MAHADEV DATTA SHINDE vs. THE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:7963
(1) 901criapl422.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.422 OF 2024
Mahadev Datta Shinde,
Age-25 years, Occu-Agri,
R/o. Jajala, Tq. Bhoom,
Dist. Osmanabad ...APPELLANT
VERSUS
1. The State of Maharashtra
Through Police Station Ambi,
Tq. Bhoom, Dist. Osmanabad
2. X. Y. Z. ...RESPONDENTS
Mr. Ganesh J. Kore, Advocate for the appellant
Mr. U. S. Badakh, APP for the respondents/State
Mr. R. D. Sanap, Advocate for the respondent No. 2
CORAM : RAJNISH R. VYAS, J.
th
DATE : 13 FEBRUARY, 2026
JUDGMENT :
1. This appeal takes an exception to the judgment and
order passed by the Special Judge, Bhoom dated 04-04-2023 in
Special Case (POCSO) No. 24/2020 by which the applicant was
convicted for commission of offences punishable under Sections 363,
366, 376, 376(2)(n) of the Indian Penal Code [for short ‘the IPC’]
and Sections 4,6,8 and 12 of the Protection of Children From Sexual
Offences Act, 2012 [for short ‘the Act of 2012’]. The applicant is
directed to suffer rigorous imprisonment for 20 years for the
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commission of offences punishable under Section 6 of the Act of 2012
and to pay a fine of Rs. 50,000/-. Further, he was directed to undergo
rigorous imprisonment for 3 years and to pay a fine of Rs. 1000/- for
the commission of offences punishable under Section 363 of the IPC.
He was also directed to undergo rigorous imprisonment for 5 years
and to pay a fine of Rs. 5000/- for the commission of offences
punishable under Section 366 of the IPC. All the sentences were
ordered to run concurrently.
2. In short, it is the case of the prosecution that on 26-08-
2020 at about 05.30 am, the accused kidnapped the victim, the minor
daughter of the complainant, and also induced her to marry and took
her to a different town, where she was subjected to repeated forcible
sexual intercourse. As the victim was of scheduled caste and the
accused was not of this schedule caste, the accused was also tried for
commission of offences punishable under Sections 3(2)(va), 3(2)(v),
3(1)(w)(i), 3(1)(w)(ii) of the Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act (for short ‘the Atrocities Act’).
3. It is against this background that the victim's father
lodged the first information report, and criminal proceedings were set
in motion. During the investigation, the accused was arrested on 04-
09-2020. The accused and the victim were subjected to medical
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examination, and it was found that the victim was carrying a
pregnancy which was aborted. The blood samples of the accused, the
victim, and the fetus were collected and forwarded to the laboratory.
Clothes of the accused and the victim were seized, and a spot
panchanama was drawn. After completion of the investigation,
charge-sheet No.60/2020 dated 23-10-2020 was filed against the sole
accused/appellant.
4. The charge was framed against the appellant under
Sections 363, 366-A, 376 of the IPC as well as Sections 4, 8, 12 of the
Act of 2012 and Sections 3(2)(v), 3(2)(va), 3(1)(w)(i) & 3(1)(w)(ii) 
of the Atrocities Act on 17-08-2021 below Exh.11. It is pertinent to
mention here that vide order dated 16–01–2023, charge under
Section 376(2)(n) of Indian Penal Code and Section 6 of the
Protection of Children From Sexual Offences Act, were added. The
accused did not plead guilty to the charge and consequently, the
prosecution had examined total 16 witnesses as follows:

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5. The prosecution has also relied upon the documentary
evidence, including the Pravesh Nirgam Utara, exh.50, Medical Legal
Examination Report Of Sexual Violence Exh. 52, Exh. 53, age
estimation report, and other documents.
6. After appreciation of evidence available on record, the
trial court found the appellant to be guilty of the offences for which
he was charged and thereafter, following the mandate of Section 235
of the Cr. P. C. was heard on the point of sentence. The accused was
then convicted and sentenced as stated above.
7. Learned advocate Mr. Kore, appearing for the appellant
has challenged the case of the prosecution on the following grounds.
(1) age of the victim is not proved (2) there is a delay in lodging the
first information report (3) offence of kidnapping is not made out (4)
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procedure for collection of DNA sample was not followed, and
therefore, opinion of the expert cannot be relied upon.(5)There is
absolutely no record to show that it was a victim who was subjected
to medical examination.(6)Offence of rape defined under Section 375
of the IPC is not proved.(7)There are several material omissions and
contradictions in the testimony of the witnesses examined by the
prosecution.
8. He, thus, prayed for the allowing the appeal and the
acquittal of the accused.
9. Per contra, learned APP has argued the following points:
(1) testimony of the victim is cogent and reliable,  (2) medical
evidence supports the case advanced by the prosecution, (3)
collection of the DNA sample and chain of custody is proved, and
therefore, the opinion given by the Laboratory cannot be doubted.
(4)Not only the offence of kidnapping, but also the offence of rape
and aggravated penetrative sexual assault is proved.
10. Mr Sanap, learned advocate for the victim, has argued
the following points: (1) testimony of the victim cannot be ignored as
there is a ring of truth in it, (2) the trial court has taken into
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consideration various pieces of evidence and thereafter awarded the
conviction. (3)The prosecution has proved the victim's age.
11. In the aforesaid background, I have perused the record
and have given thoughtful consideration to the arguments advanced
by the respective counsels.
12. Since the accused is charged for the commission of an
offence under the provisions of the Act of 2012, it will have to be
seen whether the prosecution has proved that on the date of the
commission of the offence, the victim was a child as defined under
Section 2(d) of the Act of 2012. Said section defines; a child means
any person below the age of eighteen years.
13. In this regard testimony of victim/PW-1, PW-2-father of
the victim, PW-6-Headmaster, so also, testimony of Medical Officer-
PW-7 who has proved ossification test, will have to be taken into
consideration. PW-1-victim in her testimony has stated her date of
birth as 24-06-2006. She has deposed that she had taken admission
in 1st standard at the Zilla Parishad Primary School.
14. In the cross-examination, a suggestion was given to her
that at the time of the incident, she had completed 18 years of age,
which she denies.
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15. PW-2, father of the victim, in his testimony has not
stated the date of birth, nor in his examination-in-chief did he state
that the victim was a minor at the time of the incident. During cross-
examination, a suggestion was made to this witness that, at the time
of the incident, victim was about 18 years of age, which he denied.
16. PW-6-Dharmaraj is the Headmaster of the Zilla Parishad.
He deposed that he was occupying the post of Headmaster from 05-
06-2016. At the time of deposition, when the court summoned him,
he brought the original General Register with him, which contains
information about the students who have taken admission.
Information includes students' date of birth, as noted in an affidavit
filed by the parents and a list supplied by the Anganwadi Sevika to
the school. He volunteered that some parents also present Aadhaar
cards and on that basis entry of birth in the General Register is taken.
He deposed that at Sr. No. 1291 of Register No. 3, there is an entry of
the victim's date of birth, i.e. 24-06-2006, and that the victim had
taken admission in the school in 1st std. on 15-06-2012. He stated
that the extract from the school register was provided to the
Investigating Officer, who produced and proved it.
17. In the cross-examination, PW-6 has admitted that the
name of the mother of the victim at Sr. No. 1291 of Register No. 3 is
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mentioned as ‘M’. He admitted that he did not bring the documents
given at the time of his school admission. He further admitted that
when the victim was admitted to the school, he was not working with
the Zilla Parishad School. His testimony was challenged by cross-
examination to convince the court that PW-6 has no personal
knowledge of the entry. Exh. 50 is the extract from the register that
shows the victim's full name, her caste, place of birth, date of birth,
the standard in which she is receiving education, and the name of her
mother. The name of the victim's mother is mentioned in column No.
3 as ‘S’, whereas several other documents on record, more
particularly Exh. 52 and Exh. 53, show the name of the mother of the
victim as ‘M’. It is not even the case of the prosecution that ‘M’ and ‘S’
are the name of same person.
18. The Hon’ble Apex Court in the case of P. Yuvaprakash V s
State reported in 2024(17)SCC 684 in the following paragraphs 16
to 20 has observed as under:
13. It is evident from conjoint reading of the above
provisions that wherever the dispute with respect to the
age of a person arises in the context of her or him being
a victim under the POCSO Act , the courts have to take
recourse to the steps indicated in Section 94 of the JJ
Act. The three documents in order of which the Juvenile
Justice Act requires consideration is that the concerned
court has to determine the age by considering the
following documents:
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“(i) the date of birth certificate from the school, or
the matriculation or equivalent certificate from the
concerned examination Board, if available; and in
the absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above,
age shall be determined by an ossification test or
any other latest medical age determination test
conducted on the orders of the Committee or the
Board”.
14. Section 94 (2)(iii) of the JJ Act clearly indicates that
the date of birth certificate from the school or
matriculation or equivalent certificate by the concerned
examination board has to be firstly preferred in the
absence of which the birth certificate issued by the
Corporation or Municipal Authority or Panchayat and it
is only thereafter in the absence of these such documents
the age is to be determined through “an ossification test”
or “any other latest medical age determination test”
conducted on the orders of the concerned authority, i.e.
Committee or Board or Court. In the present case,
concededly, only a transfer certificate and not the date of
birth certificate or matriculation or equivalent certificate
was considered. Ex. C1, i.e., the school transfer
certificate showed the date of birth of the victim as
11.07.1997. Significantly, the transfer certificate was
produced not by the prosecution but instead by the court
summoned witness, i.e., CW-1. The burden is always
upon the prosecution to establish what it alleges;
therefore, the prosecution could not have been fallen
back upon a document which it had never relied upon.
Furthermore, DW-3, the concerned Revenue Official
(Deputy Tahsildar) had stated on oath that the records
for the year 1997 in respect to the births and deaths
were missing. Since it did not answer to the description
of any class of documents mentioned in Section 94(2)(i)
as it was a mere transfer certificate, Ex C-1 could not
have been relied upon to hold that M was below 18
years at the time of commission of the offence.
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15. In a recent decision, in Rishipal Singh Solanki vs.
State of Uttar Pradesh & Ors.,3 this court outlined the
procedure to be followed in cases where age
determination is required. The court was dealing with
Rule 12 of the erstwhile Juvenile Justice Rules (which is
in pari materia) with Section 94 of the JJ Act, and held
as follows:
“20. Rule 12 of the JJ Rules, 2007 deals with the
procedure to be followed in determination of age.
The juvenility of a person in conflict with law had
to be decided prima facie on the basis of physical
appearance, or documents, if available. But an
inquiry into the determination of age by the Court
or the JJ Board was by seeking evidence by
obtaining: (i) the matriculation or equivalent
certificates, if available and in the absence whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof; (iii) the birth certificate given by
a corporation or a municipal authority or a
panchayat. Only in the absence of either (i),
(ii) and (iii) above, the medical opinion could be
sought from a duly constituted Medical Board to
declare the age of the juvenile or child. It was also
provided that while determination was being made,
benefit could be given to the child or juvenile by
considering the age on lower side within the margin
of one year.”
16. Speaking about provisions of the Juvenile Justice
Act , especially the various options in Section 94 (2) of
the JJ Act, this court held in Sanjeev Kumar Gupta vs.
The State of Uttar Pradesh & Ors4 that:
“Clause (i) of Section 94 (2) places the date of birth
certificate from the school and the matriculation or
equivalent certificate from the 2021 (12) SCR 502
[2019] 9 SCR 735 concerned examination board in
the same category (namely (i) above). In the
absence thereof category (ii) provides for obtaining
the birth certificate of the corporation, municipal
authority or panchayat. It is only in the absence of
(i) and (ii) that age determination by means of
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(11) 901criapl422.24
medical analysis is provided. Section 94(2)(a)(i)
indicates a significant change over the provisions
which were contained in Rule 12(3)(a) of the Rules
of 2007 made under the Act of 2000. Under Rule
12(3)(a)(i) the matriculation or equivalent
certificate was given precedence and it was only in
the event of the certificate not being available that
the date of birth certificate from the school first
attended, could be obtained. In Section 94(2)(i)
both the date of birth certificate from the school as
well as the matriculation or equivalent certificate
are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain v State of West
Bengal5 , this court, through a three-judge bench, held
that the burden of proving that someone is a juvenile (or
below the prescribed age) is upon the person claiming it.
Further, in that decision, the court indicated the
hierarchy of documents that would be accepted in order
of preference.
18. Reverting to the facts of this case, the headmaster of
M’s School, CW- 1, was summoned by the court and
produced a Transfer Certificate (Ex.C-1). This witness
produced a Transfer Certificate Register containing M’s
name. He deposed that she had studied in the school for
one year, i.e., 2009-10 and that the date of birth was
based on the basis of the record sheet given by the
school where she studied in the 7th standard. DW-2 TMT
Poongothoi, Headmaster of Chinnasoalipalayam
Panchayat School, answered the summons [2012] 9 SCR
224 served by the court and deposed that ‘M’ had joined
her school with effect from 03.04.2002 and that her date
of birth was recorded as 11.07.1997. She admitted that
though the date of birth was based on the birth
certificate, it would normally be recorded on the basis of
horoscope. She conceded to no knowledge about the
basis on which the document pertaining to the date of
birth was recorded. It is stated earlier on the same issue,
i.e., the date of birth, Thiru Prakasam, DW-3 stated that
the birth register pertaining to the year 1997 was not
available in the record room of his office.
19. It is clear from the above narrative that none of the
documents produced during the trial answered the
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description of “the date of birth certificate from the
school” or “the matriculation or equivalent certificate”
from the concerned examination board or certificate by a
corporation, municipal authority or a Panchayat. In these
circumstances, it was incumbent for the prosecution to
prove through acceptable medical tests/examination that
the victim’s age was below 18 years as per Section 94(2)
(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil
Doctor and Radiologist at the General Hospital at
Vellore, produced the X-ray reports and deposed that in
terms of the examination of M, a certificate was issued
stating “that the age of the said girl would be more than
18 years and less than 20 years”. In the cross-
examination, she admitted that M’s age could be taken
as 19 years. However, the High Court rejected this
evidence, saying that “when the precise date of birth is
available from out of the school records, the
approximate age estimated by the medical expert cannot
be the determining factor”. This finding is, in this court’s
considered view, incorrect and erroneous. As held earlier,
the documents produced, i.e., a transfer certificate and
extracts of the admission register, are not what Section
94 (2) (i) mandates; nor are they in accord with Section
94 (2) (ii) because DW-1 clearly deposed that there were
no records relating to the birth of the victim, M. In these
circumstances, the only piece of evidence, accorded with
Section 94 of the JJ Act was the medical ossification test,
based on several X-Rays of the victim, and on the basis
of which PW-9 made her statement. She explained the
details regarding examination of the victim’s bones,
stage of their development and opined that she was
between 18-20 years; in cross-examination she said that
the age might be 19 years. Given all these circumstances,
this court is of the opinion that the result of the
ossification or bone test was the most authentic
evidence, corroborated by the examining doctor, PW-9.
20. In this case, the appellant was charged, inter alia, for
the offence under Section 6 of the POCSO Act. The
offence under Section 6 depends on the proof that a
“sexual assault” took place. That term is defined by
Section 7 , which reads as follows:
“Whoever, with sexual intent touches the vagina,
penis, anus or breast of the child or makes the child
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touch the vagina, penis, anus or breast of such
person or any other person, or does any other act
with sexual intent which involves physical contact
without penetration is said to commit sexual
assault.” The offence under Section 6 , at the
relevant time, was defined as follows:
"Whoever, commits aggravated penetrative sexual
assault, shall be punished with rigorous
imprisonment for a term which shall not be less
than ten years but which may extend to
imprisonment for life and shall also be liable to
fine."
Section 3 defines penetrative sexual assault, as follows:
“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
(b)........................
(c)........................
(d)........................” Section 2(a) of the POCSO Act
provides that 'aggravated penetrative sexual assault'
has the same meaning as assigned to it in Section 5 .
Therefore, Section 5 , which defines 'aggravated
penetrative sexual assault' is relevant. Section 5 (l) reads
as follows:
“5. Aggravated Penetrative Sexual Assault. -
(a)
(l)whoever commits penetrative sexual assault on
the child more than once or repeatedly; or” Section
4 , at the relevant time, read as follows:
“(1) Whoever commits penetrative sexual assault
shall be punished with imprisonment of either
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description for a term which shall not be less than
seven years but which may extend to imprisonment
for life, and shall also be liable to fine.” The
expression “assault” is defined in Section 351 IPC as
“Whoever makes any gesture, or any preparation
intending or knowing it to be likely that such
gesture or preparation will cause any person
present to apprehend that he who makes that
gesture or preparation is about to use criminal force
to that person, is said to commit an assault.” The
expression “criminal force” is defined by Section
350 IPC as follows:
“Whoever intentionally uses force to any person,
without that person's consent, in order to the
committing of any offence, or intending by the use
of such force to cause, or knowing it to be likely
that by the use of such force he will cause injury,
fear or annoyance to the person to whom the force
is used, is said to use criminal force to that other.”
19. Thus, it is crystal clear that the prosecution produced
none of the documents mentioned in the aforesaid judgment.
Further, neither the father has deposed about the victim's date of
birth, nor has the Headmaster provided a foundation for taking entry
in the extract of the school register. So far as the ossification report is
concerned, none has been produced on record, but the prosecution
attempted to prove the child's age by examining PW-7.
20. PW-7 is Doctor Ashwini, who had clinically examined the
victim. She has deposed that the forensic medical examination report
of the age of the victim was shown to her and said she issued the
report based on the report submitted by the Radiologist. She stated
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that the contents of the said estimation age report were correct and
that the said document was proved. Exh.53 is a Forensic  Medical
Examination Report of Age Estimation dated 05-09-2020. The
opinion regarding the victim's age was that the victim was between
14 and 16 years old, with a margin . It is necessary to mention here
that the foundation of this report was the report of the Radiologist. In
cross-examination, this witness stated that to ascertain a person's age,
ossification tests and dental tests are conducted.  In the present case,
the dental test of the victim girl was not performed during the age-
determination test.
21. If the testimony of the aforesaid witness is perused, it
would reveal that the victim is the only one who has stated her date
of birth.
22. At this juncture, it is necessary to mention here that date
of birth uttered/given by the victim would be hearsay evidence. The
prosecution neither brought on record the birth certificate nor the
version of the father that the victim was a minor, nor the foundation
on which the date of birth was recorded in the extract of the
admission register. As the Radiologist's report is not on record, even
the foundation of the PW-7's opinion will carry no weight.
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23. In that view of the matter, I conclude that the age of the
victim is not proved by the prosecution. Consequently, the accused
should not have been convicted of committing an offence under the
Act of 2012.
24. Coming to the conviction of the accused under the
provisions of Sections 363, 366, 376 and 376(2)(n) of the IPC, it is
necessary to go through the relevant provisions.
25. Section 363 of the IPC prescribed punishment for
kidnapping. Kidnapping is defined under Section 359 it is of two
kinds; kidnapping from India and kidnapping from lawful
guardianship.
26. Section 361 of the IPC speaks about the Kidnapping from
lawful guardian which says that whoever takes or entices any minor
under sixteen years of age if a male, or under eighteen years of age if
a female, or any person of unsound mind, out of the keeping of the
lawful guardian of such minor or person of unsound mind, without
the consent of such guardian, is said to kidnap such minor or person
from lawful guardianship. In this case, the prosecution has
admittedly not proved the victim's age; it cannot, therefore, be said
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that the victim was below 18 years, and even the conviction of the
appellant under Section 363 of the IPC is not made out.
27. The accused is also convicted for the commission of an
offence punishable under Section 366 of the IPC, which speaks about
kidnapping, abducting or inducing a woman to compel her marriage,
etc. In this regard, it is necessary to go through the testimony of the
victim/PW-1. PW-1, in her examination-in-chief, has stated that she
was born on 24-06-2006 and thereafter took admission in the 1st std.
28. PW-1 has deposed that the accused was residing in the
village Jejala, and on 26-08-2020, from the morning itself, the
accused was talking on the phone and sending messages. The
accused was sending a message to the victim, asking her to come out
of the house, and he was sitting outside the victim's house on a
motorcycle. He then asked the victim to sit on the motorcycle and
forcibly sat her down, and then proceeded to Pandharpur. She stated
that as it was raining, they stopped in a dilapidated shed.
29. If the testimony of the aforesaid witness is seen, it would
be crystal clear that when the messages were sent or the victim was
called out of the house, neither any inducement nor compulsion was
made. According to the victim, she was asked to sit in the vehicle
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forcibly. She was thereafter taken to Pandharpur, except that there is
nothing in the testimony of the victim, so as to attract the ingredients
of the offence under Section 366 of the IPC.
30. Provision of Section 366 of IPC states that whoever
kidnaps or abducts any woman with intent that she may be
compelled, or knowing it to be likely that she will be compelled, to
marry any person against her will, or in order that she may be forced
or seduced to illicit intercourse, or knowing it to be likely that she
will be forced or seduced to illicit intercourse, shall be punished with
imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine; [and whoever, by means of
criminal intimidation as defined in this Code or of abuse of authority
or any other method of compulsion, induces any woman to go from
any place with intent that she may be, or knowing that it is likely that
she will be, forced or seduced to illicit intercourse with another
person shall also be punishable.
31. No such evidence is brought on record by the
prosecution regarding inducement or intention to compel to perform
the marriage, or force or seduce to have illicit intercourse. Therefore,
it cannot be said that the prosecution has proved the offence
punishable under Section 366 of the IPC.
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32. Thus, the contention of the counsel for the appellant that
the prosecution did not prove either case under Sections 363 and 366
of the IPC, so also, the conviction under the Act of 2012 is correct
and proper.
33. This takes me to the conviction of the accused under the
provision of Section 376, 376(2)(n) of the IPC. Section 376
prescribed punishment for rape. Section 375 of the IPC defines rape.
It states 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; or (b)
inserts, to any extent, any object or a part of the body, not being the
penis, into the vagina, the urethra or anus of a woman or makes her
to do so with him or any other person; ……….
34. Thus, an essential requirement for proving commission
of an offence punishable under Section 375 of the IPC is penetration
of the penis into the vagina to any extent, and it must be against the
will or consent of the victim.
35. Section 376 (2)(n) punishes a person who commits rape
repeatedly on the same woman. The punishment prescribed is not
less than 10 years, but may extend to life imprisonment.
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36. In this regard, the testimony of PW-1 will again have to
be looked into. PW-1 has stated that the accused used to reside in the
village ‘Jejala’ and that, on 26-08-2020, since morning, he had been
talking on the phone and sending messages. The accused sent the
messages to the victim, calling upon her to come out of the house. At
the relevant time, he was sitting on the motorcycle. The accused
asked the victim to sit on the motorcycle, forcibly sat her and drove
the vehicle till Pandharpur.
37. PW-1 deposed that at that time, it was raining and
therefore, they took shelter under one dilapidated shed, where the
accused had forcibly sexual intercourse with her. The next morning,
the owner of the shed came and enquired, and also took the accused's
mobile phone, stating that he would inform the police. The victim
was crying at that time. Then the victim and the accused went to the
Talegaon Dabhadi village and stayed at the house of one “S.B.”,
where she was kept for 7-8 days. She deposed that when she was at
Talegaon Dabhadi, accused on 4-5 occasions, kept physical relations
with her and did not permit her to contact anybody. She deposed that
thereafter, her cousin, maternal aunt and police officer came and
took both of them to the police station.
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38. PW-1 deposed that thereafter her medical examination
was conducted at the Hospital at Osmanabad, where the doctor
informed her that she was pregnant and an abortion was done. She
stated that she then showed the spot of the incident to the police, and
also deposed that the clothes of the victim were seized.
39. PW-1 was subjected to cross-examination, in which she
admitted that in the year 2016, the accused had outraged her
modesty, due to which she had lodged the complaint against the
accused. In that case, her statement was recorded before the police.
She admitted that the accused was acquitted in that case. She denied
the suggestion that before her medical examination, she had
informed the mother regarding her menstrual cycle. She further
admitted that the police recorded her statement, and parents and
relatives were present. Omissions were put to this witness regarding
the accused sending messages on her mobile phone on the day of the
incident. Also, the accused forcibly asked the victim to sit on the
motorcycle, and accused the victim of not allowing them to contact
anybody when they were at Talegaon Dabhadi.
40. At this stage, it is necessary to mention here that when
the Investigating Officer was subjected to cross-examination, he was
asked whether the victim had stated that the accused used force to sit
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(22) 901criapl422.24
the victim on the motorcycle, as well as not allowing the victim to
contact anybody, he replied in negative . It is, thus, crystal clear that
omission is duly proved by the accused and therefore, said aspect
cannot be taken into consideration.
41. In further cross-examination of the witness, various
suggestions were given to her including the suggestion that the
incident had not taken place, which were denied. To bring the motive
for the false implication on record, it was suggested to this witness
that, since she became pregnant before the marriage, a false case was
filed against the accused.
42. PW-2 is the father of the victim, who had stated that in
the night before the day of the incident, the mother of the victim had
told PW-2 that the victim had not come, though she had gone for
urination, and therefore, PW-2 started searching for the victim. He
also visited the accused's house, but the accused was not present.
Thereafter, the brother of the PW-2 informed that he had seen the
victim and the accused on a motorcycle. PW-2 deposed that he then
went to the police station to lodge the complaint. In his evidence, the
complaint he submitted was marked as Exh. 34.
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(23) 901criapl422.24
43. In the cross-examination, he admitted that in an earlier
case that was filed against the accused, the accused was acquitted.
He further stated that his brother had a mobile phone with him and
that, to reach Pandharpur from the village ‘Jejala’, various villages
had to be crossed. He denied various suggestions.
44. The medical examination of the victim was conducted by
PW-7, Dr Ashwini. She stated that on 05-09-2020, the victim girl was
brought to Civil Hospital, Osmanabad, by a lady constable, Mrs
Bhosale, and it was found that the hymen of the victim girl was
ruptured. The pregnancy test of the victim was positive, and the age
of the fetus was 6 weeks, and ultrasonography was performed on her.
She deposed that the age of the victim was 14 years and 2 months.
She had taken the radiologist's opinion. According to which, the age
of the victim was 14 to 16 years. She proved the Medical-Legal
Examination Report below, Exh. 52.
45. At this juncture, it is necessary to mention here that
perusal of Exh. 52 shows a “ruptured hymen”.
46. Coming to the cross-examination of PW-7, she has stated
that the information which was filled in column No. 14 of Exh. 52
was based on information supplied by the victim. Perusal of column
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(24) 901criapl422.24
No. 14, the last menstrual period of the victim girl occurred on 12-
08-2020. She also admitted column No.14 and the victim girl was
not sexually assaulted during the pregnancy. She volunteered that
the survivor was not pregnant at the time of the incident. Other
suggestions regarding challenging the report determining the age of
the prosecutrix under Exh. 53 were given, which were denied.
47. At this stage, it is necessary to take into consideration the
arguments made by the learned advocate for the accused that the
victim on the date of medical examination, i.e. 05-09-2020, was in a
remand home and there is nothing on record to show who had
brought the victim from the remand home for medical examination.
48. Detailed analysis of the evidence may not be required
since it is not even the case of the accused in the cross-examination
that it was not the victim but some other girl who the Medical Officer
examined.
49. Contention of the learned advocate for the appellant that
it was excepted from the prosecution to examine a lady constable,
Mrs Bhosale, who had taken the victim for medical examination, and
the evidence should have been produced on record. Suffice it to say
that the question is whether, based on the material on record, the
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(25) 901criapl422.24
accused can be convicted, or not. Just because Constable Bhosale is
not examined does not mean the prosecution's case will change in
any fundamental way. Even otherwise, in the peculiar facts and
circumstances of the case, it cannot be said that Constable Bhosale
was a star witness or relevant witness to the prosecution.
50. PW-8 is one Manisha Bhosale, who was examined by the
prosecution, and has stated that on 31-08-2004 at about 04.00 am,
her husband had received a phone call from the accused, who stated
that he had come with his wife, and further asked about the address.
Thereafter, within 5 to 10 minutes, the accused, along with his wife,
approached PW-8, and when PW-8 asked for his name, he disclosed it
as “S”. Then, the accused and his wife were allowed to stay in the
house, and they resided in adjoining rooms for two days. On 03-09-
2020, the husband of PW-8 received a phone call from village Jejala,
during which he was informed that the accused and the victim had
run away. PW-8 and her husband then allowed the accused and her
wife to stay in the house so they would not run away. On 04-09-
2020, the police came and took both of them into custody. She
identified the accused in the court. PW-8 was subjected to cross-
examination, who stated that her husband was working as a Clerk
with an Advocate, and that, 23 years ago, her husband had left the
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(26) 901criapl422.24
village Jejala. It was suggested to her that she was giving false
testimony.
51. Thus, the testimony of PW-8 clearly shows that the
accused and the victim had stayed at Talegaon Dabhadi for two days.
The victim's testimony also supports the said stand. Further testimony
of the victim regarding the accused subjecting her to forcible sexual
intercourse repeatedly is also supported by the evidence of PW-7.
52. There is absolutely nothing on record to conclude that
the accused was falsely implicated in the offence. The manner in
which the defence of false implication is taken, that since the victim
became pregnant before marriage, a false case was lodged against the
accused, is a weak defence. Further, during the enquiry into the
accused's case, he was questioned under Section 313 of the Cr. P. C.,
and in answer to question No. 107, he stated that in 2016, he was
acquitted in a case filed by the victim, and therefore, to implicate him
again, a false case was filed against him. He stated that a false case
was filed against him.
53. At this juncture, it is necessary to mention here that the
earlier incident, according to the accused, had taken place in the year
2016. In contrast, the present crime in question was registered in
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(27) 901criapl422.24
August, 2020. It is very difficult to believe that to implicate the
accused, a false case would be filed at the instance of the parents by
asking a daughter to narrate the incident in which the accused
committed forcible sexual intercourse.
54. Thus, I conclude that based on the evidence of the
aforesaid witnesses examined by the prosecution, the prosecution has
proved that the accused without consent and against the will of
victim has committed rape on the victim and further he had
committed rape repeatedly on the same woman, which logically
follows that his conviction under Section 376 and 376(2)(n) is also
proper.
55. Coming to the evidence of the DNA report, the opinion
given by the Regional Forensic Laboratory below Exh. 86 states that
the victim and the accused are concluded to be biological parents of
the retained products of conception of the victim.
56. Learned advocate for the appellant submitted that the
opinion of the Regional Forensic Laboratory is just an opinion and
will have to be tested in the light of other material also.
57. He further submitted that the opinion cannot be relied
upon unless and until the chain of custody, proper handling of
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samples, and proper preservation of the samples are proved by the
prosecution. He contended that none of it was proved by the
prosecution and therefore, Exh. 86 can also not be relied upon.
58. Learned advocate for the appellant then invited my
attention to the testimony of the various witnesses, including the PW-
7 to PW-14. PW-7 is the Medical Officer, Dr Ashwini, who stated that
she had clinically examined the victim on 05-09-2020, and since the
victim was carrying a pregnancy, an ultrasound was advised. From
the report, she could notice that the age of the fetus was 6 weeks.
She then examined the victim medically.
59. The deposition of the said witness shows that the victim
at the relevant time was pregnant.
60. PW-9 Dr Gampu was attached to the Primary Health
Centre, Village Ambi, as a Chief Medical Officer. On 08-09-2020, he
received a letter from the Sub-Divisional Police Officer requesting the
collection of DNA samples from the accused and the victim. The
police have brought the accused and the victim girl to the Primary
Health Centre, where the blood samples were taken, sealed and
handed over to the Ambi Police. As the seal was unavailable, the
Ambi Police seal was used to seal the bottles containing the blood
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(29) 901criapl422.24
samples. Thereafter, he was also shown the letter issued to the
Forensic Science Laboratory, Aurangabad, and the letter to that effect
was produced on record below Exh. 56.
61. In the cross-examination, this witness stated that he had
not given any letter to the said police station to procure the seal. He
admitted that when any article is handed over to the police station
from the Primary Health Centre, a letter to that effect is issued, and
an acknowledgment of the handover of the said article is also
received. He stated that he does not know when the police forwarded
the accused's blood samples to the laboratory. He further admitted
that the officer attached to the Forensic Laboratory had never made
any correspondence about the blood samples of the victim and the
accused. This witness proved the fact that the blood samples of the
victim girl were taken for a DNA sample.
62. PW-10, the Police Naik Attached to the Ambi Police
Station, stated that on 09-09-2020, he received a written order from
the Sub-Divisional Police Officer to deposit the sealed DNA samples
and sealed envelope with the Forensic Laboratory, Aurangabad, and a
letter to that effect was also given. On that day, he deposited the
DNA samples and the sealed envelope with the Forensic Laboratory
and provided the acknowledgment to the Investigating Officer. He
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(30) 901criapl422.24
stated that his statement was recorded on 10-09-2020 by the Sub-
Divisional Police Officer.
63. In cross-examination, this witness has stated that he has
not brought the order issued by the Sub-Divisional Police Officer to
him. He admitted that whenever correspondence is made, a higher
officer's acknowledgment is obtained. A suggestion was made to him
that on 09-09-2020, he had not deposited the DNA samples and the
sealed envelope. Thus, this witness states that the DNA samples of
the accused and the victim were deposited with the Laboratory,
Aurangabad, on 09-09-2020. The date 09-09-2020 is crucial.
64. PW-15 Prajakta was working as an Assistant Chemical 
Analyst with the Forensic Laboratory, Nashik. She stated that on 07-
09-2020, she received a letter from the Sub-Divisional Police Officer
requesting the DNA kit, and accordingly, she provided two DNA kits
to Head Constable Mule. She stated that the Forensic Laboratory
received the blood samples of the victim and the accused,
Aurangabad, for DNA analysis on 10-09-2020 and samples for the
DNA of the fetus on 29-09-2020. She stated that she had conducted
the DNA examination and opined that the victim and the accused are
the biological parents of the fetus. She proved the same below Exh.
36.
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65. In cross-examination, she admitted that the DNA kit was
not available at the hospital and was called from the Forensic
Laboratory. She admitted that blood samples for DNA analysis must
be preserved at a specific temperature, and that non-compliance with
this requirement affects the results. She volunteered that if the
samples spoiled, she would not be able to obtain the DNA profile. She
further admitted that, for DNA examination, blood samples must be
placed in a DNA kit only. She admitted that the blood samples
received by the Forensic Laboratory, Aurangabad, on 10-09-2020,
were in two different kits. In concluding the paragraph of her
testimony, she admitted that the samples of the fetus that were
received were not in a DNA kit.
66. Testimony of the aforesaid witnesses shows that DNA
samples are required to be preserved properly. But, ultimately, it was
answered that samples taken from the fetus were not in a DNA kit,
which clearly shows that the opinion given that the victim and the
accused are biological parents cannot be relied upon.
67. Be that as it may, even if the DNA report is ignored, in
light of the discussion made (supra), it is clear that the prosecution
has proved the guilt of the accused under Sections 376, 376(2)(n) of
the IPC. Since no separate fine amount was awarded for commission
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of offences under Sections 376, 376(2)(n) of the IPC, fine amount is
directed to be paid as under.
68. Hence, the following order is passed:
ORDER
a] The judgment in Special Case (POCSO) No.
24/2020 passed by the Special Judge, Bhoom, dated
04-04-2023, convicting the accused for the commission
of offences punishable under Sections 363, 366 of the
IPC as well as Sections 4,6,8 and 12 of the Act of 2012 is
set aside.
b] The accused is acquitted for the commission of
offences punishable under Sections 363, 366 of the
Indian Penal Code and Sections 4, 6, 8 and 12 of
Protection of Children From Sexual Offences Act of
2012. Fine amount, if deposited, be refunded to the
accused.
c] The appellant is directed to suffer 10 years
rigorous imprisonment and to pay a fine of Rs. 25,000/-.
In default of payment, the appellant shall suffer simple
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(33) 901criapl422.24
imprisonment for a term of six months, for the
commission of offences punishable under Section 376 of
Indian Penal Code .
d] The appellant is directed to suffer 10 years rigorous
imprisonment and to pay a fine of Rs. 20,000/-. In
default of payment, the appellant shall suffer simple
imprisonment for a term of six months for the
commission of offences punishable under Section
376 (2)(n) of the Indian Penal Code .
e] All the sentences shall run concurrently.
f] The appeal is partly allowed.
69. At this stage, it is required to be stated that Mr R. D.
Sanap, learned advocate (appointed) for the victim without seeking
any adjournment, has argued the case and has invited my attention
to the various judgments. His fees are quantified at Rs. 12,000/-.

[RAJNISH R. VYAS, J. ]
VishalK/901criapl422.24
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