1

MHTH27-001625-2023 Presented on : 07/06/2021

Registered on: 07/06/2021
Decided on : 15/03/2024
Duration : 02 Y.09 Ms. 08Ds.

Exh. No. 61

FORM NO. XXXII

Part 'A'
(Title Page of Judgment)
[Para 44(i) of Chapter VI of Criminal Manual]

IN THE COURT OF ADDITIONAL SESSIONS JUDGE, BELAPUR.

Present :- Parag A. Sane, Addl. Sessions Judge, Belapur.

Date of Judgment : 15/03/2024

SPECIAL CASE NO. 95/2023

Old Thane Spl.
Special Case
No. 414/2021

FIR/Crime No. I- 194/2021

Police Station : Rabale MIDC

Complainant/ State of Maharashtra, through Police Station

Prosecution Rabale MIDC

Represented by - Ld. A.P.P. Shri. Yogendra Patil.

Accused Sanjay Vijay Patole,

Age 23 years, Occup.- Nil
R/o Saibaba Nagar, Rabale MIDC,
Navi Mumbai.

Represented by Ld. Adv. Shri. Kiran Kanse

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Part 'B'
[Para 44(ii) of Chapter VI of Criminal Manual]

Date of Offence October-2020

Date of FIR 07/04/2021

Date of Charge-sheet 07/06/2021

Date of framing of Charges 19/07/2023

Date of commencement of Evidence 10/08/2023

Date of which judgment is reserved 15/03/2024

Date of the Judgment 15/03/2024

Date of Sentencing the order, if any -

Accused Details
Name of Date of Date of Offences Period of
accused arrest Release charged detention
Sentence imposed
Rank of the accused

on Bail with undergone

Whether acquitted or convicted

during Trial
for purpose
of Section
428

Sec. 376(3),
506 of
Indian
As
Penal Code
Sanjay Vijay per
1. 07/04/2021 - , Section 4, Acquitted ---
Patole final
5(j)(2), 6, 7,
order
8, 11(4), 12
of POCSO
Act
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Part ''C”
[ Para 44(ii) of Chapter VI of Criminal Manual ]
List of prosecution/Defence/Court witnesses.
A Prosecution :

Rank Name Nature of Evidence.

P.W.1 Mother of Victim , Exh. 20 Informant
P.W.2 victim Ex. 34 Victim
P.W. 3 Raufa Dastagir Shaikh, Exh. 32 Investigating Officer.
P.W. 4 Ramesh Amdar Teli, Exh. 53. witness.

B. Defence witnesses, if any :

Rank Name Nature of Evidence.
NIL

C. Court Witnesses, if any :

Rank Name Nature of Evidence.
NIL

LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS.

A. Prosecution :

Sr. Exhibit Description

No.
1. Exh. 32/P.W.1 Signature on printed FIR
2. Exh. 33 / PW 1 Statement u/Sec. 164 of Cr.P.C.
3. Exh. 36 / PW 2 Signature of victim on consent
form of medical examination
4. Exh. 36 / PW 3 complaint
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5. Exh. 37 / PW 3 portion marked 'A'

5. Exh. 38/ PW 3 Printed FIR
6. Exh. 39/P.W. 3 Letter to government hospital
7. Exh. 40/P.W. 3 Letter of medical examination
8. Exh. 41 & 43 Medical Certificate ( Admitted by
defence)
9. Exh. 43 Spot panchanama
10. Exh. 44 & 45/ P.W. 3 Portion marked A & B
11. Exh. 47/ P.W. 3 Letter to school
12. Exh. 48/ P.W. 3 Letter for DNA Sample
13. Exh. 49/P.W. 3 Letter for DNA report
14. Exh. 50 & 51 DNA reports
15. Exh. 54 / P.W. 4 Birth certificate
16. Exh. 55 / P.W. 4 Extract of register.
17. Exh. 56 / P.W. 4 Leaving Certificate

B. Defence :

Sr. No. Exhibit Description

C. Court Exhibits :

Sr. No. Exhibit Description

1. Exh. 19 Charge.
2. Exh. 57 Statement of
accused under
Section 313 of
Cr.P.C.

D. Material Objects:

Sr. No. Material Object number Description

NIL
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JUDGMENT
( Delivered on:- 15th of March, 2024 )
1] The accused has been chargesheeted for the offence
punishable u/Sections Sec. 376(3), 506 of Indian Penal Code and Section 4,
5(j)(2)6, 7, 8, 11(4), 12 of The Protection of Children From Sexual
Offenes Act, 2012.

2] Case of the prosecution in brief is as under:

Mother of victim 'X' filed report to police on 07/04/2021
whereby according to her, she is residing at Rabale MIDC with her family
members. She is having two daughters. Out of which, one is of 16 years
old, who had taken education up to 8th standard and thereafter she is not
going to school. Her date of birth is 01/11/2004. On 06/04/2021, as her
daughter was not feeling well and as she was having vomiting, at that time,
she asked her daughter whether she is pregnant. Accordingly, she replied
as she is pregnant from Sanjay Patole and her daughter further disclosed
that she is having friendship with Sanjay Patole since last one year. They
have exchanged their mobile numbers and they used to wonder near
Reliable Company frequently. In the month of October at about 6.00 p.m.
she travelled with Sanjay Patole on his bike and initially she was
frightened, but thereafter, she proceed with him in the house at Saibaba
Nagar, Rabale MIDC, where they went into one house. At that time,
Sanjay Patole stated her that he loves her and he will marry with her and
then he had forceful sexual intercourse with her. As she was frightened,
she has nowhere stated the said fact to any person. Moreover, at the
relevant time, she was threatened by Sanjay Patole not to disclose the said
fact to anyone and he is going to marry with her. Thus, she has nowhere
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stated the said thing to anybody. Thereafter, Sanjay Patole started to avoid
her then she found the address of Sanjay Patole and the informant visited
the house of Sanjay Patole, where he admitted his mistake and then ran
away. The informant noticed that her daughter is pregnant and
accordingly, she filed report to the police. On the basis of which, crime
came to be registered.
During the course of investigation, police arrested the accused.
Further during the course of investigation, the Investigating Officer
prepared spot panchanama, recorded statements of witnesses, obtained
medical certificate of the victim and also seized the clothes. During his
investigation, he has obtained school leaving certificate of the victim.
Victim delivered a child, accordingly, he sent sample for DNA report and
on getting it, it has been produced on record. During the course of
investigation, it is transpired that the accused has committed the crime.
Accordingly, Investigating Officer has submitted chargesheet against the
accused for the offence punishable under Sections 376(3), 506 of Indian
Penal Code and Section 4, 5(j)(2)6, 7, 8, 11(4), 12 of The Protection of
Children From Sexual Offenes Act, 2012.

3] On hearing both the sides, charge is framed at Exh. 17.

Particulars of the charge were readover and explained to the accused in
vernacular to which he pleaded not guilty and claimed to be tried.

4] Trial of this case is conducted in-camera and as per Section 37

of the POCSO Act, identification of the victim is not disclosed at any time
during trial in order to compliance of Section 33(7) of POCSO ACt.

5] Prosecution has examined in all four witnesses who are duly

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cross-examined. DNA report of produced on record.

6] The Statement of the accused under Section 313 of Cr.P.C. is

recorded. It is his defence that he has not committed any offence.

7] Accused in his defence has not led any evidence.

8] I have heard Ld. APP Mr. Patil for the prosecution and Ld.
Counsel for the accused Adv. Shri. Kanase at length.

9] Considering the case of the prosecution, evidence led down by

the prosecution, theme of cross-examination, answers given by the accused
while answering 313 statement of Cr.P.C. and after hearing the arguments
canvassed by both the sides, following points arise for my determination to
which I have recorded my findings before them for the reasons discussed
therebelow.
S.No. POINTS FINDINGS
1. Whether the prosecution proves that
accused accused during the period from
October-2020 at about 6.00 hours at
R.No. 171, Saibaba Nagar, Rabale MIDC,
Navi Mumbai, within the limits of Rabale
MIDC police station, committed rape on
the victim ( name stated to the accused ),
a minor girl aged about 16 years and 5
months, on giving false promise of .. Not proved.
marriage to her and thus, you thereby
committed an offence punishable under
Section 376 (3) of Indian Penal Code ?
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2. Whether the prosecution proves that on

the above mentioned date, time and place,
accused caused criminal intimidation by
threatening the victim girl to kill and to
cause death or grievous hurt if she told
the above said fact to anybody and
thereby committed an offence punishable
... Not proved
under Section 506 of The Indian Penal
Code ?

3. Whether the prosecution proves that on

the above mentioned date, time and place,
accused committed penetrative sexual
assault on victim girl ( name stated to the
accused ) a minor girl who is aged about
16 years and 5 months, and thereby .. Not proved.
committed offence under Sections 3
punishable with offence 4 of the
Protection of Children by Sexual
Offences Act, 2012 ?

4 Whether the prosecution proves that on

the above mentioned date, time and place,
accused committed sexual assault on the
victim girl, who is aged about 16 years
and 5 months and made her pregnant as
a consequence thereof and thereby
committed offence under Sections 5(j)(2)
.. Not proved.
of the Protection of Children by Sexual
Offences Act, 2012 ?

5 Whether the prosecution proves that on

the above mentioned date, time and place,
accused in course of same transaction,
committed aggravated penetrative sexual
assault on the victim girl, who is aged
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about 16 years and 5 months and thereby .. Not proved.

committed offence under Sections 6 of
the Protection of Children by Sexual
Offences Act, 2012 ?

6 Whether the prosecution proves that on

the above mentioned date, time and place,
accused in course of same transaction,
committed sexual assault on the victim
girl, who is aged about 16 years and 5 .. Not proved.
months and thereby committed offence
under Sections 7 of the Protection of
Children by Sexual Offences Act ?

7. Whether the prosecution proves that on

the above mentioned date, time and place,
accused in course of same transaction,
committed sexual assault on the victim
girl, who is aged about 16 years and 5
months and thereby committed offence
under Sections 7 punishable with Sec. 8
.. Not proved.
of the Protection of Children by Sexual
Offences Act, 2012 ?

8. Whether the prosecution proves that on

the above mentioned date, time and place,
accused in course of same transaction,
committed sexual harrassment on the
victim girl, who is aged about 16 years
and 5 months by repeatedly or constantly .. Not proved.
following or watching her and thereby
committed offence punishable under
Sections 11(4) of the Protection of
Children by Sexual Offences Act, 2012 ?
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9. Whether the prosecution proves that on

the above mentioned date, time and place,
accused in course of same transaction,
committed sexual harassment to the
victim girl ( name stated to the accused)
minor girl who is aged about 16 years and .. Not proved.
5 months and thereby committed offence
under Sections 12 of the Protection of
Children by Sexual Offences Act, 2012 ?

10. What order ? .. Acquitted as per

final order.

: REASONS :
10] In order to prove the guilt of the accused, the prosecution has
examined following witnesses. Those are as under :-
1) P.W. 1, mother of the victim at Exh. 20.
2) P.W. 2 Victim 'X' at Exh. 34,
3) P.W. 3 Rauf Dastagir Shaikh, Police Officer at Exh. 32, who
has recorded FIR and done part investigation.
4) P.W. 4 Ramesh Aamdar Teli, Head Master of School at Exh.
53.
Following is the documentary evidence and the documents exhibited
during the course of trial.
1) Report filed by the complainant, mother of the victim at
Exh.36
2) Printed FIR at Exh. 32,
3) Statement of mother of victim under Section 164 of Cr.P.C. at
Exh.33
4) Statement of the victim under Section 164 of Cr.P.C. at Exh.35
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5) Spot panchanama is at Exh. 43,

6) School Leaving Certificate of the victim is at Exh. 56,
7) Medical Certificate of victim is at Exh. 36.
8) DNA report at Exh. 50,
9) Birth Certificate is at Exh. 54.
10) School record at Exh. 55,
Prosecution has filed evidence close pursis at Exh. 52-A.

As to point Nos. 1 to 9 :-
11] Considering the case of the prosecution and the nature of the
offence, it is incumbent on the part of the prosecution to prove the fact
that the victim was minor at the relevant time. It is the case of the
prosecution that she was of 16.5 years old at the relevant time. So far as,
the offence under the POCSO Act is concerned, the word 'Child' is defined
under the said Act, who is below the age of 18 years. In this case, the
victim is of 16.5 years old and P.W. 1 the mother of the victim in her
evidence has stated that the date of birth of the victim is 11/01/2004 and
she was 16 years. At the same time, she has stated that she do not
remember the exact date of birth of her daughter. Prosecution has cross-
examined the said lady on the aspect of the age of the victim, but nothing
coming fruitful to support the prosecution.

12] P.W. 2 is the victim at Exh. 34. She stated that she do not
remember her date of birth. P.W. 3 is Raufa Shaikh. As per this witness,
she has recorded the statement of victim and her mother. P.W. 4 is Ramesh
Teli, Head Master of the School and as per this witness, he is Head Master
of the school, where victim studied. He has produced on record birth date
certificate of the victim and according to his contention, record shows
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that her birth date is 01/11/2004. He has produced the documents on

record, which is at Exh. 54 and copy of the extract of register at Exh. 55.
He particularly stated that the documents is coming from his office. Here,
it is important to note that nothing is transpired from his cross-
examination in order to discard and disbelieve his evidence. Exh. 54
particularly shows that the date of birth of victim is 01/11/2004. There is
general register of the school, which particularly shows correspondence
entries. One aspect which is coming on record is at Exh. 56, which
particularly shows school leaving certificate of the victim. Certificate of
the birth registration is having presumptive value and thus the prosecution
has established the date of birth of victim is 01/11/2004.

13] So considering this material aspect, there is nothing to

disbelieve that in the month of October 2020, victim was minor and more
particularly child under this Act.

14] Present accused is facing trial for the offence under The
Prevention of Children From Sexual Offences Act, naturally in such
contingencies , there is presumption under Sections 29 & 30 of Act but it is
for the prosecution to prove the material foundation. Hence, if material
foundation has been proved, it is for the accused to rebut the presumption
by discharging the burden as to presumption under Section 29 & 30 of the
Act.

15] It is the case of the prosecution that the victim’s mother one
day found that victim was vomiting. Accordingly, she has suspected that
she is pregnant. Hence, she took her daughter in confidence and asked her
the reason, whereby she has narrated that since the last one year, she has
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friendship with the present accused. They have love relationship and on
one day, in month of October, the accused has taken her to one place and
committed forceful sexual intercourse with her. Thus, the daughter of the
victim has particularly stated to her mother that due to the forceful sexual
intercourse, she remained pregnant and ultimately, crime came to be
registered.

16] Here, in order to prove the guilt of the accused beyond

reasonable doubts, prosecution has examined mother of the victim , who is
complainant and victim respectively. Here, first of all it is to be noted that
as per the prosecution's case, the victim who is child at the relevant time
and she has begotten a child. The said fact is not disputed from the entire
evidence as such the victim has delivered a child. Further, it is important to
note that the medical certificate of the victim, which is on record which
particularly shows that she was pregnant at the relevant time and doctor has
particularly stated that over all findings are consistent with sexual
intercourse/assault and she has kept the opinion pending till FSL report is
awaited. Here, in the case in hand DNA report has filed, which is at Exh.
50 and DNA report particularly stated that the present accused is biological
parent of the baby, which is born to P.W. 2 victim. So in such
circumstances, there is DNA report on record. Now, the question is
whether the charge levelled against the accused has been proved or not. In
this regard, the P.W. 1 who is mother of the victim, who is examined at
Exh. 20 and as per this witness her daughter was 16 years old at the
relevant time. She has further stated that she do not remember the date of
birth of her daughter. She do not remember that incident has taken place.
But she has only knowing that her daughter was pregnant from the
accused. She further stated that her daughter has nowhere further stated
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anything in connection with this matter. Prosecution has cross-examined

this witness, where she has particularly stated that due to the
misunderstanding she has filed report. She has denied the contentions in
the report. She has denied that the accused has committed forceful
intercourse with her daughter. She has also denied that the accused has
threatened to her daughter if she narrated the said incident to any person.
Nothing is coming from her cross-examination on the side of the
prosecution in order to support the prosecution's case. However, it is
coming in her cross-examination on the prosecution's side that her daughter
has begotten one girl child and they are looking after that girl. In the
cross-examination, she admitted that the marriage has taken place between
the accused and her daughter. They resided together on the count of their
marriage and it is alleged that moreover there was some quarrel between
them and she has filed report.

17] P.W. 2 is victim who is examined at Exh. 34, she has

particularly stated in her evidence that she has particularly denied that in
the month of October 2020 the accused has committed forceful intercourse
with her on the contention that he loves her and they will marry. She has
not supported the prosecution's case. Accordingly, she has cross-examined
by the prosecution. However, nothing coming fruitful and in order to
support the prosecution case. In her cross-examination on the defence side,
she has admitted that in January 2021, she was 18 years old. However, it
is important to note that as discussed above regarding the age of the victim,
there is substantial evidence through the documents on record, which are
not disputed as such birth certificate of the victim. So admission of the
victim that in the month of January 2021, she was more than 16 years old.
This admission does not wash away the documentary evidence and
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documentary evidence will naturally prevail in such circumstances. In

such circumstances, these admissions given by the victim would not
destroy the case of the prosecution. However, in the cross-examination of
the P.W. 2, it has come on record that they resided together on the count of
marriage and due to the misunderstanding , the case has been filed.

18] P.W. 3 is Investigating Officer and she has particularly stated

during the course of her evidence that she has recorded the statement of
the witness, she has also taken the FIR, which was given by the informant
which is at Exh. 36, she further stated that the statement of the witnesses
under Section 164 of Cr.P.C. were recorded. However, P.W. 1 and P.W.2
mother and daughter respectively particularly stated that they do not
remember about their statement under Section 164 of Cr.P.C. Investigating
Officer has further stated that during the course of investigation, samples
were obtained, those were sent for Chemical Analyzer, medical certificate
of the victim was obtained and she has particularly stated that she has
produced the school leaving certificate of the victim. Investigating Officer
particularly narrated that the FIR was recorded as narrated by the victim's
mother. Here, it is important to note that evidence of Investigating Officer
is technical one and the Investigating Officer has particularly stated that
during the course of investigation as it was transpired that the accused has
committed offence, she has submitted chargesheet against him. From the
cross-examination of this witness, there are denial regarding the
investigation. Most of the cross-examination is relating to the age of the
victim. However, the Investigating Officer has stated that she has not
aware that the victim is married. She has admitted that she has not
enquired regarding the marriage of the victim and the accused.
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19] P.W. 4 is Head Master of the school, where the victim was
studied. The evidence of this witness is already discussed above.

20] These are the oral evidence laid by the prosecution. Here,
according to the prosecution, the prosecution has proved the charges
levelled against the accused beyond the reasonable doubts. However. it is
submitted by the Ld. Counsel for the accused that from the entire evidence
of the victim and her mother, it is nowhere coming on record as such that
the accused has committed forceful intercourse with the victim. It is
submitted and pointed out that the mother of the victim and the victim has
categorically denied the suggestion of the prosecution that the accused has
committed forceful sexual intercourse with her. Accordingly, he tried to
submit that the victim and her mother has categorically denied the
suggestion that the accused had forceful sexual intercourse with the
victim. Moreover, the mother of the victim and the victim has particularly
stated that the accused was knowing the victim since the year back and
they had a love relation between them. Accordingly, the Ld. Counsel for
the accused submitted that there are no ingredients of rape. Moreover, he
submitted that there is romantic relationship between the parties.

21] During the course of arguments, he has placed reliance on the

case law of Hon'ble Parent High court in Prashant Maruti Gurav V/s The
State of Maharashtra 2023 ALL MR (Cri) 522. I have gone through the
entire case law. In the said case law, the Hon'ble High Court has observed
that the victim and the accused in that matter were well acquainted. It has
been further observed that the victim had developed love relationship with
him and both the families were waiting for the victim to cross the age of
18 years. In the meanwhile she became the pregnant because of the
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appellant/accused. Accordingly, the Ld. Counsel for the accused has

pointed out and submitted that both the witnesses have deposed regarding
the marriage of the victim and the present accused. The accused in his
statement under Section 313 of Cr.P.C. has particularly stated that they
have performed the marriage. Accordingly, the Ld. Counsel for the accused
has submitted that there is nothing to disbelieve the evidence of both the
witnesses. However, it is important to note that in the case in hand, on
going through the material on record, so far as the contentions regarding
the marriage of P.W. 2 victim and the accused, there is no any other
documents on record. Hon'ble Parent High Court in Ashik Ramjaii
Ansari V/s The State of Maharashtra 2023 SCC Online Bom 1390,
wherein Hon'ble Parent High Court has particularly observed that, from
the evidence of that case, the deposition of prosecutrix including her cross-
examination, it has clearly surfaced on record that she had a love
relationship with accused No.1 and as far as the date on which she
accompanied the accused, taking advantage of absence of her family
members in the city, she willingly accompanied him as such continued to
reside with him. Thus, the Hon'ble High Court has particularly observed
regarding the romantic relationship between the parties. It is also observed
the object of POCSO Act. In that matter, the Hon'ble High Court
considering the romantic relationship between the parties with the facts in
that case has acquitted the accused. Considering the guiding principle laid
down by the Hon'ble High Court which has to be kept in mind, the
observations in the aforesaid case law.

22] Here, in the aforesaid case law and the observations in it and
again coming back to the case in hand, here, it is seen that the present
accused has love relationship with the victim. They were having love
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affair and that was knowing to the family members. Here, in the case in
hand, first time when the mother of the victim came to know regarding the
pregnancy, she filed report. But the cross-examination of both the witnesses
are concerned, it has been seen that the present victim and the accused had
love relationship between them. The case law of Hon'ble Parent High
Court is perfectly applicable to the present set of facts. The guiding
principle laid down by the Hon'ble High Court are related to the romantic
relationship between the parties.

23] Further, it is important to note that in the case in hand there is

DNA report which is coming on record. But as per the DNA report, there
is evidence that the present accused is biological father of the girl child. In
the evidence of both the complainant and her daughter are particularly
stated that the accused has not done any forceful sexual intercourse with
the victim. In the case law cited supra, the Hon'ble Parent High Court has
also considered question regarding romantic relationship. Here, as there
is DNA report which shows biological relationship of the present accused.
In this regard, it is important to note that the ocular evidence of the
prosecution and her mother are particularly denied that the accused has
forceful sexual intercourse with the victim. At the same time, it is
important to note that when the ocular evidence and the evidence of the
prosecutrix herself is not supporting to the case of the prosecution, whether
only on the basis of the DNA report, conviction would be sustainable ?. In
this regard, it is necessary to mention recent case law of Hon'ble Parents
High Court. Hon'ble Parent High Court in case of Omkar Dhage V/s State
of Maharashtra reported in 2022(1) DCR 371, wherein the case accused
was convicted for the offence punishable under Section 376(2)(f), (i), (n)
and 506 of the Indian Penal Code and Sections 4, 5 of the POCSO Act. By
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the Special Court in appeal, the Hon'ble Bombay High Court set aside the
conviction and acquitted the accused because except from DNA report
there is no other evidence against the accused.

24] So far as the sanctity of biological samples and consequences

of report are concerned, the Hon'ble Bombay High Court in Prashant
Maruti Gurav V/s The State of Maharashtra 2023 ALL MR (Cri) 522 has
observed that
" All evidence needs to be packed and sealed properly in
separate envelope. The responsibility of this lies with the examining
doctor. All blood samples must be refrigerator until handed over to next in
chain of custody. The hospital has the responsibility of properly preserving
samples till handed over to police. (Commentary on Medical Jurisprudence
and Toxicology by Modi. ) It is also true, admissibility of expert opinion is
condition upon the inviolability of Forensic Samples which necessitates
inflammable procedural management to avoid tampering, manipulation and
mishandling of samples. The procedural protocol must invoke evidence
dynamic to annual spoke of any influence to modify obscure, relocate or
obliterate physical evidence, regardless of bonafide or malicious intent. In
the forensic world, selection, collection, packaging, labeling, storage,
preservation, transport and maintenance of chain of custody are vital steps
for handling physical samples with utmost care and expertise aiming to
avoid risk of contamination, destruction, loss or potential fiddle. "

25] So principles laid down in this case law on the count of

prosecution has failed to prove that the aforesaid samples of the accused
for the purpose of DNA was properly taken. cautiously preserved and
those were sent in sealed conditions for C.A. Here, prosecution has not
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examined the Chemical Analyzer in order to substantiate the said case. So

in such circumstances, merely the Investigation Officer who is stating that
the samples were forwarded for C.A. would not followed the mandate as
laid down by the Hon'ble Parent High Court in Omkar Dhage's case cited
supra. Recently the Hon'ble Bombay High Court, Aurangabad Bench in
case of Suresh Devidas Malche V/s The state of Maharashtra in Cri,
Appeal No. 306/2016 order dated 15/03/2023 and Parvez Khan Rafik
Khan V/s The State of Maharashtra in Cri. Appeal No. 884/2019 dated
19/12/2023 and on account to deal with same issue.

26] In case of Suresh cited Supra The Sessions Court has

convicted the accused under Section 376(2)(1) of Indian Penal Code,
biological samples of child, victim and the accused were secured and
Sessions Court relied on DNA report to convict the accused. In that
context, the Hon'ble High Court in para No. 7 observed that
Positive DNA report can be of great significance, where there
is supporting evidence, depending of course on the strength and quality of
that evidence, even if it is positive, it cannot conclusively fix the identity of
the miscreant, but, if the report is negative, it would conclusively exonerate
the accused from the involvement of charge. The science of DNA is at a
developing stage and when the Random Occurrence Ratio is not available
for Indian Society, it would be risky to act solely on a positive DNA report,
because only if the DNA profile of the accused matches with the foetus, it
cannot be considered as a conclusive proof of paternity. Contrarily, if it is
solitary piece of evidence with negative result, it would conclusively
exclude the possibility of involvement of the accused in the offence. The
positive DNA report cannot be therefore accepted by the trial Court in
isolation, i.e. Suresh Devidas Malche vs The State Of Maharashtra on 15
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March, 2023 as sole piece of evidence to record the conviction of accused

under Sections 376, 366 of Indian Penal Code"

27] In case of Parvez cited supra the accused was convicted by

the Court under Section 376 AB, 506, 323 of the Indian Penal Code,
Section 3(i)(v) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and Section 4 of the Protection of
Children from Sexual Offences Act, 2012. In that case, the question about
evidentiary value of DNA evidence was involved. In this context, the
Hon'ble High Court in para No. 29 has observed that,
Though actual occurrence has not been proved to have taken place,
except DNA evidence, there is no full proof or legally acceptable evidence.
Mere DNA evidence cannot be made the sole basis of conviction. Moral
conviction has no legal sanctity and what law requires is legally acceptable
evidence ruling out innocence of the accused. Here, such quality of
evidence is not available and therefore, we are constrained to hold, for the
reasons discussed herein, that unfortunately, case has not been proved
beyond reasonable doubt as against the appellant and hence, we are further
constrained to extend benefit of doubt to the appellant.

28] In view of the observations and the guiding principles of the

Hon'ble Parent High Court in case law cited supra, the Hon'ble High Court
has set aside the conviction and acquitted the accused in absence of
trustworthy ocular evidence, DNA evidence is not relied upon. The
principle of law is squarely applicable to this case. Here, in the case in
hand, we have already discussed about the evidence of the victim and her
mother, where they have not supported the prosecution case. The have
denied that the accused has forceful intercourse with the victim. Further
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coming to the case law cited supra of the Hon'ble Parent High Court, where
the Hon'ble Lordship has observed the romantic relationship between the
parties and coupled with these observations in two case laws cited supra, in
the case in hand, the oral evidence of the victim, who is P.W. 2 at Exh. 34
has nowhere supported the prosecution's case. Moreover, her mother who
is P.W. 1 informant has also not supported the prosecution's case. Rest of
the oral evidence is of Investigating officer and Head Master of the
School, which is discussed above. Considering the entire evidence and
stock of evidence, it has been seen and it is coming on record that there
developed the love relationship between the victim and accused. Oral
evidence of the victim and her mother, which is not supported to the
prosecution's case. The Investigating Officer in his oral evidence
categorically deposed about the steps which he has taken during the
investigation. Thus, in the above circumstances, in the case in hand, oral
evidence of the prosecution's witnesses is quite contrary to the
prosecution's case.

29] In conclusion, taking the stock of entire evidence, the

prosecution has failed to prove the charge levelled against the accused
beyond realm of reasonable doubts. Hence, in this circumstances, the
prosecution has failed to prove the charge under Section 376(3), 506 of
Indian Penal Code and Section 4, 5(j)(2), 6, 7, 8, 11(4) and Sec. 12 of
POCSO Act. Thus, point Nos. 1 to 9 are answered in the negative as no
evidence has been proved. Thus, point No. 10 is answered as per final
order. Thus, for the above discussion and reasoning, the accused requires
to be acquitted from charge levelled against him. Hence, I proceed to pass
the following order :-
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Judgment.....

: ORDER :
1. Accused Sanjay Vijay Patole is hereby acquitted of the
offence punishable under Section 376(3), 506 of Indian Penal
Code and Section 4, 5(j)(2), 6, 7, 8, 11(4), 12 of The
Protection of Children From Sexual Offences Act, 2012 in
view of Section 235(1) of The Code of Criminal Procedure.
2. Accused is in jail, he be released forthwith and set at liberty
if not required in any other offence.
3 The accused to furnish P.R. Bond & S.B. of Rs. 25,000/- in
view of section 437 A of Cr.P.C.
4 Seized muddemal property clothes being worthless be
destroyed after the appeal period is over.
5 Copy of this judgment be sent to District Magistrate in view
of section 365 of CrPC.

6. Judgment is dictated and pronounced in open court.

sd/-
Date : 15/03/2024 ( P. A. Sane )
Belapur. Additional Sessions Judge
Belapur, Navi Mumbai
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Judgment.....

Certificate

I affirm that the contents of this judgment is same

word for word as per original Judgment.

Name of Court Additional Sessions Judge,

Belapur.
Name of Steno. Smt. P.P. Garud
Pronounce and 15/03/2024
dictated
Transcribed on 19/03/2024
Checked, corrected 18/04/2024
and signed
Upload Date 18/04/2024