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT The CDR of A-7 Bhuvan Hamal indicates that he did not abscond and continued to do his work. The last call received by him was at 00.48 hours on 21.09.2013 from mobile number 9004629880 which does not belong to any of the accused. After that till 10:19:38 hours, there was no call made or received from the said cell phone number therefore the prosecution could not establish the connection of the accused with the offence.
One Ajay Utekar PW 25 has been examined, to establish connection of A-8 Dheeraj Panchal with mobile number 8452850970, however investigation revealed that sim-card with that number was registered in the name of one Manoj Tadpe and the location of the said number was not traceable, thus the call details of accused No. 8 connecting with the offence is not proved by the prosecution. Interestingly, the CDR of A-9 revealed that, he has not made call to any of the accused or establish contact with them. In fact, the CDR discloses that he had dialed number 100 immediately after the offence.
On the basis of the CDRs and tower location of the Page 65 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT cellphones of the accused, the learned Judge has held that, it conclusively proves that all the accused were present on the spot during the night and therefore their connection with the offence stands corroborated by the CDR. However, in our opinion, the evidence does not conclusively establish that, those cell phones were used by the respective accused. Thus, reliance on the CDRs to establish presence of accused on the place of incident is totally misplaced.
Thus, on the basis of aforesaid evidence, when we examine case of each of the accused, we find that the evidence is not sufficient to sustain conviction against them. There are major discrepancies in the evidence against each of the accused, which do not permit to hold that, their guilt is established beyond any doubt.
58. Admittedly, conviction of accused in the offence of rape can be based on the evidence of prosecutrix alone in view of the settled principle in Criminal Jurisprudence that evidence of a prosecutrix in a rape case holds same value as that of an injured witness. However, while doing so, the evidence should inspire confidence and should be unblemished and trustworthy without any lacuna or inconsistency, without Page 66 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT leaving any doubt about the complicity of the accused involved in the offence.
59. In a recent decision, the Hon'ble Supreme Court has taken a view on the reliability of testimony of prosecutrix in offences under Section 376 of I.P.C., in Deepak Kumar Sahu Vs. State of Chattisgrah9, which reads thus:
"5.6. It is an opt-reiterated dictum of law that in cases of rape, the testimony of the prosecutrix alone may be sufficient and sole evidence of the victim, when cogent and consistent, could be properly used to arrive at a finding of the guilt. In the State of Himachal Pradesh v. Manga Singh, (2019) 16 SCC 759, this Court in terms stated that conviction can be rested on the testimony of the prosecutrix alone.
The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law, but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix."
(Para 10) 5.6.1. It was further asserted that corroboration is not an essential requirement for conviction in the cases of rape. It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction 92025 SCC OnLine 1610;
Page 67 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence. As a general rule, there is no reason to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the court.
(Para 11) A crime constitutes a public wrong, as it affects not only an individual but also the collective rights of the community and is detrimental to society at large. In this context, the Hon'ble Supreme Court in Dayal Singh v. State of Uttaranchal10, has observed as follows:
"34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a "fair trial", 10 (2012) 8 SCC 263 Page 68 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT the Court should leave no stone unturned to do justice and protect the interest of the society as well."
The aforesaid position, however, must be read alongside the fundamental premise upon which a criminal conviction rests, that the guilt of the accused must be proved beyond reasonable doubt by the prosecution through evidence that is credible and cogent. The accused need not prove his innocence; it is for the prosecution to prove his guilt. This burden is discharged only when the evidence placed before the court is of such quality and consistency that it leaves no ground for doubt as to the guilt of the accused. It is against this backdrop that the principle of reasonable doubt must be understood in its correct legal sense, not as a technical escape route, but as a rational safeguard that the law has built into the system to protect against conviction on uncertain or insufficient evidence.
The standard of proof beyond reasonable doubt, therefore, does not demand that the prosecution's case be flawless or that every conceivable possibility be ruled out. What is required is that after a careful and dispassionate consideration of the totality of evidence, the court is left with a firm and well-founded conviction as to the guilt of the accused.
Applying the aforesaid legal position to the facts of the present case, this Court is of the considered opinion that the doubts arising from the evidence on record are neither trivial nor peripheral. They are substantial, go to the root of the prosecution's case, and are firmly grounded in what the evidence establishes and, significantly, in what it fails to establish. The prosecution has not discharged its burden to the degree of certainty that the law demands. The lacunae and inconsistencies are of such a nature and magnitude that a reasonable and prudent mind, upon a fair assessment of the evidence, would be left genuinely uncertain as to the guilt of the accused. The accused is, therefore, entitled to the benefit of reasonable doubt." Page 69 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT
60. In view of the evidence led by the prosecution, and various judicial pronouncement on the issues, when we examined the case of the prosecution in an attempt to prove guilt of each of the accused, we find following inconsistencies and contradictions in the evidence of prosecution that fall short to prove the complicity of the accused beyond doubt, which are as follows:
(i) Accused No.1 Ajay Ghechand : His name does not appear in the FIR. The blood sample of the accused did not match with the prosecutrix. His DNA report is negative.
(ii) Accused No.2 - Mahaesh Ramchandra Murgage : His name does not appear in the FIR as well as statement recorded under Section 164 of Cr.P.C. His DNA profile did not match with the prosecutrix. Prosecutrix admit she has not seen him prior to incident, nor named him in FIR as well as statement under Section 164 of Cr.P.C.;
(iii) Accused No. 3 - Wahid Quyyum Khan : Apart from number of material omissions, there is no evidence led by the prosecution to establish that 'Kalu' is the same person, namely, Wahid Quyyum Khan. The allegations of insertion of stick in the private part of prosecutrix by him is not Page 70 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT corroborated by medical evidence. The prosecutrix has failed to mention about insertion of stick by him in her statement recorded under Section 164 of Cr.P.C.
(iv) Accused No.4 - Dastgir Abdul Khan : His name is not mentioned in FIR as well as statement recorded under Section 164 of Cr.P.C., his DNA profile did not match with the prosecutrix.
(v) Accused No.5 - Wasim Samand Shaikh : No evidence about specific charge under Section 377 of IPC is proved against him. Although the DNA profile of the accused no.5 matched with the semen on the petticoat of the prosecutrix it is a doubtful piece of evidence in view of the version of the prosecutrix, where she reports that her petticoat was removed before the sexual assault.
(vi) Accused No. 6 - Manpreetsingh Kashmirsingh Gill :
Prosecutrix has failed to identify him during the TI Parade.
He is not named in the FIR as well as statement recorded under Section 164 of the Cr.P.C. Although the DNA profile of the accused no.6 matched with the semen on the petticoat of the prosecutrix it is a doubtful piece of evidence in view of the version of the prosecutrix, where she reports that her Page 71 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT petticoat was removed before the sexual assault.
(vii) Accused No.7 - Bhuvan Lalbhahadur Hamal : Inspite of his distinctive features being a Nepali, TI Parade against him has failed. He is not named in the FIR and the Statement recorded under Section 164 of the Cr.P.C. The forensic evidence against him is negative.
(viii) Accused No.8 - Deeraj @ Dheeru Prakash Panchal : In FIR as well as statement under Section 164 of Cr.P.C.
Prosecutrix named one 'Veeru' and it is not established that this Veeru is Dheeraj Prakash Panchal. Neither his medical reports nor the DNA report matches with the prosecutrix.
ix) Accused No. 9 - Vishal Ashwini Sood : Although there are specific allegation of initiation of sexual assault by accused no. 9, his DNA profile did not match with the specimen of petticoat and saree of the prosecutrix. As per CDR, he has dialed 100 immediately after the incident, which is inconsistent with natural human conduct.
61. In view of the aforementioned inconsistencies and contradictions, serious doubts are created about the complicity of the accused. The prosecution has failed to Page 72 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 ::: CR. APEAL 229 OF 2017 COMMON, J.ODT prove the alleged offences against each of the accused, beyond reasonable doubt. In our opinion, the learned Additional Sessions Judge, Greater Mumbai has committed grave error in convicting the accused under Sections Section 235(1) of Cr.P.C., for offence under Section 376(D) read with 120(B) of the IPC, Section 376(D) and 120 (B) of IPC, Sections 366 and 377 read with 120 B of the IPC, Section 354, read with 120 B of the IPC, Sections 341, 342, read with 120 B of the IPC and Section 323, read with 120 of the IPC in absence of cogent evidence proving their respective role in the offence.
In the wake of the observations made hereinabove, we allow the Appeals of all the Appellants and quash and set aside the judgment of conviction recorded against them vide judgment and order dated 22 nd February, 2017, passed by the Additional Sessions Judge, Greater Mumbai. As a result of their acquittal, all the accused shall be released forthwith, if not required to be detained, for any other reason. {
62. In view of disposal of the Criminal Appeals, all pending Applications stand disposed off.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.) Page 73 of 73 Rajeshri Aher ::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:37:21 :::