Bombay High Court
Nitin Ramesh Prajapati vs The State (Union Territory Of Dadra And ... on 11 July, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:30393-DB
1 / 39 [email protected]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1068 OF 2019
WITH
INTERIM APPLICATION NO.114 OF 2020
IN
CRIMINAL APPEAL NO.1068 OF 2019
WITH
INTERIM APPLICATION NO.94 OF 2020
IN
CRIMINAL APPEAL NO.1068 OF 2019
Nitin Ramesh Prajapati .... Appellant
versus
The State (Union Territory of Dadra
and Nagar Haveli) & Anr. .... Respondents
.......
• Mr. Amit Mane, Advocate for Appellant.
• Mr. Shantanu Thorat i/b. Mr. H. S. Venegavkar, SPP with Ms.
Sharmila S. Kaushik, APP for the State/Respondent No.1.
• Ms. Ameeta Kuttikrishnan, Advocate for Respondent No.2.
CORAM : SARANG V. KOTWAL &
SHYAM C. CHANDAK, JJ.
DATE : 11th JULY, 2025
JUDGMENT :(PER : SARANG V. KOTWAL, J.)
1. The Appellant has challenged the Judgment and Order Digitally signed by dated 19/12/2017 passed by the learned Special Judge, Dadra MANUSHREE MANUSHREE NESARIKAR NESARIKAR Date:
2025.07.22 16:43:10 +0530 and Nagar Haveli, Silvassa, in Sessions Case No.9/2015. By the Nesarikar ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 :::
2 / 39 [email protected] impugned Judgment and Order, the Appellant was convicted as follows ;
(I) The Appellant was convicted for commission of offence punishable u/s 302 of the Indian Penal Code and was sentenced to suffer life imprisonment with a fine of Rs.15,000/- and in default of payment of fine was sentenced to suffer further rigorous imprisonment for three years. (II) The Appellant was also convicted u/s 376 of the Indian Penal Code and was sentenced to suffer life imprisonment with a fine of Rs.15,000/- and in default of payment of fine to suffer further rigorous imprisonment for three years.
(III) The Appellant was further convicted for commission of offence punishable u/s 6 of the Protection of Children from Sexual Offences Act (POCSO). However, in view of the section 42 of the said Act, no separate sentence was imposed for section 6 of POCSO.
Both the punishments were directed to run concurrently.
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3 / 39 [email protected] (IV) The parents of the victim were directed to be paid compensation of Rs.5 lakhs under the scheme implemented by the Union Territory of Dadra and Nagar Haveli, in the year 2012.
2. Heard Mr. Amit Mane, learned counsel for the Appellant, Ms. Ameeta Kuttikrishnan, learned counsel for the Respondent No.2 and Mr. Shantanu Thorat, learned SPP with Ms. Sharmila S. Kaushik, learned APP for the Respondent No.1/State.
3. The prosecution case is that the victim was about 14 years of age at the time of the incident. On 28/10/2014, in the evening she had gone to the terrace. She did not return for quite some time. Therefore, her mother went to the terrace searching for her. She found that her daughter was lying on the terrace with a grievous injury on her head. She was not wearing her pant. The mother immediately called the neighbours and brought her to their flat. The police were informed. The victim was taken to the hospital. But she was declared dead. The prosecution case is that the Appellant had entered the informant's Housing Society on his motorcycle. He had gone to ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 4 / 39 [email protected] the terrace, committed rape on the victim and crushed her head with a stone. According to the prosecution case, he threw the stone and the victim's clothes from the terrace on the ground. He was carrying a towel. He wiped his hands with the towel and threw it in the vicinity. He then went away from that place. The police started the investigation. The body was sent for post- mortem examination. The statements of witnesses were recorded. The CCTV footage was recovered from the cameras installed in the society. Based on the CCTV footage search of culprit was taken. The Appellant was arrested on 11/11/2014. According to the prosecution, some of the witnesses identified him from the CCTV footage. It was also alleged that at his instance blood stained clothes were recovered from his house. He also showed the place where he had thrown the towel. The towel was recovered. His motorcycle was seized. The blood sample and semen sample was collected from the Appellant. The seized articles and the samples were sent for chemical analysis. After completion of investigation, the charge-sheet was filed. The case was committed to the Court of Session. ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 :::
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4. During trial, the prosecution examined 21 witnesses including the mother of the victim, neighbours, the security supervisor, the person who had installed and supervised the operation of the CCTV cameras, the Medical Officers and the Police Officer who had conducted the investigation. The defence of the Appellant was of total denial. He added that on 12/11/2014, he was produced in veil before the press conference, but he did not know about the publication of news item in the newspapers. He had read those news articles while he was in custody.
5. The learned Judge considered the evidence on record and the defence of the Appellant. After hearing the arguments of both the sides, he convicted and sentenced the Appellant as mentioned earlier.
6. P.W.1 was the mother of the victim. She had lodged the FIR. She has stated that the victim was 14 years of age at the time of the incident. Her date of birth was 11/01/2000. They had gone to their native place and had returned to Silvassa on ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 6 / 39 [email protected] 28/10/2014 in the morning. At about 06.00 p.m., the victim prepared tea for all of them. P.W.1 then started cooking dinner. Her husband went out to bring vegetables and the victim went to the terrace of their building. Till about 07.30 p.m., the victim did not return. Therefore, she made a phone call to the victim. But the phone was switched off. She then called her husband. He returned home. He asked her to go to the terrace. She went there calling the victim's name. But there was no response. When she went to the terrace, she saw blood stains on the eastern side of the terrace. She saw that the victim was lying there on the terrace. P.W.1 got frightened and told her husband about what she had seen. There was a pool of blood and the victim had injury on the head. There was no pant on her person. Therefore, P.W.1 brought another pant and requested the neighbour to call an Ambulance. They brought the victim in the house. They could not arrange for an Ambulance. Therefore, they took the victim in the neighbour's car to the Cottage Hospital. But the Doctor declared her dead. P.W.1 was in the hospital till 10.00 p.m. Then she went home at about midnight. Police came to her house and recorded her statement. It was ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 7 / 39 [email protected] treated as an FIR. It is produced on record at Ex.14. On 29/10/2014, at about 03.30 p.m. the police came to her house. P.W.1 showed them the spot of incident. The police conducted the Spot Panchanama and seized articles like broken spectacles of the victim, blood sample from the spot and blood from P.W.1's house. At about 06.00 p.m. police again approached her and showed her a legwear and under garment stained with blood. P.W.1 identified those clothes as they were of the victim. She produced the original birth certificate of the victim at Ex.15. The police also recorded her supplementary statement on 29/10/2014.
In her cross-examination, she stated that the victim was having a mobile phone since about 2 to 3 months prior to the incident. When she went to the terrace, the victim's mobile phone was lying near her. P.W.1 added that normally the victim never carried her mobile phone to the terrace. She used the mobile phone only in the house. She used to call her family and friends from the mobile phone. They had given that mobile phone handset to the police.
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7. There were building Nos.A to L in the Housing Society.
Their building was about 50 ft from the main gate of the society. P.W.1 stated that they resided in E building. Their flat was on the third floor of the building. All the buildings were ground plus three floors. CCTV cameras were fixed on each floor. There was only one entry gate of their Housing Society. A watchman was deployed for 24 hours.
8. P.W.9 Anita Gaikwad was residing in D building of that Housing Society. She had also returned on the same day i.e. on 28/10/2014 from a holiday. Her family reached home at about 07.00 p.m. When they were going upstairs, she saw one boy coming down from D building. Subsequently, after the incident one police person came to her and showed her CCTV footage, which they had taken in a mobile phone handset. P.W.9 watched that footage and identified the person in the footage as the same boy, who she had seen coming down from D building at 07.00 p.m. on 28/10/2014. Importantly, she specifically stated that, in that footage, the face was not seen clearly and she identified ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 9 / 39 [email protected] him on the basis of his posture. She further deposed that she had seen the same boy in the society near G building before 28/10/2014. She had seen him sitting on a motorcycle and playing on his mobile. According to her, the boy who was seen in the CCTV footage was the same boy, sitting in the Court.
In the cross-examination, she stated that E building is on the right side as seen in the CCTV footage. The CCTV footage shows that the said boy came from outside and went inside the building. She stated that tuition classes were run in their society and many students used to come for the tuitions. The classes ordinarily ran from 04.00 p.m. to 06.00 p.m. and during the examination time, they used to go on till 07.00 p.m. She had seen that boy playing on the mobile phone sitting on his bike during the time of tuition. She never got suspicious about that boy. She admitted that the police person did not show her the CCTV footage on all the cameras fixed in their society. 'G' building was in front of the passage between 'D' and E building. There was a camera covering 'G' building. On the next day, she learned about the arrest of the Appellant. She stated that she ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 10 / 39 [email protected] could see that the accused was the same person based on the height and his baldness. She admitted that she did not see his face. The police had called her for identification of that person, but she had refused to go for identification as she was scared.
9. P.W.2 Pravinbhai Panchal is another witness examined by the prosecution. But we really do not see any significance of his deposition. The police had shown him a CCTV footage from the Housing Society. He identified that the boy seen in the CCTV footage as the same boy entering his Housing Society about one and a half year ago. However, that boy had visited this witness's house about one and a half year ago. This does not have any connection with the incident in this case.
10. As far as the identity of the accused was concerned, P.W.8 Karshan Bhatu is another important witness. He was the supervisor of that Housing Society. He was concerned with the maintenance of the society. There were five guards engaged by the society. Two were on day duty and three were having night duties. There were 8 CCTV cameras fixed at different spots. The ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 11 / 39 [email protected] DVR was fixed in the main gate cabin. One Samir Virani (who was examined as P.W.15) was the technical person dealing with the CCTV. According to P.W.8 he used to check the CCTV daily. On 28/10/2014, in the evening he was in the society. At about 07.00 p.m. he received a phone call from a member of the society from flat No.18 B building that, one girl had fallen down from E building. P.W.8 then went there. In the meantime, he had made a phone call asking for an Ambulance. There was bleeding injury to her head. One of the neighbours took her to the hospital. P.W.8 accompanied them. The victim's parents also went to the hospital. The Doctor examined her and declared her dead. He checked the CCTV footage and found that, at about 06.42 p.m., a two wheeler of CBZ model was seen entering the society and going towards 'G' building and it was parked in 'G' building. The boy coming on that motorcycle was seen climbing the stairs of 'D' building. Then he was seen coming down and going towards E building. Then he went towards F building. Again he was seen going towards E building with a towel. Again he was seen going towards F building. It was noticed that when he came down from F building, he was not carrying that towel. ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 :::
12 / 39 [email protected] He then saw the same boy going outside the society on his motorcycle. After watching the CCTV footage, he had a suspicion that the same boy could have committed the offence. One month after that, he was called at Mamlatdar office for Test Identification Parade. 6 to 7 persons were standing in a row. P.W.8 was asked to identify the person whom he had seen in the CCTV footage. P.W.8 then identified the Appellant who was standing at the second place from right in that row. He identified the Appellant before the Court. The CD of CCTV footage was played in the Court. There were 10 clips. According to P.W.8, the accused was seen in all those clips.
In the cross-examination, he stated that he also resided in the same society in 'D' building. The victim's family was residing in 'E' building. He used to be on duty between 08.00 a.m. to 08.00 p.m. He deposed that there used to be a watchman throughout the 24 hours on the main gate. It was the duty of that guard on the main gate to make enquiries about the persons entering the society. He was supposed to ask their names and where they wanted to go.
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13 / 39 [email protected] In the cross-examination, he added that he did not have any conversation with the victim's parents, when they were going to the hospital. He did not remember that one of them told him that the victim had gone to the terrace with a mobile phone. Importantly, he has admitted that in the CD played in the Court, the face of that boy was not seen 'vividly' (in his own words).
11. P.W.10 Namratasingh Parmar had conducted the Test Identification Parade, wherein P.W.8 had identified the Appellant. She has deposed that on 27/11/2014 at 01.30 p.m. the police brought the Appellant to her office. She looked at him and called two Panchas. After looking at the Appellant's posture, she arranged six dummies. The identifying witness P.W.8 Karshan Bhatu reached there. He was asked to sit outside in another room. The Test Identification Parade was held. The Appellant's face was covered. He was brought to the place of Test Identification Parade. His veil was removed. He was given an option to change his clothes. He changed his shirt. He stood at the first place on the right side. P.W.8 then entered the room and he identified the Appellant.
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12. Here one of the important feature is that according to this witnesses, the Appellant was standing at the extreme right in the room and according to the identifying witness P.W.8, he was standing at the second place from the right.
13. P.W.12 Jugal Patel was a Pancha who was present at the Test Identification Parade. His evidence is almost similar to that of the P.W.10. He has also stated that the Appellant stood at the extreme right at the first place in that room.
14. P.W.15 Samir Virani is an important witness. He had done Diploma in Electrical Engineering. He deposed that he had installed CCTV cameras in the victim's Housing Society. He had installed 8 cameras at different places. DVR was installed in the cabin near the entry gate of the society. The management of the CCTV system was under him. He was holding the password for the use and operation of CCTV. On 29/10/2014, he received a call from the Maintenance Supervisor of Housing Society. P.W.15 went there. One policeman namely Rahim was there. He ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 15 / 39 [email protected] requested P.W.15 to show the backup of the entire day of 28/10/2014. Then he showed him the entire backup. He also requested P.W.15 to give the DVD. P.W.15 further deposed that he prepared the DVD from the DVR with the help of a pen drive. He was again called on 30/10/2014. The same policeman was there. He asked him to handover the DVR and the hard disk. But P.W.15 did not have any standby unit. The policeman had brought one hard disk. P.W.15 gave him backup feed of the CCTV in the hard disk. He gave him backup upto 28/10/2014 as per the policeman's request. On 27/01/2015, P.W.15 was again called in that society. P.I. Mahajan was present there. He asked P.W.15 to handover the DVR and the hard disk i.e. the entire set. P.W.15 handed over the entire set. The witness identified the DVD with the footage which he had given to the police on 29/10/2014 and 30/10/2014. He added that the storage capacity of the hard disk is 12 days. After that period, the recorded document disappears.
In the cross-examination he deposed that he prepared DVD on his laptop with the help of a pen drive. He carried out ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 16 / 39 [email protected] this operation in the cabin itself. He did not recollect whether he had given recording of 8 cameras and then volunteered that he had given footage of all the cameras.
15. P.W.13 Rahim M. Sheikh was a Police Constable. He had knowledge of computers. He was present when P.W.15 Samir Virani opened the system with a password. P.W.13 has stated that, they then prepared the CCTV footage of the camera at the evening period from 6 o'clock onwards. They got it written on a DVD. On 30/10/2014, PI Mahajan instructed P.W.13 to bring the DVR. But Samir refused to give DVR because according to him, if it was given then the recording of CCTV in the entire society would be stopped. Therefore, P.W.13 provided a hard disk to P.W.15 and requested him to download the CCTV footage from 21-22/10/2014, 26-27/10/2014. P.W.13 also copied the footage of 28/10/2014 from morning till 08.00 p.m. He then delivered that hard disk to the Investigating Officer. He deposed that the person seen in that footage was the person who was sitting before the Court i.e. the present Appellant. ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 :::
17 / 39 [email protected] In the cross-examination, he stated that he did not know whether the Investigating Officer prepared any Panchanama of DVD which this witness had handed over to the Investigating Officer. The Investigating Officer did not seal the hard disk and the DVD in his presence. He did not find any suspect in the CCTV footage before 28/10/2014. He also added that when his officer asked him about the description of the suspect, he told the officer that he could not tell the description of the suspect.
16. P.W.17 Devang Bagul was a Pancha in whose presence, the PI Mahajan had packed the hard disk of DVR from the security cabin.
17. P.W.20 Hitesh Trivedi was serving in FSL. He had analyzed the electronic material sent to him in respect of the CCTV footage. According to him, there was no editing, alteration, modification observed by him in the video file sent to him. He had given that opinion. It is produced on record at Ex.57.
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18. The next circumstance brought out by the prosecution is about the recovery of various articles.
P.W.3 Sajid Derayya is an important witness in that behalf. He has deposed that on 13/11/2014, the police called him to act a Pancha. He reached there at 12.30 p.m. The Appellant gave a statement that he was willing to show the clothes which he had worn at the time of incident and also the towel. His statement was reduced into writing. It is produced on record at Ex.20. The Appellant then took the Panchas and the police to his house. He went at the backside of his house. There was one cement sheet. From behind that sheet he produced one bag containing shirt and night pant. According to P.W.3, the shirt was smeared with blood. The clothes were seized. That Panchanama is produced on record at Ex.21. The Appellant then took all of them behind the wall compound of the victim's Housing Society. There were dried leaves lying there. He searched at that spot and produced one towel. It was a white coloured towel. It was smeared with blood. It was also seized. ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 :::
19 / 39 [email protected] That Panchanama is produced on record at Ex.22. He identified those articles when they were produced in the Court.
19. P.W.4 Prabhakar Giri was a Pancha in whose presence, the Appellant's two wheeler bearing No.DN-09-J-4939 was seized. It was pursuant to another recovery statement u/s 27, but that bike was seized from near a temple. The Appellant was present there.
20. P.W.5 Mayurkumar Chauhan is another Pancha who was called by the police on 29/10/2014. They took search around E, D and F building. From the backside of the wall of the 'E' building, they found one black coloured stone, smeared with blood and some hair stuck to it. They also noticed some clothes hanging on a tree touching the terrace of E building.
21. P.W.6 Sunilbhai Ahir was asked to climb that tree and get those clothes. There was one black coloured legwear and one undergarment. Those clothes were identified by the mother of the victim as those belonging to the victim. Those articles were sealed. That Panchanama is produced on record at Ex.27. ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 :::
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22. P.W.7 Milan Patil was present when the Panchanama of the terrace and the house of the victim was conducted. The blood samples from those place and the broken spectacles were seized. That Panchanama is produced on record at Ex.30.
23. P.W.11 Dr. Sunil Patel had conducted the post-mortem examination. He had seen the following external injuries :
(a) Simple injury on right side forehead measuring 3 cm x 3 cm.
(b) Simple injury on left side of parietal tempero skull measuring 3 cm x 2 cm x 0.5 cm.
(c) Grievous injuries i.e. fracture on parietal occipital region of skull
(d) There were three CLWs on right side of parieto occipital scalp measuring 3 cm x 2 cm x 0.5 cm. They are approximate 3 to 5 cm.
(e) Grievous injury occipital bone fracture (crush).
24. There were also injuries on her private parts as follows :
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21 / 39 [email protected] Organ of generation, Perineum appeared normal and anatomically. On external general examination it was found that posterior forchette bruise was there, old bluish in colour, the injury was less than 18 to 24 hours was noted. Hymen was torn, no bleeding was found, there were small carunclae noted.
25. According to him, the cause of death was mentioned as 'due to cardio respiratory arrest due to hemorrhagic shock due to head injury, crush of skull bone on left side of parieto occipital bone and occipital bone on both sides with rupture of brain on fracture side with intra cranial hemorrhage subdural hemorrhage'.
26. The vaginal swab and cervical swab were found positive with human semen.
In the cross-examination, he admitted that while examining the private parts he did not notice any external injury caused by violence. He added that about 37% of human beings have blood group 'A'.
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27. P.W.14 Dr. Riddhi Oza had collected the blood sample, nail clippings, pubic hair, scalp hair and semen of the accused on 13/11/2014. She sealed all those samples and handed over it to the police. The letter addressed to the police handing over those samples, was filed by her on record. It was produced on record at Ex.43.
28. P.W.16 Dr. Jignasha Parmal had collected the pubic hair, vaginal swab, blood, cervical swab of the deceased.
29. P.W.18 PHC Gajubhai Patel was the PSO of Silvassa Police Station. He received information at about 10.15 p.m. on 28/10/2014 from the hospital. On the basis of that information, he took station diary entry. At 12.39 a.m. on 29/10/2014 G.B. Kamle (P.W.19) registered the FIR, vide C.R.No.185/2014 u/s 302 of the Indian Penal Code.
30. P.W.19 PHC Gajanan Kamle had recorded the statement of the victim's mother and it was given to the SHO of the police station for registration of the FIR.
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31. P.W.21 PI Krishna Mahajan was the Investigating Officer, who had conducted the investigation. He had sent the dead body for post-mortem examination. He searched and saw the CCTV footage. He conducted the Spot Panchanama and collected the articles. He also collected the stone which was used for commission of the murder. He seized the clothes of the deceased. He deposed that he deposited those articles with Muddemal clerk and obtained his receipt. He recorded statements of various witnesses. His investigation revealed that the suspect had used a CBZ two wheeler. He made enquiries with RTO in respect of the ownership of the motorcycle seen in the CCTV. It was revealed that it was owned by the Appellant. On 11/11/2014, the Appellant was arrested. The Appellant took the police to his house. The police seized his two wheeler bearing No.DN-09-J-4939. On 13/11/2014, his clothes and the towel were recovered at his instance. The towel was seized from behind the boundary wall of 'F' building. There were many bushes in the open land. The towel was taken out by the Appellant from beneath those bushes. On 13/11/2014, he got ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 24 / 39 [email protected] the Appellant examined medically, collected the sample, hair and semen under the letter dated 13/11/2014. Importantly, he has not deposed as to what he did with those samples, and as to how they were stored. After that, on 27/11/2014, the Test Identification Parade of the Appellant was held by the Mamlatdar. On 29/11/2014, he sent the recovered muddemal articles to FSL. He got school leaving certificate of the deceased. On 27/01/2015, P.W.15 Samir Virani produced the hard disk. On 02/02/2015, the hard disk with DVD was send to FSL. The FSL report was produced on record by him. At the conclusion of the investigation, he filed the charge-sheet.
32. Learned counsel for the Appellant made the following submissions :
The presence of the Appellant at the time of the incident is not proved by the prosecution beyond a reasonable doubt. The identification by P.W.9 is hardly of any significance.
She had not seen the face of the accused. The CCTV footage produced in the Court is not supported by a certificate u/s 65-B ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 25 / 39 [email protected] of the Indian Evidence Act and therefore that evidence is not admissible.
33. In support of his contention, learned counsel for the Appellant has relied on the following Judgments of the Hon'ble Supreme Court :
(1) Anwar P. V. Vs. P. K. Basheer and Ors. as
reported in (2014) 11 SCR 399
(2) Sundar @ Sundarrajan Vs. State By Inspector
of Police, as reported in (2013) 5 SCR 1016
(3) Chandrabhan Sudam Sanap Vs. State of
Maharashtra, as reported in AIR 2025 Supreme Court 1103.
34. He submitted that in any case, as is admitted by the prosecution witnesses, the face of the suspect in the CCTV footage is not clearly seen. Therefore, his identification is not proved beyond a reasonable doubt. Even the Test Identification Parade does not have any evidentiary value. Firstly the parade was held enabling P.W.8 to identify the suspect seen in the CCTV footage. He had not seen the Appellant in person. Therefore, this ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 26 / 39 [email protected] Test Identification Parade has no meaning. Even otherwise, there is discrepancy in the evidence of P.W.8 on one side and P.W.10 and P.W.12 on the other. Because P.W.8 has stated that the Appellant was standing on second position from right and the other witnesses have stated that the Appellant was standing at the extreme right. If the prosecution wanted to rely on the circumstances of identification, this has thrown sufficient doubt in the prosecution theory.
35. Similarly, the motorcycle in the CCTV is not clearly seen and none of the witnesses has stated that the number plate shown in the CCTV footage was that of the Appellant's two wheeler. Therefore, there is nothing to show that the Appellant had entered the society on that particular date. Even otherwise, merely by mentioning that the Appellant had entered the society, does not connect the Appellant with the serious crime of rape and murder.
36. The recovery evidence against the Appellant is not incriminating. He has submitted that the towel was recovered ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 27 / 39 [email protected] from an open place which was accessible to all. It will not be an incriminating circumstance. The clothes of the deceased were hanging on a tree which were recovered under a separate Panchanama and they were not recovered at the instance of the Appellant. The murder weapon i.e. the stone was also found at the spot. It was not recovered pursuant to the statement given by the Appellant. As far as the blood stained clothes are concerned, though the prosecution has alleged that it had blood stains of 'A' group, that by itself would not connect the Appellant with the offence of murder. The blood group found on the clothes of the deceased found at the spot showed blood of 'A' group. Similarly, the blood group of the Appellant himself was also of the same 'A' group. The prosecution has not ruled out the possibility that the blood found on his own clothes was not that of the Appellant. In support of his submission, learned counsel for the Appellant has relied on the observation of the Hon'ble Supreme Court in the case of Prakash Vs. State of Karnataka in Criminal Appeal No.1682 of 2005 decided on 15/04/2014 . He relied on the observations in paragraph No.61 of the said judgment, which reads thus:
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28 / 39 [email protected] "61. In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash's seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash's clothes were those of Gangamma's blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh.P-27] was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains on Prakash's clothes were his own blood stains and that his blood group was also AB."
37. He submitted that in the present case, it was established that the Appellant's blood group was 'A' as was the ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 29 / 39 [email protected] blood group of the deceased. Therefore, the observations of Hon'ble Supreme Court in Prakash's case apply more forcefully to this case.
38. The other circumstance alleged by the prosecution is about the finding of semen of 'A' group on the vaginal swab of the deceased. Learned counsel submitted that the manner of the collection and preservation of sample is not beyond doubt. The Investigating Officer has deposed about depositing other articles with the muddemal clerk and obtaining receipt. But as far as important samples of the blood of the Appellant and the semen of the Appellant are concerned, there is a missing link because the Investigating Officer has not stated as to how those samples were collected and stored. They were collected on 13/11/2014 and were sent on 29/11/2014. The period between these two dates is not explained by the Investigating Officer. Therefore, there is a serious doubt regarding the collection and storage of those samples in that behalf.
39. Learned SPP and the learned counsel for the ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 30 / 39 [email protected] Respondent No.2 submitted that it is a serious offence. It is based on circumstantial evidence and the police with their best efforts have nabbed the present Appellant. The circumstances against him are that he was seen in the CCTV footage. His suspicious movements around the time of offence in the Housing Society are seen. There is recovery of blood stained towel and his own clothes at his instance. Presence of blood stains on his clothes match with the blood group of the deceased. There was presence of semen of 'A' group on the vaginal swab of the deceased.
40. Learned SPP relied on the judgment of the Hon'ble Supreme Court in the case of Gajanan Dashrath Kharate in Criminal Appeal No.2057 of 2010 decided on 26/02/2016 , wherein it was observed that finding of the blood group of the deceased on the clothes of the Accused is an incriminating circumstance.
41. We have considered these submissions. There is no doubt that the incident had taken place on that day and at that ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 31 / 39 [email protected] place. It is a very serious offence as a 14 year old girl was brutally raped and assaulted to death. The offence is serious and the prosecution was expected to lead reliable and cogent evidence to rule out every other hypothesis except the guilt of the accused beyond a reasonable doubt. As mentioned by the learned SPP and the learned counsel for the Respondent No.2, there are certain incriminating circumstances against the Appellant. They are discussed as below :
Identity and suspicious movements -
42. According to the prosecution case, the movements of the Appellant around the time of offence was suspicious and his movements were captured on the CCTV. In this context, the learned counsel for the Appellant has rightly submitted that the entire process of copying the CCTV footage on the DVD and producing it before the Court without a mandatory certificate u/s 65-B makes it a weak piece of evidence and we are inclined to agree with the submissions of the learned counsel for the Appellant. We have also described the manner in which the ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 :::
32 / 39 [email protected] CCTV footage was copied. P.W.15 has described the procedure. He has stated that the CCTV footage recorded on the DVR was captured on DVD by using a Pendrive. That Pendrive becomes the first storage device. Then it was copied to another device i.e. the DVD. That Pendrive is not produced before the Court. The recording of DVD is not accompanied by the certificate which could have been issued by P.W.15 because the entire CCTV of that society was under his control. The evidence of P.W.9 shows that she was shown the recording of the CCTV footage on the mobile phone handset. There is absolutely no connecting evidence to show as to how that particular footage was recorded or transferred on a mobile phone handset. She has based her identification on the basis of video recording seen on that mobile phone handset. There is no connecting evidence as to how that particular CCTV footage was transferred on that mobile phone handset. The said mobile phone is not produced before the Court. Therefore, the evidence of P.W.9 which is based on that particular footage is hardly of any evidentiary value. Even otherwise, her evidence is quite vague. She had seen one boy coming down from D building. She had not seen that boy ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 33 / 39 [email protected] going towards or inside the E building where the incident had taken place. Moreover, she has specifically admitted that she had not seen the face of that person in that footage. She also admitted that the police officers had not shown her the footage of all the cameras fixed in their society. Therefore, identification of the Appellant by this witness, is hardly of any evidentiary value against the Appellant. She has admitted that she identified him on the basis of his posture. In fact, she has stated that there were many others who used to frequently come in the society because tuition classes were conducted in their society. Around that time, there were many other students who used to be in the society. This opens up a genuine possibility that there could be some other person committing the offence.
43. As far as the identification by the P.W.8 is concerned, he has also admitted in his evidence that the CD played in the Court did not show the boy's face 'vividly' (in his own words). Thus, identification of the Appellant is extremely doubtful. Besides, there is another issue as to where the Appellant was standing during the Test Identification Parade and there are ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 34 / 39 [email protected] contrary answers given by the P.W.8 one hand and P.W.10 and P.W.12 on the other as referred hereinabove. In any case, as rightly submitted by the learned counsel for the Appellant, it was very unusual for the police to ask the witness to identify the person to whom he had seen only on CCTV and not in actual physical presence. Because of these infirmities in our opinion, the prosecution has not proved the identity of the Appellant.
44. The next circumstance is about finding of blood stained towel, which showed presence of blood of 'A' group. As the evidence shows that the said towel was recovered from an open place, it was accessible to all. It was not found concealed. Moreover, the police had conducted survey and Panchanama from behind these buildings on an earlier occasion. They had recovered the murder weapon i.e. the stone and clothes of the deceased from there. But at that time they had not noticed the towel. It raises doubt about this recovery of the towel.
45. As far as the recovery of the blood stained clothes is concerned, we find substance in the submission of the learned ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 35 / 39 [email protected] counsel for the Appellant that in this particular case, it was necessary for the prosecution to have ruled out that the blood stains found on his clothes were not of his own. The Panchas and the Investigating Officer have not described the size and number of blood stains on his shirt. This has to be seen in the background of the fact that the Investigating Officer had collected the blood samples on the cotton swab from the room of P.W.1 and the terrace and he had deposited it with the muddemal clerk. There is no evidence as to where the blood sample of the deceased was kept. More importantly, as far as the samples of semen collected from the Appellant on 13/11/2014 are concerned, there is absolutely no explanation or no evidence brought out by the prosecution as to what happened to those samples from 13/11/2014 to 29/11/2014, when they were forwarded to FSL. The samples were collected by P.W.14 Dr. Riddhi Oza. She has stated that the samples were handed over to the police. P.W.21, the Investigating Officer has stated that on 13/11/2014, he got the Appellant examined medically and collected his samples. After that, he has not stated as to what happened to those samples between 13/11/2014 to ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 36 / 39 [email protected] 29/11/2014. He has not deposed as to where those samples were stored. The prosecution has not ruled out that there was a possibility of contamination or tampering with those samples. Therefore, even that particular circumstance of finding of semen of 'A' group in the vaginal swab of the victim is not free from the doubt as far as the present Appellant is concerned.
The Hon'ble Supreme Court in the case of Rahul Vs. State of Delhi Ministry of Home Affairs and Another, as reported in (2023) 1 Supreme Court Cases 83, in paragraph No.38 has observed thus :
"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 ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 :::
37 / 39 [email protected] tampering with the samples collected also could not be ruled out. Neither the trial court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In the absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion."
These observations support the defence case.
46. There is no investigation regarding the mobile handset of the deceased which her parents had given to the police. They have not ruled out any other possibility of anyone else contacting the deceased and calling her to the terrace. There is no connecting evidence as to how the Appellant was connected to the victim or whether he was a total stranger. All these are loose ends, which the prosecution has not tied together to prove the case against the Appellant beyond reasonable doubt. His purported visits to the society are also not proved beyond ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 38 / 39 [email protected] reasonable doubt. The prosecution evidence shows that there were many students visiting that society. The evidence also shows that there was a watchman at the main gate in shift duties throughout for 24 hours. None of the watchmen is examined by the prosecution. They would have been important witnesses in this case, who could have identified the entry of the offender in the society.
47. Considering all these aspects, we find that there are serious reasonable doubt raised against the prosecution case. The prosecution has not proved its case beyond a reasonable doubt and therefore, the benefit of doubt must be given to the Appellant.
48. Hence, the following order :
ORDER
(i) The Appeal is allowed.
(ii) The Judgment and Order dated 19/12/2017 passed by Special Judge, Dadra and Nagar ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 ::: 39 / 39 [email protected] Haveli, Silvassa, in Sessions Case No.9/2015, is set aside.
(iii) The Appellant is acquitted of all the charges.
(iv) The Appellant is in custody. He shall be released forthwith, if not required in any other case.
(v) Before being released, the Appellant shall execute a PR Bond in the sum of Rs.25,000/-
(Rupees Twenty Five Thousand only) u/s 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding u/s 437-A of Cr.P.C.) for his appearance, in case an Appeal against acquittal is preferred.
(vi) The Appeal is disposed of.
(vii) With disposal of the Appeal, the connected applications are also disposed of.
(SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.) ::: Uploaded on - 22/07/2025 ::: Downloaded on - 02/08/2025 01:34:13 :::