Bombay High Court
Balram @ Golu S/O Bhujansingh Yuvnate ... vs State Of Mah. Thr. Pso Benoda Tah.Warud ... on 17 October, 2025
2025:BHC-NAG:11175
1 cri.appeal 776-2022-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL No.776/2022
Balram @ Golu s/o Bhujansingh Yuvnate, : APPELLANT
Aged about 32 years, Occ. Labour,
R/o Bargaon, Tah. Warud,
District Amravati
Vs.
1. State of Maharashtra, : RESPONDENTS
through P.S.O., Benoda, Tah. Warud,
District Amravati
2. XYZ victim in Crime No. 140/2019 :
registered in Police Station Benoda,
Tah. Warud,
District Amravati
Mr. K.G. Rathi, Advocate (Appointed) for the Appellant
Mr. S.S. Hulke, APP for Respondent No.1
Ms. Apurva Kolhe, Advocate for Respondent No.2
CORAM: NIVEDITA P. MEHTA, J.
Date of reserving the judgment : 08-10-2025
Date of pronouncing the judgment : 17-10-2025
JUDGMENT :
The appellant has preferred the present appeal assailing the judgment and order dated 06.04.2022, passed by the learned Additional Sessions Judge and Special Judge under POCSO Act, Amravati, in Special (POCSO) Case No. 249/2019, whereby the appellant/accused was convicted for the offences punishable under Sections 376, 376(2)(n), and 2 cri.appeal 776-2022-J.odt 376(3) of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC"), as well as Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the, "POCSO Act").
The appellant was sentenced as under:
Under Section 376(3) IPC: Rigorous imprisonment for 20 years and fine of Rs.10,000/-, in default of payment of fine, to undergo further rigorous imprisonment for six months.
Under Section 376 IPC: Rigorous imprisonment for 10 years and fine of Rs.5,000/-, in default, further rigorous imprisonment for six months.
Offences Punishment 376(3) IPC Rigorous imprisonment for 20 years and a fine of Rs. 10,000/-, in default of payment of fine, to undergo further rigorous imprisonment for 6 months 376(2)(n) IPC Rigorous imprisonment for 10 years and a fine of Rs. 5,000/-, in default of which, further rigorous imprisonment for 6 months No separate sentence was awarded under Section 376 of the IPC in view of the substantive sentence under Section 376(3) IPC. The appellant was acquitted of the offences punishable under Section 376 [AB] of the IPC.
2. The prosecution case, in brief, is that the informant, stepmother of the victim, lodged an oral report at Benoda Police Station, vide Exh. 37, alleging that she resided with her husband, the victim (aged 11 years), and her two sons, her step-son Karan (aged 12 years) and her biological son Arjun (aged 8 years). The victim and Karan were children of her 3 cri.appeal 776-2022-J.odt husband's deceased first wife. The family, engaged in agricultural labour, were residing on rent with the maternal uncle of the informant, Gangadhar mama, having earlier resided on the agricultural land of one Nagarseth for five years. The informant noticed abnormal behavior in the victim, including lethargy and a bulging stomach. On 24.08.2019, she took the victim to the clinic of Dr. Patil at Benoda, who, upon examination, informed her that the victim was approximately 6 to 7 months pregnant. Upon enquiry, the victim disclosed that the appellant, who is a relative of their family and worked on adjacent agricultural land, had repeatedly committed sexual assault upon her since November 2018.
She further stated that the accused used to catch hold of her on the way to school and forcibly rape her. The informant reported the incident to her husband, who confronted the accused, but the latter avoided giving any response and began ignoring the victim parents. Due to financial constraints, the victim's medical treatment was initially delayed. Thereafter, the victim's father visited the bank on the next day and brought Rs. 500/-. Finally, on 27.08.2019, the informant and her husband approached the police and lodged a report at Benoda Police Station, which is placed on record vide Exh. 37.
3. Based on the said report, a FIR bearing Crime No. 140/2019 was registered for the offences punishable under Sections 376(2)(n), 376(3), 376[AB] of the IPC and Sections 4 and 6 of the POCSO Act. The said FIR is placed on record at Exh. 38. Investigation was undertaken by PW-5, PSI Ganpat Gangadhar Pupulwar. The victim was referred for medical examination at a Rural Hospital in Warud, and thereafter to a hospital in 4 cri.appeal 776-2022-J.odt Amravati, since she was found to be pregnant. The accused was arrested and also referred for medical examination. Samples of both, the accused and the victim were collected and a spot panchnama was prepared which has been placed on record vide Exh. 22. Upon completion of investigation, the charge-sheet was filed. The learned District and Additional Sessions Judge framed charges against the accused. The accused was charged punishable under Section 6 of the POCSO Act. He pleaded not guilty and claimed to be tried.
4. During the course of trial, the prosecution examined the following witnesses: PW-1: Diksha Gopalrao Godbole, Talathi - Exh.20; PW-2:
Informant and stepmother of the victim - Exh.36; PW-3: Dr. Sahebrao Baliramji Patil - Medical Practitioner - Exh.42; PW-4: Victim - Exh.46 and PW-5: PSI Ganpat Gangadhar Pupulwar - Investigating Officer - Exh.54.
5. Upon closure of prosecution's evidence, the accused was examined under Section 313 of the Code of Criminal Procedure, wherein he denied all the incriminating evidence against him and stated that he had been falsely implicated in the present case. He cited enmity between two families since the victim's father was removed from Khandelwal's farm (the farm accused works at) as the motive for trapping him in a false case.
6. Considering the comprehensive appreciation of evidence brought on record, the learned Additional Sessions Judge and Special Judge under POCSO Act, found that the victim was a "child" within the meaning of Section 2(1)(d) of the POCSO Act and was aged 12 years and 4 months at 5 cri.appeal 776-2022-J.odt the time of the offence. It was observed that the prosecution had successfully established the foundational facts of the case and had proved its case beyond reasonable doubt on multiple counts. The testimony of the victim was found to be consistent and reliable. Though she admitted to a quarrel between her and the accused family in her deposition, she vehemently denied filing a false report in her cross-examination. The Court noted that nothing material has come in her cross-examination to disbelieve her version of events. Significantly, the learned Court pointed out that vide Exh. 93, the Forensic Medical Examination Report for Sexual Assault of the accused, the accused has accepted to engage in sexual intercourse with the victim twice. The DNA report, brought on record at Exh. 9, conclusively established that the appellant/accused was the biological father of the child delivered by the victim. The learned Court also addressed DNA tampering claims made by the counsel for the accused, holding that the counsel could not create a dent in prosecution case, maintaining that the samples for DNA testing were indeed properly collected and transported. Additionally, regarding the delay in filing FIR, the learned Court accepted that any delay caused had been satisfactorily explained by the prosecution. While the victim did not report accused actions to her family since he had threatened her with death, the family lodged an oral report with the police as soon as they could, once the pregnancy was confirmed. Some minor delay due to paucity of funds is not substantial enough to make a dent in prosecution case. Ultimately, since the accused could not produce any credible evidence in his favour to 6 cri.appeal 776-2022-J.odt rebut presumption under Section 29 of the POCSO Act, the same stood attracted in the present matter.
7. Being aggrieved by the said judgment and order of conviction and sentence, the appellant has preferred the present appeal before this Court.
8. The learned counsel for the appellant has assailed the findings of the trial Court on multiple grounds. He submits that the learned Special Judge erred in placing reliance on the DNA report, as the scientific expert who conducted the DNA analysis was not examined by the prosecution. It is contended that the failure to examine the expert is fatal to the prosecution case, and renders the DNA report inadmissible in evidence. According to the learned counsel, in the absence of examination of a DNA expert, the report cannot be subjected to cross-examination or scrutiny, and therefore reliance placed upon it by the trial Court is contrary to settled principles of law.
9. It was further submitted that the prosecution failed to establish the chain of custody of the DNA samples. As per the learned counsel, there was no evidence on record indicating when the DNA samples were collected, how they were preserved, or in what manner they were forwarded to the laboratory. In the absence of this foundational evidence, the credibility of the DNA report stands vitiated.
10. The learned counsel further contends that the prosecution has failed to prove the age of the victim beyond a reasonable doubt. Though a 7 cri.appeal 776-2022-J.odt birth certificate was placed on record, it was not duly proved by leading cogent and reliable evidence. No witness from the issuing authority was examined to authenticate the said document.
11. It was further submitted that there are material inconsistencies in the prosecution evidence regarding the identity of the victim's mother. The victim, in her deposition before the Court, vide Exh. 46, stated her mother's name as "Smt. Shivratri," whereas the birth certificate at Exh. 59 records the mother's name as "Sumarti." Additionally, he points out a discrepancy in the date of birth of the victim. In her testimony, the victim stated her date of birth as 04.02.2008, while the birth certificate mentions the date of birth as 09.07.2006. These inconsistencies, according to the learned counsel, create serious doubt regarding the authenticity of the document and the age of the victim. Therefore, the learned counsel for the appellant contends that, the statutory presumption under Section 29 of the POCSO Act cannot be invoked in the present case.
12. Lastly, it was submitted that the victim had admitted in her deposition, vide Exh. 46, animosity between her father and the appellant/accused pertaining to agricultural labour work. In view of this admitted enmity, the possibility of false implication cannot be ruled out and the same ought to have been considered by the trial Court.
13. The learned counsel for the appellant has relied on the following judgments in support of his contentions.
8 cri.appeal 776-2022-J.odt a. To substantiate his submission regarding the significance of examination of an expert regarding the DNA evidence on record, the learned counsel placed reliance on Karandeep Sharma @ Razia @ Raju v. State of Uttarakhand, (2025) INSC 444. In this case, the Hon'ble Supreme Court emphasized the importance of examining the expert who conducted the DNA analysis as a witness in criminal proceedings. The Court held that mere production of DNA reports on record, without the examination of the forensic expert who performed the test, would not suffice to establish the authenticity and reliability of such scientific evidence. It was observed that the expert's testimony is essential to explain the methodology adopted, the chain of custody of samples, the procedures followed, and to enable the defence to effectively cross-examine regarding the scientific processes and conclusions drawn. The Court ruled that DNA evidence, being scientific and technical in nature, requires proper authentication through expert testimony to satisfy the standards of proof under the Indian Evidence Act, and failure to examine such expert would render the DNA report inadmissible or of little evidentiary value. b. In support of his contention regarding inconsistencies in the victim's deposition over her birth date and a difference in her mother's name which according to him created a serious doubt regarding the authenticity of the birth certificate itself, the learned counsel relied upon Dilip Bhaiyyasingh Tekan v. State of Maharashtra, (2018) ALL MR (Cri) 5092. In this case, one of the issues the Hon'ble Court was determining was if the provisions under POCSO Act would be attracted since the victim's status as a "child" under Section 2(1)(d) of POCSO, at the time of 9 cri.appeal 776-2022-J.odt incident was under scrutiny. The victim in this case had deposed before the Court her birth date to be something she did not report in the FIR. Though a copy of birth certificate was produced, nothing was brought on record to show the source of the said certificate. The Court held, that for provisions of POCSO to be attracted, the victim's status as a "child" must have been proved beyond all reasonable doubt which did not happen in the present case. Therefore, the impugned order of the trial Court was quashed and set aside.
c. In furtherance of this, reliance was also placed upon Ravi Anandrao Gurpude v. State of Maharashtra, (2017) ALL MR (Cri) 1509. Even in this case, the authenticity of birth certificate placed on record is brought into question to ascertain if the victim was a "child" under Section 2(1)(d) of the POCSO Act at the time of the incident. Since increasing inconsistencies were pointed out in the case of the prosecution and their reliance on birth certificate to ascertain victim's age was found to be insufficient, the impugned judgment of conviction was quashed and set aside.
d. Finally, the learned counsel relied on Dinesh @ Nitin Ukandrao Khandate v. State of Maharashtra, (2021) ALL MR (Cri) 313. Even this case furthered his contention that if the victim is not "child" as prescribed under Section 2(1)(d) of the POCSO Act, the stringent provisions of this case should not stand attracted.
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14. Per contra, the learned Additional Public Prosecutor appeared in support of the impugned judgment and order passed by the learned Additional Sessions Judge and Special Judge under POCSO and submitted that the accused's conviction was based on a thorough and careful appreciation of the oral and documentary evidence on record. The APP argued that the findings of the trial Court are well-reasoned and legally sound.
15. The learned Additional Public Prosecutor submitted that the birth certificate produced on record is a public document within the meaning of the Indian Evidence Act and does not require formal proof by oral evidence. He further submitted that, in any event, the said document has been duly proved by the Investigating Officer during the course of trial. No objection was raised by the defence at the relevant stage, questioning either the authenticity or admissibility of the said document. Therefore, the same warrants no interference now.
16. With respect to the DNA report, learned APP submitted that the DNA samples were collected by the Investigating Officer and duly forwarded to the Forensic Science Laboratory (FSL) following due procedure. Exhibits 84 to 88 clearly record the chain of custody and the compliance with the procedural safeguards in the collection and forwarding of the samples for forensic examination. No material has been brought on record by the defence to establish that the samples were mishandled, tampered with, or otherwise compromised during collection, storage, or transmission. In the absence of any such evidence, the 11 cri.appeal 776-2022-J.odt argument challenging the admissibility of the DNA report is without substance and deserves to be rejected.
17. The learned APP also contended that the DNA report, though relied upon for corroborative purposes, is not the sole basis for conviction. The charge of rape is established independently through the cogent and credible testimony of the victim, which, as held by the Hon'ble Supreme Court in several decisions, is sufficient in itself to sustain a conviction, if found trustworthy and reliable.
18. The learned counsel, appointed to represent Respondent No. 2 - the victim, Ms. Apurva Kolhe, in conjunction to learned Additional Public Prosecutor's submission on DNA evidence, added that the procedural chain from collection of samples to the issuance of the DNA report is complete and has been clearly brought on record through the deposition of the Investigating Officer. There is no evidence of delay, tampering, or contamination of samples. Moreover, Section 293 of the Cr.P.C. recognizes reports of certain government scientific experts, including forensic reports, as admissible documents which may be read in evidence without formal proof, unless the Court directs otherwise.
19. It was also contended by the learned counsel that the DNA report conclusively establishes that the victim and the appellant are the biological parents of the child delivered by the victim. This scientific evidence corroborates the testimony of the victim and clearly establishes 12 cri.appeal 776-2022-J.odt the commission of the offence. Accordingly, it is submitted that the prosecution has successfully proved the guilt of the appellant beyond reasonable doubt, and no interference with the judgment of conviction and sentence passed by the trial Court is warranted.
20. Learned APP further submitted that the testimony of the victim has remained unshaken in the cross-examination. While the victim did state that a quarrel had taken place between her father and the accused, and that her father had been removed from agricultural work on the Khandelwal's land due to the appellant, she has categorically denied that the report lodged by her mother was motivated by this animosity. Her statement under Section 164 of the Code of Criminal Procedure is consistent with her deposition before the Court, and there are no material contradictions or omissions in her narration of the incident. Additionally, the medical examination report corroborates her version of sexual assault.
21. Finally, it was submitted by the learned counsel that even if there is some discrepancy regarding the exact date of birth of the victim, the evidence on record consistently establishes that she was a minor at the time of the incident, being well below the age of 18 years. The prosecution has placed sufficient material on record, including the birth certificate, which has not been seriously challenged during trial. The presumption under Section 29 of the POCSO Act is, therefore, stands fully attracted in the present case.
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22. Prior to undertaking an analysis of the legal issues and the contentions advanced by the parties, it is incumbent upon this Court to carefully examine the oral and documentary evidence brought on record by the prosecution during the trial before the Special Court.
23. PW1 - Diksha Gopalrao Godbole (Panch Witness), was, a Talathi posted at Bargaon since 14.08.2019 and residing at Benoda, deposed, vide Exh. 20, that on 29.08.2019, she received a requisition (Exh.21) from Benoda Police Station to act as a panch witness. In compliance, she visited the police station where another panch witness, Durga Bhakare was also present. Thereafter, accompanied by the police, the victim and her mother, they proceeded to the agricultural land of Shri Khandelwal near the Narkhed Railway line, where the victim identified the spot of occurrence. A spot panchanama (Exh.22) was prepared in their presence, which she read and signed. The witness further deposed that the clothes of the accused (a blue shirt, a blue pant, and an underpant) were seized from his house, sealed, and a seizure panchanama (Exh.23) was prepared and signed. Subsequently, the police visited the victim's residence and seized her green salwar suit and pink slip, duly sealing them and preparing another seizure panchanama (Exh.24), which also bore her signature as well as that of the victim. In cross-examination, PW1 denied all suggestions of having signed fabricated documents at the police station. She affirmed that all procedures were carried out in his presence, and the documents were genuine. Her testimony remained consistent and unshaken.
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24. PW2 - Informant and stepmother of the victim, deposed vide Exh. 36, that she has one biological son, Arjun, and that her husband's first wife (now deceased) had two children Karan and the victim. All three children were studying in a government school. She confirmed that the family had been residing and working as agricultural labourers on the land of Nagar Seth, adjacent to the field of one Khandelwal, where the accused and his family were also employed. She testified that she noticed behavioural changes and abdominal swelling in the victim, prompting her to consult Dr. Patil at Benoda. The doctor informed her that the victim was approximately seven months pregnant. On being questioned, the victim disclosed that the accused had repeatedly subjected her to sexual assault, resulting in this pregnancy. The stepmother (PW2), accordingly approached Benoda Police Station and lodged a complaint, bearing her thumb impression (Exh.37). The printed FIR (Exh.38) was also confirmed by her. The witness stated that the victim later delivered a female child who was subsequently placed in a missionary institution at Amravati. In cross-examination, the stepmother (PW2), admitted that she could not recall exact dates of filing of report or delivery of the baby girl by the victim, but firmly denied all suggestions of fabrication, false implication, or exaggeration. She affirmed having handed over the victim's school certificate to the police and denied any knowledge that the victim was over 11 years of age at the time of the incident despite suggestions being put to her by the counsel for the accused that the victim was 20 years old at the time of incident. Her testimony was consistent and remained unshaken during cross-examination.
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25. PW3 - Dr. Sahebrao Baliramji Patil is a medical practitioner at Benoda holding a DHMS qualification and practising for over 40 years. He deposed, vide Exh. 42, that on 24.08.2019, a girl aged approximately 12- 13 years along with her mother, visited his clinic with complaints of abdominal pain and swelling. On clinical examination, he suspected the girl was around 24 weeks pregnant and referred her to the Government Hospital for further medical examination. In cross-examination, Dr. Patil (PW3), admitted he was neither a surgeon nor a gynaecologist and did not conduct any confirmatory pregnancy test. Nonetheless, he denied suggestions that his assessment was speculative or fabricated and maintained that the girl had indeed visited his clinic on the said date. His testimony remained uncontroverted in material particulars.
26. PW4, the victim, aged about 13 to 15 years at the time of deposition, deposed vide Exh. 46, that she resided with her father, stepmother, and siblings at village Bargaon and was studying in the 6 th standard at Zilla Parishad School, Bargaon at the time of the incident. She stated that her biological mother's name was Shivratri and her stepmother's name was Mangalbatti. Her father was employed on the agricultural land of Nagar Seth, and the accused, who is a relative (maternal uncle), worked on the adjacent land of Khandelwal. The victim narrated that while going to school via the route passing through Khandelwal's land, the accused would intercept her and commit rape by forcibly inserting his penis into her private parts. She also stated that during the Diwali festival, while the accused's wife was away, he again 16 cri.appeal 776-2022-J.odt committed the offence, which led to her pregnancy. When her mother observed changes in her physique, she was taken to a doctor, and upon confirmation of the pregnancy, a police complaint was lodged. The victim testified that she subsequently delivered a female child at Dafrin Hospital and that samples were collected from her, the accused, and her newborn child for DNA analysis. Her statement under Section 164 Cr.P.C. was recorded and was affirmed by her as true and correct. It is placed on record at Exh. 47. During cross-examination, she admitted that there was a prior dispute between her father and the accused regarding her father's removal from Khandelwal's land for agricultural work. However, she categorically denied that her complaint was lodged due to the said animosity. She stood by her earlier statements and denied the suggestion that she had been tutored to implicate the accused falsely. Her testimony remained consistent and unimpeached. Finally no suggestions were put to her regarding any discrepancy in her age or the date on her birth certificate by the counsel for the accused.
27. PW5 - the Investigating Officer Ganpat PSI Gangadhar Pupulwar, detailed the steps undertaken during investigation. He deposed vide Exh. 54, that upon registration of the FIR, he issued a requisition to the Tahsildar, Warud, for providing panch witnesses (Exh.55), pursuant to which two panch witnesses were appointed (Exh.56), and summons were issued to the panch witnesses (Exh.21). The victim identified the scene of offence near Bargaon, and a spot panchanama (Exh.22) was accordingly drawn. The officer confirmed that clothes of the accused and victim were seized and properly documented through seizure panchanamas (Exh.23 17 cri.appeal 776-2022-J.odt and Exh.24, respectively). The accused was arrested, and an arrest panchanama was prepared (Exh.57). For determination of the victim's age, her birth certificate was obtained from the Gram Panchayat. The letter of requisition to gram panchayat is at Exh. 58 while the birth certificate is placed on record at Exh. 59. Medical examinations of both the victim and the accused were conducted at rural hospital, Warud, and since the victim was found to be pregnant, she was sent for further examination to Amravati (Exh.60 to Exh.63). The investigating officer (PW5), further deposed that DNA samples of the victim, accused, and the newborn were collected and sent to the forensic laboratory. This was supported by various letters, duty passes, and documentation (Exh.64 to Exh.87). Seizure receipts, forensic reports, and the final DNA report (Exh.9) were also placed on record. The site sketch and land extracts relating to the place of offence are exhibited from Exhs 80 to Exh.83. During cross-examination, the officer admitted to certain procedural lapses such as delay in forwarding blood samples for DNA testing (beyond the 72-hour time frame). He also acknowledged that formal documentation of investigation assignment was not exhibited. However, he categorically denied suggestions of false investigation, improper sample handling, or fabrication. His deposition remained consistent and was not materially contradicted.
28. This Court has carefully perused the impugned judgment of the learned Additional Sessions Judge and Special Judge under POCSO Act, the evidence led before the Trial Court, and the submissions advanced by 18 cri.appeal 776-2022-J.odt the learned counsel for the appellant, the learned Additional Public Prosecutor, and learned counsel appointed for Respondent No.2 (the victim).
29. The prosecution has examined five witnesses to prove the charges against the appellant. The testimony of the victim (PW4) is supported by her stepmother (PW2), the medical practitioner (PW3), the panch witness (PW1), and the Investigating Officer (PW5). These constitute the foundation of the prosecution case. Their depositions have already been discussed in detail herein-above.
30. It is a well-settled principle of criminal jurisprudence that the sole testimony of the prosecutrix, if found to be credible and trustworthy, is sufficient to sustain a conviction for the offence of rape. In the present case, the victim has clearly and consistently stated that the appellant, who is her relative (maternal uncle), had repeatedly subjected her to sexual assault over a period of time, taking advantage of her young age and vulnerability. Her deposition further records that these acts of sexual violence led to her pregnancy, which was confirmed when she was taken to a local doctor, Shri Sahebrao Baliramji Patil (PW3). The Hon'ble Supreme Court in the case of State of Himachal Pradesh v. Asha Ram, (2005) 13 SCC 766, in paragraph 5 has held as under:
"5. We record our displeasure and dismay, the way the High Court dealt casually with an offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on minor girls. The High Court was swayed by the sheer insensitivity, totally oblivious of the growing menace of sexual violence against minors much 19 cri.appeal 776-2022-J.odt less by the father. The High Court also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance. It is now a well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."
31. The testimony of Shri Sahebrao Baliramji Patil (PW3), though he may not be a specialist, indicates that he observed signs of advanced pregnancy in the victim and referred her to a government hospital for further investigation. His evidence, though limited in scope, corroborates the initial discovery of pregnancy and aligns with the timeline presented by the prosecution.
32. The evidence of the Investigating Officer PSI Ganpat Gangadhar Pupulwar (PW5) reveals that all necessary procedural steps were undertaken including but not limited to spot panchanama (Exh. 22), seizure panchnamas (Exhs. 23 and 24), collection of accused and victim's samples for DNA testing, and recording of the victim's statement under Section 164 Cr.P.C. The procedural chain for collection and preservation of 20 cri.appeal 776-2022-J.odt samples has been shown to be substantially intact and without any material breaks.
33. The learned trial Court, on the point of DNA report, relied on Kamlesh v. State of Madhya Pradesh AIR Online 2016 SC 275 and observed that the factual matrix of the present case and the case relied upon is similar. In the present case also, the learned advocate of the accused has not requested for examining the forensic authority and the DNA report is directly exhibited as per Section 293 of CrPC. Therefore, the learned Court accepted the DNA reports presented on record without hesitation since they supported the version of the victim. The counsel for the appellant had presented the same arguments before this court, that since the DNA expert has not been examined, the DNA report should not be relied upon. However, taking into consideration the observations arrived at by the trial court, the argument of the counsel for the appellant does not hold merit.
34. The criticism advanced by the appellant's counsel regarding the failure to prove the exact age of the victim is also without merit. The birth certificate produced from the records of the Gram Panchayat which is placed on record at Exh. 59, has been proved through the Investigating Officer, and its authenticity was not seriously challenged during trial. Therefore, the birth certificate and the victim's own testimony consistently reflect that she was below 18 years of age at the time of the incident. Even if some minor discrepancies exist regarding the date of birth, the 21 cri.appeal 776-2022-J.odt evidence overwhelmingly indicates that the victim was a "child" as defined under Section 2(1)(d) of the POCSO Act.
35. The argument regarding prior animosity between the victim's father and the accused is not sufficient to discredit the prosecution case. The victim, in her cross-examination, has categorically denied that her complaint was the outcome of any such dispute. Her consistent version, both before the police and the Court, inspires confidence. This Court finds no material contradiction or improvement in her testimony that would render her version unreliable. This Court also asserts that enmity, if any, is a double-edged sword as held by the Supreme Court in State of Punjab v. Gurmit Singh & Ors. (1996) 2 SCC 384 in paragraph 12-, "12. ..... Even if it be assumed for the sake of argument that there was some such litigation, it could hardly be a ground for a father to put forth his daughter to make a wild allegation of rape against the son of the opposite party, with a view to take revenge. It defies human probabilities. No father could stoop so low as to bring forth a false charge of rape on his unmarried minor daughter with a view to take revenge from the father of an accused on account of pending civil litigation. Again, if the accused could be falsely involved on account of that enmity, it was equally possible that the accused could have sexually assaulted the prosecutrix to take revenge from her father, for after all, enmity is a double-edged weapon, which may be used for false implication as well as to take revenge...."
36. The birth certificate constitutes a public document under Section 74 of the Indian Evidence Act and does not necessitate examination of witnesses to establish its authenticity. This principle finds support in the decision of the Sikkim High Court in Ganesh Tamang v. State of Sikkim, 2024 LiveLaw (Sik) 7, wherein the Court observed that photocopies of 22 cri.appeal 776-2022-J.odt entries made in the original live birth register are official records under Section 74 of the Evidence Act and admissible under Section 35. In the present case, therefore, the birth certificate produced by the prosecution sufficiently establishes the age of the victim and constitutes conclusive proof of the same, requiring no further corroboration in law.
37. Furthermore, the case laws relied upon by the learned counsel for the appellant are not applicable to the present case. The reliance placed on Karandeep Sharma @ Razia @ Raju v. State of Uttarakhand, (2025) INSC 444, regarding the non-examination of the DNA expert, is misplaced. While the ratio in Karandeep Sharma emphasizes the necessity of examining DNA experts where DNA evidence forms the primary basis of conviction, in the present case, the DNA report serves merely as corroborative evidence. The conviction is primarily founded upon the cogent, consistent, and unimpeachable testimony of the victim, which has remained unshaken during cross-examination. Her statement recorded under Section 164 of the Code of Criminal Procedure is consistent with her deposition before the Court, and the medical evidence fully corroborates her testimony. The settled legal position is that the testimony of a victim of sexual assault, if found credible and reliable, is sufficient to sustain a conviction without the necessity of corroboration. The DNA evidence in this case merely fortifies an already established case and is not the foundation upon which the conviction rests. Therefore, the non- examination of the DNA expert does not vitiate the prosecution's case.
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38. The judgments in Dilip Bhaiyyasingh Tekan v. State of Maharashtra, (2018) ALL MR (Cri) 5092, and Ravi Anandrao Gurpude v. State of Maharashtra, (2017) ALL MR (Cri) 1509, are wholly distinguishable on facts. In both these cases, the convictions were quashed because the source and authenticity of the birth certificates were not established on record, and material inconsistencies rendered the prosecution's case unreliable. The present case stands on an entirely different footing. Furthermore, the birth certificate constitutes a public document under Section 74 of the Indian Evidence Act and does not necessitate examination of witnesses to establish its authenticity. Furthermore, even accepting the minor discrepancies in the date of birth as stated by the victim and the variation in the mother's name, the victim indisputably remains below 18 years of age at the time of the incident, thereby satisfying the definition of "child" under Section 2(1)(d) of the POCSO Act. These trivial discrepancies do not obliterate her status as a minor or cast doubt on the authenticity of the birth certificate.
39. Finally, the judgment in Dinesh @ Nitin Ukandrao Khandate v. State of Maharashtra, (2021) ALL MR (Cri) 313, merely reiterates that POCSO provisions apply only when the victim is a "child" as defined under the Act, which has been established beyond reasonable doubt in the present case. Thus, none of the judgments cited by the appellant's counsel assist his case, as the factual matrix and evidentiary foundation in the present matter are materially different from the cited precedents.
24 cri.appeal 776-2022-J.odt
40. While the learned trial Court purported to invoke Section 42 of the POCSO Act to impose the higher of the two punishments prescribed under the relevant provisions of IPC and POCSO Act, the Court erred in its application of this section. Section 42 of the POCSO Act mandates that where an act or omission constitutes an offence under both the POCSO Act and relevant sections of the IPC or Information Technology Act, 2000, the offender shall be liable to punishment under the law which provided for the greater punishment. However, in the present case, the punishments prescribed under Section 376(3) of the IPC and Section 6 of the POCSO Act are identical, both providing for rigorous imprisonment for a term not less than twenty years, which may extend to imprisonment for life, and fine.
41. The oral report and FIR, in the present case, were filed on 27.08.2019, after the parents of the victim became aware of the assault. Critically, this complaint was lodged after the POCSO (Amendment) Act, 2019 came into force on 16.08.2019, which enhanced the punishment under Section 6 from a minimum of ten years to a minimum of twenty years, thereby bringing it into alignment with Section 376(3) of the IPC. Prior to the amendment of 16.08.2019, Section 6 prescribed a lesser punishment (minimum ten years), and the invocation of Section 42 would have been appropriate to impose the higher punishment under Section 376(3) of the IPC. However, since the complaint was filed on 27.08.2019, after the amendment came into force, both provisions prescribe identical punishments. Consequently, there exists no "higher" punishment to invoke 25 cri.appeal 776-2022-J.odt under Section 42, rendering its application in this case legally untenable and erroneous.
42. Upon careful scrutiny of the entire evidence on record, this Court is of the considered view that the prosecution has successfully established, beyond reasonable doubt, that the appellant committed repeated acts of rape upon a minor girl, resulting in her pregnancy and subsequent delivery of a child. The oral testimony of the victim, supported by medical evidence and DNA analysis, has remained consistent, credible, and trustworthy.
43. The defence has failed to rebut the statutory presumption under Section 29 of the POCSO Act. No material has been brought on record to satisfactorily indicate false implication, enmity, or fabrication. The arguments advanced regarding procedural lapses or evidentiary defects do not go to the root of the matter and are insufficient to disturb the well- reasoned findings recorded by the learned Trial Court.
Order
i) The Criminal Appeal is dismissed.
ii) The judgment and order dated 06.04.2022, passed by the learned
Additional Sessions Judge and Special Judge under POCSO Act, Amravati in Special (POCSO) Case No. 249 of 2019, convicting the appellant for offences punishable under Sections 376, 376(2)(n), and 376(3) of the IPC and Sections 4 and 6 of the POCSO Act, and sentencing him to undergo rigorous imprisonment for 20 years and to pay a fine of Rs.10,000/-, in default to suffer rigorous imprisonment for 6 months for offence punishable 26 cri.appeal 776-2022-J.odt under section 376(3) of IPC; and for offence punishable under section 376(2)(n) to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for 6 months, is affirmed.
iii) The appellant shall be entitled to set off under Section 428 of the Cr.P.C. for the period already undergone in jail. The conviction and sentence shall continue to operate as imposed by the learned Trial Court.
(NIVEDITA P. MEHTA, J.) MP Deshpande Signed by: Mr. M.P. Deshpande Designation: PA To Honourable Judge Date: 17/10/2025 15:44:09