Oral Judgment:

1. Heard.

Prelude Of The Case

2. The appellant/original accused has approached this Court challenging his conviction awarded by the Additional Sessions Judge (Fast Track Special Court), Jalgaon in Special (POCSO) Case No. 11 of 2018, by which he was convicted for commission of offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as ‘Act of 2012’ for the sake of convenience) and was sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/-.In default, he was directed to undergo rigorous imprisonment for three months.

3. The appellant was also convicted for commission of offence under Section 6 of the act of 2012 and directed to suffer rigorous imprisonment for twenty years and to pay fine of Rs.20,000/-. In default, to suffer rigorous imprisonment for six months.

4. The appellant was also convicted for commission of offence punishable under Section 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as ‘Act of 1989’ for the sake of convenience) and sentenced to suffer rigorous imprisonment for six months and pay fine of Rs.1,000/-. In default, to suffer rigorous imprisonment for two weeks. All the sentences were ordered to run concurrently.

5. The F.I.R. in the case in hand was registered at the instance of victim of crime on the basis of which Crime No. 62 of 2018 dated 24th March, 2018 for commission of offences punishable under Section 376(n) of the Indian Penal Code, Sections 3, 4, 3(a), 4, 5(j)(ii) of the Act of 2012 and Sections 3(1)(w)(i) of the Act of 1989/2015.

6. It was the case of the complainant that prior to 17th March, 2018 in the house situated in Dist. Jalgaon, the appellant committed rape repeatedly upon her which was an offence of Penetrative Sexual Assault defined under the Act of 2012

7. During the course of investigation, the appellant was arrested on 24th March, 2018. According to the case of prosecution, the victim of crime was 17 years and 4 months, whereas the accused was 24 years of age at the relevant time.

8. It is necessary to mention here that the victim of crime had died on 01st August, 2021 during the course of trial, due to which her statement was not recorded.

9. As the investigation proceeded, the DNA samples of the fetus of the victim were collected, so also the DNA samples of the appellant. It was opined that the appellant was the biological father of the fetus.

10. On the basis of the aforesaid evidence, the appellant was charge- sheeted. The charges were framed against him, below Exhibit 17 by the Additional Sessions Judge, Jalgaon for commission of offense punishable under Sections 376(2)(n) of the I.P.C., so also under Section 3 punishable under Section 4 of the Act of 2012 as well as under Section 5(j)(ii) punishable under Section 6 of the Act of 2012. The appellant was also charged for commission of offense punishable under Sections 3(1)(w)(i) of the Act of 1989. Since the appellant did not plead guilty, the prosecution, in order to bring home the charge, has examined total twelve witnesses. The accused answered the questions put to him while conducting inquiry under Section 313 of the Code of Criminal Procedure. His defense was of total denial and false implication, in an examination under section 313 of Code of Criminal Procedure . Though, the appellant had requested to examine one witness to support his case, his request was turned down.

11. In the aforesaid background, I have heard the respective counsels. Learned counsel for the appellant submitted that evidence produced by the prosecution was not reliable and cogent, and therefore, conviction should not have been awarded. According to him, the manner in which the DNA samples of the victim, fetus and appellant were collected, would clearly reveal that the report submitted by the Forensic Science Laboratory can not be relied upon. He further submitted that the date of birth of the victim of the crime was not proved in accordance with law.

12. Per contra, learned A.P.P. submitted that there is a ring of truth in the case put forwarded by the prosecution and considering the presumption available under the Act of 2012, the Court has rightly convicted the appellant.

13. Learned counsel for the victim has also supported the case and stand taken by the prosecution and has contended that non-examination of the defense witness by the appellant goes to the root of the matter. He further submitted that the prosecution witnesses were not properly cross- examined by the appellant. He further submitted that the case has been proved by the prosecution beyond reasonable doubt, and therefore, interference at the hands of this Court is not required.

Onus Probandi, Sections 29 and 30 of the Act of 2012 and Principle of ‘Beyond Reasonable Doubt’

14. In order to appreciate the evidence, not only the principles governing Section 101 of the Evidence Act are required to be taken into consideration, but also presumption under Sections 29 and 30 of the Act of 2012 will have to be looked into.

15. Onus probandi means burden of proof. The expression “burden of proof” has two meanings in reference to judicial proceedings. One of them is “the burden of proof as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt.” The other is “the burden of proof in the sense of introducing evidence”. “Burden of proof” means (a) the burden of establishing a case and (b) the duty or necessity of introducing evidence.

16. The burden of proof is a metaphorical phrase indicating an obligation to prove a fact or facts. This obligation necessarily involves the adducing of evidence in an attempt to prove a fact, subject to occasional cases when a fact can be established without evidence. Thus the primary meaning of the burden of proof is an obligation to adduce evidence of a fact.

(Quoted from C.D. Field’s Law of Burden of Proof, 4th Edition)

17. The said principle is also recognised by virtue of Section 101 of the Indian Evidence Act, 1872, which is reproduced hereinbelow :-

                   “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

18. It is fundamental principle of law that the burden will lie, in criminal cases, on prosecution to prove the case beyond reasonable doubt.

19. Since the accused has been charged under the provisions of the Act of 2012, it will also have to be seen whether there is rebuttal of presumption which is required to be raised under Sections 29 and 30 of the Act of 2012.

20. By way of catena of cases, it is made clear that presumption will trigger only when the foundational facts are proved by the prosecution.

21. Having dealt with the aforesaid aspects, now the case will have to be seen on the touchstone of principle of proving case “beyond reasonable doubt”.

22. The said principle is explained by the Hon’ble Apex Court in case of Ramakant Ray Vs. Madan Ray and Others reported in 2003 (12) SCC 395 and relevant paragraphs of which are reproduced as under :-

                   “23. A person has, no doubt, a profound right not to be convicted of an offence which Is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to proof is an exercise particular to each case. Referring to probability amounts to 'proof' is an exercise the inter- dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See "The Mathematics of Proof II": Glanville Williams: Criminal Law Review, 1979, by Sweet and Maxwell, p. 340(342).

                   "The simple multiplication rule, does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibit act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other".

                   24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common-sense. It must grow out of the evidence in the case.

                   25. The concepts of probability, and the degrees of it cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachalia, J (as His Lordship then was) in State of U.P. v. Krishna Gopal and Anr. 1989 Cri.L.J. 288.”

Applicable Provisions

23. Since the appellant has been convicted under various provisions, the said provisions( so far as relevant for this case) are required to be discussed for proper understanding of the matter :-

                   Section 4 of the Act of 2012 for which the appellant was convicted pertains to punishment for penetrative sexual assault. The penetrative sexual assault is defined under Section 3 of the Act of 2012. According to it, a person is said to have committed penetrative sexual assault, if he penetrates or inserts his penis to any extent into vagina……….. or manipulates any part of the body of the child …….or applies his mouth to the private part.

                   Section 6 of the Act of 2012 for which the appellant is convicted speaks about punishment for aggravated penetrative assault. The aggravated penetrative assault is the commission of an act of penetrative sexual assault on a child.

                   According to definition of child, more particularly clause (d) of Section 2 of Act of 2012, it means any person below the age of eighteen years.

24. Considering the ingredients of aforesaid sections, the testimony of witnesses examined by the prosecution will have to be taken into consideration.

Information To Police

25. PW 9 at the relevant time was working on the post of Police Sub Inspector. She has stated that on 17th March, 2018 she was attached to J.J. Road Police Station, Mumbai on the aforesaid post. She received an information through medico-legal case regarding the victim and came to know that the victim, seventeen years old, carrying two months pregnancy, was admitted in J.J. Hospital, Mumbai. She, therefore, visited J.J. Hospital and recorded statement of the victim, who disclosed her that the victim was residing at Chalisgaon along with her parents and she had completed her education till 11th standard. The victim then disclosed to PW 9 that her friend (accused/appellant) used to reside near petrol pump and since last four years before the incident, had friendship with him.

26. She further disclosed that two months before the incident, she had physical relationship with the appellant and since last one month from the date of the incident, she had frequent vomiting. Mother of the victim thought that it was a case of jaundice, and therefore, she was taken for preliminary treatment to the hospital, but in spite of it, vomiting did not stop.

27. Therefore, her parents on 12th March, 2018 took her to Nashik Civil Hospital where her blood test and sonography was done in which it was found that the victim was carrying pregnancy of two months. On further medical examination, it was found that the victim was having some heart disease, and therefore, she was referred to J.J. Hospital, Mumbai. The victim disclosed to PW 9 that the appellant had sexual intercourse with her, due to which she became pregnant. She disclosed her date of birth as 18th November, 2000.

28. PW 9 stated that she recorded the statement of the victim which was marked as Exhibit 38. She further stated that statement of the victim along with the letter issued by the doctor was then forwarded to Chalisgaon Hospital, which was marked as Exhibit 56. On the basis of this communication, offense came to be registered at Chalisgaon Police Station.

29. This witness was cross-examined, wherein she admitted that when she went to the hospital, she met with father and mother of the victim. She admitted that before recording statement, she had conversation with the victim as well as her parents. At the time of recording of statement, father of the victim was sitting outside the ward. She further disclosed that neither father nor mother of the victim interfered when the statement of the victim was recorded. A suggestion was given to this witness that neither she received any MLC nor she had recorded statement of the said witness, which was denied by her.

30. At this juncture, it is necessary to mention here that Exhibit 56 is a communication dated 20th March, 2018, which is forwarded by the Police Sub-Inspector of Sir J.J. Road Police Station, Mumbai to the Senior Police Inspector, Chalisgaon Police Station. By way of said communication, it was stated that in order to verify paternity of the fetus, a DNA kit was sought from the hospital. By way of said communication, original documents pertaining to MLC, medical papers were forwarded to the said police station.Thus in this background wheels of criminal were set in motion.

Age Of Victim

31. As the offense under the Act of 2012 is age based offence, it will have to be seen whether prosecution has proved the age of the victim. In order to deal with the aforesaid point, testimony of the father of the victim is required to be considered. Father of the victim was examined by the prosecution as PW 2, below Exhibit 27. Since it is a question of protecting the privacy of the victim, suffice it to say that the name of father of the victim can be referred as ‘DDK’. It is necessary to mention here that in charge-sheet, more particularly in the list of witnesses, no ‘alias name’ of the father is mentioned.

32. PW 2 – father of the victim has stated that at the time of incident the victim was seventeen years old. The victim died on 01st August, 2021. He submitted that the victim had studied up to 9th standard. This witness has not stated anything about the date of birth of the victim.

33. The age was then tried to be proved with the help of PW 8 /Gramsevak, who was examined below Exhibit 52. He stated that since last five months from the date of deposition, he was working as Gramsevak and had produced original birth record register of the victim showing entry of date of birth so also the birth certificate. He deposed that according to the register, date of birth of victim was 18th November, 2000. He produced the relevant entry which was marked at Sr. No. 46. The entry of date of birth was taken on 30th November, 2000. He further deposed that the birth certificate bears signature of Assistant Block Development Officer. He identified the said signature. He also stated that he has also put his signature for self attestation of the aforesaid certificate. He deposed that contents of the certificate as per the register are true and correct and the birth certificate was marked at Exhibit 53. The relevant extract of the register was marked at Exhibit 54.

34. In cross-examination he has admitted that it is the responsibility of the Gramsevak to take entry in the register. He further admitted that if there are some overwriting in the original record, then it is required to be countersigned. He admitted that in Exhibit 54, more particularly Column No.8, name, ‘Nana’ is struck out. He stated that the aforesaid correction was done by the then Gramsevak Mr. D.S. More. He further admitted that in Column No.4, Exhibit 54, first word ‘Shri’ and thereafter ‘Stree’ is written (in marathi). He further stated that Column 13 is for recording the name of mother, in which name of mother of the child was mentioned as Rambhabai. He further submitted that he is not in position to state as to who has signed in column nos.23 and 24. He further submitted that unless and until intimation is given, Gramsevak will not take entry of birth of child.

35. With the help of learned counsels, I have perused Exhibit 53, which is the birth certificate. The name of child is mentioned in the said certificate. The name of mother is also mentioned, so also the name of father. At this stage it is necessary to mention here that instead of full name of father, (in this judgment only mentioned as ‘DDK’) if Column 46 of Exh.54 is perused, it would reveal that the entry of date of birth was taken on 30th November, 2000 and the date of birth is 18th November, 2000. Initially, below column for giving information regarding ‘gender’ it is mentioned as ‘Shri’ and below it ‘Stree’. Perusal of the aforesaid document further shows that in column no.8, which pertains to name, initially the word ‘Nana’ was struck out and thereafter full name of the father is mentioned. There is no countersign made in column 8.

36. There is one more aspect for deciding the issue, if death certificate of the victim, which is at Exhibit 24 is perused, it would reveal that name of mother is mentioned as Maya and not as Rambhabai. It is nowhere the case of prosecution that both these names are of same lady or Nana was nick name of DDK. Thus it can be said that age is not proved by the prosecution. Non examination of person who has done scoring also goes to the root of the matter.

37. In this background it is difficult to rely upon the entry taken in the birth register. In that view of the matter I come to the conclusion that the prosecution has not proved the age of accused and consequently, provisions of the Act of 2012 cannot be made applicable to case in hand and consequently conviction of the appellant under the Act of 2012 also cannot be sustained.

Offence Of Rape And DNA Report

38. The appellant is also convicted for commission of offenses under Section 376(2)(n) of the IPC, but he was not seprately sentenced in view of Section 42 of the act of 2012. For proper appreciation of the material produced on record, provisions of Section 376(2)(n) is required to be looked into. Section 375 of the IPC defines ‘rape’. Section 376 provides the punishment for rape. So far as Section 376(2) is concerned, it speaks about committing rape repeatedly on the same woman.

39. Since the victim, due to her death, could not enter the witness box, it will have to be tested from the other evidence as to whether the prosecution has proved the said offense. The trial Court has relied upon DNA report which shows that the appellant was the biological father of the fetus. The side DNA report dated 10th May, 2018 is at Exhibit 69 in which it was opined that the appellant and the victim are concluded to be the biological parents of product of conception. Since it is the said report which according to the learned counsel for the prosecutrix is the heart of the case of the prosecution, vital question is whether the samples were taken in proper manner, in order to prove the Exhibit 69.

40. Before discussing testimony of the witnesses regarding DNA , it is necessary to look into the law laid down by the Hon’ble Apex Court in case of Rahul Vs. State of Delhi, Ministry of Home Affairs and Ors. passed in Criminal Appeal Nos 611 of 2022 and other connected matters. The Hon’ble Apex Court, while dealing with the appreciation of the evidence of DNA, has observed that the DNA evidence is in the nature of opinion evidence as envisaged under Section 45 of the Indian Evidence Act and like any other opinion evidence, it’s probative value varies from case to case. Thereafter, an article published by the Central Forensic Science Laboratory, Kolkata was relied upon, wherein various aspects regarding DNA profiling, methodology or mode of DNA samples, collection and preservation of evidence, was discussed at length. Finally in Paragraph No. 32, Hon’ble Apex Court has observed as under :-

                   “32. 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 Ex. 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 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. 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 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.”

41. In the light of aforesaid observation of the Apex Court, if testimony of PW 4 is seen, it would reveal that the said witness was attached to Police Station Chalisgaon City from year 2013 to 2018. According to this witness, on 27th March, 2018 he has collected DNA kit from Forensic Science Laboratory, Nashik. Since the victim was admitted in J.J. Hospital, Mumbai, on 28th March, 2018 at about 10:00 a.m. he went to J.J. Hospital by taking said kit. He has also taken a letter for collecting the DNA samples with him, which was handed over by him to the medical officer attached to the said hospital. He also handed over DNA kit there. According to him, the medical officer took blood samples of the victim as well as the blood samples from the fetus and collected it in the DNA kit so also sealed it and handed it over to this witness.

42. On 29th March, 2018 in morning, he reached Chalisgaon. Since on 29th March, 2018 there was holiday on the eve of Mahavir Jayanti and on 30th March, 2018 there was holiday on the eve of Good Friday, he deposited the samples with Rural Hospital, Chalisgaon. On 31st March, 2018 he collected the said kit from Rural Hospital, Chalisgaon so also the letter ,and visited the Forensic Science Laboratory, Nashik, where he deposited the same. He stated that he had taken due acknowledgment of it and the said acknowledgment was handed over to the Inquiry Officer. This witness was not cross-examined in defense.

43. Exhibit 92 is communication dated 28th March, 2018 issued by the Sub-Divisional Police Officer, Chalisgaon to the Dean, Sir J.J. Hospital, Mumbai by which request was made to provide the blood and DNA samples of the fetus for CA report and for that purpose PW 4 is deputed.

44. Perusal of the record shows that none of the witnesses from the Chalisgaon Rural Hospital was examined to show that whether those samples were deposited with the hospital or not. It is on 31st March, 2018 the said witness had deposited the samples with the Forensic Science Laboratory. For two days how the samples were kept, whether those were in sealed condition or not is not proved by the prosecution. Therefore, it cannot be said that the samples of the victim and the fetus were properly preserved. The law discussed above clearly shows that the chain of custody will have to be proved in proper manner. This fact is also not disputed by the appellant or the prosecution or the counsel appearing for the victim.

45. Next point is collection of DNA samples of the accused. This was tried to be proved with the help of testimony of PW 5, who from 2014 to 2019 was attached to Chalisgaon Police Station. He submitted that on 28th March, 2018 when he was present in the Chalisgaon Police Station, his senior officer had given him the DNA kit containing the blood samples taken by the medical officer attached to Chalisgaon Rural Hospital along with letter. The blood samples were of the accused. Accordingly, this witness took DNA kit and letter and deposited it with the Forensic Science Laboratory, Nashik and obtained the acknowledgment. The said acknowledgment was handed over by this witness to the inquiry officer. It is necessary to mention here that the person, who has taken the blood samples, was also not examined by the prosecution. This witness was not cross-examined by the defense.

46. Learned A.P.P. and learned counsel for the victim argued that in absence of cross-examination, said testimony can be taken into consideration. The argument cannot be taken into consideration, since initial burden is on prosecution to prove. Even otherwise, the DNA report is just an opinion and it will have to be considered in the light of other material available. Thus, I come to the conclusion that since the chain of custody is not properly explained by the prosecution, the reverse burden cannot be put upon the accused. As the chain of custody is not proved, DNA report cannot be looked into.

Conviction Under S C S T Act

47. Coming to the conviction under the Act of 1989, suffice it to say that nothing has been brought on record by the prosecution to show that ingredients of Section 3(1)(w)(i) is proved. Father of victim in his deposition stated that he belongs to Hindu Mahar caste and proved the caste certificate below Exh. 28. The prosecution has not proved that the appellant had intentionally touched a woman belonging to scheduled caste, knowing that she belongs to scheduled caste, when such act of touching is of sexual nature and was without the recipient's consent.

48. In the aforesaid background, it is observed that the prosecution has not discharged initial proof as required to be discharged under Section 101 of the Evidence Act. Since the foundational facts are not proved, presumption under the special Act cannot be raised. It is to be noted that trial Court has not dealt with the chain of custody and has relied upon the opinion pertaining to DNA. Even while dealing with the issue of proving the age, the fact was not taken into consideration that best evidence was not produced on record. In that view of the matter, I come to the conclusion that prosecution has not proved the case beyond reasonable doubt and findings given by the trial Court are not based on proper appreciation of evidence. Hence, I pass the following order :-

ORDER

(I) Criminal appeal is allowed.

(II) Judgment and order dated 15th July, 2022 passed by the Additional Sessions Judge (Fast Track Special Court), Jalgaon in Special (POCSO) Case No. 11 of 2018 is set aside.

(III) The appellant is acquitted of commission of offences punishable under Section 376(2)(n) of the Indian Penal Code, so also Sections 4 and 6 of the Protection of Children from Sexual Offenses Act of 2012 and Section 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

(III) Bail bonds of the appellant stand cancelled.

(IV) Fine amount paid, if any, be refunded to the appellant.

(V) Mr. R.M. Gaikwad, learned counsel, appointed to represent Respondent No.2 – victim, has ably assisted this Court. His fees be quantified at Rs.10,000/-.