Bombay High Court
Santosh Dhondiram Kende vs The State Of Maharashtra on 21 February, 2019
Author: A. M. Badar
Bench: A. M. Badar
11-APPA-79-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.79 OF 2019
IN
CRIMINAL APPEAL NO.78 OF 2019
SANTOSH DHONDIRAM KENDE )...APPLICANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Harshawardhan Salgaonkar, Advocate for the Applicant.
Ms.P.N.Dabholkar, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 21st FEBRUARY 2019
P.C. :
1 This is an application for suspension of sentence and
releasing the applicant/accused on bail during pendency of the
appeal filed by him. The applicant/accused is convicted of the
offence punishable under Section 376(2)(m) of the Indian Penal
Code as well as under Sections 4 and 6 of the Protection of
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Children from Sexual Offences Act, 2012. He is sentenced to
suffer rigorous imprisonment for 10 years apart from imposition of
fine of Rs.1,000/- and default sentence of simple imprisonment
for 1 month.
2 Heard the learned counsel appearing for the
applicant/accused at sufficient length of time. He argued that the
learned trial court came to the conclusion that whatever happened
with the victim was with her consent, but the applicant/accused
was convicted on the basis of the DNA report showing paternity of
the child of the victim as well as evidence regarding age of the
victim. The learned counsel further argued that evidence of PW5
Prakash Padye, Carrier Constable, goes to show that he collected
sample on 6th February 2017 and deposited the same on 7 th
February 2017. With this, my attention was drawn to the
document at Exhibit 67 which is a request letter issued by the
Investigating Officer to the Forensic Science Laboratory containing
an averment that the samples are sent for examination vide letter
dated 3rd February 2017. This, according to the learned counsel,
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is improbable. He further argued that the request letter at Exhibit
48 shows that samples were packed in two cardboard boxes
whereas evidence of Forensic Expert PW14 Rohan Shinde shows
that he had received the samples in a sealed envelope. The
learned counsel further argued that Investigating Officer PW12
Chandrakant Lad has admitted that samples were in the hospital
for 4 to 5 days. My attention is drawn to the Identification form
in respect of the applicant/accused to point out that there were
three witnesses to this identification. It is argued that neither
those witnesses nor the person who had drawn samples of blood
was examined by the prosecution during the course of the trial. It
is argued that PW6 Dr.Prashant Sonkamble has deposed on the
basis of record that sample of blood of the applicant/accused was
drawn. With this, it is argued that chain of custody of sample is
not proved, and therefore, DNA report cannot be pressed in
service in order to establish paternity of the child born to the
victim. The learned counsel further argued that evidence of PW7
Dattaram Jagde, Junior Assistant with the Panchayat Samiti,
regarding record of date of birth of the victim is full of
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discrepancies. The Birth Register was not properly maintained as
seen from cross-examination of this witness. By drawing my
attention to evidence of PW9 Varsha Walwi, Assistant Teacher, the
learned counsel argued that even evidence regarding record of
date of birth in the school, so far as victim is concerned, is not
reliable. The entry was not endorsed by the Head Master in order
to demonstrate that the same is a complete entry.
3 The learned APP opposed the application by
contending that evidence of the victim shows that she was forced
to go to the spot of the incident for a period of 4 months under
threat by the applicant/accused. The learned APP argued that
there is presumption under the Protection of Children from Sexual
Offences Act, 2012, and it is not rebutted by the
applicant/accused. She argued that age of the victim is not
challenged but what is challenged is non-maintenance of the
record properly, and therefore, the applicant/accused is not
entitled for bail.
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4 I have considered the submissions so advanced and
perused the material placed on record. The main contention of
the applicant/accused that the samples were already sent for
chemical analysis on 3rd February 2017, as reflected from the
letter at Exhibit 47, prima facie does not contain any merit. The
letter at Exhibit 47 is the request letter addressed to the Forensic
Science Laboratory by the Investigating Officer and in the very
same letter itself, by giving the outward number of this very same
letter, it is informed to the Forensic Science Laboratory that
samples are being sent for forensic examination. In the light of
this averment, evidence of PW5 Prakash Padye, Carrier Constable,
shows that, infact, he collected the samples on 6 th February 2017
and then took them to the Forensic Science Laboratory and
submitted those samples with this forwarding letter dated 3 rd
February 2017. Even otherwise, proof of mathematical precision is
not required in criminal trial. The aspect regarding appreciation
of evidence of the prosecution cannot be considered at the stage
of considering the application for grant of bail of the
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applicant/accused. Suffice to state that DNA report is favouring
the case of the prosecution.
5 So far as evidence regarding age of the victim is
concerned, what is challenged is non-maintenance of record
properly. The prosecution has placed reliance on the Birth
Certificate issued under provisions of Sections 12 and 17 of the
Registration of Births and Deaths Act, 1969, showing date of birth
of the victim as 14th September 2000. The Birth Certificate shows
the name of mother as well as father of the victim. Whether the
Birth Register was properly maintained or not will have to be
considered at the stage of final hearing of the matter. However,
the very same date of birth of the victim is also reflecting in her
school record. Thus, apart from evidence of the victim of the
crime in question, evidence of the DNA examination so also age of
the victim is favouring the prosecution, and as such, this is not the
stage at which, evidence is required to be evaluated meticulously.
Suffice to state, on considering the fact that the victim of the
crime in question, prima facie, appears to be a child, and that she
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has given birth to a child because of the sexual intercourse
committed on her by the applicant/accused, I am not inclined to
grant bail to the applicant/accused. Therefore, the order :
ORDER
The application is rejected.
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