Bombay High Court
Ganesh Laxman Madne (In Jail) vs State Of Maharashtra Thr. P.S.O., P.S. ... on 29 April, 2019
Author: V.M.Deshpande
Bench: V.M.Deshpande
Judgment
Cr Apeal788.18 19
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.788 OF 2018
Ganesh Laxman Madne,
Aged about 56 years,
R/o Jawahar Nagar, Bhari, Taluka
& District Yavatmal. ..... Appellant.
:: VERSUS ::
State of Maharashtra, through
Police Station Officer, Police
Station, Yavatmal City, District Yavatmal. ..... Respondent.
===================================
Shri N.A.Badar, Counsel for the Appellant.
Shri A.D.Sonak, Additional Public Prosecutor for the
Respondent/State.
===================================
CORAM : V.M.DESHPANDE, J.
DATE : APRIL 29, 2019.
ORAL JUDGMENT
1. By the present appeal, the appellant is challenging judgment and order of conviction dated 31.10.2017 passed by learned Special Judge and Additional Sessions Judge, Yavatmal in Special Case No.44/2015.
2. By the impugned judgment and order of conviction, .....2/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 2 the appellant though stands acquitted of offences under Section 3(1)(xii) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the SC & ST Act"), is convicted for offence under Section 376(2)(i) of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, "the POCSO Act").
For his conviction under Section 376(2)(i) of the Indian Penal Code, he is directed to suffer rigorous imprisonment for 14 years and to pay a fine of Rs.5000/- and in default of payment of the fine amount to suffer rigorous imprisonment for 6 months.
For his conviction under Section 6 of the POCSO Act, he is directed to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5000/- and in default of payment of the fine amount to suffer rigorous imprisonment for 6 months.
Learned Judge of the Court below directed that all the sentences shall run concurrently and also set-off is given to the .....3/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 3 appellant since he was in jail.
3. The prosecution case is in a narrow compass and it is detailed herein under:
(A) Lady Police Sub Inspector Sangita Shankarrao Helonde (PW5) was attached to Yavatmal (City) Police Station. On 25.8.2015, when she was discharging her duties, Rameshwar (PW1) approached to the police station along with victim and his wife. He lodged his oral report which was typed on computer. The said oral report is at Exhibit 18.
(B) As per the oral report (Exhibit 18), first informant Rameshwar (PW1) resides with his wife Manisha (PW3) and his daughter, the victim aged about 3 years. He works as labour with Snehal Dresses.
Victim used to go to house of accused for playing. (C) On 24.8.2015, as usual at 10:00 a.m., he left his house and came back at 11:00 p.m.. That time, his .....4/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 4 wife Manisha disclosed that when she was working inside house, victim was playing in courtyard, however since she failed to come inside house, therefore, she searched for her. She also went near house of appellant which was closed from inside, however television was loudable. Since victim could not be traced, she was returning to her house. That time, she noticed that victim came running from house of the appellant and on enquiry she disclosed that the appellant, to whom she described as father of Rahul mama, tried to push his male organ inside her vagina and anus. The First Information Report further states that, therefore, on next day, he and his wife Manisha made enquiries with the appellant. That time, the appellant and his wife asked them not to disclose the incident to anybody.
(D) On the basis of the oral report and as per directions of Police Inspector Kulkarni, Police Sub .....5/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 5 Inspector Sangita Helonde (PW5) registered the crime against the appellant vide Crime No.357/2015. Printed First Information Report is at Exhibit 19. She, thereafter, sent victim for her medical examination to the Government Hospital at Yavatmal, as per requisition Exhibit 37. She also issued Notice to first informant Rameshwar (PW1) to remain present on 26.8.2015 before the Child Welfare Committee for recording statement of victim and accordingly statement of victim was recorded before the Child Welfare Committee on 26.8.2015.
(E) Investigation of the crime was entrusted to Rahul Dnyandeo Madne (PW7) who was Sub Divisional Police Officer at Yavatmal. He visited spot of occurrence and prepared spot panchnama (Exhibit 23) in presence of panchas. He seized knicker of victim from her father under seizure memo (Exhibit 20) in presence of panchas.
.....6/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 6 (F) The appellant was arrested by Police Inspector Kulkarni and on 27.8.2015. Police Sub Inspector Sangita Helonde (PW5) issued letter, as per requisition (Exhibit 38), to medical officer for medical examination of the appellant as per directions of the Sub Divisional Police Officer.
(G) Sub Divisional Police Officer Rahul Madne (PW7) obtained birth certificate also recorded statement of witnesses. Similarly, he took steps for recording statements of first informant Rameshwar (PW1) and his wife Manisha (PW3) under Section 164 of the Code of Criminal Procedure. He also seized clothes on the person of the appellant under seizure memo (Exhibit 24). He sent muddemal property to Chemical Analyzer and Chemical Analyzer's Reports are placed on record. He was of the view that sufficient material is collected against the appellant to send him for Trial and, therefore, he filed chargesheet.
.....7/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 7 (H) Learned Special Judge framed charge against the appellant for offences under Section 376(2)(i) of the Indian Penal Code and under Section 3(1)(xii) and 3(2)(v) of the SC & ST Act and under Sections 4 and 6 of the POCSO Act. The appellant abjured his guilt and claimed for his Trial.
(I) In order to bring home the charge against the appellant, the prosecution examined in all 7 witnesses and also relied upon various documents proved during the course of the Trial including Chemical Analyzer's Reports and D.N.A. Report. The appellant was examined by learned Judge below under Section 313 of the Code of Criminal Procedure. From line of cross-examination of prosecution witnesses, it is clear that defence of the appellant is that he is falsely implicated in the crime and in fact for reasons that on earlier occasion he was assaulted by father of victim and in order to save his skin false report is filed .....8/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 8 against him.
(J) After appreciation of the entire prosecution case, learned Judge of the Court below passed the impugned judgment.
Hence, the present appeal.
4. I have heard learned counsel Shri N.A.Badar for the appellant and learned Additional Public Prosecutor Shri A.D.Sonak for the respondent/State. With their able assistance, I have gone through record and proceedings of the case.
5. It is submission of learned counsel for the appellant that though there is scientific report against the appellant in the nature of DNA Report (Exhibit 55), the said cannot be relied upon for various deficiencies and lacunae as it could be noticed in the prosecution case. He submitted that if DNA Report is excluded from consideration, there is no evidence against the appellant and, therefore, he prays for acquittal of the appellant.
6. Per contra, learned Additional Public Prosecutor Shri .....9/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 9 A.D.Sonak for the respondent/State supported the impugned judgment.
7. Age of victim is not at all in dispute. Further, the prosecution has filed birth certificate (Exhibit 29) issued by competent authority which shows date of birth of victim as 11.7.2012. Incident in question occurred on 24.8.2015. Thus, victim was barely 3 years old.
8. The offence alleged to have been committed by the appellant is usually committed by perpetrators of such crime in a secluded place and/or at place wherein perpetrators of crime and victims only are available. In the present case also, there is no eyewitness and, in my view, it is not unusual.
9. According to the prosecution, the incident in question has occurred inside house of the appellant. Location of the appellant's house is brought on record in examination-in-chief of Manisha (PW3), the mother of victim. She stated that house of the appellant is situated after 2-3 houses from her house. From the First Information Report, it is clear that victim used to go to house .....10/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 10 of the appellant for playing. Victim is not examined by the prosecution probably because of her age.
10. Star witness in this case is Manisha (PW3), the mother of victim. Her evidence shows that on the day of the incident between 3:00 p.m. and 3:30 p.m. victim went to play outside and since after a long time she did not come back, she stepped out of her house to search her. Initially, she made enquiries with Surekha Khambekar and, thereafter, she went towards house of the appellant. According to her, on the day of the incident son of the accused by name Rahul and his wife went to Yavatmal and he was alone. Her evidence shows that house of the appellant was locked from inside and television which was switched on and was loudable. After a search of his daughter at house of Laxmi Thakare, she went to Chowk. While coming back to her house, she noticed rushing of her daughter in a frightened condition from house of the appellant and on enquiry she disclosed that when she went to house of Rahul mama and when she was watching television, the appellant pressed his private part at her urinal place .....11/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 11 and anus and disclosed that it is paining. Evidence of Manisha shows that after the said information, she was frightened and she narrated the incident to her neighbour Surekha Khambekar. She found stains of semen on knicker of victim and it was wet. She, therefore, removed the said knicker and gave another to her. Not only that, she showed the said knicker to Surekha Khambekar, Asha Madavi, and Nalu Bhagat and narrated the incident to them also. Her evidence further discloses that at 11:00 p.m. when her husband Rameshwar (PW1) came back, she narrated the incident to him. Thereafter, a phone call was made to her father and on arrival of her father, they approached to the police station and lodged the report.
11. Evidence of Rameshwar (PW1) shows that he handed over the knicker to Investigating Officer and it was seized under seizure panchnama (Exhibit 25).
12. Though neither Manisha (PW3) is an eyewitness nor she visited house of the appellant on the date of the incident, her evidence shows that on the day of the incident Rahul, the son of .....12/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 12 the appellant, and his wife were not present in house. This claim of Manisha in her evidence is found to be proved omission. Thus, to this extent the said witness has improved her version from the witness box. The said is having its own importance since even as per Investigating Officer Rahul Madne (PW7) and as per evidence of father of victim and first informant Rameshwar (PW1), the appellant used to reside along with his wife and son. In cross- examination, Rahul Madne (PW7) stated that during investigation he recorded statements of neighbours of the appellant. He also admitted that the appellant used to reside along with his son, daughter-in-law, and wife. However, he volunteers that at the time of the incident the accused was residing alone. For the said volunteer statement that at the crucial time the appellant was alone has no foundation. Though neighbours' statements were recorded by Investigating Officer, the prosecution for the reasons best known to it failed to examine any of neighbours to show that on the day and time of the incident the appellant alone was present inside the house.
.....13/-
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13. From evidence of lady Police Sub Inspector Sangita Helonde (PW5), it is clear that during course of investigation victim was presented before the Child Welfare Committee and her statement was recorded on 26.8.2015. Though victim was not brought in dock during the Trial may be because of her age, it was always open for the prosecution to examine members of the Child Welfare Committee to prove her statement which she made before them. No explanation is offered in this prosecution case as to why the prosecution kept back members of the Child Welfare Committee from the Court who could have thrown light on the incident since they were having advantage of noticing victim at the time of recording of her statement.
14. Victim was sent for her medical examination. Dr.Sharad Vasantrao Kuchewar (PW4) along with Dr.Sushma Gore examined her. Evidence of Dr.Sharad Kuchewar shows that he received call from the Department of Gynaecology and, therefore, he went along with Dr.Sushma Gore and they examined victim. That time, victim was accompanied by her mother Manisha (PW3).
.....14/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 14 They took consent of the mother of victim. Evidence of Dr.Sharad Kuchewar in respect of examination of victim is reproduced herein under:
"On general examination her vital were stable. There was no evidence of any injury over the body. On local examination there was no evidence of any injury over labia majora, labia minora and vagina. Her hymen was intact. There was no evidence of any perineal tear. No evidence of injury over anus, oral cavity. We have collected samples of nail clippings, swab from labia majora, vagina, vaginal smear. ....."
Accordingly, he and Dr.Sushma Gore prepared medical report (Exhibit 34).
The aforesaid evidence of Dr.Sharad Kuchewar (PW4) shows that both the doctors could not notice any violence on the body of victim. Even, there was no injury slightest in nature on her private part.
15. Learned Judge of the Court below convicted the appellant mainly on the ground of scientific evidence. DNA Report (Exhibit 55), heavily relied upon by the prosecution, was accepted .....15/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 15 by learned Judge of the Court below as conclusive proof to show that the appellant has committed the offence.
16. DNA can very well be extracted either from urine, saliva, skin, and also from blood of victim as well as accused. After obtaining DNA, when profile is done on the DNA extracted of accused, it can be a conclusive proof of evidence against accused. Therefore, highest degree of precaution is required to be taken right from extracting blood and urine etc. which ultimately becomes source for obtaining DNA from the same. There should not be any doubt in anyone's mind that at any point of time anywhere there was slightest possibility of tampering with sample of victim as well as accused.
17. No doubt true that DNA is predominant forensic technique for identifying criminals with the help of biological tissues. Importance and authenticity of DNA Report is already well settled by the Honourable Apex in the case of Mukesh and another vs. State reported at [2017 ALL MR (Cri) 2448 SC]. In paragraph No.228 of the said authoritative pronouncement, the Honourable .....16/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 16 Apex Court observed as under:
"From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non- acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted."
18. From the aforesaid, it is clear that the prosecution has bounden duty to place on record material apart from quality control or quality assurance in the examination of sample. The prosecution has bounden duty to show and clear the fact that samples were properly obtained, they were sealed properly and possibility of tampering of the same is completely ruled out. There cannot be any quarrel with proposition that biological evidence in the nature of blood, semen, saliva, and tissues used for extracting DNA either from the place of occurrence or on objects may be subject to contamination by the environmental conditions, human error, and bacteria or fungus etc..
19. Keeping the aforesaid principle in mind, let us .....17/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 17 examine what weightage the Court should give to the DNA Report (Exhibit 55).
20. Father of victim and first informant Rameshwar (PW1) handed over knicker of his daughter to Investigating Officer which was found to be stained with semen. The said was sent to Chemical Analyzer and ultimately that reached for DNA profile with laboratory. DNA is extracted from semen stain found on the knicker of victim.
21. On 27.8.2015, Dr.Sunilkumar Raghvendra Pande (PW6) examined the appellant. On the said day, he collected sample, blood with citrate and pubic hair. He sealed the said samples in 3 glass bottles and handed over the same to Police Constable Santosh which ultimately reached to Chemical Analyzer and the said was sent to laboratory at Nagpur for DNA profiling and DNA was extracted from the blood. Thus, another source for extracting DNA is blood.
22. Thus, from the aforesaid, it is clear that DNA matched is extracted from two different sources of the same human being .....18/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 18 namely the appellant.
23. In view of provisions of Section 293 of the Code of Criminal Procedure, DNA Report was exhibited and admitted in evidence without examining author of the said report. In my view, though it is admissible in evidence, it is advisable for the prosecution to examine author of the said report, in order to offer chance to defence to cross examine him, however merely because author is not examined, DNA Report (Exhibit 55) does not render inadmissible in view of specific provisions of the said Section.
24. As per evidence of Manisha (PW3), the mother of victim, when she met her daughter, she found stains of semen on knicker of victim and it was wet. She, therefore, removed the said knicker and gave another to her. Not only that, she showed the said knicker to Surekha Khambekar, Asha Madavi, and Nalu Bhagat and narrated the incident to them.
25. After registration of the crime on 25.8.2015, father of victim who is first informant, in presence of panch Nilesh Himmatrao Mote (PW2), handed over the knicker to Investigating .....19/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 19 Officer Rahul Madne (PW7). Contemporaneous document (Exhibit
20) does not bore any mark and/or recite that at the time of seizure of the knicker on the spot the said was "sealed" in presence of panchas. Neither Rameshwar (PW1), the person who handed over the said knicker, nor pancha Nilesh Mote (PW2), in whose presence the knicker was seized, nor Investigating Officer Rahul Madne (PW7), who seized the knicker, did state during the course of the Trial from the witness box that at the time of seizure on the spot the knicker was sealed.
26. On 5.9.2015, Investigating Officer Rahul Madne (PW7) sent muddemal articles to Deputy Director of Forensic Science Laboratory at Amravati. The said is at Exhibit 50. Perusal of the said shows that the knicker was sent in a sealed condition. Similarly, Chemical Analyzer's Report (Exhibit 52) given by Assistant Chemical Analyzer to the Government Regional Forensic Science Laboratory, State of Maharashtra, Amravati-2 shows that the said laboratory received 3 sealed parcels having seals intact which includes knicker of victim and full pant and under-pant of .....20/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 20 the accused.
27. There is nothing on record as to at what place and at what time the knicker of victim was sealed. Requisition (Exhibit
50) sent by Investigating Officer Rahul Madne (PW7) to Deputy Director of Forensic Science Laboratory at Amravati shows that on 5.9.2015 garments were sent in a sealed condition. Thus, in absence of any positive evidence on record, it is clear that from 25.8.2015 till 5.9.2015 the said garments were exposed not only to environment but also were exposed to handling of various persons. Further, there is nothing on record to show that before sending the garments to Chemical Analyzer, where the said were kept and/or the said were kept under proper storage and in proper custody. The Chemical Analyzer's Report (Exhibit 52) shows that the knicker of victim was stained with semen, however grouping was not done, which, in my view, is not much important for deciding the present appeal. The said report (Exhibit 52) shows that analysis was started on 6.10.2015 and completed on 8.12.2015. The said document (Exhibit 52) further shows that it was .....21/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 21 registered with the Regional Forensic Science Laboratory at Amravati as BAM-2773/15 and the report is dated 19.1.2016. At the end of the said document, it shows that, "for the result of DNA analysis please refer RFSL Nagpur ML Case No.DNAn-645/15". However, the said document is silent as to on what date the garments were at Regional Forensic Science Laboratory at Nagpur.
28. DNA Report (Exhibit 55) does not show date on which semen stain cuttings from panty were received in Regional Forensic Science Laboratory at Nagpur. Even, the said document is conspicuously silent to show that the semen stain cuttings from panty of victim were received in a sealed condition. Clause 5 of the said document only shows which reads as under:
"5) Condition of the parcel(s)/seal(s):
Please refer RFSL, Amravati ML Case No.BAM/2773/15,BAM/2774/15,BAM/2775/15."
Thus, DNA Report (Exhibit 55) shows that it only refers ML Case No.BAM/2773/15 to Regional Forensic Science Laboratory at Amravati. There is no positive evidence either in the nature of documentary or oral coupled with fact that there is no .....22/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 22 observation at Exhibit 55 that semen stain cuttings from panty of victim were received from the Regional Forensic Science Laboratory at Amravati in a sealed condition. The said document shows analysis was started on 23.10.2015 and completed on 17.11.2015. As observed above, the said document is silent as to on what date and time semen stain cuttings from panty were received in the laboratory at Nagpur.
29. Further, Chemical Analyzer's Report (Exhibit 53) shows that analysis was started on 10.9.2015 and completed on 8.12.2015.
30. As per Chemical Analyzer's Report (Exhibit 52), analysis analysis was started on 6.10.2015 and completed on 8.12.2015.
31. The prosecution case is not throwing any light as to before the analysis was completed at Regional Forensic Science Laboratory at Amravati, the said articles were sent to Regional Forensic Science Laboratory at Nagpur.
.....23/-
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32. In this situation, it was open for the prosecution to examine responsible persons from both the laboratories at Amravati and at Nagpur to clear this aspect.
33. The Division Bench of this Court, in the case of Jitendra s/o Suresh Gabhane vs. The State of Maharashtra, reported at 2018 ALL MR (Cri) 4715, in paragraph Nos.29 and 30 has observed as under:
"29. Another important aspect of quality control in the context of DNA report is the evidence pertaining to seizure of clothes of the prosecutrix and whether they were kept in proper sealed condition throughout, upto the stage of the DNA analysis and report. The seizure panchanama of the clothes of the prosecutrix is at Exh.35 and PW3 Kundatai is the panch witness examined for proving the same. In her evidence the said panch witness does not state anything about sealing of the clothes in her presence. The seizure panchanama (Exh.35) records that clothes were received in sealed condition from Medical Officer but, they were opened in the Police Station and again sealed. The opening of the seal of the clothes in the Police Station and then again keeping them in sealed condition, does not rule out the possibility of tampering.
.....24/-::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 :::
Judgment Cr Apeal788.18 19 24
30. Apart from this, the record shows that although Exh.117 i.e. the letter of the Regional Forensic Science Laboratory, Nagpur records that the clothes of the four accused and the prosecutrix were received on 18.02.2015 in sealed parcels, at Exh.79, which is the examination report for DNA analysis shows that cuttings from knicker and jeans of the prosecutrix were used for the analysis. This document at Exh.79 does not record that the clothes were received in sealed condition or the date on which they were received and it is also not recorded when the cuttings from the knicker and jeans of the prosecutrix were taken. It is these cuttings that are used for the ultimate DNA report analysis and interpretation at Exhs. 80 and 81. In the absence of clear evidence as to whether the sealed condition of the clothes of the prosecutrix was maintained and when and where the cuttings of knicker and jeans were made for proceeding with the analysis, the interpretation at Exh.80 is rendered seriously doubtful and unreliable."
34. In the light of the aforesaid discussions and in the light of the evidence on record, the observations of the Division Bench in the case cited supra, are aptly applicable in the present case. Learned Judge of the Court below has failed to analyze the prosecution evidence as brought on record in its correct perspective. In addition to that, the said incriminating material .....25/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 25 was used against the appellant for convicting him. The said was not brought to notice of the appellant when he was examined under Section 313 of the Code of Criminal Procedure.
35. According to the defence, the appellant is falsely implicated in the crime. From the line of Rameshwar (PW1), relation between them were stained and on 24.8.2015 at 8:00 p.m. Rameshwar assaulted on the accused, resulting into bleeding injuries near his right ear and in order to save himself, Rameshwar lodged the report. Of course, suggestions given in that behalf are denied by Rameshwar.
36. Record shows that the appellant was arrested on 25.8.2015 at 22:02 hours, as it could be seen from Arrest Form (Exhibit 45). Perusal of the said document shows that medical report of the appellant is attached with the arrest memo. Though it is stated so in Exhibit 45, in fact no such report finds place on record.
37. Investigating Officer Rahul Madne (PW7) has also admitted during his cross-examination that after his verification of .....26/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 26 the arrest panchnama, medical examination report of the appellant is not filed on record along with the chargesheet. He has also admitted that prior to arrest of the appellant on 25.8.2015, the medical examination of the appellant was conducted. If the medical examination of the appellant was conducted and when arrest memo (Exhibit 45) states that medical examination report is annexed along with the said, there was no reason for the prosecution to suppress the medical examination report of the appellant. Suppression on the part of the prosecution in respect of the medical examination of the appellant on 25.8.2015 earns adverse inference against the prosecution and the defence of the appellant gets strength that he was attacked by Rameshwar (PW1) and in that he suffered bleedings injuries and in order to save himself, he falsely implicated the appellant in the crime.
38. Conspectus of the aforesaid discussion allows me to reach to a conclusion that though there is DNA Report, since knicker of victim was all the time exposed, contamination is not completely ruled out. Consequently, on the basis of the said .....27/-
::: Uploaded on - 02/05/2019 ::: Downloaded on - 08/04/2020 06:29:17 ::: Judgment Cr Apeal788.18 19 27 evidence alone, the appellant cannot be sent in jail for a period of 14 years. Resultantly, I pass following order:
ORDER
(i) The criminal appeal is allowed.
(ii) The judgment and order dated 31.10.2017 passed by learned Special Judge and Additional Sessions Judge, Yavatmal in Special Case No.44/2015 is hereby quashed and set aside.
(iii) The appellant is acquitted of offences under Section 376(2)(i) of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012.
(iv) The appellant who is in jail be set at liberty, if not required in any other offence.
JUDGE !! BRW !! ...../-
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