Bombay High Court
Raj @ Harishankar Shukla vs The State Of Maharashtra on 24 July, 2024
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2024:BHC-AS:29469
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1130 OF 2019
Raj @ Harishankar Shukla ....Appellant
Versus
The State of Maharashtra
and another ....Respondents
....
WITH
INTERIM APPLICATION NO.185 OF 2021
IN
CRIMINAL APPEAL NO.1130 OF 2019
....
WITH
INTERIM APPLICATION NO.1368 OF 2021
IN
CRIMINAL APPEAL NO.1130 OF 2019
....
WITH
INTERIM APPLICATION NO.685 OF 2019
IN
CRIMINAL APPEAL NO.1130 OF 2019
....
WITH
INTERIM APPLICATION NO.4678 OF 2022
IN
CRIMINAL APPEAL NO.1130 OF 2019
....
WITH
INTERIM APPLICATION NO.740 OF 2023
IN
CRIMINAL APPEAL NO.1130 OF 2019
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Deshmane(PS)
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Ms. Siddh Vidya, Advocate a/w. Shalaka Karkar, Sneha Jain,
Divya Maniar i/b. Siddh Vidya & Associates for the Appellant.
Smt. Sangita D. Shinde, APP for the Respondent No.1-State.
Ms. Priyanka H. Chavan, Advocate (appointed) for the
Respondent No.2.
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CORAM : SARANG V. KOTWAL, J.
DATE : 24th JULY, 2024
ORAL JUDGMENT :
1. The Appellant has challenged the judgment and order dated 9.7.2019 passed by the Special Judge, Thane under the Protection of Children From Sexual Offences Act, 2012 (for short, 'POCSO Act') in Special Case No.70/2017. The Appellant was convicted and sentenced as follows :
[i] The Appellant was convicted for the offence punishable under Sections 376(f), (i), (n) of IPC as well as Section 5(f), (l) read with Section 6 of the POCSO Act and he was sentenced to suffer RI for ten years and to pay fine of Rs.25,000/- and in default of payment of fine to undergo SI for six months;
[ii] The Appellant was convicted for the offence punishable under Section 506(II) of IPC and he was sentenced to suffer RI for one year and to pay fine of Rs.5,000/- and, in default of payment of fine to undergo SI for three months; [iii] The Appellant was convicted for the offence punishable
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[iv] The Appellant was convicted for the offence punishable under Section 8 of the POCSO Act and and he was sentenced to suffer RI for three years and to pay fine of Rs.10,000/- and, in default of payment of fine, to undergo SI for three months;
[v] The Appellant was further convicted for the offence punishable under Section 9(f) read with 10 of the POCSO Act and he was sentenced to suffer RI for five years and to pay fine of Rs.15,000/- and, in default of payment of fine, to undergo SI for six months;
2. The amount of fine, if recovered, was directed to be paid to the victim girl as compensation under Section 357 of Cr.P.C. after expiry of the appeal period. The substantive sentences were directed to run concurrently. The Appellant was given set off under Section 428 of Cr.P.C. for the period undergone as under-trial prisoner.
3. Heard Ms. Siddh Vidya, learned counsel for the Appellant, Smt. Sangita Shinde, learned APP for the Respondent No.1-State and Ms. Priyanka Chavan, learned appointed counsel 3 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: :4: 1.APEAL-1130-2019-J.odt for the Respondent No.2.
4. The prosecution case is that the Appellant was a teacher, teaching English to class 7-B in a school where the victim was studying. The victim was around twelve years and ten months of age during the period when the offence had taken place. It is the prosecution case that the Appellant committed the offences on two occasions. The first incident was in April, 2016 and the second incident was in August, 2016. On the first occasion, when the other students had gone to attend P.T. class on the ground, the victim and her friend were waiting in their classroom as they were suffering from stomach-ache. The victim's friend went to the washroom. In the meantime, the Appellant entered the classroom, closed the door, put a stone at the door so that the doors could not be opened. According to the victim, the Appellant committed rape on her in the classroom itself. He threatened the victim and, therefore, she did not narrate the incident to anybody. On the second occasion which took place in August, 2016, the victim was sent by her class- teacher to bring a book from another classroom on another floor.
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While the victim was coming back, she went to the washroom. In the meantime, the Appellant entered the washroom. He had covered his face with a handkerchief and on that occasion he again committed rape on her. It is the prosecution case that the victim became pregnant. In the last week of September, the victim's mother took her to a Doctor, who confirmed the pregnancy. The victim told her mother about the two incidents. They decided to approach the police. The FIR was lodged on 29.9.2016. The Appellant was arrested on 14.12.2016. The pregnancy was medically terminated. The blood samples of the victim, the appellant and the fetus were sent for DNA testing. The samples were tested by two different laboratories and the reports showed that the Appellant was not the biological father of the fetus. The investigation continued and the charge-sheet was filed. The Appellant faced the trial.
5. During the trial, the prosecution examined eighteen witnesses including the victim, her mother, her class-teacher, a few students from the school, the doctors and the investigating officer. The defence of the Appellant was of total denial. At the 5 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: :6: 1.APEAL-1130-2019-J.odt conclusion of the trial, the learned trial Judge believed the evidence of the victim. The learned Judge, referring to the judgment of the Hon'ble Supreme Court in the case of Sunil Vs. State of Madhya Pradesh as reported in (2017) 4 SCC 393, observed that if the result of the DNA test is favouring the accused, the weight of other materials and evidence on record will still have to be considered. Based on these observations, the learned Judge relied on the other circumstances and in particular on the evidence of the victim and convicted and sentenced the Appellant, as mentioned earlier.
6. The main witness in this case is the victim herself. She is examined as PW-1. She has deposed that her date of birth was 9.10.2003. Her date of birth is not in dispute in this case. In the year 2016, she was studying in the 7th standard in a school. She was in the Division 7-B. Her school hours were from 7.00 a.m. to 12.00 noon. The Appellant was a teacher and used to teach the 'English' subject. She has deposed that the first incident took place in April, 2016. She has not mentioned the date, but, she has deposed that on that day, at about 9.30 a.m. to 6 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: :7: 1.APEAL-1130-2019-J.odt 10.00 a.m., she along with her friend 'K' were waiting in the classroom of 7-B. It was time for the period of Physical Training. The victim and her friend 'K' were going through the menstrual cycle and, therefore, they were waiting in their class-room. The other students were playing on the ground. Her friend 'K' went to the washroom on the 3rd floor of the shool. PW-1 was alone in the class-room. At that time the Appellant entered the classroom and he closed the door by putting a big stone in front of the door from inside. On his asking, PW-1 told him that her friend 'K' had gone to the washroom. The Appellant then forcibly put his hand on her mouth and committed rape on her. According to her, he was there for five minutes. He threatened her that if she disclosed that incident to anybody, he would kill her and her family members. Thereafter, he went out of the class-room. Sometime after that, her friend 'K' came back to the class-room. Since the Appellant had threatened PW-1, she did not disclose this incident to anybody. It is her case that after that incident, whenever the Appellant used to come to the classroom, he used to make gesture of moving his finger on his throat to suggest that he would slit her throat and would kill her. Therefore, she did 7 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: :8: 1.APEAL-1130-2019-J.odt not disclose this incident to anybody.
The second incident took place in August, 2016. At about 10.15 a.m. to 10.45 a.m., she was in her classroom of 7-B. Her class-teacher PW-7 came to her class. She had forgotten her book in the class-room of 8B situated on the 2 nd floor. She asked PW-1 to bring that book from the class-room of 8-B. PW-1 went to the class-room of 8B, collected the book and while coming back went to the washroom. As soon as she entered the ladies washroom situated on the 2nd floor of the school, the Appellant entered the washroom. At that time, he had covered his face by a handkerchief. He removed his handkerchief and again committed rape on her. He again threatened her. PW-1 came back to her classroom and handed over the book to the teacher but she did not tell about the incident to anybody.
PW-1 has further deposed that after 3.9.2016, her menstrual cycle had stopped. About 10-15 days prior to that, she was feeling nausea and,therefore, her mother had taken her to a clinic of one Dr. Gaikwad. But his medicines did not work and, therefore, on 28.9.2016 her mother took her to a clinic of PW-11 8 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: :9: 1.APEAL-1130-2019-J.odt Dr. Karve. She found that PW-1 was pregnant. PW-1 narrated the incident involving the Appellant to her mother. She narrated about both the incidents in April, 2016 and August, 2016. On 29.9.2016, PW-1's mother took her for sonography. According to PW-1, PW-11 after looking at the sonography reports told them that PW-1 was carrying four weeks' pregnancy. PW-1 and her mother decided to lodge a police complaint. In the meantime, some police men in civil clothes came to their house. PW-1 narrated the incidents to the police. They reduced her statement in writing, which was treated as the FIR. It is produced on record at Exhibit-80. The proforma of the FIR is produced on record at Exhibit-81. PW-1 has further deposed that the Appellant's behaviour was dirty. He used to make filthy actions and comments. He used to tell dirty jokes to the girls. After lodging of the FIR on 29.9.2016, PW-1 was taken for medical examination. Her pregnancy was terminated in the month of October, 2016. Her blood samples were taken. She identified the Appellant in the Court.
The Appellant himself conducted the cross-
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examination of PW-1. She deposed that they had made
complaints against the Appellant regarding his telling dirty jokes. She denied the suggestion that her own cousin was responsible for her pregnancy. According to her, there were two doors to the classroom of 7-B. Out of which, one door was usually kept locked. She admitted that her mother had requested the Appellant to take the examination of PW-1. She denied the suggestion that her mother had threatened the Appellant to face the consequences if he did not take her examination. She could not give the name of the teacher who was taking that Physical Training period. Their school had reopened in the month of April, 2016 and in the last two weeks of April, 2016 she was having stomachache. Significantly, she has admitted that before lodging the FIR in the police station, she herself and her mother had made a phone call to the Appellant. They had a conversation with the Appellant. The distance between her classroom of 7-B and the washroom was about 40-50 ft. Her friend 'K' came back within 10-15 minutes. According to her, Dr. Singhal had informed the Police about her pregnancy. She further deposed that she did not remember the date of incident that had taken 10 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 11 : 1.APEAL-1130-2019-J.odt place in August, 2016. She added that the incident could have taken place in the first two weeks of August, 2016. She categorically added that the Appellant was the only person who was responsible for her pregnancy. To a different question, she answered that she did not know whether one other boy by the name 'M' was in love with her. But she volunteered that she was not in love with 'M'. She accepted that on 9.8.2016, the said 'M' had made a phone call to her. She further stated that her school offered Rs.50 Lakhs to her parents to withdraw that case and offered her free education upto 12th standard. She further deposed that when she went to the class-room of 8-B, there was no teacher present in the classroom. Her FIR is almost on the similar lines. Her statement under Section 164 of Cr.P.C. was also recorded. It was produced on record at Exhibit-82.
7. PW-2 was the mother of the victim. In December, 2015, the victim had not appeared for the test of 'English' subject. She has deposed that therefore PW-1 had requested the Appellant to take her English Test. The Appellant did not allow PW-1 to take such test. After that, PW-2 also went to the school and met 11 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 12 : 1.APEAL-1130-2019-J.odt the Appellant and requested him to take PW-1's test, but, again he refused. In the month of September, 2016 because of the PW- 1's health issues, PW-2 took her to a doctor i.e. PW-11 Dr. Karve, who on examination concluded that PW-1 was pregnant. After the sonography, it was revealed that PW-1 was carrying pregnancy of four weeks. When PW-2 enquired with PW-1, PW-1 told her that the Appellant had committed rape on her and had also threatened her. PW-2 got angry and made a phone call to the Appellant. He threatened PW-2 and told her that the police and the school would support him. He also threatened to kill PW-2 and said that he would commit the same offence against PW-2. Then PW-1 and PW-2 came to the police station and lodged their FIR.
In the cross-examination, she admitted that PW-1 had two cousin brothers. Her husband was not knowing about all these facts. She admitted that she had stated before the police that she had received a phone call from a boy 'M'. She further admitted that on 28.9.2016, she made a phone-call to the Appellant in the late evening and on 29.9.2016 she made another 12 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 13 : 1.APEAL-1130-2019-J.odt call to the Appellant. She admitted that PW-1 did not tell her the date on which the incident took place in August, 2016. She denied the suggestion that to save PW-1's cousin and boyfriend, the Appellant was falsely implicated.
8. PW-3 was the pancha for spot panchnama. He deposed that there were two big windows next to the entrance door of classroom 7-B on the 3rd floor. The washroom was five steps away from the door of class-room of 7-B. The spot panchnama is produced on record at Exhibit-92.
9. PW-4, PW-8 and PW-10 were the students of the school and they have deposed about the inappropriate behaviour of the Appellant regarding telling dirty jokes to the girls.
10. PW-5 was a pancha in whose presence the clothes of the Appellants were seized on 22.12.2016.
11. PW-6 Ramji Yadav was another pancha in whose presence the clothes of the victim were seized on 23.12.2016.
12. PW-7 is an important witness. She was PW-1's class- teacher. She has deposed that she was teaching Science. In the 13 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 14 : 1.APEAL-1130-2019-J.odt year 2016, she was the class-teacher of class 7-B. In August, 2016, she had sent PW-1 to bring a book from the class-room of 8-B on the 2nd floor; whereas the classroom of 7-B was on the 3 rd floor. After some time, PW-1 brought the book. She further deposed that in the month of April, 2016 she found that PW-1 was not eating her food properly and she was complaining of stomach-ache. The Appellant was teaching English to Class 7-B. She had received complaints that the Appellant used to talk with his students on other subjects instead of concentrating on teaching.
In the cross-examination, she deposed that there were two class-rooms on the 3rd floor. At that time, around 60-70 students used to be on the 3rd floor. There was only one washroom on the 3rd floor for the girls and it was adjacent to class-room 7-B. The corridor in front of class-room 7-B was the only way to proceed to the girls' washroom. If anybody came out of the door of class-room 7-A, one could observe what was going on in class-room 7-B. She deposed that no male person could enter inside the girls' washroom. She admitted that on one 14 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 15 : 1.APEAL-1130-2019-J.odt occasion, she had received a complaint about a boy 'M' from PW- 1's parents and at that time they had obtained an apology letter from the said 'M'. The issue was about calling PW-1 on telephone. The most important answer she gave in the cross- examination is that when she had sent PW-1 to bring the book, PW-1 had gone to bring the book and had returned within 2-3 minutes. This answer is important because according to PW-1, the incident had taken place after she had gone to collect the book and before she returned.
13. PW-9 'K' is another important witness. She was PW-1's friend. She has deposed that in April, 2016, at the time of P.T. period, PW-1 and she were having stomach-ache. The other students had gone to the ground for PT period. PW-9 herself had gone to the washroom. She returned within 5-10 minutes. She deposed that she did not know whether 'M' and PW-1 were in love or not.
14. PW-11 Dr. Karve deposed about the fact that PW-2 had brought PW-1 to her clinic for medical check-up. PW-1's pregnancy test was positive. According to PW-11, PW-1 was 15 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 16 : 1.APEAL-1130-2019-J.odt carrying eight weeks' pregnancy. She then referred PW-1 for further treatment.
15. PW-12 Dr. Gupta had examined PW-1 on 29.9.2016 after registration of the FIR. PW-1 gave the history of the sexual assault in the months of April and August by her English Teacher. The sonography report suggested that she was into the 8 th week of her pregnancy.
16. PW-13 Ravi Poojari had produced the attendance register of the teachers and students of the school.
17. PW-14 was the dance teacher for some time in the said school. According to her, the Appellant used to watch their dance unnecessarily and used to remain with the girls.
18. PW-15 API Shevale had registered the FIR and had sent PW-1 for medical examination. He also conducted the spot panchnama. He did not know whether the second floor of that building was meant for Law College.
19. PW-16 Dr. Sachin Chitnis had examined the Appellant and had found that the Appellant was not impotent.
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20. PW-17 was studying Law with the Appellant in August, 2016. He had seen the Appellant in the Law College premises on 12.8.2016. In the cross-examination, he deposed that the Appellant was in the college for not more than 3-5 minutes. During that period, he had accompanied the Appellant. He admitted that there were CCTV cameras installed in the campus of the school. He further deposed that on 12.8.2016, right from entering in the college campus till coming out of the college, the Appellant was with him.
21. PW-18 was the Investigating officer, who had carried out part of the investigation. He had caused the statements to be recorded under Section 164 of Cr.P.C. He had arrested the Appellant from Delhi and had brought him to Mumbai on 16.12.2016. He collected the Appellant's blood samples for DNA testing. The samples were sent for analysis to FSL. He recovered the clothes of the Appellant and seized the clothes of PW-1. He had not seized the handkerchief which the Appellant had allegedly used to cover his face. He admitted that after the DNA report, he had forwarded the report to CWC for counselling 17 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 18 : 1.APEAL-1130-2019-J.odt PW-1. He admitted that it was necessary to find out some other person who was also involved in the offence. He also admitted that Dr. Singhal had stated that PW-1 was carrying pregnancy of four weeks.
. This was the oral evidence led by the prosecution.
22. The most important documentary evidence in this case is in the form of Exhibit-60 and Exhibit-42 which are the two DNA reports. Exhibit-60 is the report of the Central Laboratory, Hyderabad and Exhibit-42 is the report from FSL, Mumbai. Both these reports consistently mention that the Appellant was not the biological father of the fetus of PW-1. These two DNA reports are produced on record by the prosecution and they form the most important circumstance in this case.
23. Learned counsel for the Appellant submitted that both the incidents cannot be believed. It was highly unlikely that the incidents could have taken place in the school, at the time when many students were attending the school. The evidence shows that on the first occasion in April, 2016, PW-9 'K' had 18 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 19 : 1.APEAL-1130-2019-J.odt come back immediately within a short time. It was not possible that the Appellant could have entered the classroom and had committed rape without anybody noticing it. There were two windows adjacent to the door and, therefore, anybody could have looked inside the class-room. PW-1 did not raise any shouts or did not resist. This is highly improbable because there were many students in the school besides the teachers, from whom she could have sought immediate help. As far as the second incident in August, 2016 is concerned, again the significant feature is that the class-teacher PW-7 had deposed that PW-1 had returned immediately within 2-3 minutes after she had gone out to bring the book and, therefore, it was not possible that the incident in August could have taken place.
24. Learned counsel heavily relied on the two DNA reports which are favouring the Appellant. According to her, both these reports proved that the Appellant has not committed these offences. She submitted that the dates of the offences are not mentioned. Even the approximate dates are not mentioned. This is very unusual. PW-1 was studying in 7th standard. Therefore, it 19 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 20 : 1.APEAL-1130-2019-J.odt was not difficult for her to remember the dates, if such shocking incidents had taken place. She submitted that there was no way that the Appellant could have known that PW-1 was to be sent by her class-teacher to bring her book and at that exact moment he entered the washroom to commit rape. She submitted that the entire story appears to be highly improbable.
25. Learned counsel for the Appellant further relied on the admission given by PW-2 and PW-1 that they had made phone calls to the Appellant before lodging the FIR. She submitted that there was no occasion or reason to make such a phone call except to pressurize the Appellant.
26. Learned APP as well learned counsel for the Respondent No.2 opposed these submissions. They submitted that looking at the tender age of the victim, it was not unusual for her not to have informed about these incidents to anybody else, particularly, in view of the fact that the Appellant had threatened her. They submitted that though the incidents had taken place in the school, but on both the occasions it had occurred when the other students were not present. On the first 20 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 21 : 1.APEAL-1130-2019-J.odt occasion, the students had gone to attend the PT Class and on the second occasion, the incident had taken place in the washroom and, therefore, nobody could have seen the incident. They submitted that there is no reason to disbelieve PW-1. There was no reason for her to implicate the Appellant falsely. There are depositions of other students and the dance teacher to show that the Appellant's behaviour was improper.
27. Learned counsel for the Respondent No.2 referred to the judgment of a Single Judge Bench of this Court in the case of Dashrath Vs. State of Maharashtra and another as reported in 2021 SCC OnLine Bom 2921. She submitted that even if the DNA report is favouring the Appellant that by itself is no ground to acquit the Appellant.
28. I have considered these submissions. PW-1 victim has narrated the two incidents. Significantly, she had not given the dates of either of these two incidents. In a given case, not mentioning the dates would not matter much considering the young age of the victims, but, in this case the victim was studying in the 7th standard. She was a bright student as is deposed by her 21 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 22 : 1.APEAL-1130-2019-J.odt class-teacher and, therefore, it was expected that she would remember at least some details about the day and date of the incidents in the months of April, 2016 and August, 2016.
29. The first incident in April, 2016 had allegedly taken place in the class-room itself. There is no evidence as to whether the students of class of 7-A had also gone to attend the P.T. period, but, even otherwise the washroom was immediately next to the class-room of 7-B and there was another washroom on the 2nd floor. It was the time of working hours for the school. There were two windows to the class-room as is deposed by PW-3. The windows were next to the door of the class-room. PW-1 has not stated anything about those windows. It was easy for anybody to just look inside through those windows. PW-1 has not stated that those windows were closed. She has deposed that the Appellant had used a big stone to close the doors from inside. Again, there is nothing to support this theory. It is not explained as to how a big stone came inside the class-room, which helped the Appellant in shutting the door so that nobody could enter the class-room. The Appellant was not knowing within what time PW-9 would 22 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 23 : 1.APEAL-1130-2019-J.odt return from the washroom. It is very difficult to believe that the Appellant would venture into committing that act in the classroom of the school, when the school was fully functional and the students were present inside the school premises. PW-1 had not complained about that incident even to PW-9 when she had returned. Similarly she had not made any complaint to her teachers.
30. As far as the incident in August, 2016 is concerned, it is even more doubtful. The evidence shows that the Appellant had left the job in that particular school after April, 2016. He was no more teaching in that school. It was highly improbable that he would be aware that the class-teacher would send PW-1 to bring a book from the classroom on another floor. Again it was highly impossible that he would wait at that particular floor because the second incident had taken place in the washroom on the second floor. That washroom was different from the washroom on the third floor near the class-room of 7-B. At that point of time, the school was in session. There were different class-rooms. Most significantly, the class-teacher PW-7 has 23 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 24 : 1.APEAL-1130-2019-J.odt deposed that after she had sent PW-1 to bring the book, she had returned within 2-3 minutes. Therefore, it is next to impossible that the incident, as alleged by PW-1, could have taken place in the washroom on the third floor within that short time. Even on that occasion, PW-1 did not raise any shouts. There was another class-room on the same floor and, therefore, she could have sought help from the students and the class-teachers of those class-rooms. She again had not complained about this to anybody else including her parents till her pregnancy was discovered. All these circumstances show that the version of PW- 1 is extremely doubtful.
31. In this background, a reference can be made to the DNA reports. Those two DNA reports conclusively established that the Appellant was not the biological father of the fetus. That would lead to the inference that there was someone else involved in causing the pregnancy. PW-1 has not given the name of any other person involved in this case. Considering her age, that fact is also understandable but that would mean that she was protecting somebody and, therefore, her implication of the 24 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 25 : 1.APEAL-1130-2019-J.odt Appellant has to be looked at with circumspection and extreme care. This fact coupled with the earlier discussion shows that the defence has raised serious doubts about the prosecution case itself.
32. The Hon'ble Supreme Court in Sunil's case (supra) had made the following observations in paragraph-4.
"4. From the provisions of Section 53-A of the Code and the decision of this Court in Krishan Kumar, (2011) 7 SCC 130 it does not follow that failure to conduct the DNA test of the samples taken from the accused or prove the report of DNA profiling as in the present case would necessarily result in the failure of the prosecution case. As held in Krishan Kumar (para 44) Section 53- A really "facilitates the prosecution to prove its case". A positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favouring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered. It is to the other materials brought on record by the prosecution that we may now turn to."
However, the facts in the case before the Hon'ble Supreme Court were totally different. In that case the FSL report had confirmed the presence of spermatozoa on the clothes of the accused and also on the semen slide of the deceased. There were 25 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 26 : 1.APEAL-1130-2019-J.odt other strong materials against the accused in that case. The accused had made extra-judicial confession and on his disclosure the body of the deceased was recovered. Therefore, based on those facts the Hon'ble Supreme Court had upheld the conviction of the Appellant. The case did not involve the question of the paternity of the fetus as is the case in the present Appeal. Therefore, the reliance of the learned Additional Sessions Judge on this judgment in the context of the facts of the present case is misplaced.
33. Learned counsel for the Respondent No.2 then relied on the decision of a Single Judge Bench of this Court in the case of Dashrath (supra). In that case the other circumstances against the accused were sufficiently strong and the victim's deposition was acceptable. In that background, the DNA report favouring all the accused in that case was held to be not helpful to them. However, again the facts of that case and the reasoning were on totally different grounds. In the present case, as discussed earlier, the evidence of PW-1 is doubtful for the reasons mentioned hereinabove. Therefore, in that background the two DNA reports 26 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 27 : 1.APEAL-1130-2019-J.odt supporting the defence of the Appellant assume more importance.
34. There is evidence to show that the Appellant's behaviour towards the girl students was inappropriate. Even if that part of the evidence is accepted, that would not lead to the conclusion that the Appellant had committed the offence of rape.
35. There is another slight discrepancy in the prosecution case because PW-11 has stated that based on the medical reports, it was found that PW-1 was carrying pregnancy of eight weeks on 29.9.2016; whereas PW-1 and PW-2 in their depositions have stated that they were told after the sonography test that PW- 1 was carrying pregnancy for four weeks. PW-1 has stated that she did not have the menstrual cycle after 3.9.2016 and, therefore, it was impossible that the incident in August, 2016 would lead to her pregnancy. These circumstances can also be taken into consideration particularly when the deposition of PW-1 is not free from reasonable doubt.
36. In view of the above discussion, the submissions on behalf of the learned Counsel for the Appellant will have to be 27 of 28 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 02/08/2024 23:03:45 ::: : 28 : 1.APEAL-1130-2019-J.odt accepted that the prosecution has failed to prove its case beyond reasonable doubt. In this case, the benefit of doubt must go to the Appellant. In view of this discussion, the Appeal succeeds and the conviction will have to be set aside.
37. Hence, the following order :
:: O R D E R ::
i. The Appeal is allowed.
ii. The judgment and order dated 9.7.2019 passed by the
Special Judge, Thane under the POCSO Act in Special Case No.70/2017 convicting and sentencing the Appellant, is set aside.
iii. The Appellant is acquitted from all the charges. iv. The Appellant shall execute a bond in the sum of Rs.30,000/- for his appearance in case an Appeal is preferred against his acquittal, for ensuring his presence. After such a bond is executed, the Appellant be released forthwith if not required in any other case.
v. Criminal Appeal is disposed of accordingly. With disposal of the Appeal, the companion Applications are also disposed of.
(SARANG V. KOTWAL, J.) Deshmane(PS) 28 of 28 Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date:
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