Afzal Khan @ Albaz Khan Presently Lodged In Judicial Custody Colvale vs The State Of Goa, (As Rep. By The Officer Incharge/Investigating Office) Thr. P.P.

CRIA -691-2025( F ) & CRMA -692-2025( F )
2026:BHC-GOA:1054
Niti
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO.691 OF 2025(F)
WITH
CRIMINAL MISC. APPLICATION NO.692 OF 2025(F)

Mr. Afzal Khan @ Albaz Khan
Age 25 years, Indian National,
R/o. C-10-38-1, Salmo Wado,
Near Church, Saligao,
Bardez, Goa.

...Appellant

Versus

The State of Goa
(as represented by the Officer
Incharge/Investigating Officer,
Of Anjuna Police Station)
Through The Public Prosecutor,
The High Court of Bombay at Goa,
Porvorim, Goa.

... Respondent

Mr Rohan Desai with Ms Esha Ghodekar, Advocates for the
Appellant.

Mr Pravin Faldessai, Additional Public Prosecutor for the
Respondent/State.

CORAM : ASHISH S. CHAVAN, J.

th
Reserved on : 17 MARCH 2026
th
Pronounced on : 20 MAY 2026

JUDGMENT :

1.
passed by the learned

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Fast Track Special Court (POCSO) at Panaji whereby the learned Sessions
Judge in Sessions Case (ORS) No.77/2023 has convicted the Appellant under
Section 376 of IPC and sentenced him to undergo 10 years rigorous
imprisonment and to pay fine of Rs.1,00,000/- (Rupees One Lakh only) and
in default to undergo 6 months rigorous imprisonment. The judgment dated
21.07.2025 directs that if the fine amount is realised, the same shall be paid to
the victim after the appeal period is over.
2.
The Appeal was admitted by this Court vide its order dated
28.07.2025 and taken up for final hearing by consent of the learned Counsel
for the Appellant and the learned Additional Public Prosecutor for the
Respondent/State.
3. The Appellant is in custody since 01.08.2023, as reflected in the
impugned judgment and order dated 21.07.2025.

4. It is the case of the prosecution that on 30.07.2023 between 04.45 pm
to 05.50 pm, the Appellant committed offence of rape on the victim,
punishable under Section 376 of IPC. As per the complaint of the victim,
aged 18 years, on 30.07.2023, PW4 (friend of the victim) convinced the victim
to accompany her for a day picnic at a Holiday Home (hotel) at Arpora.
Accordingly, the victim along with PW4 proceeded to the said Holiday Home
and booked a room at about 12.00 hours noon. It is alleged that thereafter
PW4 left the room and returned along with the Appellant, who is claimed to
be the boyfriend of PW4. The Appellant ordered food and drinks for all and
at about 04.45 pm, the victim alleges that she slept on the bed and her friend

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PW4 along with the Appellant also slept on the same bed. She alleges that at
about 05.50 pm, the victim woke up and noticed that she was disrobed and
the Appellant was partially nude and lying on top of her. The victim pushed
the Appellant and ran to the washroom along with her clothes. She found
sperms fallen on her vagina. She washed, wore clothes and came out. Upon
seeing PW4, the victim started crying. However, she did not say anything to
PW4 and left the room to return home. After going home, on the next day
(i.e. on 31.07.2023), the victim informed her sister about the said incident. It
is alleged that thereafter the victim, her sister and her brother-in-law visited the
residence of PW4, where there was an altercation between PW4 and the sister
of the victim. Subsequently, on 01.08.2023, the complaint was filed by the
victim with the Anjuna Police Station and the FIR was registered. The victim
was sent for a medico-legal examination on 01.08.2023 at 5.40 am.

5. After the conclusion of investigation, chargesheet was filed against the
Appellant. The Appellant pleaded not guilty and claimed to be tried. The
prosecution examined as many as 12 witnesses in support of their case and the
Appellant examined himself and his wife in his defence. The Appellant came
to be convicted vide judgment and order dated 16.07.2025 and 21.07.2025.
6. Heard Mr Rohan Desai, learned Counsel for the Appellant and Mr
Pravin Faldessai, learned Additional Public Prosecutor for the
Respondent/State. Perused the records.

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7.
Before adverting to the submissions of the respective Counsel, it
would be necessary to examine the evidence in brief so as to appreciate the
conspectus of the controversy involved.
8.
The prosecution examined the victim as PW1. She has deposed in
terms of the complaint and statement under Section 164. She has also brought
on record the register of the Holiday Home, where the incident has allegedly
taken place. The employer of the Appellant was examined as PW2. He has
deposed about his scooter, which was used by the Appellant, allegedly while
going to the scene of offence. The doctor, who examined the Accused and
produced the medical examination report, is examined as PW3. The friend of
the victim and the alleged girlfriend of the Appellant is examined as PW4. One
of the panchas to the scene of offence panchanama has deposed as PW5. The
owner of the premises is examined as PW6. He has introduced in evidence the
CCTV footage along with the Certificate under Section 65(B) of the Evidence
Act. The Forensic Analyst, who had collected the blood sample of the
Appellant and also sent it for DNA profile, was examined as PW7. It is
pertinent to note that no DNA reports are relied upon or tendered in evidence
by this witness. A waiter in the concerned Holiday Home, who claims to have
seen the Appellant, is examined as PW8. One of the panchas of the vehicle
attachment panchanama is examined as PW9. The doctors, who conducted
the medico-legal examination of the victim, were not available for evidence,
since they were no longer in the employment of the hospital. The medico-
legal examination report was tendered in evidence by their colleague, who
claimed to identify their signatures and was examined as PW10. The Forensic

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Scientist attached to the CFSL unit was examined as PW11 in support of her
examination report. She has concluded that the DNA profile indicates the
presence of semen of the Appellant on the bedsheet in the room where the
incident has allegedly taken place. The Investigating Officer (IO) has been
examined as PW12 and the wife of the Appellant and the Appellant himself
have been examined as DW1 and DW2, respectively.

9. On behalf of the Appellant, the impugned judgment was assailed on
several counts. It was submitted that, as per the prosecution case, the time of
the alleged incident is from 04.45 pm to 05.50 pm on 30.07.2023, however,
the complaint is filed on 01.08.2023 at 4.47 am (morning), after about two
days. The attention of this Court was invited to the admission of the IO, who
in her deposition, admits that there was 48 hours delay on the part of the
victim to approach the police and register a complaint. The explanation
sought to be given on behalf of the victim for the delay is that after coming
home, she was frightened and not feeling well. Save and except for this reason,
there is no other explanation offered by the victim for the delay. The
Appellant has contended that considering the fact that the victim along with
her sister had gone to the residence of PW4 on the very next day of the
incident, where there was an altercation between the relatives of PW4 and the
sister of the victim, but did not approach the Police instead, the explanation
for the delay ought not to be believed. The victim has changed the version of
the incident from time to time. In the complaint, she alleges that the
Appellant allegedly disrobed her and attempted to commit sexual assault,
whereas in her 164 statement she changes the version to that of sexual

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intercourse and in her oral evidence, she states that the statements made by her
in her complaint and her 164 statement are both true. During her cross-
examination, she admits to have demanded Rs.5,00,000/- (Rupees Five Lakhs
only) from the wife of the Appellant to settle the matter out of Court.
10.
The evidence of PW4 runs contrary to that of the victim. PW4, on
being confronted with the hotel register entry showing the name of the
Appellant, states that the Appellant never entered the hotel. PW4 has
maintained this stand throughout the evidence. Thus, it is submitted that the
evidence of PW4 runs contrary to the version of PW1. Although PW4 was
declared hostile, it is a settled position of law that the entire evidence of a
hostile witness need not be excluded from consideration, and the part that
finds corroboration and credibility can be relied upon by the Court.
11. On behalf of the Appellant, it was also submitted that the
identification of the Appellant assumes significance in the wake of the fact that
the Appellant is only identified by witnesses in Court. No Test Identification
Parade has been conducted by the prosecution. The evidence of the owner of
the premises is, at the best, hearsay evidence since he was never present when
the alleged incident had taken place. The CCTV footage, which forms an
integral part of the evidence and which was played in Court, clearly establishes
that the Appellant was not seen entering the hotel and only the victim is seen
in the reception area going to the room. There is no document in the nature
of bills, UPI payments, etc., to show the presence of the Appellant inside the
hotel premises. PW8, a waiter in the premises, does speak about the presence

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of the Appellant, however, his evidence does not inspire confidence. Insofar
as the CCTV footage is concerned, the Appellant has argued that the said
CCTV footage shows the parking lot and reception area. The victim admits
that in order to enter the hotel rooms, one has to go through the reception area
and that the CCTV footage of the reception area does not show the presence
of the Appellant. The victim and PW4 are seen entering the hotel. The
Appellant is seen parking his scooter in front of the reception in the parking
lot. The victim is seen going out of the hotel, followed by the Appellant. This
fact is also corroborated by the IO, who, in his evidence, states that the
Appellant is not seen in the footage near the reception area. Thus, the
Appellant contends that even taking the CCTV footage as it is, the Appellant,
at the best, is seen in the parking lot and while leaving the hotel. The CCTV
footage does not show that the Appellant went beyond the reception area or
entered the rooms. On the aspect of medical evidence, the Appellant has
pointed out that the doctor, who has proved the medico-legal examination
report of the victim, has in her cross-examination categorically stated that the
fresh hymenal tears were within 12 hours. This means that the victim was
subjected to sexual intercourse within 12 hours of the time of medical
examination. The incident happened on 30.07.2023. After a gap of two days,
i.e. 01.08.2023, the victim was medically examined at 6.30 am. The medical
evidence thus rules out the possibility of the sexual assault on 30.07.2023. The
Appellant further argued that although the prosecution has relied heavily on
the presence of semen of the Appellant, confirmed by DNA profile, it is
submitted that the DNA report cannot be read in isolation. It is only a

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corroborative piece of evidence and cannot be the sole basis of conviction.
Moreover, the fact that the prosecution has claimed that PW4 was allegedly
the girlfriend of the Appellant, and the victim states that the Appellant and
PW4 were sleeping on the same bed prior to the incident, the presence of
semen on the bedsheet cannot ipso facto lead to one inescapable conclusion,
namely that the Appellant has committed rape on the victim. There can be
se ΚeȖal pȖoǈaǈle ǉauses ǟoȖ the pȖeseǿǉe oǟ the Appellaǿtঢ়s seǾeǿ oǿ the
bedsheet. In the light of the submission made on behalf of the Appellant, it
was prayed that the Appeal may be allowed and the Appellant be acquitted.
As regards the entry in the hotel register, although it reflects the name of the
Appellant, his signature is not to be seen corresponding to his name. The
checkout time is also contrary to the time mentioned by the victim. The
Appellant argues that the possibility of his false implication cannot be ruled
out.
12.
Per contra, learned Additional Public Prosecutor, Mr Faldessai for the
State, supported the impugned judgment and prayed for rejection of the
Appeal on several grounds. According to the prosecution, the evidence of the
victim is insufficient to convict the Appellant. Inviting the attention of this
Court to the deposition of the victim, it was argued that the incident of
forcible sexual intercourse has been clearly deposed by the victim. It is
submitted that the allegations of the victim in the complaint, in her 164
statement and finally her testimony in Court must be considered in a holistic
manner. Minor discrepancies and/or inconsistencies do not render the
evidence of the victim untrustworthy. The testimony of PW8 (the waiter) has

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established the presence of the Appellant in the room at the date and time
alleged. Thus, the evidence of PW1 (victim) and PW8 (the waiter) establish
the presence of the Appellant at the scene of offence. It is further submitted
that the forensic evidence establishes the presence of the semen of the
Appellant on the bedsheet which was attached under a panchanama from the
hotel. This further strengthens the argument of the prosecution that the
Appellant was present at the scene of offence. The prosecution has further
argued that the medical evidence corroborates the testimony of the victim. It
was pointed out that the admission of the doctor during cross-examination
that there was a fresh hymenal tear within 12 hours cannot be construed in
favour of the Appellant. The doctor, who was examined, was not the author
of the medical report and hence the admission was thus not an opinion of the
doctor, who had performed the medico-legal examination, but a statement
made by a colleague doctor, who was attempting to explain the meaning of the
te ȖǾ ড়ǟȖesh hΡǾeǿal teaȖঢ়. Insofar as DNA evidence is concerned, the
prosecution argued that the DNA profile reveals the presence of semen on the
bedsheet attached from the hotel room. Thus, the presence of the Appellant
in the room where the incident has taken place is beyond doubt. In this light,
even if the CCTV footage does not show the Appellant entering the reception
area, the DNA evidence establishes his presence. Moreover, the Appellant has
not explained the presence of semen on the bedsheet, which can certainly
enable this Court to draw an adverse inference against the Appellant. It was
prayed on behalf of the prosecution that in the conspectus of the aforesaid

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facts, the Appeal against conviction must fail and the impugned judgment
must be confirmed.

13. Appreciating the rival contentions, the question that falls for
consideration before this Court is whether, in the facts and circumstances of
the case, the prosecution has succeeded in proving beyond reasonable doubt
the offence punishable under Section 376 of IPC against the Appellant, and,
if so, whether the substantive sentence of rigorous imprisonment for 10 years
is proportionate to the magnitude of the offence.
14. In the light of the submissions advanced and in the conspectus of the
evidence on record, following facts emerge distinctly. The victim in her
complaint states that on 30.07.20203, her friend (PW4) persuaded her to
accompany for a day picnic at a holiday home at Arpora. Accordingly, the
victim along with PW4 proceeded to the said holiday home and booked a
room at about 12.00 hrs noon. PW4 left the room and allegedly returned with
the Appellant whom she introduced to the victim as her boyfriend. All three
had food and consumed beer. It is the case of the victim in her deposition that
at about 4.45 pm she slept on the bed and PW4 along with the Appellant slept
next to the victim. The Complaint, the 164 statement and the evidence
proceed on the aforesaid sequence till this juncture. There is divergence in
what happens thereafter. In the complaint, the victim alleges that at about 5:50
pm when she woke up, she noticed that the Appellant was on her partially
nude and had disrobed her and she was under him nude. She realised that the
Appellant was trying to have forcible sexual intercourse with her. She pushed

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the Appellant and ran to the washroom to change her clothes. She has lodged
the complaint on the allegation that the Appellant disrobed her and was trying
to have forcible sexual intercourse with her. In her 164 statement, the victim
reiterates the same sequence of events, only adding that when she went to the
washroom, she found sperm (semen) on her private part, however, at the end
of the statement, she alleges that the Appellant had forcible sexual intercourse
with her against her will when she was in deep sleep. In her evidence, she also
reiterates the same sequence of events and states that the Appellant was trying
to have forcible sexual intercourse with her. Thus, the sequence of events
remains the same. The 164 statement, however, makes an allegation of forcible
sexual intercourse. Under cross-examination, when the attention of the victim
is drawn towards this discrepancy, the victim states that both her statements
are true. As far as the aspect of delay in registration of complaint is concerned,
it is not in dispute that the victim has approached the police on 01.08.2023 at
4:47 am in the morning. It is also not in dispute that the incident is alleged to
have occurred between 4:45 pm to 5:50 pm on 30.07.2023. Thus, there is a
delay of almost 48 hours in lodging the complaint. The explanation that the
victim gives for the delay in the complaint and also in the evidence is that she
was scared immediately after the incident. However, on the next day, she
informed the incident to her elder sister. The victim along with her sister and
brother-in-law went to the house of PW4 on the next day. The victim deposes
that there was an altercation between PW4 and the sister of the victim after
which the victim and her sister approached the police, who eventually
registered the complaint. The intervening episode between the victim and

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PW4 assumes significance in the wake of another admission by the victim,
where she states under cross-examination that she had demanded Rs.5.00
lakhs from the wife of the Appellant to settle the matter out of court. This
admission is corroborated by the deposition of the wife of the Appellant in
Court, who was examined as DW1. The delay in approaching the police
station on the part of the victim has to be tested on the anvil of the aforesaid
sequence of events. Here it would be pertinent to note that even the FIR is
silent on the reasons of the delay. Another aspect which assumes significance
is the fact that the FIR was registered on the basis of the complaint by the
victim at 04:47 hrs. The FIR applies Section 376 IPC. However, the complaint
ǉleaȖlΡ alleǠes ড়atteǾptঢ় to ǉoǾǾit Ȗape. The IO iǿ heȖ eΚideǿǉe aǉkǿoΛledǠes
this fact and states that she is aware of the distinction between rape and
attempt to rape. The medical examination of the victim was done at 6:30 a.m.
on 1.08.2023. Thus at the time of registration of offence the fact of intercourse
was not even demonstrable, however the IO has applied Section 376 IPC
without even waiting for the medical report. This assumes significance since
by her own admission IO states that the complaint received by her was for
ড়atteǾptঢ় to Ȗape. It is aǿotheȖ ǾatteȖ that the suǈseȕueǿt state ments did make
allegations of rape but the inescapable fact is that the IO registered an offence
without even prima facie examining whether the allegations in the complaint
make out the ingredients of the said offence or not.
15. It is in the background of the aforesaid aspects that the medical
evidence needs to be considered. The victim was sent for medical examination
on 01.08.2023 and examined at 6:30 a.m. The Medico-legal Report opines

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that ৚ Nulligravida with fresh hymenal tear at ࢷ oঢ়ǉloǉk positioǿ aǿd ࢸ oঢ়ǉloǉk
positioǿ suǠǠestiΚe oǟ Ȗeǉeǿt ΚaǠiǿal peǿetȖatioǿ৛. The doǉtoȖs Λho had
examined the victim have since left the Goa Medical College and hence the
Report was proved in evidence by PW 10, a doctor from the same institution
who was familiar with the signature of the doctors who had prepared the
report. Under cross-examination, she states that by fresh hymenal tear it is
meant that the injury is within 12 hours , whereas the incident has
admittedly taken place prior to 48 hours of medical examination . To
examine whether the allegation of forcible non-consensual intercourse by the
Appellant on the victim as alleged, all aforesaid aspects need to be examined
holistically. No doubt it is trite law that even the sole testimony of the
prosecutrix can form the basis for conviction provided it is safe, reliable and
worthy of acceptance. However, the question whether the testimony of the
prosecutrix is one which inspires confidence would be peculiar to the facts and
circumstances of each case. In the present case, the victim has changed the
version of the allegations without any cogent explanation as can be seen from
the foregoing discussion. The delay of more than 48 hours to lodge the
complaint when seen from the perspective of the intervening altercation
between the victim and PW4 and in the light of the admission that she had
demanded Rs.5.00 lakhs from the wife of the Appellant to settle the matter
out of court and in the wake of the medical evidence, which opines that the
intercourse has taken place within 12 hours whereas the incident has taken
place prior to 48 hours of the medical examination, cumulatively, does not
inspire confidence in the testimony of the victim.

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16.
Dealing with the argument of the Appellant regarding his
identification and presence at the scene of offence, it is an admitted position
that the Appellant and the victim were strangers to each other prior to the
incident. Hence, the absence of Test Identification Parade (TIP) assumes
significance. When an explanation was sought by the defence from the IO as
to why the TIP was not conducted, the only explanation that was given was
that the victim has given the name of the Appellant in the Complaint.
However, it is not disputed that the victim has not given any description of
the assailant in her complaint. Thus, it is evident that the victim has identified
the Appella ǿt ǟoȖ the ǟiȖst tiǾe iǿ CouȖt. The Hoǿঢ়ǈle SupȖeǾe CouȖt has
observed that such evidence is inherently a weak piece of evidence. The
purpose of a prior TIP, therefore, is to test and strengthen the trustworthiness
of that evidence. It is accordingly considered a safe rule of prudence to look
for corroboration of the testimony of the witness in court as to the identity of
1
the accused who are strangers (See Malkhansingh V/s. State of MP ).
17. The prosecution has contended that the CCTV footage, the hotel
Register and witnesses, who claim to have seen the Appellant at the hotel on
the given day establish his presence which is corroborated by the dock
identification. Insofar as the CCTV is concerned it was played in the learned
Trial Court in the presence of the victim. The Court has observed that the
victim and PW4 is seen entering the hotel and going to the reception area. The
footage shows that the Appellant has parked his scooter in front of the

1
(2003) 5 SCC 746

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reception in the parking lot. The footage also shows the victim going out of
the hotel and the Appellant going on his scooter and talking to PW4. In order
to understand the topography of the hotel, it is pertinent to note that the
CCTV footage pertains to the parking lot and the reception area of the hotel
premises. The victim in her deposition categorically states that to enter the
hotel rooms, one has to go through the reception area and only then one can
enter the rooms. The victim, after seeing the footage, admits that the footage
in the reception area does not show the Appellant. The IO examined as PW12
also corroborates this fact. Furthermore, it is an admitted position that the
victim was never called to the police station to view the CCTV footage, nor
was any viewing panchanama prepared by the police. Thus, the victim saw the
CCTV footage for the first time during the course of evidence. Insofar as the
identification of the Appellant by other witnesses, two witnesses, namely the
owner of the premises of the hotel and the alleged waiter of the hotel, were
examined as PW6 and PW8, respectively. The deposition of PW4, insofar as
the Appellant is concerned is hearsay in nature. The CCTV footage has been
played before him during the course of evidence and from the CCTV footage,
he has identified the Appellant. His narration, insofar as what is seen in the
CCTV footage, is no different from the observations of the learned Trial
Court. To reiterate, the CCTV footage, although shows the Appellant at the
parking lot of the hotel and while leaving the hotel premises on scooter, it does
not show the Appellant going inside the reception area. Thus, even if his
evidence is considered, at the best, it establishes the presence of the Appellant
in the proximity of the scene of offence. Here, it is pertinent to note that

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CCTV footage is that category of evidence, which is neutral in nature and
eliminates the aspect of subjectivity to that extent. Going by the CCTV
footage, at the best, the Appellant is seen in the parking lot of the hotel
premises and while leaving the hotel premises. It does not show the Appellant
either in the reception area or entering the room. The other witness, PW8 (the
waiter), claims to have seen the Appellant in room no.6 along with two girls.
He has identified the Appellant on VC. He has produced on record a
restaurant bill, about which under cross-examination he admits that there is
no name or mention of room number on the bill, which he claims that the
Appellant paid for. Under cross-examination, it is established that PW8 has
not been able to show whether there was any payment made by the Appellant
as alleged. It must also be noted that after the said incident he identified the
Appellant for the first time on video conference during the course of the
evidence. Moreover, he has not produced any document to show that he was
working for the concerned hotel. The IO admits in her evidence that she had
not collected any documentary evidence to show that the waiter was employed
in the hotel. No staff register was maintained by the hotel. Although this
witness does claim to have identified the Appellant, this Court has appreciated
his evidence with circumspection in view of the reasons, which are set out
hereinafter.

18. To establish the presence of the Appellant in the hotel at the relevant
time, the prosecution has relied upon an entry in the hotel register which
reflects the name of the Appellant along with the victim and PW4. A perusal
of this document which has been exhibited in evidence shows that although

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the names of the victim, Appellant and PW4 appear on the register, only the
signature of the victim appears in the signature column of the document. In
other words, the Appellant has not signed the said document. It has come in
the evidence of the victim that only she had given proof of identity to book
the room in her name. Even this fact does not find mention in the copy of the
Register as corroborated by the IO. The check-in time in the entry of the
register is given as 30.07.2023 and check-out time is 31.07.2023, which is
contrary to the deposition of the victim, who states that she left the hotel on
the very same day. The original register or extract bearing the entry is not seized
by the IO. Even the photocopy that was exhibited as secondary evidence in
Court was not seized under any panchanama. The photocopy produced in
Court is not certified or attested by the hotel management. No effort was
taken by the IO to send the entry for handwriting analysis to confirm whether
the Appellant has himself written his name. No effort was taken by the IO to
collect ID proof of the Appellant. This probabilises the defence theory that
the hotel register entry could be manipulated to falsely implicate the
Appellant.
19.
From the evidence it is borne out that PW4 is a minor. Thus, PW6
has committed an offence of providing room to a minor without any
identification. In the light of the defence of denial and false implication taken
up by the Appellant, the evidence of the waiter, i.e. PW8, assumes significance,
particularly in view of the fact that the hotel provided room to PW4, a minor
girl, without any ID proof and was thus in breach of law. The IO was
extensively cross-examined on this aspect. She admits in her evidence that

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although she is aware of the directions issued by the government that a minor
cannot be given accommodation in a hotel unless accompanied by parent or
guardian and the owner of such premises is liable for action in case of a lapse,
she has not issued any notice or reported the matter to the competent
authority for initiating action. The IO has neither collected any documents
from the hotel owner about the staff nor has the waiter given her any
document to show that he was in employment of the hotel. The hotel owner
and staff have certainly acted in breach of law. These attending circumstances
probabilise the defence argument that the hotel management, in an attempt to
cover their lapses may have deposed against the Appellant. Hence the evidence
of the waiter PW 8 does not inspire confidence.
20. The prosecution has harped on the DNA evidence to establish its case
beyond reasonable doubt. PW11 Forensic Scientist has been examined to
prove a report authored by PW11 which opines that the semen stains found
on the bedsheet matched with the DNA profile of the Appellant. It is an
undisputed fact that the bedsheet was recovered after almost 48 hours. The
room had easy access to any person during this period and PW5 panch witness
clearly deposes in his evidence that housekeeping is done during the time of
check-in and check-out which implies that the room had already been cleaned
by the housekeeping staff. This fact is corroborated by the IO in her evidence.
In the light of the discussion on the violation of law by the hotel management
and the window of time between the incident and seizure of the bedsheet, the
defence argument that the bedsheet may have been tampered with needs to be
examined. Viewing this fact from another perspective, it is the case of the

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victim that PW4 and the Appellant were also sleeping on the same bed prior
to the incident. Hence, the mere presence of semen stain on the bedsheet is not
a circumstance which inescapably points to the allegation of rape against the
Appellant and could have several probable explanations. Lastly, it would be
relevant to examine the proposition of the Appellant that probative value of
DNA report is at par with any opinion of evidence under Section 45 of the
Indian Evidence Act and is not substantive evidence by itself. The Appellant
has placed reliance on a three Jud Ǡe Beǿǉh oǟ the Hoǿঢ়ǈle ApeΠ CouȖt iǿ the
matter of Prakash Nishad alias Kewat Zinak Nishad V/s. State of
2
Maharashtra , more particularly on the observations dealing with the
probative value of DNA evidence reproduced as under:
৚ࢷ4. EΚeǿ otheȖΛise, oǿ the Κalue oǟ DNA eΚideǿǉe, Λe ǾaΡ ȖeǟeȖ
to an observation made by this Court in Pattu Rajan V/s. State
3
of T.N. , as under: (SCC p. 791, para 52)
"52. Like all other opinion evidence, the probative value
accorded to DNA evidence also varies from case to case,
depending on the facts and circumstances and the
weight accorded to other evidence on record, whether
contrary or corroborative. This is all the more important
to remember, given that even though the accuracy of
DNA evidence may be increasing with the advancement
of science and technology with every passing day,
thereby making it more and more reliable, we have not
yet reached a juncture where it may be said to be
infallible. Thus, it cannot be said that the absence of
DNA evidence would lead to an adverse inference
against a party, especially in the presence of other cogent
and reliable evidence on record in favour of such party."

2
(2023) 16 SCC 357
3
(2019) 4 SCC 771

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(emphasis supplied)

65. Referring to the above case, a three-Judge Bench in Manoj V/s.
4
State of M.P. , through S. Ravindra Bhat, J., observed: (SCC p.
435, para 158)
"158. This Court, therefore, has relied on DNA reports,
in the past, where the guilt of an accused was sought to
be established. Notably, the reliance was to corroborate.
This Court highlighted the need to ensure quality in the
testing and eliminate the possibility of contamination of
evidence; it also held that being an opinion, the
probative value of such evidence has to vary from case to
case."
(emphasis in original)
৛
21.
Relia ǿǉe Λas also plaǉed oǿ the oǈseȖΚatioǿs oǟ the Hoǿঢ়ǈle ApeΠ
Court in Rahul V/s. State of Delhi, Ministry of Home Affairs and
5
Anr. , wherein it is observed as under:
৚ 37. In this regard very pertinent observations made by this Court in
Manoj v. State of M.P. (supra) deserve to be made. This Court has
dealt in detail with the issue of DNA profiling methodology and
statistical analysis, as also the collection and preservation of DNA
evidence. The relevant paragraphs read as under: (SCC paras 151-56)
"151. During the hearing, an article published by the Central Forensic
Science Laboratory, Kolkata was relied upon. The relevant extracts of
the article are reproduced below:
'Deoxyribonucleic acid (DNA) is genetic material present in the nuclei
of cells of living organisms. An average human body is composed of
about 100 trillion of cells. DNA is present in the nucleus of cell as
double helix, supercoiled to form chromosomes along with
intercalated proteins. Twenty-three pairs of chromosomes present in

4
(2023) 2 SCC 353
5
(2023) 1 SCC 83

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CRIA -691-2025( F ) & CRMA -692-2025( F )
each nucleated cells and an individual inherits 23 chromosomes from
mother and 23 from father transmitted through the ova and sperm
respectively. At the time of each cell division, chromosomes replicate
and one set goes to each daughter cell. All information about internal
organisation, physical characteristics, and physiological functions of
the body is encoded in DNA molecules in a language (sequence) of
alphabets of four nucleotides or bases: Adenine (A), Guanine
(G),Thymine (T) and Cytosine (C) along with sugar-phosphate
backbone. A human haploid cell contains 3 billion bases approx. All
cells of the body have exactly same DNA but it varies from individual
to individual in the sequence of nucleotides. Mitochondrial DNA
(mtDNA) found in large number of copies in the mitochondria is
circular, double stranded, 16,569 base pair in length and shows
maternal inheritance. It is particularly useful in the study of people
related through the maternal line. Also being in large number of copies
than nuclear DNA, it can be used in the analysis of degraded samples.
Similarly, the Y chromosome shows paternal inheritance and is
employed to trace the male lineage and resolve DNA from males in
sexual assault mixtures.
Only 0.1% of DNA (about 3 million bases) differs from one person
to another. Forensic DNA Scientists analyse only few variable regions
to generate a DNA profile of an individual to compare with biological
clue materials or control samples.
DNA Profiling Methodology
DNA profile is generated from the body fluids, stains, and other
biological specimen recovered from evidence and the results are
compared with the results obtained from reference samples. Thus, a
link among victim(s) and/or suspect(s) with one another or with crime
scene can be established. DNA profiling is a complex process of
analyses of some highly variable regions of DNA. The variable areas of
DNA are termed genetic markers. The current genetic markers of
choice for forensic purposes are Short Tandem Repeats (STRs).
Analysis of a set of 15 STRs employing Automated DNA Sequencer
gives a DNA profile unique to an individual (except monozygotic

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CRIA -691-2025( F ) & CRMA -692-2025( F )
twin). Similarly, STRs present on Y chromosome (Y-STR) can also be
used in sexual assault cases or determining paternal lineage. In cases of
sexual assaults, Y-STRs are helpful in detection of male profile even in
the presence of high level of female portion or in case of azool1permic
or vasectomised" male. Cases In which DNA had undergone
environmental stress and biochemical degradation, min ISTRs can be
used for over routine STR because of shorter amplicon size.
DNA profiling is a complicated process and each sequential step
involved in generating a profile can vary depending on the facilities
available in the laboratory. The analysis principles, however, remain
similar, which include:
1. isolation, purification & quantitation of DNA
2. amplification of selected genetic markers
3. visualising the fragments and genotyping
4. statistical analysis & interpretation.
In mtDNA analysis, variations in Hypervariable Region I & II (HVR
I & II) are detected by sequencing and comparing results with control
samples:....
Statistical Analysis
Atypical DNA case involves comparison of evidence samples, such
as semen from a rape, and known or reference samples, such as a blood
sample from a suspect. Generally, there are three possible outcomes of
profile comparison:
(1) Match: If the DNA profiles obtained from the two samples are
indistinguishable, they are said to have matched.
(2) Exclusion: If the comparison of profiles shows differences, it can
only be explained by the two samples originating from different
sources.
(3) Inconclusive: The data does not support a conclusion of the three
possible outcomes, only the "match" between samples needs to be
supported by statistical calculation. Statistics attempt to provide
meaning to the match. The match statistics are usually provided as an

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CRIA -691-2025( F ) & CRMA -692-2025( F )
estimate of the Random Match Probability (RMP) or in other words,
the frequency of the particular DNA profile in a population.
In case of paternity/maternity testing, exclusion at more than two
loci is considered exclusion. An allowance of 1 or 2 loci possible
mutations should be taken into consideration while reporting a
match. Paternity or Maternity Indices and Likelihood Ratios are
calculated further to support the match.
Collection and Preservation of Evidence
If DNA evidence is not properly documented, collected, packaged,
and preserved, It will not meet the legal and scientific requirements for
admissibility in a court of law. Because extremely small samples of
DNA can be used as evidence, greater attention to contamination
issues is necessary while locating, collecting, and preserving DNA
evidence can be contaminated when DNA from another source gets
mixed with DNA relevant to the case. This can happen when someone
sneezes or coughs over the evidence or touches his/her mouth, nose,
or other part of the face and then touches area that may contain the
DNA to be tested. The exhibits having biological specimen, which can
establish link among victim(s), suspect(s), scene of crime for solving
the case should be identified, preserved, packed and sent for DNA
profiling.'
6
152. In an earlier judgment, R. v. Doheny the UK Court of Appeal
laid down the following guidelines concerning the procedure for
introducing DNA evidence in trials: (1) the scientist should adduce
the evidence of the DNA comparisons together with his calculations
of the random occurrence ratio; (2) whenever such evidence is to be
adduced, the Crown (prosecution) should serve upon the defence
details as to how the calculations have been carried out, which are
sufficient for the defence to scrutinise the basis of the calculations; (3)
the Forensic Science Service should make available to a defence expert,
if requested, the databases upon which the calculations have been
based.

6
(1997) 1 Cri App R 369 (CA)

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CRIA -691-2025( F ) & CRMA -692-2025( F )
153. The Law Commission of India in its report, observed as follows:
'DNA evidence involves comparison between genetic material
thought to come from the person whose identity is in issue and a
sample of genetic material from a known person. If the samples do not
"match", then this will prove a lack of identity between the known
person and the person from whom the unknown sample originated.
If the samples match, that does not mean the identity is conclusively
proved. Rather, an expert will be able to derive from a database of
DNA samples, an approximate number reflecting how often a similar
DNA "profile" or "fingerprint" is found. It may be, for example, that
the relevant profile is found in 1 person in every 1,00,000: This is
described as the "random occurrence ratio" (Phipson 1999, 15th Edn.,
para 14.32).
Thus, DNA may be more useful for purposes of investigation but
not for raising any presumption of identity in a court of law.'
7
154. In Dharam Deo Yadav v. State of U.P. this Court discussed
the reliability of DNA evidence in a criminal trial, and held as follows:
(SCC pp. 528-29, para 36)
'36. The DNA stands for deoxyribonucleic acid, which is the
biological blueprint of every life. DNA is made up of a double
stranded structure consisting of a deoxyribose sugar and phosphate
backbone, cross-linked with two types of nucleic acids referred to as
adenine and guanine, purines and thymine and cytosine pyrimidines.
... DNA usually can be obtained from any biological material such as
blood, semen, saliva, hair, skin, bones, etc. The question as to whether
DNA tests are virtually infallible may be a moot question, but the fact
remains that such test has come to stay and is being used extensively in
the investigation of crimes and the Court often accepts the views of
the experts, especially when cases rest on circumstantial evidence.
More than half a century, samples of human DNA began to be used
in the criminal justice system. Of course, debate lingers over the
safeguards that should be required in testing samples and in presenting

7
(2014) 5 SCC 509

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CRIA -691-2025( F ) & CRMA -692-2025( F )
the evidence in Court. DNA profile, however, is consistently held to
be valid and reliable, but of course, it depends on the quality control
and quality assurance procedures in the laboratory.'
155. The US Supreme Court in District Attorney's Office for the
8
Third Judicial District v. Osborne , dealt with a post-conviction
claim to access evidence, at the behest of the convict, who wished to
prove his innocence, through new DNA techniques. It was observed,
in the context of the facts, that: (SCC OnLine US SC)
'Modern DNA testing can provide powerful new evidence unlike
anything known before. Since its first use in criminal investigations in
the mid-1980s, there have been several major advances in DNA
technology, culminating in STR technology. It is now often possible
to determine whether a biological tissue matches a suspect with near
certainty. While of course many criminal trials proceed without any
forensic and scientific testing at all, there is no technology comparable
to DNA testing for matching tissues when such evidence is at issue.
DNA testing has exonerated wrongly convicted people, and has
confirmed the convictions of many others.'
156. Several decisions of this court - Pantangi Balarama Venkata
9 10
Ganesh v. State of A.P. , Santosh Kumar Singh v. State ,
11
Inspector of Police v. John David , Krishan Kumar Malik v.
12 13
State of Haryana , Surendra Koli v. State of U.P . , and
14 15
Sandeep v. State of U.P. , Rajkumar v. State of M.P. and
16
Mukesh v. State (NCT of Delhi) have dealt with the increasing
importance of DNA evidence. This Court has also emphasised the
need for assuring quality control, about the samples, as well as the

8
2009 SCC OnLine US SC 73
9
(2009) 14 SCC 607
10
(2010) 9 SCC 747
11
(2011) 5 SCC 509
12
(2011) 7 SCC 130
13
(2011) 4 SCC 80
14
(2012) 6 SCC 107
15
(2014) 5 SCC 353
16
(2017) 6 SCC 1

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CRIA -691-2025( F ) & CRMA -692-2025( F )
17
technique for testing - in Anil v. State of Maharashtra : (Anil
case25, SCC p. 81, para 18)
'18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the
genetic information in all living organisms. DNA genotype can be
obtained from any biological material such as bone, blood, semen,
saliva, hair, skin, etc. Now, for several years, DNA profile has also
shown a tremendous impact on forensic investigation. Generally,
when DNA profile of a sample found at the scene of crime matches
with the DNA profile of the suspect, it can generally be concluded
that both the samples have the same biological origin. DNA profile is
valid and reliable, but variance in a particular result depends on the
quality control and quality procedure in the laboratory."
(emphasis in original)
৛
22. In the totality of the circumstances, firstly, in the background of the
discussion on the lapses on the part of the hotel staff and owner and the delay
in seizure of the bedsheet, the defence of the Appellant that the exhibits may
have been manipulated to incriminate him is probabilised. Secondly, mere
presence of semen on the bedsheet will not be ipso facto a conclusive proof of
the offence of rape in the facts of the present case and lastly, DNA evidence
not being infallible, its probative value has to be corroborated with other
cogent and reliable evidence to base a finding of guilt.

23. Examining the reasoning in the judgment impugned, the learned Trial
Court has observed that the delay in lodging the complaint is satisfactorily
explained by the victim. It observes that evidence on record shows that the
incident of rape took place when the victim was sleeping. The evidence of the
victim is corroborated by the owner of the hotel and the waiter. The medical

17
(2014) 4 SCC 69

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CRIA -691-2025( F ) & CRMA -692-2025( F )
evidence establishes that there was sexual intercourse and the victim was never
pregnant prior to this incident. The DNA report is positive. PW4 has turned
hostile. The Appellant has not examined the family members of PW4 to prove
that he was in relationship with her. Unfortunately, this Court cannot
persuade itself to agree to the reasoning of the learned Trial Court in view of
the aforesaid discussion of facts and law.

24. In view thereof, the prosecution has failed in proving beyond
reasonable doubt the offence punishable under Section 376 of IPC against the
Appellant. Resultantly, the Appellant is acquitted. The Appeal is allowed.
The Appellant to be set at liberty forthwith unless required in custody in any
other proceeding.
25. Criminal Appeal No.691/2025(F) is disposed of in the aforesaid
terms. Accompanying applications, if any, also stand disposed of. Registry to
waive office objections and number CRIA No.691/2025(F) and CRMA
No.692/2025(F).
26. Parties to act on an authenticated copy of this order.

ASHISH S. CHAVAN, J.

27
Signed by: NITI K HALDANKAR
Designation: Private Secretary
Date: 20/05/2026 14:34:19
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