Bombay High Court
Yogesh Narayan Saste vs The State Of Maharashtra And Another on 21 January, 2026
2026:BHC-AUG:2929
(1) 902criapl351.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
902 CRIMINAL APPEAL NO.351 OF 2023
Yogesh Narayan Saste,
Age-21 years, Occu-Driver,
R/o. Changle, Nagar, Ambad,
Tq. Ambad, Dist. Jalna ...APPELLANT
VERSUS
1. The State of Maharashtra
2. XYZ ...RESPONDENTS
Mr. Sudarshan J. Salunke, Advocate a/w Ms. T. S. Raut, Advocate for
the appellant
Ms. A. S. Deshmukh, APP for the respondents/State
Mr. Gajanan S. Shete, Advocate for the respondent No. 2 (appointed)
CORAM : RAJNISH R. VYAS, J.
DATE : 21st JANUARY, 2026
ORAL JUDGMENT :
1. Heard learned Advocate Mr. Salunke for the appellant, learned APP Ms. Deshmukh for the State and Mr. Shete, Advocate [appointed] for the victim.
2. A question which falls for consideration in the appeal is whether prosecution has proved the case beyond reasonable doubt since according to the learned Advocate for the appellant the documents field on record clearly shows that absolutely no material available to prove the charge.
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3. In order to deal with the said question, concept of reasonable doubt, proving the case beyond reasonable doubt will have to be tested in the light of observations given by the Hon'ble Apex Court in the case of Ramakant Ray Vs Madan Ray and others reported in 2003 (12) SCC 395. Reasonable doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common-sense.
4. In this background, the present appeal is decided.
5. The present appellant challenges the judgment of conviction rendered by Special Judge (POCSO), Ambad, Tq. Ambad, Dist. Jalna in Special Case No. 356/2021 dated 14-02-2023 by which he was convicted for the commission of offences punishable under Section 376(1) of the Indian Penal Code [hereinafter would be referred as 'the IPC' for the sake of brevity] and directed to suffer rigorous imprisonment for 20 years and to pay fine of Rs.500/-, in default to suffer simple imprisonment for six months.
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6. The appellant was also convicted for the commission of offences punishable under section 376 (2)(j) of the IPC and directed to suffer rigorous imprisonment for 20 years and to pay fine of Rs.500/-, in default to suffer simple imprisonment for six months.
7. The appellant was also convicted for the commission of offences punishable under Section 376(2)(n) of the IPC and directed to undergo rigorous imprisonment for 20 years and to pay fine of Rs.500/-, in default to undergo simple imprisonment.
8. He was also convicted for commission of offences punishable under Section 3 read with sections 4 and 6 of the Protection of Children From Sexual Offences, Act 2012 [Hereinafter would be referred as 'the Act of 2012' for the sake of brevity] and directed to suffer rigorous imprisonment for 20 years and to pay fine of Rs.500, in default to suffer simple imprisonment for six months.
9. The accused was also convicted for the commission of offences punishable under Sections 3 (1)(i)(w)(i) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [Hereinafter would be referred as 'the Act of 1989' for the sake of brevity] and directed to suffer rigorous imprisonment for 6 months and to pay fine of Rs.500/- in default to suffer simple imprisonment for six months.
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10. The substantive sentences were ordered to run
concurrently.
11. In brief, it is the case of the prosecution through the testimony of the victim of the crime who was examined as PW-2 that the victim was 13 years old and the accused was known to her. The accused was working as a driver and was known to the victim since last six months prior to the registration of the First Information Report. Initially, the accused started following her and thereafter both exchanged smile and started interacting with each other. When the victim was alone in the house, the accused entered and committed forcible sexual intercourse.
12. This incident has resulted into setting criminal law in motion by registering the First Information Report as No. 208/2021 dated 30-04-2021 with the Ambad Police Station.
13. After registration of the FIR, criminal law moved which resulted into arrest of the present appellant and subsequently collection of documents pertaining to the treatment given to the victim, collection of samples. As the victim had delivered a female child, DNA sample of victim, appellant and child were also collected and forwarded to the concerned laboratory.
14. After completion of the investigation the appellant was charge-sheeted. In the charge-sheet the Investigating Officer cited 25 4 of 25 (5) 902criapl351.23 witnesses. During the course of the investigation, the prosecution has examined in all 9 witnesses.
15. As the appellant did not plead guilty to the charge, prosecution examined 10 witnesses to bring home guilt of the accused.
16. The accused was subjected to enquiry under section 313 of the Cr. P. C. wherein his defense was of false implication and total denial. The accused neither entered into the witness box nor examined any witness. After appreciation of evidence on record the appellant was convicted.
17. Challenging the aforesaid judgment learned counsel Mr. Salunke appearing for the appellant has contended that entire story advanced by the prosecution was false. There was delay in lodging the FIR and the date of birth was not proved. He submitted that witnesses examined were not reliable. According to him, in documents showing date of birth of the victim, the name of the mother of the victim is shown as 'A' whereas in deposition the mother of the victim has deposed by giving her name as 'K'. He submitted that this fact goes to the root of the matter and thus judgment is liable to be set side.
18. Mr. Salunke, learned Advocate submits that since the provision of the Act of 2012 are stringent, prosecution is required to 5 of 25 (6) 902criapl351.23 prove the case with great care and caution and that to beyond reasonable doubt. According to Mr. Salunke, learned Advocate conduct of the mother of the victim who was examined as PW-1 is highly unnatural as she did not inform the father of the victim about the fact of pregnancy which was carried by the victim.
19. He further contended that the child was delivered vaginally and child born was in healthy condition since child was having wight of 2.5 kg, which clearly shows that victim was not minor. He further submitted that birth certificate of victim should be discarded since it records the date of birth as 13-04-2008 and entry was taken on 19-04-2008. He submitted that it was admitted in cross- examination that naming ceremony of the victim was performed after three months from the date of birth and therefore, there was no question of mentioning the name of the victim in the birth certificate. He has relied upon the various judgments delivered by the Hon'ble Apex court and this court in order to support his case.
20. Per contra, the learned APP Ms. Deshmukh, submitted that prosecution had proved the case beyond reasonable doubt and mandate of sections 29 and 30 of the Act of 2012 is required to be honoured. She also submitted that considering the fact that the victim was just 13 years old, it cannot be expected that first information report would be lodged immediately. She submitted that 6 of 25 (7) 902criapl351.23 date of birth was properly proved. The findings given by the trial court were based on the correct appreciation.
21. Mr. Shete, learned Advocate who was appointed by this court to represent the victim has ably assisted this court. He has pointed out various judgments, provision of law and pieces of evidence, in order to contend that the prosecution has proved the case beyond the reasonable doubt. He without seeking any adjournment and in brief time has tried to convince this court that witnesses examined by the prosecution were reliable witnesses.
22. In this background I have gone through the record of the caste and tested the arguments advanced by the respective counsels.
23. Considering the evidence rendered by the prosecution, it will have to be seen, in the light of parameters laid down by the Hon'ble Apex Court as to whether the witness falls in category of "wholly reliable witness", 'wholly unreliable witnesses' or "partly reliable witnesses" and "partly unreliable witnesses".
24. PW-1 is the mother of the victim who was also examined in order to bring home the charge. In her deposition she stated that victim is her daughter who was born on 13-04-2008 and at the time of incident, she was 13 years old. She had one more son who was five years elder than the victim. In the year 2021 the victim was studying in 8th std. She submitted that the accused used to drive the 7 of 25 (8) 902criapl351.23 vehicle/tanker which was owned by neighbour of PW-1 and accused used to have chitchat with the victim. PW-1 stated that since she had noticed the aforesaid fact of the accused, she had given understanding to the accused as the victim was a minor girl and asked accused not talk with her.
25. She further stated that victim disclosed her that victim had stomach ache and therefore, the victim was taken to the Dr. Talwadkar, at village Ambad where concerned doctor had advised her for Sonography.
26. The victim and PW-1 visited one Sonography centre where it was disclosed to them that the victim was carrying 33 weeks pregnancy. PW-1 then enquired from the victim, who told that when she was alone at the house, she was subjected to forcible sexual intercourse by the accused. The mother then informed the victim not to disclose the aforesaid fact in order to avoid any defamation in the society.
27. According to the testimony of this witness on 29-04-2021 since the victim was having stomach ache, she was taken to government hospital, where the victim delivered a female child. PW-1 thereafter contacted the police and one more person and child was given in the Orphanage. In the cross-examination, PW-1 has admitted that the victim used to share various aspects of her life with her. She 8 of 25 (9) 902criapl351.23 further admitted that she came to know the incidence, when the victim first time told her about stomach ache. She could not notice the pregnancy. PW-1 gave explanation that victim was taking the treatment of piles and therefore, size of the stomach of the victim was not noticed. She further submitted that treatment for the piles was taken at Doctor Ugale.
28. In the cross-examination, PW-1 stated that victim was born at Barshi, Dist. Solapur, which is PW-1's parental place and at which place entry of date of birth of the victim was taken. She stated that relevant documents were handed over to the police. She stated that after 2-3 months name was given to the victim. She further admitted that while admitting the victim in the school, all necessary documents were supplied by the grand-father of the victim.
29. She admitted the fact that she had not met with the parents of the accused and did not disclose the aforesaid incident. She also admitted that incident was not disclosed to her husband. She stated that the incident was narrated to the husband after 15 days of the incident and she resides with her husband. She stated that police had not made any enquiry from her husband. She denied the fact that at the time of incident victim was 19 to 20 years. She denied that victim did not disclose fact of forcible sexual intercourse and victim carrying pregnancy.
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30. Testimony of PW-1 would reveal that she has
categorically stated the date of birth of the victim which is not specifically denied by the defense. A suggestion was given to the mother of the victim that the victim at the relevant time was 19-20 years old which was denied. One more fact which reveals from the testimony was that in cross-examination it was admitted by the said witness that the victim was born at Barshi, Dist. Solapur and entry regarding the date of birth was also taken there.
31. Though Mr. Salunke, learned Advocate for the appellant contended that date of birth is required to be proved by the prosecution on the standard of proving the case beyond reasonable doubt, the fact remain there is other corroborative piece of evidence to prove the date of birth of the victim.
32. There is one more reason to arrive at the said conclusion that the birth certificate which is at page No. 37 is proved by the PW- 3 who at the relevant time was working on the post of Headmaster with the concerned school. He stated that the victim took the admission in the school on 13-06-2012 and necessary entry was taken in the Register at Sr. No. 1335 (page No.65). Date of birth entered in the register as 13-04-2008.
33. According to PW-3, entry regarding the date of birth was taken on the basis of birth certificate given by the parents and 10 of 25 (11) 902criapl351.23 certificate was issued by Barshi, Nagar Panchayat. This witness has proved this documents which was marked at Exh.36, which is admission registration Exh.37 is birth certificate and Exh.38 is admission form of the victim. At this juncture, it is necessary to mention here that Exh. 38 was in a sealed envelope. As per direction issued by the court, it was opened in the presence of all the parties. A admission form shows the date of birth of the victim as 13-04-2008.
34. Mr. Salunke, learned Advocate for the appellant contended that birth certificate cannot be relied for several reasons i] birth certificate was not properly proved by the PW-3, ii] the name of mother of the victim was shown as "A" and not 'K'. He further contended that PW-3 is not a person who can prove the aforesaid fact.
35. Mr. Salunke, learned Advocate for the appellant contended that since name of mother in birth certificate is different same should be ignored. In this regard, it is pertinent to mention here that if the birth certificate is perused, it would be crystal clear that birth certificate not only bears the name of child but also the name of father and mother. So far as mentioning of name of father in the birth certificate, nothing in that regard has been disputed by the defense. So far as name of mother i.e. 'A' is concerned, suffice it to say that there is absolutely no cross-examination on the aforesaid points by 11 of 25 (12) 902criapl351.23 the defense. Correct name of father in cererificate thus leads confidence to the case of prosecuiton.
36. Mr. Salunke, learned Advocate for the appellant may be right in saying that just because there is no suggestion in the evidence, it cannot make inadmissible evidence admissible. But the fact remains that date of birth is proved by prosecution.
37. Assailing the date of birth again Mr. Salunke, learned Advocate invited my attention to the said certificate. He submitted that birth certificate shows the name of victim. Said certificate was issued on 15-06-2011. Date of birth is mentioned as 13-04-2008 and date of registration is mentioned as 19-04-2008. He, therefore, contended that in view of the admission given by the mother that name was given to the victim after three months of her birth, it is very difficult to presume that in Exh.37 the name of child would be mentioned in it. He, therefore, submitted that said document is highly suspicion. Suffice it to say that the evidence in the form of testimony of PW-1, birth certificate Exh.37, testimony of PW-3, the fact that there is no denial to date of birth, clearly shows that prosecution has proved the date of birth in proper manner. Even Exh. 36 clearly shows that name of victim appears at Sr. No.1335 in which the name of victim, name of her father and surname is mentioned. In this document also the name of mother of the victim is shown as 'A' 12 of 25 (13) 902criapl351.23 and not shown as 'K'. At the cost of repetition, it is submitted that just because name of the mother is different, the said document will not loose its evidentiary value in facts of the case.
38. Challenging the testimony of PW-3 the learned counsel for the appellant contended that this witness cannot prove Exh.36, 37 and 38 since he was unable to disclose who had filled Exh.38. Said witness in crosse-examination has also admitted that Exh.36 was not in his hand writing. A suggestion was given that Exh.36 and 38 are false documents, which was denied by him. Close scrutiny of the cross-examination would reveal that effective cross-examination was made as regards Exh.38 only i.e. admission form. So far as Exh.37 is concerned, not a single suggestion or question was asked regarding the same. Thus, Exh.37 goes without challenge. In that view of matter, I come to conclusion that prosecution has proved the case beyond reasonable doubt so far as the age of the victim is concerned.
39. In order to buttress his contention Mr. Salunke, learned Advocate for the appellant has invited my attention to the judgment reported in AIROnline 2018 Bom 1239 in Criminal Appeal No. 221/2017 in the case of Ittarsingh Janaklal Dahikar Vs State of Maharashtra, more particularly para 17. In the said case while disbelieving Exh.34, which was the birth certificate this court observed that since Exh.34 i.e. birth certificate was issued in 13 of 25 (14) 902criapl351.23 pursuance to requisition (Exh.33), and same cannot be disbelieved. Suffice it to say that in that case Exh.33 was the letter pad on which, date of birth of the victim was written and no explanation was given by the Investigating Officer for issuing the said requisition belatedly. Since FIR was lodged on 02-05-2016 and Exh.33 was issued on 16- 07-2016.
40. He further stated that this court in the said judgment has discarded the birth certificate on the ground that in birth certificate name of victim was mentioned but neither father nor the victim has stated before the court that on the day of birth or on the next date, the naming ceremony was done. He thus, submitted that prosecution did not prove the age which is required to be proved under Clause 2(d) of the Act of 2012. The case is distinguishable on simple ground. In cited case, even the court had observed that father of the victim was not only silent about the date of birth in the first information report, but even in the witness box regarding the date of birth. In the case in hand, in fact, the mother has categorically stated the date of birth.
41. Mr. Salunke, learned Advocate for the appellant has relied upon the judgment passed by the Hon'ble Apex Court in the case of Madan Mohan Singh and Ors Vs Rajni Kant and Anr reported in AIR 2010 SC 2933, more particularly para 12, which is reproduced 14 of 25 (15) 902criapl351.23 as under:
"12. The aforesaid documents placed on record by the appellants and so heavily relied upon by them, if taken into consideration, they would simply lead not only to improbabilities and impossibilities but absurdity also. It is most unfortunate that none of the courts below had analysed these documents in this manner while taking them into consideration and none of the lawyers have thought it proper to bring these most glaring facts to the Issue notice to the respondents, returnable on of the courts."
42. He thus, submitted that admissibility of the document is one thing and its probative value quite another. According to him, if the entry was made in official record by the concerned official in discharge of the official duty it may have weight but still may require corroboration by the person on whose information entry has been made. He further contended that authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. He, therefore, submitted that documents exhibited in testimony of the Headmaster/PW-3 cannot be relied upon. As I have already discussed by way of corroborative pieces of evidence, the prosecution has proved the age of victim, the judgment cited will not come to rescue of the appellant.
43. Since the prosecution has proved the date of birth of the victim, I am of the opinion that the provisions of the Act of 2012 were rightly invoked.
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44. Now coming to the conviction of the appellant for commission of rape, more particularly for commission of offence punishable under Sections 376 (1), 376 (2)(j), 376 (2)(n) of the IPC and Sections 3, 4 and 6 of the Act of 2012 is concerned, testimony of PW-1 will have to be seen.
45. Before discussing the testimony, suffice it to say that section 376 speaks about punishment of rape. Rape is defined under section 375 of IPC which says that ''A man is said to commit 'rape' if he; (a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person....."
46. Coming to the conviction rendered under Sections 4 and 6 of the Act of 2012, it is to be stated that Section 4 provides punishment for penetrative sexual assault. Penetrative sexual assault is defined under Section 3 of the Act of 2012 which says as under:
"3. Penetrative sexual assault.--A person is said to commit "penetrative sexual assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or....."
47. Thus, it can be said that definition of rape mentioned in IPC in some what similar to definition of penetrative sexual assault provide under the Act of 2012. So far as section 6 of the Act of 2012 is concerned, it speaks about punishment for aggravated penetrative 16 of 25 (17) 902criapl351.23 sexual assault. As already stated penetrative sexual assault is defined under section 3 and only thing which will have to be seen is what is meaning of 'aggravated'. Section 5 of the Act of 2012 speaks about aggravated penetrative sexual assault. Penetrative sexual assault would be aggravated, if the penetrative sexual assault is committed on the child and which makes the child pregnant as a consequence of sexual assault, so far as applicability to the present case is concerned.
48. Thus, first it will have to be seen whether ingredients definition of rape and penetrative sexual assault are satisfied by way of evidence by the prosecution. PW-2 is the prosecutrix/victim whose testimony was recorded by the prosecution, below Exh.28 who has stated that on 13-04-2008 she was born and at the time of deposition was taking education in 9th std. She stated that adjacent to her house one Manda was residing who was owner of one water tanker. The appellant was employed by the said Manda. Whenever the victim used to go to school, the appellant used to share glance and at that time, she was in 8th std and it was the year 2021. The victim stated that the appellant used to give a smile and one day when the victim was out side, the appellant stopped her and told that he likes the victim and thereafter, exchanged the smile. The victim stated that she also used to have brief conversation with the appellant.
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49. The victim in her deposition stated hat on one occasion when the victim was alone in the house, the appellant entered and told the victim that he likes the victim and would marry her and thereafter kissed her on cheek and started using force. He thereafter removed clothes on the person of the victim and had forcible sexual intercourse. The victim/PW-2 in her testimony has further stated that on several occasion when the victim was alone in the house, the accused had subjected her to forcible sexual intercourse and thereafter, due to which her stomach started aching.
50. The victim then disclosed her pain to the mother, who took her to the hospital and finally Sonography was performed on her. The Sonography was performed at Ambad, where it revealed that victim was pregnant. At this stage, the mother of the victim enquired from the victim who disclosed that accused had forcible sexual intercourse with her. The mother then asked the victim not to inform the aforesaid fact to anybody due to defamation which they would face in the society.
51. She stated that since she pained on 28-04-2021, on the next date i.e. on 29-04-2021, the mother took her to the government hospital. On 29-04-2021, she delivered a female child and thereafter report came to be lodged by recording her statement. Report was at Exh.29.
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52. In the cross-examination this witness had admitted that she used to go out of the house for purchasing the grocery. She stated that her friends used to ask about "size of her stomach" but the victim could not understand since she was undergoing the treatment of piles. She admitted that before April 2021, doctor had conducted necessary test on stomach and for treatment of piles. She stated that at that time, she did not provide any information to the doctor regarding sexual intercourse. She further admitted that she did not raise any hue and cry when the appellant entered into the house. She did not latch the door. Suggestions that she had narrated the false story and she was never subjected to forcible sexual intercourse were denied by her.
53. It was suggested to her that since she used to talk with the appellant, her mother got enraged and therefore, false report came to be lodged. It was suggested to her that at the time of incident, she was 19 years old, but said suggestion was denied by her. She admitted that clothes were not seized by the police. She stated that as per her opinion on 7-8 occasion the accused had been to her house.
54. If the cross-examination is perused, it would be crystal clear that there is no effective cross-examination on the point of the appellant having committed forcible sexual intercourse. Except 19 of 25 (20) 902criapl351.23 suggestion, nothing has been brought on record. Even the defense of false implication on the ground that mother of victim did not like the appellant talking with the victim, is nothing but, a fragile defense.
55. The victim was admittedly a minor girl of 13 years and there was absolutely no reason to falsely implicate the appellant. In that view of matter, I come to the conclusion that prosecution has proved the case beyond the reasonable doubt and therefore, offences under the provisions of Sections 376 (1), 376 (2)(j), 376 (2)(n) of the IPC, so also, Sections 3, 4 and 6 of Act of 2012 are also proved.
56. The prosecution has proved that the victim was subjected to forcible sexual intercourse repeatedly, which attracts the provision of sections 376 (2)(n). The prosecution has also proved that the appellant had committed rape on a woman incapable of giving consent. Consent given by the minor would not be a consent in the eyes of law.
57. Conviction under sections 3 & 4 and 6 are also proved as the prosecution has proved that there was penetration of penis to any extent into the vagina of the victim.
58. Learned counsel for the appellant contended that as the incident has not been narrated by the victim in detailed, same should not be believed upon.
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59. It is necessary to observe that the victim was just 13 years old and it was not expected that she would narrate the incident with exact details. Holistic reading of the testimony and documents produced on record would clearly reveal that offence of rape, aggravated penetrative sexual assault is also proved by the prosecution.
60. So far as conviction of the appellant under the provision of the Act of 1989 is concerned, the testimony of PW-1 and PW-2 is required to be looked into. Before that it is necessary to deal with the ingredients of Sections 3(1)(i) and (w)(i) of the said Act. Section 3 (w)(i) speaks about intentionally touching a woman belonging to the scheduled caste or scheduled tribe knowing that she belongs to said caste, when such act of touching is of sexual nature and is without the recipient's concent. Said offence thus is an intention based offence.
61. PW-1 in her cross-examination had only stated about the age of the victim, her education and sexual intercourse to which the victim was subjected. She had not stated anything about her caste.
62. So far as PW-2 is concerned, who is victim of crime, she in her examination-in-chief had stated that she belongs to scheduled caste and accused belongs to Maratha caste. Except that nothing has been stated by the victim of the crime. The caste certificate is duly 21 of 25 (22) 902criapl351.23 proved, but the fact remains that ingredients of the offence are not proved since none of the witnesses state that it was appellant who intentionally touched the woman belonging to schedule caste, knowing that she belongs to scheduled caste and such act of touching is of sexual nature and without recipient's consent. Since the intention is missing, the appellant cannot be convicted for the commission of offence under the Act of 1989.
63. Though the trial court had convicted the appellant under Sections 3(1)(i), it seems that said provision cannot be invoked, in the light of evidence produced on record, since it speaks about compelling the member of scheduled caste or scheduled tribe to dispose of or carry human or animal carcasses, or to dig graves. In that view of the matter, I am of the opinion that the offence under the Act of 1989 is not made out.
64. So far as collection of DNA sample and opinion given by the Regional Forensic Laboratory, Aurangabad is concerned, it is necessary to state that by way of examination report below Exh.19 the Laboratory has opined that the appellant and the victim are concluded to be biological parents of the female child born. For relying Exh.19, it is necessary to consider whether samples of DNA were taken in proper manner. The Hon'ble Apex Court in the case of Rahul Vs State of Delhi, Ministry of Home Affairs and others passed 22 of 25 (23) 902criapl351.23 in Criminal Appeal No. 611/2022 has observed as under:
"It is true that PW-23 Dr. B. K. Mahapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ex.PW-23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the Investigating Officer on 14-02-2012 and 16-02- 2012; and they were sent to CFSL for examination on 27-02-2012. During this period, they remained in the Malkhana of the Police Station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the Trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion."
65. Thus, from the aforesaid judgment it is clear that chain of the custody is required to be proved by the prosecution. The prosecution has tried to prove the custody by examining PW-4, PW-5, PW-6, PW-7 and PW-8. PW-4 is the Doctor Aliya who examined accused on 03-05-2021 and collected his blood samples and handed it over to the police. PW-5 is the Doctor Rajashri who collected the blood samples of prosecutrix in DNA Kit and handed over to the police. PW-6 is the Dr. Sachin who performed Sonography on the victim. PW-7 is the Doctor Alka, who had examined the female child 23 of 25 (24) 902criapl351.23 and collected the blood samples of baby of the victim and handed it over to the police. PW-8 is the Doctor Rajendra who attended the delivery of the victim and the birth of child.
66. Instead of discussing the testimony of all these witnesses, it would be suffice to note that it is PW-2 who is claimed to be star witness by the defense. According to the defense, testimony of PW-4 destroys entire case of the prosecution regarding collection of DNA and consequent report submitted by the Laboratory. Since much emphasis was put on the testimony of PW-4 by the defense, it is relevant to reproduce her cross-examination:
"I have not collected saliva and bone marro for sample purpose. There was seal of our hospital on the sample. I do not recollect thename of constable whom I handed over blood sample. It is not true to say that I have not collected blood sample from the body of accused. It is not true to say that I have not collected the sample as per procedure provided in the medical jurisprudence. It is true there was no DNA kit for sample. It is true in this case samples were not defriged with 4 degree centigred. It is true when sample was not defriged with 4 degree centigred, it has to sent within 1 hrs from the sampling to lab otherwise then chances of clotting of blood and its result may vary."
67. This witness had medically examined the appellant. Since the samples of the blood were forwarded for DNA analysis, it was expected on the part of the prosecution to prove the proper collection of the material. Since PW-4 had admitted that samples of blood were not taken in DNA kit, it cannot be said that Exh. 19, 24 of 25 (25) 902criapl351.23 examination report concluding the appellant to be father of female child can be relied upon. Since the procedure was not followed, I come to the conclusion that the DNA report cannot be taken into consideration.
68. Be that as it may, though the DNA report is excluded, oral testimony of prosecutrix who was 13 years old is reliable and truthful. In that view of the matter, I come to the conclusion that except for offences under the Act of 1989, the prosecution has proved the case beyond reasonable doubt. Even trial court after taking into consideration evidence of record, has arrived at proper conclusion. Hence, the following order is passed:
ORDER a] Criminal appeal is partly allowed.
b] Conviction of the appellant for commission of offence punishable under Sections 376(1), 376(2)(j), 376(2)(n) of the IPC, so also Section 3 punishable under Sections 4 and 6 of the Act of 2012 is maintained as it is. c] The appellant is acquitted for commission of offences punishable under Sections 3(1)(i)(w)(i) of the Act of 1989.
d] The fees of the learned Advocate for the victim be quantified to the tune of Rs.10,000/-. e] Exh.38-sealed envelope, which was opened, be re- packed.
[RAJNISH R. VYAS, J. ] VishalK/902criapl351.23 25 of 25