Criminal Appeal No. 767 of 2023 · Bombaybench High Court
Case Details
2024:BHC-AUG:15996-DB APEAL-767-23.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 767 OF 2023Shankar Suryabhan JadhavAge: 55 years, Occu.: Agri.,R/o T.P.S. Road, Near Water Tank,Osmanabad, Tq. & Dist. Osmanabad..APPELLANTVERSUS1. State of Maharashtra Through Police Inspector Rural Police Station, Osmanabad Tq. & Dist. Osmanabad2. X.Y.Z...RESPONDENTS....Mr. S.A. Wakure, Advocate for appellantMr. S.V. Hange, A.P.P. for respondent no.1 – StateMr. P.A. Bhosle, Advocate for respondent no.2....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 12th JUNE, 2024PRONOUNCED ON : 08th JULY, 2024JUDGMENT ( PER : R.G. AVACHAT,J. ) :1.The challenge in this appeal is to the judgment of conviction andorder of consequential sentence dated 29th September, 2020 passed bySpecial Judge (POCSO), Osmanabad in Special (POCSO) Case No. 15 of2015. Vide the impugned judgment and order, the appellant was convictedfor the offence punishable under Section 376(f)(n) and 506 of the IndianPenal Code (‘I.P.C.’). He was also convicted for the offence punishableunder Sections 4 and 6 of the Protection of Children from Sexual Offences1 / 24 APEAL-767-23.odtAct, 2012 (‘POCSO Act’). A sentence of life imprisonment with fine ofRs.10,000/-, with default stipulation has been imposed on him for the offencepunishable under Section 6 of the POCSO Act. No separate sentence wasawarded for the offences punishable under Section 376(f)(n) of the I.P.C. andunder Section 4 of the POCSO Act. He has further been directed to undergosentence of imprisonment for a period of one year and to pay fine ofRs.1,000/- with default stipulation for the offence punishable under Section506 of the I.P.C.2.The facts giving rise to the present appeal are as follows :-The appellant is the resident of village Junoni, Dist. Osmanabad.He runs a brick kiln there. He has agricultural land at village Junoni and ahouse as well on the agricultural land itself. The victim (‘M’) was aroundsixteen years of age at the relevant time. She hails from village Dhutta. Shewould reside alongwith her parents and two siblings. She was a drop out ofsixth standard. For harvesting of Jawar crop, the victim and her familymembers had been to Junoni. They were staying in the tin sheet room of theappellant. The victim’s parents used to be away for harvesting of crop duringthe day time. The appellant, finding the victim alone in the room, offered hersweet lemon and bolted the entrance door from inside. The appellantundressed himself. He did undress the victim as well. The appellant thenhad sexual intercourse with her. Such things are alleged to have happenedmore than once.2 / 24
Legal Reasoning
APEAL-767-23.odt3.It is the case of prosecution that the victim conceived. Hermother, P.W.2 – ‘P’ (name withheld) realised the same. She, therefore, firsttook her to a hospital of Dr.Kazi. After having taken the victim intoconfidence, she related her mother that it was the appellant, who did sexualintercourse with her and thereby she conceived. The victim and her familymembers, therefore, went to the house of the appellant to question him. Heconfessed to his guilt (extra judicial confession). He asked her parents thathe will ensure that medical termination of the pregnancy (MTP) would takeplace. He, therefore, took the victim to a clinic run by Dr. Sachin Deshmukhand his wife Dr. Shilpa Deshmukh (P.W.6 & 7 respectively). A sonographywas done there. It is the case of prosecution that since something amisswas realised by P.W.7 – Dr. Shilpa, she refused to treat the victim for MTP.The victim and her family members ultimately decided to lodge the policereport. They, therefore, approached Osmanabad Rural Police Station.Victim’s statement-cum-F.I.R. (Exh.34) was recorded. She was referred formedical examination. She was at an advance stage of pregnancy. Crimescene panchanama (Exh.66) was drawn. Statements of the personsacquainted with the facts and circumstances of the case were recorded.Upon completion of investigation, the appellant was proceeded against byfiling the charge-sheet before the Special Court, Osmanabad (‘trial Court’).The trial Court framed the charge (Exh.2). The appellant pleaded not guilty.It was his defence that he belonged to a nomadic tribe. He claimed to be theDistrict President of, ‘Bharatiya Bhatkya Jati Jamati Sanghatana’. Accordingto him, since the victim and her family members were his relations, they3 / 24
Legal Reasoning
APEAL-767-23.odtapproached for help. He scolded the victim and her mother. They therebygot annoyed with him. A quarrel took place between him and the victim’smother. According to him, the victim was in relation with one Hari Mane,resident of village of Dhutta. In short, the appellant claimed to have falselybeen implicated.4.To bring home the charge, prosecution has examined twelvewitnesses and produced in evidence certain documents. On appreciation ofevidence in the case, the trial Court convicted the appellant andconsequently sentenced as stated above.5.Learned counsel for the appellant reiterated the defence of theappellant that was raised before the trial Court. According to him, bloodsamples of both, the victim and the appellant and even of the new born wereobtained. DNA test was conducted twice. Both the DNA reports ruled outthe appellant to be the biological father of the new born. Turning to theevidence of the prosecution witnesses, learned counsel would submit thatthe same too not to have been inspiring confidence. Parents of the victimhad their own house at village Dhutta. There was no scarcity of work to earnliving. An admission of the victim in that regard was adverted to. Since thevictim was in relation with one boy from the very village and she conceivedfrom him, family of the victim had to leave the village. They approached theappellant. He scolded the victim and her mother. A quarrel, therefore, tookplace amongst them. According to learned counsel, with a view to help out4 / 24 APEAL-767-23.odtthe victim and her parents, the appellant assisted them to ensure MTP.Since she was at an advanced stage of pregnancy, same could not be done.Statement of P.W.7 – Dr. Shilpa has not been recorded under Section 161 ofCr.P.C. Her husband, P.W.6 - Dr. Sachin Deshmukh would serve at CivilHospital and during off time would run the clinic. On the given day i.e. on01st June he was on duty at Civil Hospital as his duty hours were from 09:00a.m. to 12:30 p.m.6.Learned counsel for the appellant strongly relied on the DNAreports which rule out the appellant to be the biological father of the newborn. According to him, the appellant is behind the bars for little over eightyears for no reason. The DNA reports rule out the prosecution case. Herelied on the following judgments and urged for allowing the appeal :-I)State of Gujarat Vs. Jayantibhai Somabhai Khant, 2015Cri.L.J.3209II)Sunil Eknath Trambake Vs. Lelavati Sunil Trambake, AIR2006 Bombay 140III)Salim Ahmed Habibul Rahman Ansari Vs. State ofMaharashtra, Criminal Appeal No. 463 of 2017, High Courtof Bombay, Nagpur Bench.7.Learned A.P.P. and learned counsel representing the victimwould, on the other hand, submit that the victim was in the age group of 15-16 years. She was of the age of somewhat understanding. The victim andher parents had no reason to falsely implicate the appellant. Since theappellant threatened the victim, she did not relate the incident immediately to5 / 24 APEAL-767-23.odther parents. P.W.3 - Rekha was a common relative of both, the appellant’sand the victim’s family. She had no reason to give evidence against theappellant. We have been taken through the evidence of P.W.7 – Dr. Shilpato indicate that it was the appellant, who took the victim for aborting the fetus.After realising something amiss, she refused to help them out. The appellantmade an extra judicial confession before the victim, her mother and P.W.3 -Rekha as well. On the question of DNA reports, they would submit that thesame is in the nature of opinion evidence. The trial Court found the victim tobe simpleton and gullible. The trial Court had an opportunity to examinedemeanour of the victim. According to them, oral evidence of the victim, whosuffers ordeal, has rightly been relied upon by the trial Court. Both thelearned counsel, therefore, urged for dismissal of the appeal.8.Considered the submissions advanced. Perused the evidence onrecord. Let us advert thereto and appreciate the same.9.P.W.2 – ‘P’, Mother of the victim testified that the victim was bornon the day of Diwali of the year 2000. There is no specific denial to thispiece of evidence in her cross-examination. P.W.6 – Chavan, Headmaster ofthe school, placed on record copy of the school leaving certificate andadmission extract of the victim (Exh.71 and 72 respectively). Same indicatesher date of birth recorded therein is 23rd October 2000. P.W.8 – Sunita wasan Anganwadi Sevika. Her evidence indicates that the date of birth of thevictim was recorded by her as 06th October, 2000, after visiting the house of6 / 24 APEAL-767-23.odtP.W.2 and obtaining information in that regard. From this evidence we findthe victim to have been below eighteen years of age when the allegedincident took place.10.P.W.1 – ‘M’ (victim), while giving evidence before the Court,claimed to be of sixteen years of age. The trial Court had observed herdemeanour. The trial Court found the victim to be simpleton and gullible. Itis in her evidence that she was residing alongwith her parents and siblings atvillage Dhutta. About 3/4 months before lodging of the F.I.R. (Exh.34) on 10thJune, 2015, all of them migrated to village Junoni. The appellant has anagricultural land at village Junoni and his house as well thereat. Herevidence further indicates that the appellant provided their family a tin sheetroom to reside in. Her parents used to be away during day time forharvesting Jawar crop. She used to be alone in the room. It is further in herevidence that the appellant would visit Junoni. Her evidence further indicatesthat the appellant visited her room in the absence of her parents. He offeredher a sweet lemon and latched the door from inside. He undressed himself.He then undressed the victim and had sexual intercourse with her. It isfurther in her evidence that she made hue and cry. The appellant, howeverpressed her mouth. The appellant extended her threats to kill her parents ifshe makes the incident public. It is further in her evidence that the appellantvisited her many a time in the said room in the absence of her parents anddid the same act. Her evidence further indicates that her mother, P.W.2 – P,first took her to Dr.Kazi madam’s clinic. Dr. Kazi found the victim to have7 / 24 APEAL-767-23.odtbeen pregnant. It is further in her evidence that when her parents asked heras to who was responsible for the pregnancy, she attributed the same to theappellant. It is further in her evidence that thereafter she, alongwith herparents went to the appellant and questioned him about the same. Theappellant confessed. He requested them not to disclose the matter toanyone. He undertook to take her to the hospital for abortion. First theywent to a clinic of P.W.6 - Dr. Sachin Deshmukh. P.W.7 – Dr. Shilpa, a ladydoctor was there. She examined her and opined that abortion was notpossible. Thereafter victim lodged the report (Exh.34) with the police at theconcerned police station. It is further in her evidence that twice her bloodsamples were obtained. With the passage of time she delivered a baby(male child). Again blood sample of her and baby was obtained.11.She was subjected to a searching cross-examination. It has beenbrought on record during her cross examination that her family membersincluding herself would go for work in the field of others. Theirs’ was athatched house. Labour work was available in the village. She belongs tothe Kaikadi community. It is further in her evidence that the appellant wasthe District President of Bharatiya Bhatkya Jati Jamati Sanghatana. She,however categorically denied to have illicit relationship with a boy viz. HariMane. She went on to deny to have conceived on account of sexualintercourse with him. She denied to have lodged a false F.I.R. In her cross-examination itself she was suggested that the appellant was their relative.8 / 24 APEAL-767-23.odt12.We then have evidence of P.W.2 – ‘P’, mother of the victim. Herevidence is on the lines of evidence of her daughter (victim). Her evidenceindicates that the incident took place four months before filing of thecomplaint. During the relevant time, they were residing in the house ofappellant at village Junoni. They had been to village Junoni for harvestingJawar crop in the field of appellant. Her husband and herself used to beaway from the house during day time. The victim and her brother used to beat the room. The room was situated outside the village. They stayed therefor three months. It is further in her evidence that after having realised thevictim to have missed her periods, about eight to ten days prior to lodging ofthe F.I.R., she took the victim to the clinic of Dr. Kazi madam. Dr. Kaziexamined the victim and found her to be pregnant. Then she took the victiminto confidence and learnt from her that it was the appellant, who wasresponsible therefor. Her evidence in examination-in-chief is a reiteration ofwhat has been stated by the victim in her examination-in-chief. As such, theevidence of victim gets reinforced.13.It is further in her evidence that the appellant runs a brick kiln atOsmanabad. She, alongwith her husband and the victim went to meet theappellant. He was enquired with. He admitted his guilt. He tenderedapology and asked them to get the pregnancy terminated. He offered themRs.5,000/- to approach a doctor for the said purpose. When she (P.W.2) toldhim to have been unaware about the hospital for termination of pregnancy,then the appellant took the victim to a clinic of P.W.6 – Dr. Sachin9 / 24 APEAL-767-23.odtDeshmukh. She had also accompanied them. P.W.7 – Dr. Shilpa examinedthe victim. The victim underwent sonography. Dr. Shilpa opined the victim tohave been pregnant of four months. She refused to terminate thepregnancy. The appellant approached Dr. Sachin, husband of Dr. Shilpa,and made further request. Dr. Sachin expressed his inability. It is further inher evidence that they stopped in the said clinic for the day. All the medicalpapers of the victim were in the custody of the appellant. He then asked thevictim and her parents to stay at the house of P.W.3 – Rekha. He paid themRs.100/- for auto-rickshaw fare. It is further in her evidence that then theywent to the house of Rekha. She related Rekha the incident. The appellantthen came there. Rekha questioned him. He admitted his guilt. Theappellant asked them not to state the matter to anyone. It is further in herevidence that the appellant told her that if they make the incident public, itwould be difficult for the victim to get married. She, therefore, waited forabout eight to ten days. Thereafter she approached Osmanabad RuralPolice Station. F.I.R. (Exh.34) came to be lodged. Her evidence furtherindicates that the victim was referred to Civil Hospital, Osmanabad fortreatment. It is further in her evidence that her statement was recorded bythe Magistrate (under Section 164 of Cr.P.C.). She referred the same. It isat Exhibit 54.14.She was subjected to a searching cross-examination, wherefromit has been brought on record that the appellant was permanently residing atOsmanabad. He would run a brick kiln there. About 20-25 labours were10 / 24 APEAL-767-23.odtengaged by him. After the incident, she had been to the brick kiln. Thedistance between village Dhutta to Junoni and Junoni to Osmanabad hasalso been brought on record. It takes about an hour to reach Junoni toOsmanabad by road, while travel time between Dhutta to Osmanabad is oftwo hours. She admitted the appellant to be the District President ofBharatiya Bhatkya Jati Jamati Sanghatana. She denied the victim to havehad illicit relations with one Hari Mane of their village and therefore, they leftthe village. She further denied to have approached the appellant to helpthem to come out of the matter. She denied that the appellant scolded herand the victim and thereupon a quarrel took place between them. Shefurther denied to have had falsely lodged the F.I.R. against the appellant onaccount of said quarrel. Paragraph nos.10 and 11 of her cross-examinationpertain to certain omissions appearing in her police statement. Her policestatement is silent to state that she was at the brick kiln of the appellant toenquire him about the incident. It is further in her evidence that she hasstated to police that the appellant had admitted his guilt when she questionedhim. The same, however did not find place in her statement.15.It is reiterated that although paragraph nos.10 and 11 of the cross-examination of P.W.2 were adverted to, to bring on record certain omissionsin her police statement and even she appears to have admitted the same tohave not been finding place therein, it appears that learned A.P.P. in-chargeof the case was not attentive. We have perused P.W.2’s statement recordedunder Section 164 of Cr.P.C. (Exh.54) and police statement dated 13th June,11 / 24 APEAL-767-23.odt2015. Her police statement contains substantial incriminating materialdeposed by her in her examination-in-chief. Same is the case about herstatement (Exh.54).16.Close reading of the cross-examination of this witness indicatesthat except denial about the appellant to have taken the victim and herparents to Dr. Sachin Deshmukh’s clinic for MTP, nothing has been broughton record.17.Then there is evidence on P.W.3 – Rekha. It is in her evidencethat the appellant is her cousin (son of her maternal aunt). The victim isdaughter of her maternal uncle. It is in her evidence that about three yearsbefore, it was second day of month of June. She was serving with the S.T.canteen, Osmanabad. After working hours, she went to her house. On theway, she met the victim and her parents. P.W.2 related her about the victimto have been pregnant. On enquiry, she learnt the appellant to havecommitted sexual intercourse with the victim and as a result thereof thevictim conceived. Her evidence further indicates that after sometime, theappellant went her house. It is in her evidence that mother of the victim toldher that the appellant would visit her (Rekha) residence after a while.Appellant met her. He asked her to accompany him to Civil Hospital. He toldher that victim’s pregnancy would be terminated in Civil Hospital. She had,therefore, been to Civil Hospital alongwith the appellant. The appellantasked her to stay outside the hospital. After sometime when he came out of12 / 24 APEAL-767-23.odtthe hospital, she questioned him about the documents of sonography. Hetold her that the documents are kept in the hospital and asked her to comeon the following day for the purpose of MTP. It is further in her evidence thatthe appellant gave her lift on his motorbike upto Tajmahal talkies and paidher Rs.20/- for auto-rickshaw fare to go home. It is further in her evidencethat he paid Rs.100/- and asked her to bring the victim and her parents onthe following morning. It is further in her evidence that on the following daythe victim and her parents met her at her work place. The appellant toocame there by 10:00 a.m. She (Rekha) scolded him. The appellant admittedto have committed mistake (sexual intercourse). It is further in her evidencethat the appellant asked her not to disclose the incident to anyone. She hadreferred to her statement recorded by the Magistrate (under Section 164 ofthe Cr.P.C.) (Exh.63).18.In her cross-examination, she admitted the appellant to be thePresident of Bharatiya Bhatkya Jati Jamati Sanghatana. She, howeverclaimed ignorance as to whether the appellant extends help to all the needypersons of his community. She denied to have purchased bricks from theappellant on credit and failed to repay the money. She denied the quarrel tohave ensued between him and the appellant over the amount due andtherefore, gave evidence against him. Paragraph no.6 of her cross-examination was referred to bring on record omissions in her policestatement. Same thing happened here. Learned A.P.P., in-charge of thecase, appears to have not been attentive. Although this witness admitted to13 / 24 APEAL-767-23.odthave stated certain material facts and admitted to have not found place in herpolice statement, we had to refer to her police statement to find that herevidence in examination-in-chief is almost consistent with her policestatement. We are conscious of the fact that this statement cannot be apiece of corroborative evidence. The same has been simply referred to soas to observe that no material omissions amounting to contradiction havebeen brought on record during her cross-examination. Statement underSection 164 of Cr.P.C. (Exh.63) reinforces her evidence before the Court.19.P.W.4 – Gulve, is a witness to the crime scene panchanama(Exh.66). Since it was drawn long after the crime took place, nothingincriminating was found at the crime scene.20.Then we have evidence of P.W.6 – Dr. Sachin and his wife P.W.7– Dr. Shilpa. Their evidence indicate that Dr. Sachin would run an ENTclinic. He would also serve with Civil Hospital. His evidence indicates thathe knew the appellant. The appellant himself claimed to be a public figure inOsmanabad, a small town. The evidence of Dr. Sachin that he knew theappellant, therefore, cannot be doubted. According to him, on the given dayhe was on leave and was, therefore, at his clinic. It is in his evidence that theappellant alongwith the victim and her parents came to his clinic. He referredthem to his wife. It is further in his evidence that his wife was agynaecologist. She refused to conduct MTP of the victim as it was a medicolegal case. He was subjected to searching cross-examination so far as14 / 24 APEAL-767-23.odtregards registration of his clinic, non placing of registration document beforethe police and he being at the civil hospital at the relevant time.21.P.W.7 – Dr. Shilpa’s evidence indicates that the appellant hadaccompanied the victim and her parents for the victim’s MTP. It is in herevidence that she filled in the requisite forms. It is further in her evidencethat the appellant requested her to conduct MTP of the victim. Since shethought it being a MLC case, she enquired about the age of victim. That timevictim’s mother gave the victim’s age as sixteen years, while the appellantstated it to be eighteen years. All the medical papers in relation to the victimwith her clinic have been placed on record vide Exhibits 79 to 82. In hercross-examination, it was suggested that full name of the victim was notappearing in the register. She replied that recording of full name of thepatient is not necessary. She admitted to have not recorded identificationmark of the patient nor did she obtain identity card of the victim. She hasalso admitted that no name of the appellant figures in any of her documentsindicating him to have had accompanied them to the clinic. Her evidencefurther indicates that police did not record her statement. It is further in herevidence that when she received the witness summons, she had a talk withher husband.22.P.W.9 – Dr. Vivek was a Medical Officer, Civil Hospital,Osmanabad, who examined the appellant medically and issued certificate(Exh.92) indicating him to have not been unable to perform sexualintercourse.15 / 24 APEAL-767-23.odt23.P.W.10 – Dr. Vasudha was a Medical Officer with Civil Hospital,Osmanabad at the relevant time. Her evidence indicates that on 05thNovember, 2015 the victim underwent the cesarean as she had labour pain.The victim delivered a baby boy. Medical record in that regard is at Exhibit97. All the medical papers of the victim at civil hospital have been placed onrecord.24.P.W.11 – Dr. Ashvini was a Medical Officer at Civil Hospital,Osmanabad, who had examined the victim on registration of the F.I.R. Herevidence indicates that the victim gave history of sexual assault by theappellant four months back at village Junoni. Since the victim had not statedanything in her examination-in-chief about the history, P.W.11 – Dr. Ashvini’sthis piece of evidence would not be taken to have been the victim’s previousstatement to corroborate her own testimony. P.W.11 – Dr. Ashvini placed onrecord medical examination papers of the victim. Same has not seriouslybeen in dispute.25.P.W.12 – Ajay was the Police Station Officer of Osmanabad RuralPolice Station at the relevant time, who recorded F.I.R. (Exh.34) lodged bythe victim, while P.W.13 – Gawade, the then Police Inspector of the saidpolice station, did the investigation of crime.26.Appreciation of the entire evidence indicate that the victim and herparents were uneducated and rustic. The appellant was closely related to16 / 24 APEAL-767-23.odtthem. He was also relative of P.W.3 – Rekha. The victim and her familymembers had migrated to village Junoni and stayed in a tin sheet roomprovided by the appellant. The appellant was admittedly the President ofBharatiya Bhatkya Jati Jamati Sanghatana. The F.I.R. (Exh.34) was lodgedwhile the victim was pregnant of 3/4 months. Before that she did not relateanything about the incident to anyone. Her mother took her to Dr.Kazi’sclinic where-after she learnt the victim to have been pregnant. She then tookthe victim into confidence. The victim related her that it was the appellant,who used to visit the room in the absence of her parents and had sexualintercourse with her. It is further in her evidence that she conceived by theappellant. Admittedly, with passage of time the victim delivered a baby boy.The boy has been given to the child welfare centre (orphanage). The trialCourt found the victim to be simpleton and gullible. It is reiterated that theappellant is the relative of the victim and that of P.W.3 – Rekha as well.Rekha, being a common relative of both of them, on her father’s andmother’s side, she has no reason to give false evidence against theappellant. Nothing has been brought on record by the appellant to indicatethat Rekha had purchased bricks on credit from him and he had a quarrelwith her since she did not pay the cost of the bricks purchased. What hasbeen suggested to the victim and her mother was that the victim hadrelationship with one Hari Mane of village Dhutta.27.We are conscious of the fact that the appellant has right to keepsilent. It is an offence under POCSO Act. After recording of the evidence of17 / 24 APEAL-767-23.odtvictim, presumption under Section 29 of the POCSO Act comes into play. Itis for the appellant to rebut the same. True, he may rebut the same basedon preponderance of probabilities. Furthermore, there is presumption ofculpable mental state in view of Section 30 of the very Act. The appellant didnot lead any evidence in discharge of rebuttal of presumption under Sections29 and 30 of the POCSO Act. On the contrary, his defence appears to bewrong or inconsistent. According to him, false F.I.R. has been lodgedagainst him since he scolded the victim and her mother about the victimbecame pregnant. Had there really been a quarrel between them, he had noreason to take them to the clinic of Dr. Sachin and Dr. Shilpa Deshmukh forMTP. True, Dr. Shilpa has testified that some villagers had accompaniedthem. The fact remains that the appellant had taken the victim to the saidclinic for abortion. From scrutiny of entire evidence, we found nothing tohave been brought on record by the appellant to indicate the victim, hermother and P.W.3 – Rekha to have any reason to falsely implicate him in thematter. It is reiterated that the victim and her mother were illiterate andrustic. The victim was found to be simpleton and gullible. It is true thatduring investigation, blood samples of the victim and the appellant wereobtained and submitted to FSL for DNA profiling. Thereafter, on the birth ofbaby boy again blood samples of the trio were obtained and submitted for theDNA profiling. As such, DNA profiling took place twice. The reports favourthe appellant. Those reports find place at Exhibits 27 and 30. The appellanthas been ruled out to be the biological father of the new born.18 / 24 APEAL-767-23.odt28.The facts in the case of State of Gujarat Vs. JayantibhaiSomabhai Khant (supra) indicate that the accused therein was convicted forthe offence punishable under Section 376 of the I.P.C. and sentenced tosuffer imprisonment for ten years by the trial Court. The DNA report relied onin the said case ruled out the accused in the said case to be the biologicalfather of the child. The High Court, therefore, quashed the convictiontherein. We have closely read this judgment and particularly observationsregarding the DNA test.29.Another judgment relied on is of this Court in case of Sunil EknathTrambake (supra). Same is not of much assistance to the appellant since itwas arising out of the paternity dispute. The order directing DNA test of thechild without hearing the child and mother was held to be violative ofprinciples natural justice.30.Then another judgment relied on is in the case of Salim Ahmed(supra), wherein it has been observed that to deny the DNA test report is todeny the truth, relying on the judgment of the Supreme Court in the case ofNandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and Ors., AIR2014 SC 932.31.Learned counsel for the appellant meant to say that the DNAreport is a conclusive piece of evidence and since the same ruled out the19 / 24 APEAL-767-23.odtappellant to be the biological father of the new born, the appellant deservesto be acquitted.32.We are not in agreement with the submissions made by learnedcounsel for the appellant for the following reasons :-It is reiterated that the trial Court has relied on the oral evidence ofthe victim. The appellant was the relative of the victim. P.W.3 – Rekha wasanother witness related to both, the appellant’s and victim’s family, one fromher father side and other from her mother’s. She did not have any reason togive false evidence against the appellant. The appellant came with a falsedefence of having been falsely implicated on account of he scolded the victimand her mother over the victim’s affair with one Hari Mane. The evidence ofDr. Sachin and Dr. Shilpa Deshmukh indicate that the appellant had playedmajor role in taking the victim to their clinic for abortion. Dr. Shilpa refused toconduct the MTP as she found it to be a MLC. These witnesses have noreason to speak against the appellant.33.Coming to the DNA reports which ruled out the appellant to be thebiological father of the new born, we wish to rely on the judgment of the ApexCourt in the case of Pattu Rajan Vs. State of Tamil Nadu, (2019) 4 SCC771, a Bench of three Judges was pleased to observe thus :-“52. Like all other opinion evidence, the probative value accorded toDNA evidence also varies from case to case, depending on facts andcircumstances and the weight accorded to other evidence on record,whether contrary or corroborative. This is all the more important toremember, given that even though the accuracy of DNA evidence may20 / 24 APEAL-767-23.odtbe increasing with the advancement of science and technology withevery passing day, thereby making it more and more reliable, we havenot yet reached a juncture where it may be said to be infallible. Thus, itcannot be said that the absence of DNA evidence would lead to anadverse inference against a party, especially in the presence of othercogent and reliable evidence on record in favour of such party.”34.In the case of Sunil Vs. State of Madhya Pradesh, (2017) 4SCC 393, it has been held as under :-“Criminal Procedure Code, 1973, - S.53-A – Non-holding of DNA test,or, failure to prove DNA test report, or, DNA test result favouringaccused – Effect of – Held, conviction may still be possible based onremaining evidence, depending on facts and circumstances of the case- Failure to conduct DNA test of samples taken from accused or to provethe report of DNA profiling, as in the present case, would notnecessarily result in failure of prosecution case – Though a positiveresult of DNA test would constitute clinching evidence against accused,if however, result of test is in the negative i.e. favouring accused or ifDNA profiling had not been done or proved in a given case, wight ofother materials and evidence on record will still have to be considered”35.In the case of Manoj and Ors. Vs. State of Madhya Pradesh,(2023) 2 SCC 353, the Apex Court has made following observations :“154. In Dharam Deo Yadav v. State of UP, (2014) 5 SCC 509 thiscourt discussed the reliability of DNA evidence in a criminal trial, andheld as follows: “36. The DNA stands for deoxyribonucleic acid, which is thebiological blueprint of every life. DNA is made-up of a double standardstructure consisting of a deoxyribose sugar and phosphate backbone,cross-linked with two types of nucleic acids referred to as adenine andguanine, purines and thymine and cytosine pyrimidines…..DNA usuallycan be obtained from any biological material such as blood, semen,saliva, hair, skin, bones, etc. The question as to whether DNA tests arevirtually infallible may be a moot question, but the fact remains thatsuch test has come to stay and is being used extensively in the21 / 24 APEAL-767-23.odtinvestigation of crimes and the Court often accepts the views of theexperts, especially when cases rest on circumstantial evidence. Morethan half a century, samples of human DNA began to be used in thecriminal justice system. Of course, debate lingers over the safeguardsthat should be required in testing samples and in presenting theevidence in Court. DNA profile, however, is consistently held to be validand reliable, but of course, it depends on the quality control and qualityassurance procedures in the laboratory.”36.Observations in Pattu Rajan’s case (supra) have been approvedby a three Judges’ Bench of the Apex Court in case of Manoj and Ors.(supra) as under :-“140. This court, in one of its recent decisions - Pattu Rajan v. TheState of Tamil Nadu (supra), considered the value and weight to beattached to a DNA report: “33. Like all other opinion evidence, the probative value accorded toDNA evidence also varies from case to case, depending on facts andcircumstances and the weight accorded to other evidence on record,whether contrary or corroborative. This is all the more important toremember, given that even though the accuracy of DNA evidence maybe increasing with the advancement of science and technology withevery passing day, thereby making it more and more reliable, we havenot yet reached a juncture where it may be said to be infallible. Thus, itcannot be said that the absence of DNA evidence would lead to anadverse inference against a party, especially in the presence of othercogent and reliable evidence on record in favour of such party.” 37.The aforesaid authorities lead us to observe that DNA report couldnot be said to be infallible. The DNA report is after all an opinion evidence.Since the trial Court, after having observed the demeanour of the victim andrelying on the evidence of her mother, relative Rekha, Dr. Sachin and Dr.Shilpa held the appellant guilty and consequently sentenced him for the22 / 24 APEAL-767-23.odtoffence punishable under Section 376(f)(n) of the I.P.C., we found no reasonto interfere with the order of conviction.38.So far as appellant’s conviction for the offence punishable underSection 506 of the I.P.C. is concerned, we are not in agreement with thefindings recorded by the trial Court. The victim kept mum for three months.In her evidence she has stated to have raised hue and cry. Had it reallybeen so, she would have related the incident to her family members. Untilpregnancy was realised, she did not disclose the incident to anyone. Samemay lead us to infer it to be with her consent. True, the victim being beloweighteen years of age, her consent is immaterial. But her evidence that onaccount of threats given by the appellant she did not disclose the incident toanyone, is found to be unacceptable. We, therefore, found reason tointerfere with the appellant’s conviction and consequential sentence asregards offence punishable under Section 506 of the I.P.C.39.The trial Court has imposed maximum sentence provided underSection 6 of the POCSO Act i.e. life imprisonment. Section 6 of the POCSOAct, before amendment dated 16th August, 2019, reads thus :-“6. Punishment for aggravated penetrative sexual assault. - Whoever,commits aggravated penetrative sexual assault, shall be punished withrigorous imprisonment for a term which shall not be less than ten yearsbut which may extend to imprisonment for life and shall also be liableto fine.”40.The appellant is little over sixty-two years of age. In the peculiarfacts and circumstances of the case, we are inclined to interfere with the23 / 24 APEAL-767-23.odtimpugned order as regards quantum of sentence. We propose to reduce it tothe minimum term of imprisonment of ten years provided under Section 6 ofthe POCSO act, as then was.41.In view of above, we pass the following order :-ORDER(I)Criminal appeal is partly allowed.(II)Impugned judgment and order of conviction and sentencedated 29th September, 2020 passed by Special Judge(POCSO), Osmanabad in Special (POCSO) Case No. 15 of2015 for the offence punishable under Section 506 of theIndian Penal Code is set aside. The appellant standsacquitted thereof. Fine amount for the said offence, if paid,be refunded to him.(III)Conviction of the appellant for the offences punishableunder Section 376(f)(n) of the Indian Penal Code and underSections 4 and 6 of the Protection of Children from SexualOffences Act, 2012 vide impugned judgment and order ofconviction and sentence dated 29th September, 2020passed by Special Judge (POCSO), Osmanabad in Special(POCSO) Case No. 15 of 2015 is hereby confirmed.However, sentence of life imprisonment imposed on theappellant for the offence punishable under Section 6 of thePOCSO Act is reduced to rigorous imprisonment for tenyears. Quantum of fine for the said offence standsunaltered.(IV)Fees of Mr. Pratik A. Bhosle, learned counsel appointed torepresent Respondent No.2, is quantified to Rs.10,000/-(Rupees Ten Thousand).( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD24 / 24