apeal-885-2015.doc

Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.885 of 2015
Vikas Bhaskar Bhalerao ]
Age: 20 years, Occ. Wireman, ]
R/at: Labour Camp, Solasiya ]
Society, Wagholi, Tal. Haveli ]
Dist: Pune. ]

(At present lodged in Pune ]
Central Jail, Yerwada.) ] Appellant
Vs.
The State of Maharashtra ]
(At the instance of Lonikand ]
Police Station, Dist. Pune.) ] Respondent
…..
Ms. Saili Dhuru i/b Kuldeep S. Patil, for the Appellant.

Mr. P.H. Gaikwad-Patil, A.P.P, for Respondent-State.
….
CORAM: PRITHVIRAJ K. CHAVAN, J.
RESERVED ON: 27th FEBRUARY, 2020.
PRONOUNCED ON : 18TH MARCH, 2020.

JUDGMENT:

The appellant has been convicted by Additional Sessions

Judge, Pune of the offence punishable under section 376 (2) (n) of the

Indian Penal Code (for short ‘I.P.C’) and has been sentenced to suffer

Rigorous Imprisonment for 10 years with fine of Rs.10,000/-, in default,

Rigorous Imprisonment for six months.

2. The judgment came to be delivered on 19th January, 2015.

Aggrieved by the said judgment, the appellant has preferred this appeal.

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3. Complainant is the resident of Pune. In the month of

November, 2012, he was residing with his wife and children including the

prosecutrix who was aged about 12 to 13 years. The prosecutrix was

residing with her father-complainant. She was educated up to 4 th or 5th

standard. The complainant has two more elder daughters. One of them is

married with the appellant, meaning thereby, the prosecutrix is the sister-

in-law of the appellant. They were residing in the neighbourhood. The

prosecutrix often used to visit her sister’s house. The complainant, his wife

and son used to leave for work at 11.00 a.m. They are labourers. They

used to return late at night. The prosecutrix used to remain alone at house

and, therefore, used to visit her sister’s house.

4. It is alleged that 15 days prior to lodging the report on 29 th

November, 2012, the prosecutrix had pain in her stomach. The

complainant and others took her to the Doctor. It was informed by the

prosecutrix, on being asked, that since last six to seven months, the

appellant used to come to her house in the afternoon when she used to be

alone and used to commit forcible sexual intercourse against her wish. Due

to close relations and apprehension of defamation, the prosecutrix kept

mum. It is also alleged that the appellant threatened her of dire

consequences if she discloses about it.

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5. The prosecutrix was taken to Shakuntala Women’s Hospital,

Airoli, Navi Mumbai by the complainant. After examination, Doctor

advised the complainant to take her to the Government Hospital. It is

alleged that the appellant continued forcible sexual intercourse with the

prosecutrix for 6 to 7 months, repeatedly.

6. A report came to be lodged against the appellant with the

Police. The appellant was arrested. His blood samples for the purpose of

D.N.A test were obtained. Samples of the prosecutrix were collected. The

samples were sent for chemical analysis. The statements of the witnesses

were recorded.

7. After investigation, a charge-sheet was filed in the Court of

J.M.F.C, Pune. The learned J.M.F.C committed the case to the Sessions

Court. A charge was framed by the learned Additional Sessions Judge

below Exhibit 15. It was explained to the appellant to which he pleaded

not guilty and claimed a trial. His defence was simplicitor denial of the

offence alleged. No defence evidence has been adduced by the appellant.

8. The learned Additional Sessions Judge, after recording the

evidence of the witnesses, the complainant, prosecutrix and the Medical

Officer as well as other witnesses, found that the appellant indeed

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committed forcible sexual intercourse with the prosecutrix who is his sister-

in-law and therefore, convicted and sentenced him as above.

9. At the outset, learned Counsel for the appellant emphasized on

the fact that there is delay of 7 months in lodging an F.I.R. As per the

medical evidence, prosecutrix’s age was 14 to 15 years and therefore, in

such an age, though she understood the consequences of the act but even

then she continued having intercourse with the appellant without any

resistance. If she was forcibly raped by the appellant, she ought not to

have again visited the house of her sister. Her silence speaks volumes.

10. In support of his contention, the learned Counsel for the

appellant relied on a judgment in case of State of Gujarat Vs. Jayantibhai

Somabhai Khant reported in Criminal Appeal Nos. 224 and 863 of 2012 .

Finally, it is contended that the appellant has already undergone 8 years of

sentence out of 10 years as imposed. It is submitted that he be released by

awarding the sentence that has already been undergone.

11. On the other hand, learned A.P.P drew my attention to the

testimonies of the witnesses and contended that the case has been proved

beyond reasonable doubts which warrants no interference in the appeal.

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12. Undisputedly, the prosecutrix is the sister-in-law of the

appellant. It is also an undisputed fact that the prosecutrix was minor at

the time of the incident. As per the evidence of P.W.4-Dr. Gopalkrishna

Vinayak Paradkar, bone evaluation of the prosecutrix was done by the Head

of the Department-Dr. D.V. Kulkarni who reported that bone age of the

prosecutrix was 14 to 15 years. The report is proved at Exhibit 34. Since

the Doctor has not been cross-examined, his evidence remained

unchallenged. There is no challenge even to the testimony of P.W.2-

complainant father of the prosecutrix. There is no dispute about the age of

the prosecutrix.

13. The testimony of the prosecutrix reveals that her parents and

brother used to leave their home in the morning and used to return late at

night. Sister of the prosecutrix used to go out of the house for dropping

the children to the School and bringing them back. By that time, the

appellant used to remain in the house alone. This aspect is sufficient to

show that the appellant used to take disadvantage of the situation by

committing forcible sexual intercourse with the prosecutrix. It is also

brought in the evidence of the prosecutrix that the appellant also used to

go to her house during the absence of her parents. The victim testified that

the appellant, at the first time, removed her clothes, removed his pant and

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committed rape on her by inserting his penis into her vagina. After

committing such acts for some period, the prosecutrix started experiencing

pain in her stomach and, therefore, she revealed this fact to her parents.

14. P.W.3-Dr. Bharati More examined the prosecutrix on 22 nd

November, 2012 at Shakuntala Womens Hospital, Airoli, Navi Mumbai.

Mother of the prosecutrix gave the history. The prosecutrix had

menstruation only once and thereafter for three to four months there was

no menstruation. The prosecutrix was carrying 21 weeks pregnancy.

Sonography report is proved at Exhibit 30 and Exhibit 31 which confirmed

the pregnancy. This aspect is also remained unchallenged.

15. It seems that defence of enmity has been raised in the

statement under section 313 of the Cr. P.C. It has not been substantiated by

any suggestion to the witnesses in their cross. Un-disputedly, it is pertinent

to note that it is not the defence of the appellant that there was any

intimacy between him and the prosecutrix or there was any love affair. It is

also not the defence that the prosecutrix was consenting party. Since the

prosecutrix is minor, consent is immaterial even if it was there.

16. Even though, the evidence of the prosecutrix coupled with the

medical evidence is sufficient, to some extent to bring the case nearer to the

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guilt of the appellant, yet, the D.N.A report tendered by the prosecution

creates a doubt about the genuineness of the evidence of the prosecutrix.

17. Even though, the evidence of the prosecutrix coupled with the

medical evidence to a certain extent, indicates the complicity of the

appellant in the offence with which he is charged, it cannot be lost sight of

the fact that the C.A report Exhibit 38 which is a DNA profile of the

appellant and Exhibit 39 which is relating to interpretable profile of hair,

skin and blood of the fetus, creates a doubt about the fact as to whether the

appellant is the biological father of the fetus in view of the negative report

of D.N.A. Medical analyzer’s reports, unfortunately, are not positive in the

sense that they do not support the prosecution case establishing paternity

of the fetus qua the appellant when the case is based on the charge that

due to forcible sexual intercourse by the appellant, the victim was

impregnated. There is no investigation, much less truthful probe to

unearth the fact as to who was then the biological father of the fetus? The

question is whether the pregnancy is the result of the rape? Answer is

obviously in the negative.

18. No doubt, this is a case of ravishing a minor girl by the

appellant wherein evidence is required to be viewed from a different angle.

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19. In view of the ratio laid down by the Division Bench of Gujarat

High Court where it has been rightly observed that not only there was a

delay of eight months for reporting the matter to the Police which

remained explained but the fact that the prosecution has failed to establish

the pregnancy of the prosecutrix due to the act of the appellant. It is also

worthwhile to note as to how mother or sister of the prosecutrix could not

notice or rather turned blind eye to the pregnancy of the prosecutrix for

such a long period. This factor would indeed go to the root of the case.

The fact that some other person was involved in making the prosecutrix

pregnant would also require serious consideration. It is not the case of the

prosecution that other than the alleged rape by the appellant, the

prosecutrix voluntarily otherwise had sexual intercourse with any other

man.

20. In the case of State of Gujarat Vs. Jayantibhai Somabhai Khant

(supra), the Division Bench has observed in paragraphs 14,15 and 16

which read thus;

14. Answers to these questions cannot be found in
DNA analysis. In any case, when as per the
prosecution the child was born out of the pregnancy
resulting from rape by the accused, this accusation
of rape against the accused must succeed or fail on
the basis of DNA analysis. We have reproduced the

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conclusion of the DNA expert. The report indicates
that Organic Extraction method was applied to
extract DNA from samples A1, B1 and C1 which
were the blood samples of the accused, the child
and the prosecutrix respectively. These DNA extracts
were subjected to comparison of fifteen STR loci.

Further the male DNA profiling using Y filer were
also matched between the accused and the child.
The report was conclusive and unequivocally opined
that the prosecutrix was the mother of the child but
the accused was not his father.

15. Unfortunately, the trial Court brushed aside
such emphatic findings of highly sophisticated
scientific technology which would destroy the entire
prosecution case by simply suggesting that mere
negative report of DNA would not mean one should
discard the oral testimony of the prosecutrix. This
conclusion was not backed by any discussion on
scientific methodology or judicial pronouncements.

16. The DNA technology over a period of time has
made significant progress and achieved
sophistication to the extent that the Courts world
over with increasing level of confidence, have been
relying on the DNA testing. Scientific literature
suggests that subject to genuineness of the samples
and the laboratory analysing the samples following
scientific protocols, the DNA results would be

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unquestionable and may lead conclusively either to
involvement or exoneration of the accused in
certain cases. In a recent judgment in case of State
of Gujarat v. Mohan Hamir Gohil and others
(Criminal Confirmation Case No.1/2012), Division
Bench of this Court after referring to various
authorities on DNA technology, different
methodology used for testing and the scientific
advancements made world over, noticed that over a
period of time the Courts across the world including
in India have been placing heavy reliance on DNA
results. It was observed as under:

’33. From the above literature, it can be seen that
over a period, the technology of DNA testing has
made great strides and achieved sophistication
leading to results which can often times be used
either for inclusion or exclusion of the accused. DNA
of a person is considered unique to himself (except
in cases of identical twins) and can be traced from
smallest quantity of blood, saliva, semen, root of
hair, skin, nail and such like. Subject, of course, to
the laboratory analyzing the sample following the
scientific protocols, the DNA result becomes
absolutely unquestionable.

34. Let us now see how the courts have viewed the
advancement in DNA technology. Section 53A of the
Criminal Procedure Code was introduced by

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Amendment Act 25 of 2005 with effect from
25.3.2006. Sub-section (1) section 53A, provides
that a when a person is arrested on a charge of
committing an offence of rape or an attempt to
commit rape and there are reasonable grounds for
believing that an examination of his person will
afford evidence as to the commission of such
offence, it shall be lawful for a registered medical
practitioner to make such an examination of the
arrested person and to use such force as is
reasonably necessary for that purpose. Consent of
the accused thus in giving blood sample, etc. is no
longer necessary. Sub-section (2) of section 53A
provides that such medical practitioner conducting
the examination shall without delay, examine such
person and prepare a report of his examination
giving various details including the description of
the material taken from the person of the accused
for DNA profiling. This provision came up for
consideration before the Supreme Court in the case
of Krishan Kumar Malik v. State of Haryana, 2011
Cri.L.J. 4274, in which it was observed as under:

45. Now, after the incorporation of Section 53 (A) in
the Criminal Procedure Code, w.e.f. 23.06.2006,
brought to our notice by learned counsel for the
Respondent-State, it has become necessary for the
prosecution to go in for DNA test in such type of

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cases, facilitating the prosecution to prove its case
against the accused. Prior to 2006, even without the
aforesaid specific provision in the Cr.P.C. prosecution
could have still resorted to this procedure of getting
the DNA test or analysis and matching of semen of
the Appellant with that found on the undergarments
of the prosecutrix to make it a foolproof case, but
they did not do so, thus they must face the
consequences.

In the case of Raghuvir Dessai v. State, 2007 Cri.L.J.
829, learned Single Judge of the Bombay High
Court observed as under:

……….. The clinching evidence has come from the
Senior Scientific Officer Shri Sathian PW 15 who
carried out the DNA test on the basis of the material
forwarded to him and which was; collected by Dr.
Sapeco/PW 5. He has confirmed that the accused is
the contributor of the semen which was collected by
Dr. Sapeco in the form of vaginal swab. DNA
(Deoxyribonucleic acid) is found specially in cell
nuclei which are the foundation of heredity. DNA is
the genetic blue print for life and is virtually
contained in every cell. No two persons, except
identical twins have ever had identical DNA. DNA
testing can make a virtually positive identification
when the two samples match. It exonerates the

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innocent and helps to convict the guilty (See page
249 of Jhala and Rajus Medical Jurisprudence Sixth
Edition). The DNA testing hits the nail on the head
of the accused and is the last and clinching piece of
evidence which shows that it is the accused and the
accused alone who committed the rape of the
victim/PW11.

In the case of State (through C.B.I) v. Santosh
Kumar Singh, 2007 Cri.L.J. 964, a Division Bench
of the Delhi High Court observed as under:

Dr. A.K.Sharma has held that while conducting post-
mortem on local physical examination of private
parts, it was noticed that black, curly, non-matted
pubic hair and hymen intact, no tearing present,
admitting one finger only. He has also given his
opinion that the deceased has not been subjected to
sexual intercourse. However, it is the DNA test
conducted on the vaginal swabs, vaginal slide and
underwear of the deceased compared with the
blood sample of the accused that the experts have
come to the conclusion that there is sperm present
in the vaginal swabs and the DNA of the sperm so
found present, matches with DNA of the accused
obtained from his blood sample.

48. The next question that engages us is whether
the DNA test conducted was proper? It is in

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evidence of Dr.Lalji that the method used and the
test conducted in determining and arriving at the
conclusion were done as per standard practice as
also per scientific technology suitable for such tests.
The trial Court has elaborately introduced its
learning based on literature which, to a large
extent, was never even put to the expert witness
and even otherwise there is no positive evidence on
record to show that the test so conducted by the
experts were perverse and/or not in keeping with
the standard scientific methodology. We may make
useful reference to judgments of the Supreme Court
in AIR 1954 SC 28 : (1954 Cri LJ 257); Sundar Lal
v. State of Madhya Pradesh, AIR 1957 SC 589 :
(1957 Cri LJ 889); Bhagwan Das v. State of
Rajasthan wherein it has been held by the Supreme
Court that findings of an expert witness can not be
set aside by a Court by making a reference to some
literature/book without confronting the expert with
them and directing his opinion on it. In another case
decided by the Honble Supreme Court in AIR 1982
SC 1157 : (1982 Cri LJ 1243): Gambhir v. State of
Maharashtra, it was held that the Court should not
usurp the function of an expert by arriving at its
own conclusions contrary to the one given by the
expert witness. There has been great effort made by
counsel for the accused to discredit the test
conducted as such by referring to either possibility

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of contamination and/or with reference to snippets
of replies given by the experts in cross-examination
but we find that at no stage has any of the expert
witness said that the tests conducted by them have
given a wrong result or there is a possibility that the
test so conducted by them would haves given a
wrong result. On the contrary, they have
categorically ruled out any such possibility of
contamination and/or erroneous results.

In the case of Thogorani v. State of Orissa, 2004 Cri.
L.J. 4003, a Division Bench of the Orissa High Court
observed as under:

11. Before answering the above contentions raised
by the learned counsel for opponent No.3 it would
be apt to note that the DNA evidence is now a
predominant forensic technique for identifying
criminals when biological tissues are left at scene of
crime. DNA testing on samples such as saliva, skin,
blood, hair or semen not only helps to convict but
also serves to exonerate. The sophisticated
technology makes it possible to obtain conclusive
results in case win which the previous testing had
been inconclusive. Moreover, DNA sampling may
also impinge on familial privacy where information
obtained from one persons sample provides
information regarding his or her relatives.

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In the case of Pantangi Balarama Venkata Ganesh v.
State of A.P. 2003 Cri.L.J. 4508, a Division Bench of
the Andhra Pradesh High Court described DNA as a
perfect science and observed as under:

Thus, the evidence of DNA expert is admissible in
evidence as it is a perfect science. In the cross-
examination P.W.46 has deposed as under:

If the DNA fingerprint of a person matches with that
of a sample, it means that the sample has come
from that person only. The probability of two
persons except identical twins having the same DNA
fingerprint is around 1 in 30 million world
population.

It means that DNA test gives the perfect identity. It
is very advanced science.

In the case of Sajeera v. P.K.Salim, 2000 Cri. L. J.
1208, learned Single Judge of the Kerala High Court
observed that DNA fingerprinting test has been
much advanced and resorted by the courts of law to
resolve the dispute regarding paternity of the child.

It was observed as under:

15. It has been held in several cases that blood test
is an important piece of evidence to determine the
paternity of the child. Though by a blood test it

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cannot positively establish the paternity of the child,
it can certainly exclude certain individual as the
father of the child. Therefore, while the negative
finding in a blood test is definite, the positive
finding only indicates a possibility. Now the DNA
fingerprinting test has been much advanced and
resorted to by the Courts of law to resolve the
dispute regarding paternity of the child. It is true
that without the consent of the person blood test
cannot be conducted and there is no law in India
enabling the Court to compel any person to undergo
blood test as available in England.

35. From the above, it can be seen that several
courts in India over a period of time have accepted
DNA analysis as totally reliable, of course, as long
as, the laboratories employ sufficient skill and care
in doing so. DNA analysis is employed by various
countries for criminal investigation and prosecution.
Various countries have created data banks of DNA
profile of the persons who are already convicted
which can be matched with DNA profile of the
samples collected from crime scene. We are aware
that creating such database has several legal and
constitutional issues. We are, however, in the
present case, neither required nor called upon to
enter such arena. We are only trying to demonstrate
effectiveness of the DNA technology and that when

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properly done its results are infallible.

36. We are not unmindful of a decision of this Court
in the case of Premjibhai Bachubhai Khasiya v. State
of Gujarat, 2009 Cri. L.J. 2888 wherein a Division
Bench of this Court observed that if the DNA report
is the sole piece of evidence,even it is positive,
cannot conclusively fix the identity of themiscreant,
but if the report is negative, it would conclusively
exonerate the accused from the involvement or
charge. It was observed that science of DNA is at a
developing stage and it would be risky to act solely
on a positive DNA report. This decision was
rendered more than four and half years back.

Science and Technology has made much
advancement, and world over DNA analysis

technology is being relied upon with greater
confidence and assurance. We do not think that the
Indian Courts need to view the technology with
distrust. Of course, subject to the laboratory
following the usual protocols, DNA result can be of
immense value to the investigators, prosecutors as
well as courts in either including or excluding a
person from involvement in a particular act. The
said decision of this Court must be viewed in the
background of the facts in which it was rendered. It
was a case where the accused were charged with
offence under Sections 363, 366, 376 read with

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Section 114 of the Indian Penal Code. All important
witnesses including the prosecutrix herself had
turned hostile and did not support the prosecution.
Despite which, the trial Court handed down
conviction primarily on the basis of DNA report
which opined that the DNA profiling of the foetus
matched with that of the appellant original prime
accused. It was in this background while reversing
the conviction, the above noted observations were
made. It can thus be seen that mere establishment
of the identity of the father of the foetus in any case
would not be sufficient to record conviction of the
accused for rape and gang-rape under sections 363,
366 and 376 of the Indian Penal Code. The said
decision, in our opinion, therefore, cannot be seen
as either rejecting the reliability of the DNA
technology or laying down any proposition that in
every case the DNA result must be corroborated by
independent evidence before the same could be
relied upon”.

21. The decision of the Gujarat High Court is squarely applicable

to the present case.

22. Taking into consideration the aforesaid aspects which the

learned trial Court has failed to take into consideration, it would not be

safe to subscribe to the findings returned by the said Court holding the

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appellant guilty. The learned trial Court has failed to appreciate this vital

aspect and lacunae in the prosecution case. Consequently, the impugned

judgment and order needs to be quashed and set aside. Now, to the order.

:ORDER:

[1] The appeal is allowed.

[2] Impugned judgment and order of

conviction passed by the Additional

Sessions Judge Pune on 19th January,

2015 in Sessions Case No.333 of 2013 is

quashed and set aside.

[3] The appellant is acquitted of the offence

under section 376 (2) (n) of the I.P.C.

[4] The fine amount, if paid, be refunded to

the appellant after the period of appeal.

[5] The appellant be released forthwith if not

required in other case.

[PRITHVIRAJ K. CHAVAN, J.]

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