1 apeal693.2023.odt

,I N THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CRIMINAL APPEAL NO.693/2023

Ashish S/o Gangadhar Lonare,

aged about 32 Yrs., Occu. Vegetable

Vendor, R/o Bidi Karkhana No.5,

Nagpur, Tq. and Distt. Nagpur.

(Presently at Central Prison, Nagpur)...Appellant

- Versus -

1. State of Maharashtra,

through Police Station Officer,

Police Station, Imamwada,

District Nagpur.

2. X.Y.Z.

Crime No.9717,

P.S.O. Imamwada, Nagpur. ... Respondents

-----------------

Mr. Sandeep Naresh Singh with Mr. A.M. Chandekar, Advocates for

the Appellant.

Mr. Ujjwal R. Phasate, A.P.P. for Respondent No.1/State.

Ms. Kirti Wankhede, Advocate (appointed) for Respondent No.2.

----------------

CORAM: NEERAJ P. DHOTE, J.

DATE OF RESERVING THE JUDGMENT: 6.1.2026.

DATE OF PRONOUNCING THE JUDGMENT: 09.1.2026.

JUDGMENT

This is the Criminal Appeal under Section 374(2) of the Code

of Criminal Procedure (henceforth referred to as “Cr.P.C.” for short)

against the judgment and order dated 20.5.2022, passed by the

learned Additional Sessions Judge (Fast Track Court), Nagpur in 2026:BHC-NAG:250

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Special Case No.70/2017 convicting and sentencing the Appellant as

follows:-

a)For the offence punishable under Section 363 of the Indian

Penal Code (henceforth referred to as “I.P.C.” for short) and

sentencing to suffer rigorous imprisonment for 7 years and fine of

Rs.2,000/-, in default to pay fine, to undergo rigorous imprisonment

for 2 months;

b)For the offence punishable under Section 4 of the Protection of

Children from Sexual Offences Act, 2012 (henceforth referred to as

“POCSO Act” for short) and sentencing to suffer rigorous

imprisonment for 7 years and fine of Rs.2,000/-, in default to pay

fine, to suffer rigorous imprisonment for 2 months;

c)For the offence punishable under Section 6 of the POCSO Act

and sentencing to suffer rigorous imprisonment for 10 years and fine

of Rs.5,000/-, in default to pay fine, to suffer rigorous imprisonment

for 3 months.

2.The prosecution’s case, as revealed from the police report, is as

under:-

The informant was residing with his family, comprising wife

and 2 minor daughters. The victim was the eldest daughter of the

informant. The victim was 12 years old and a ‘special child’. The

informant used to leave home at 10.30 a.m. The informant noticed

that, from last some days, the victim was not present at home in the

afternoon and she returns home in the evening with one boy on the

motorcycle who drops her near the house. One week prior to

lodging the report, the victim was not at home for considerable time

and she returned home around 4.30 p.m. He enquired with the

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victim and she told that, she had accompanied the Appellant on his

motorcycle, who took her to one room, where the Appellant removed

her clothes. On 12.1.2017, it was noticed that the Appellant was

seen repeatedly roaming around his house on the motorcycle. The

registration number of the motorcycle was taken down by the

neighbourer. On 13.1.2017 the victim left home at 1.30 p.m. and

returned at 4.50 p.m. On enquiry, the victim told that, the Appellant

took her to one room and he raped her. The informant lodged the

report with the Imamwada Police Station against the Appellant and

crime bearing No.0009/2017 came to be registered for the offence

punishable under Sections 376(2)(i), 376(2)(j), 376(2)(l), 376(2)

(n), 354 and 363 of the I.P.C. and Sections 4, 6, 8 and 12 of the

POCSO Act.

The Investigating Officer referred the victim for medical

examination. Statement of the victim was recorded. The statement

of witnesses were recorded. The Appellant came to be arrested. The

clothes of the victim and that of the Appellant came to be seized. The

blood samples of the victim and that of the Appellant came to be

drawn. The seized articles were sent to the Chemical Analyst. The

relevant documents were collected. On completion of investigation,

the Appellant came to be chargesheeted. On committal, learned

trial Court framed the Charge against the Appellant below Exh.48 for

the offence punishable under Sections 363, 354, 376(2)(i), (j), (l)

and (n) of the I.P.C. and Sections 4, 6, 8 and 12 of the POCSO Act.

The Appellant denied the charge and claimed to be tried.

3.To prove the charge, the prosecution examined following 10

witnesses.

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1)The victim as P.W.1,

2)Father of victim who is also the informant as P.W.2,

3)The Medical Officer who examined the victim as P.W.3,

4)The Chemical Analyzer as P.W.4,

5)The owner of the house where the incident took place as P.W.5,

6)The Policeman who was the Head-Constable at the relevant

time and carried the parcels to the Laboratory as P.W.6,

7)The Station House Officer who recorded the report, registered

the crime and conducted the spot-panchanama as P.W.7,

8)The Panch witness as P.W.8,

9)The Panch witness as P.W.9 and

10)The Investigating Officer who conducted the investigation

from 14.1.2017 as P.W.10.

Through the evidence of the above referred witnesses, the

prosecution brought on record the relevant documents. After the

prosecution submitted the evidence closure pursis, the learned trial

Court recorded the statement of the Appellant under Section

313(1)(b) of the Cr.P.C. The Appellant denied the case and the

evidence brought on record by the prosecution. He stated that he

was falsely implicated. On appreciating the evidence available on

record, the learned trial Court convicted and sentenced the Appellant

as above.

4.Heard learned Advocate for the Appellant, learned A.P.P. for the

State and learned Advocate for the Respondent No.2/victim.

5.It is submitted by the learned Advocate for the Appellant that,

the prosecution failed to prove that the victim was the child at the

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relevant time. The medical evidence shows that history was given by

the victim’s mother. The victims testimony shows that she was

tutored witness and, therefore, her testimony cannot be relied. The

report of Chemical Analyzer cannot be relied as the evidence on

record shows that there was possibility of tampering with the

samples collected for DNA. Considering the overall evidence on

record, the conviction and sentence recorded by the learned trial

Court against the Appellant be set aside and the appeal be allowed.

In support of his submissions, he relied on the following judgments:-

1)Pradip Devidas Dongre V/s. State of Maharashtra, through

Police Station Officer, 2019 DGLS (Bom.) 51,

2)Muskan Shaikh Rashid @ Rafiq and others V/s. State of

Maharashtra, 2017 DGLS (Bom.) 490 and

3)Chandu @ Chandrashekhar Keshaorao Chambhare V/s. State

of Maharashtra 2025 DGLS (Bom.) 590.

6.It is submitted by the learned A.P. P. that, by examining the

father of victim and bringing on record the birth certificate, the

prosecution proved the date of birth and age of the victim and

established that the victim was the child at the relevant time. The

identity of the Appellant was established through the testimony of

the victim. The vague admission by the victim in respect of her age is

of no assistance to the Appellant. The victim was not tutored as can

be seen from her testimony. The DNA report are incriminating in

nature. The overall evidence on record established the Charge and

the learned trial Court has rightly convicted the Appellant and the

Appeal be dismissed. In support of his submissions, he relied on the

following judgments.

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1)State of Rajasthan V/s. Chatra (2025) 8 SCC 613,

2)Nalin @ Narendra S/o Bhagwan Nitnaware V/s. State of

Maharashtra, through the Police Station Officer of Police Station

Wadi, Nagpur and another 2025 Supreme (Bom) 1701,

3)Omkar Dattatraya Dangat V/s. State of Maharashtra 2023

Supreme (Online) (Bom) 2621.

7.It is submitted by the learned Advocate for the Respondent

No.2 victim that, the prosecution proved that the victim was a child

at the relevant time. The Appellant was known to the victim. The

charge can be proved on the sole testimony of the victim. The DNA

report is incriminating in nature. No interference is warranted in the

judgment and the Appeal be dismissed.

8.When the charge is for the offence punishable under the penal

provisions of the POCSO Act, it is for the prosecution to establish that

the victim was a child as defined under Section 2(d) of the POCSO

Act. To establish that the victim, at the relevant time, was below 18

years of age and was a child, prosecution relied on the testimony of

the father of the victim who is examined as P.W.2. The evidence of

this witness nowhere shows that there is a challenge to the aspect

that he was the biological father of the victim. His evidence shows

that the victim’s date of birth was 6.10.2004. His evidence shows

that he tendered the birth certificate of the victim and the same was

exhibited as Exh.60 by the learned trial Court. Undisputedly, no

witness from the office of the Municipal Corporation, which issued

the said birth certificate, was examined by the prosecution to prove

the authenticity of the said birth certificate (Exh.60). However,

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nothing has come in the evidence of this witness that the victim’s

date of birth was different than the one deposed by this witness. This

witness being biological father of the victim, his evidence regarding

date of birth assumes importance. The date of birth deposed by this

witness before the trial Court find no direct challenge by the defence

in the cross-examination. On the basis of this evidence on record,

the prosecution proved the date of birth of the victim. Undisputedly,

the report was lodged by this witness to the concerned Police Station

on 13.1.2017 for the incidences prior to lodging the F.I.R.

Considering the date of birth of the victim and the date of lodging of

the F.I.R., it is clear that the victim was the child at the relevant time.

9.Though P.W.2, father of the victim, in his evidence deposed

that the victim was slow-witted child, his evidence shows that he had

not produced any medical certificate in respect of victim’s mental

condition. The evidence of P.W.10 Investigating Officer shows that he

did not get the victim examined in respect of her Intelligent Quotient

(IQ). His evidence further shows that there was no certificate by the

Psychologist to show the mental illness of the victim. His evidence

further shows that while recording the statement, victim understood

the questions put to her. In absence of any other material or

evidence on record, the evidence of the victims father will not be

sufficient to accept that the victim was the slow-witted child.

10.The report is lodged by the father of the victim. He is not an

eye witness to any of the incident of sexual assault on the victim. He

set the criminal law in motion against the Appellant. However,

most of the evidence of the victim’s father is an omission. His

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evidence shows that he had seen the Appellant wandering near his

house. The testimony of the victim shows that her parents came to

know that the Appellant used to take round near her house. Her

evidence shows that her parents were annoyed due to wandering of

the Appellant near their house. This evidence on record shows that

victim’s father did not like the Appellant’s wandering near their

house. The evidence of the victim’s father show that he gave phone

call to the police and had gone to the police station and gave the

motorcycle number to the police. His evidence show that before the

Appellant was brought to the police station, police had shown the

photograph of the Appellant on the mobile and the victim identified

the photo. His further evidence shows that the police had shown two

to three photographs to the victim, out of which the victim identified

the photo of the Appellant. His evidence further shows that the

police showed him two photographs at the police station and on the

basis of the motorcycle of the Appellant, the address of the Appellant

was traced and his photograph was obtained by the police and on it’s

basis he identified him.

11.The prosecution case largely hinges on the testimony of victim.

In State of Rajasthan (supra) the principles in respect appreciation of

evidence of the child are laid down. There is no dispute in respect

of the said principles. In Nalin @ Narendra (supra) this Court found

the testimony of the victim wholly trustworthy and reliable and

maintained the conviction recorded by the trial Court therein.

Evidence of victim shows that she knew the Appellant. The Appellant

used to take her on his two wheeler. The Appellant used to take her

at one room and commit sexual intercourse with her. According to

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the victim, said act was committed for 5 to 6 times by the Appellant

on her. From the cross-examination of the victim, it is clear that most

of the evidence of the victim was an omission or improvement,

except the evidence in respect of sexual intercourse. It is clear from

the cross-examination of the victim that her parents, maternal uncle,

paternal aunt and cousin brother accompanied her to the police

station. It has come in her cross-examination that when she had

gone to the police station, her signatures were taken on one paper

and she was not aware what was written on the same. It has come in

her cross-examination that her parents instructed her to give

statement against the Appellant in the Court and the F.I.R. was read

over to her by the parents and she was asked to give such statement

in the Court. According to the victim, her family members came to

know when she narrated the acts on the part of the Appellant at the

police station. If that be so, the possibility of false implication cannot

ruled out. These vital aspects in the cross-examination of the victim

clearly shows that she deposed under the influence of her parents.

This indicates that victim’s testimony was not natural and she was

tutored by her parents. This being the position, the testimony of the

victim itself cannot form the basis to hold that the Charge was

proved against the Appellant. It is evident from the testimony of the

victim that she cannot be called the witness of sterling quality. This

being the evidence of victim, the judgments cited by learned A.P. P.

will not be of any assistance for the prosecution.

12.The evidence of P.W.3, Medical Officer, working at the

Government Medical College, shows that on 13.1.2017 the victim

was brought for medical examination. The mother of the victim gave

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the history to him. He examined the victim and found old healed

hymnal tear present at 6 O' clock and 4 O' clock position, edges of

the hymen were normal and there was no bleeding and rest of the

examination was found normal. He opined that the sexual assault

could not be ruled out and the final opinion was kept pending till the

Forensic Science Laboratory report. The cross-examination of the

Medical Officer clearly shows that the vaginal canal as well as vagina

of a 12 years old child was delicate and if a fully developed man

commits sexual intercourse with said child, the child will receive the

injury in the vaginal canal in the nature of ‘lacerated wounds’ and

‘lacerated bruises’. It has clearly come in his evidence that he had

not seen any ‘lacerated wound’ or ‘bruise’ in the vaginal canal during

examination of the victim. It has further come in his evidence that if

such injury occurs, it might take some time to heal and it was very

difficult to show when the hymen of the victim was teared. His

evidence further shows that at the second time of penetration there

may be injury to the vaginal canal. His evidence further shows that if

the victim is medically examined within 24 hours from the forceful

sexual intercourse, the injuries on the vaginal canal can be seen and

even if the ‘lacerated wounds’ and ‘bruises’ in vaginal canal were

caused prior to 10 days of examination, then the evidence of it’s

healing can be seen. He clearly deposed that he had not seen any

injury of ‘lacerated wound’ and ‘lacerated bruise’ in the vaginal canal.

His evidence shows that his opinion that possibility of sexual assault

cannot be ruled out was only based on the hymnal tear and as it was

old hymnal tear. It has come in his evidence that there are various

reasons for hymnal tear such as playing, cycling, running etc. This

medical evidence do not corroborate the prosecution’s case in respect

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of sexual assault by the Appellant on the victim. Moreover, the

history was given to this Medical Officer by the mother of the victim

which again creates doubt about the prosecution’s case.

13.Another evidence brought on record by the prosecution is DNA

report. Much emphasis is given by the learned A.P.P. on the DNA

report which is brought on record at Exh.67 in the evidence of P.W.4

Chemical Analyzer. Evidence of this witness shows that he

conducted analysis of DNA in the present case. On the analysis, he

opined that semen stains of the Appellant were found on the knicker

of the victim. It has come in his cross-examination that there was no

requisition from the police to provide DNA kit to keep the blood

samples and as per his knowledge no DNA kit was provided from the

laboratory. He received the samples on 19.8.2017 from the

Biological Section and he was unable to state the condition of

samples which was received by him. His evidence shows that the

samples are required to be preserved in proper condition till they are

submitted to the laboratory. It has clearly come in his

cross-examination that if the samples are not kept in proper

condition, it may affect the result of analysis and he was unaware as

to where the samples were kept in the police station prior to it’s

deposit with the laboratory. In his cross-examination he volunteered

that he never received the semen samples of the Appellant. This

evidence itself is sufficient to discard the DNA report.

14.There cannot be any dispute on the settled legal position in

respect of evidentiary value to be given to the DNA report. The

prosecution is duty-bound to establish the complete chain of

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handling of the samples from its drawing till the analysis is done. On

this point, the judgment of Chandu @ Chandrashekhar (supra) cited

by the learned Advocate for the Appellant is relevant. The Division

Bench of Bombay High Court at Aurangabad in Nivrutti S/o Nagorao

Hange V/s. The State of Maharashtra and another 2024 ALL MR

(Cri.) 3445 which finds place in the said judgment, considered the

decisions of the Hon’ble Supreme Court in respect of DNA report.

Relevant observations from the said judgment are reproduced

below:-

“18.Before proceeding to appreciate the submissions it

would be appropriate to consider the law laid down by the

Apex Court and considered by this Court in a number of

cases on the point of admissibility and credibility of CA

and DNA reports. The Division Bench of the Bombay High

Court at Aurangabad has considered almost all the

decisions on this point in the case of Nivrutti S/o. Nagorao

Hange .v/s. The State of Maharashtra and another,

reported in, 2024 ALL MR (Cri.) 3445. It would be

appropriate to reproduce para 17 wherein this issue has

been dealt with. It is extracted below:

17. Another evidence, upon which, the Prosecution

laid emphasis and which weighed heavily with the learned

Trial Court to convict the Appellant, is the scientific

evidence in the nature of DNA reports. Following

Judgments are relied upon by the learned Advocates for

the Appellant on this aspect.

[I] In Pattu Rajan Vs. The State of Tamil Nadu;

MANU/SC/0439/2019:[2019 ALLSCR (Cri.) 1343], it is

observed as follows :-

“31. Shri Sushil Kumar also argued that a DNA test

should have been conducted in order to identify the dead

body, and identification merely on the basis of a

superimposition test, which is not a tangible piece of

evidence, may not be proper.

13 apeal693.2023.odt

One cannot lose sight of the fact that DNA

evidence is also in the nature of opinion evidence as

envisaged in Section 45 of the Indian Evidence Act.

Undoubtedly, an expert giving evidence before the Court

plays a crucial role, especially since the entire purpose and

object of opinion evidence is to aid the Court in forming its

opinion on questions concerning foreign law, science, art,

etc., on which the Court might not have the technical

expertise to form an opinion on its own. In criminal cases,

such questions may pertain to aspects such as ballistics,

fingerprint matching, handwriting comparison, and even

DNA testing or superimposition techniques, as seen in the

instant case.

32. The role of an expert witness rendering opinion

evidence before the Court may be explained by referring to

the following observations of this Court in Ramesh

Chandra Agrawal v. Regency Hospital Limited and Ors.,

MANU/SC/1641/2009 : (2009) 9 SCC 709:

16. The law of evidence is designed to ensure that the

court considers only that evidence which will enable it to

reach a reliable conclusion. The first and foremost

requirement for an expert evidence to be admissible is that

it is necessary to hear the expert evidence. The test is that

the matter is outside the knowledge and experience of the

lay person. Thus, there is a need to hear an expert opinion

where there is a medical issue to be settled. The scientific

question involved is assumed to be not within the court's

knowledge. Thus cases where the science involved, is

highly specialized and perhaps even esoteric, the central

role of an expert cannot be disputed.…

Undoubtedly, it is the duty of an expert witness to

assist the Court effectively by furnishing it with the

relevant report based on his expertise along with his

reasons, so that the Court may form its independent

judgment by assessing such materials and reasons

furnished by the expert for coming to an appropriate

conclusion. Be that as it may, it cannot be forgotten that

opinion evidence is advisory in nature, and the Court is

not bound by the evidence of the experts. (See The State

14 apeal693.2023.odt

(Delhi Administration) v. Pali Ram, MANU/SC/ 0189/1978

: (1979) 2 SCC 158; State of H.P. v. Jai Lal and Ors.,

MANU/SC/0557/1999 : (1999) 7 SCC 280; Baso Prasad

and Ors. v. State of Bihar, MANU/SC/8723/2006 : (2006)

13 SCC 65; Ramesh Chandra Agrawal v. Regency Hospital

Ltd. And Ors. (supra); Malay Kumar Ganguly v. Dr.

Sukumar Mukherjee and Ors., MANU/SC/1416/2009:

(2010) 2 SCC (Cri.) 299).

33. Like all other opinion evidence, the probative value

accorded to DNA evidence also varies from case to case,

depending on 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”.

[II] In Manoj and Others Vs. State of Madhya Pradesh;

MANU/SC/0711/2022: [2022 ALL SCR (Cri.) 1177], it is

observed as follows :-

“134.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:

…. ….. ….. ….. ……

…. ….. ….. ….. ……

…. ….. ….. ….. ……

…. ….. ….. ….. ……

…. ….. ….. ….. ……

…. ….. ….. ….. ……

…. ….. ….. ….. ……

Collection and Preservation of Evidence

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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.

…. ….. ….. ….. ……

…. ….. ….. ….. ……

136. 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 1person in every 100,000. This

is described as the 'random occurrence ratio' (Phipson

1999).

Thus, DNA may be more useful for purposes of

investigation but not for raising any presumption of

identity in a court of law.

…. ….. ….. ….. ……

…. ….. ….. ….. ……

…. ….. ….. ….. ……

16 apeal693.2023.odt

141. 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”.

[III] In Naveen Vs. The State of Madhya Pradesh;

MANU/SC/1167/2023: [2023 ALLSCR (Cri.)1955], it is

observed as follows:

“18. The issue concerning evidentiary value of DNA

report has been considered by this Court in a recent

judgment reported in the case of Rahul v. State of Delhi,

Ministry of Home Affairs and Anr. MANU/SC/1455/2022 :

(2023) 1 SCC 83 wherein the following has been held in

Paragraphs 36 and 38 as under:

36. The learned Amicus Curiae has also assailed the

forensic evidence i.e. the report regarding the DNA

profiling dated 18-4-2012 (Ext. P-23/1) giving

incriminating findings. She vehemently submitted that

apart from the fact that the collection of the samples sent

for examination itself was very doubtful, the said forensic

evidence was neither scientifically nor legally proved and

could not have been used as a circumstance against the

Appellant-Accused. The Court finds substance in the said

submissions made by the Amicus Curiae. The DNA

evidence is in the nature of opinion evidence as envisaged

Under Section 45 and like any other opinion evidence, its

probative value varies from case to case.

38. It is true that PW 23 Dr B.K. Mohapatra, Senior

Scientific Officer (Biology) of CFSL, New Delhi had

stepped into the witness box and his report regarding DNA

profiling was exhibited as Ext. PW 23/A, however mere

exhibiting a document, would not prove its contents. The

record shows that all the samples relating to the Accused

and relating to the deceased were seized by the

investigating officer on 14-2- 2012 and 16-2-2012; and

they were sent to CFSL for examination on 27-2-2012.

17 apeal693.2023.odt

During this period, they remained in the malkhana of the

police station. Under the circumstances, the possibility of

tampering with the samples collected also could not be

ruled out. Neither the trial court nor the High Court has

examined the underlying basis of the findings in the DNA

reports nor have they examined the fact whether the

techniques were reliably applied by the expert. In the

absence of such evidence on record, all the reports with

regard to the DNA profiling become highly vulnerable,

more particularly when the collection and sealing of the

samples sent for examination were also not free from

suspicion. (Emphasis supplied)”

19. In the case of Manoj and Ors. v. State of M.P.

MANU/SC/0711/2022 :(2023) 2 SCC 353, it was held

that 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 as it can be contaminated when

DNA from another source gets mixed with DNA relevant to

the case. This can happen even when someone sneezes or

coughs over the evidence or touches his/her mouth, nose,

or other part of the face and then touches the 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.

20. In the case of Anil @ Anthony Arikswamy Joseph v.

State of Maharashtra MANU/SC/0124/2014 : (2014) 4

SCC 69, the following has been held in paragraph 18 as

under:

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

18 apeal693.2023.odt

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

supplied)

[IV] In Prakash Nishad Vs. State of Maharashtra;

MANU/SC/0613/2023; [2023 ALL SCR (ONLINE) 477],

one of the issue for consideration was whether DNA

evidence can form the solitary basis in determining the

guilt of the Appellant therein and it

observed as follows :-

“60. We may observe that the Maharashtra Police

Manual1, when speaking of the integrity of scientific

evidence in Appendix XXIV states -

The integrity of exhibits and control samples must

be safeguarded from the moment of seizure upto the

completion of examination in the laboratory. This is best

done by immediately packing, sealing and labeling and to

prove the continuity of the integrity of the samples, the

messenger or bearer will have to testify in Court that what

he had received was sealed and delivered in the same

condition in the laboratory. The laboratory must certify

that they have compared the seals and found them to be

correct. Articles should always be kept apart from one

another after packing them separately and contact be

scrupulously avoided in transport also.

61. In the present case, the delay in sending the

samples is unexplained and therefore, the possibility of

contamination and the concomitant prospect of

diminishment in value cannot be reasonably ruled out. On

the need for expedition in ensuring that samples when

collected are sent to the concerned laboratory as soon as

possible, we may refer to "Guidelines for collection,

storage and transportation of Crime Scene DNA samples

For Investigating Officers - Central Forensic Science

19 apeal693.2023.odt

Laboratory Directorate Of Forensic Sciences Services

Ministry Of Home Affairs, Govt. of India"2 which in

particular reference to blood and semen, irrespective of its

form, i.e. liquid or dry (crust/stain or spatter) records the

sample so taken "Must be submitted in the laboratory

without any delay."

62. The document also lays emphasis on the 'chain of

custody' being maintained. Chain of custody implies that

right from the time of taking of the sample, to the time its

role in the investigation and processes subsequent, is

complete, each person handling said piece of evidence

must duly be acknowledged in the documentation, so as to

ensure that the integrity is uncompromised. It is

recommended that a document be duly maintained

cataloguing the custody. A chain of custody document in

other words is a document, "which should include name or

initials of the individual collecting the evidence, each

person or entity subsequently having custody of it, dated

the items were collected or transferred, agency and case

number, victim's or suspect's name and the brief

description of the item."

[V] In Mukesh and Others Vs. State of NCT of Delhi

and Ors.; MANU/SC/0575/2017: [2017 ALLMR (Cri.)

2448 (S.C.], it is observed as follows :-

“216 In Pantangi Balarama Venkata Ganesh v.

State of Andhra Pradesh MANU/SC/1306/2009 : (2009)

14 SCC 607, a two-Judge Bench had explained as to what

is DNA in the following manner:

41. Submission of Mr. Sachar that the report of DNA

should not be relied upon, cannot be accepted. What is

DNA? It means:

Deoxyribonucleic acid, which is found in the

chromosomes of the cells of living beings is the blueprint

of an individual. DNA decides the characteristics of the

person such as the colour of the skin, type of hair, nails

and so on. Using this genetic fingerprinting, identification

of an individual is done like in the traditional method of

identifying fingerprints of offenders. The identification is

hundred per cent precise, experts opine.

20 apeal693.2023.odt

There cannot be any doubt whatsoever that there

is a need of quality control. Precautions are required to be

taken to ensure preparation of high molecular weight

DNA, complete digestion of the samples with appropriate

enzymes, and perfect transfer and hybridization of the blot

to obtain distinct bands with appropriate control. (See

article of Lalji Singh, Centre for Cellular and Molecular

Biology, Hyderabad in DNA profiling and its applications.)

But in this case there is nothing to show that such

precautions were not taken”.

[VI] In Ananda Vs. The State of Maharashtra;

MANU/MH/3781/2024, one of the evidence was in the

nature of DNA reports and it is observed as under:

“39. The question is, based on the DNA reports,

whether the conviction and/or sentence passed by the trial

court would be sustainable. We have gone through the

impugned judgment. The trial court has relied on the

evidence of each and every witness. It also relied on the

evidence of the medical officer who collected blood of the

appellant for DNA analysis, even in breach of protocol in

that regard. The reason assigned for relying on the said

evidence is that the said witness is uninterested and

independent one. Before appreciating the evidence relating

to DNA, we must have a look at the guidelines for

collection, storage and transportation of the crime-scene

DNA samples. Those have been placed on record by

learned counsel for the appellant. Item No.10 therein

speaks of maintaining the chain of custody. It describes

what chain of custody means. Same reads as under:-

10.Maintaining the chain of custody:

• Chain of custody is a process used to maintain and

document the chronological history of the evidence.

• A `chain of custody’ document should be maintained

which should include name or initials of the individual

collecting the evidence, each person or entity subsequently

having custody of it, dated the items were collected or

transferred, agency and case number, victim’s or suspect’s

name and the brief description of the item.

21 apeal693.2023.odt

Those were the guidelines issued by The Central

Forensic Science Laboratory, Chandigarh. PW 18 – Vaishali

admitted in cross-examination that the C.F.S.L.,

Chandigarh and Hyderabad are best in India.”

15.In the case at hand there is no link evidence to show as to who

had drawn the samples, where they were kept and in what condition

before submitting to the laboratory.The prosecution examined

Panch witness on the point of samples of victim and the accused as

P.W.9. His evidence shows that police seized samples of the victim

and the accused which were brought from the hospital in his

presence. However, in the cross-examination he deposed that he did

not know who took the samples and who brought the same to the

police station, the police did not take the samples in his presence, the

samples were kept in the glass container and the police told him that

said samples were of the victim and the Appellant. His evidence

further shows that while preparation of the panchanama below

Exh.116 which was in respect of the bottles, the Appellant was not

present and only the victim girl was present. It has come in his

cross-examination that the seizure panchanama was prepared in the

police station itself and the samples mentioned in the panchanamas

were kept on the table in the police station. Though P.W.10, the

Investigating Officer, deposed that he seized the blood samples and

other samples of the victim which were taken by the Medical Officer

in presence of two Panchas, there is absolutely no evidence as to who

had drawn the samples for DNA. The evidence of P.W.6 shows that

on 21.1.2017 he carried 20 parcels to the laboratory as per the

instructions of his superior. There is absolutely no evidence as

required under the law to establish the chain of handling of the DNA

22 apeal693.2023.odt

samples. In absence of the link evidence in respect of handling of

DNA samples, the evidence available on record is not sufficient to

accept the DNA report. With the evidence available on record, the

DNA report cannot be accepted and the same is liable to be

discarded.

16.The other evidence on record is that of the house owner where

the accused had gone to take rest, the evidence of the Panch witness

and the evidence of the Carrier. This evidence do not take the case of

prosecution any further. As regards the C.A. Reports in respect of

articles seized during the course of investigation, those cannot form

the basis to uphold the conviction as the evidence of P.W.9 Panch

witness shows that the clothes of the victim and that of the accused

were kept on the table in the police station and the police informed

him that the clothes were seized. Suggestion is given in respect of

tampering of the articles. His evidence further shows that the clothes

were not in a sealed condition. Suggestions are given by the defence

that the articles were tampered and the semens were sprinkled on

the clothes of the victim.

17.The re-appreciation of the evidence available on record, as

above, result in recording the finding that, the evidence brought on

record by the prosecution to prove the charge is not free from doubt.

The evidence on record is not concrete and cannot form the basis to

uphold the conviction and sentence. The Appellant is therefore

entitled for acquittal. As the Appellant has already undergone the

sentence and set free from the jail, no orders are required for his

release. Hence, the following order:-

23 apeal693.2023.odt

ORDER

i)The appeal is allowed.

ii)The conviction and sentence recorded by the learned trial

Court against the Appellant by the impugned judgment and order for

the offence punishable under Section 363 of the I.P.C. and for the

offence punishable under Sections 4 and 6 of the POCSO Act is

quashed and set aside.

iii)The Appellant is acquitted of the offence punishable under

Section 363 of the I.P.C. and for the offence punishable under

Sections 4 and 6 of the POCSO Act.

iv)Fine amount paid by the Appellant, if any, be refunded to him.

v)The muddemal articles be dealt with as per the impugned

judgment and order.

vi)The record and proceedings be sent back to the learned trial

Court.

vii)The fees of the learned Advocate appointed for Respondent

No.2 is quantified at Rs.10,000/-. Same be paid accordingly by the

High Court Legal Services Authority.

(NEERAJ P. DHOTE, J.)

Tambaskar.