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HIGH COURT OF GUJARAT (D.B.)

AJITKUMAR KUMARSINH BHAGORA

V/S
STATE OF GUJARAT

Date of Decision: 04 April 2019

Citation: 2019 2 GLH 653

Hon'ble Judges: J B Pardiwala, A C Rao

Eq. Citations: 2020 1 GLR 27, 2019 5 RCR(Cri) 697, 2019 4 Crimes(HC) 90

Case Type: Criminal Appeal

Case No: 1110 of 2017, 845 of 2017

Subject: Criminal

Editor's Note:
[A] Indian Penal Code, 1860 - S. 376(d), S. 506(2) and S. 114 - Protection of
Children from Sexual Offences Act, 2012 - S. 4 - Rape - Allegation that the two
accused caught hold of the prosecutrix in the late evening while she was
returning home after delivering a pot of water at the house of the third
accused - After eight months, the prosecutrix delivered a child which was
abandoned by her but later on the infant was handed over to the prosecutrix -
On being inquired, the prosecutrix alleged that she had conceived on account
of rape committed by the accused nine months before - Held, on appreciation
of evidence, that there was a delay of nine months in lodging the First
Information Report - Further, the medical evidence was also not going to be
of any assistance to the prosecution when the incident had taken place nine
months before and therefore the examining doctor was unlikely to find any
evidence which would either support or come in conflict with the version of
the victim - As against that, the DNA report conclusively and unequivocally
opined that the prosecutrix was the biological mother of the child but either of
the accused were not his father - Under the circumstances, conviction is set
aside.
Here is a case, in which, the prosecutrix claims that late in the evening at
about 8:00 O'clock, she was sexually assaulted by the appellants herein. It is
her case that as she was ravished by two persons, she practically became
unconscious. According to her, she remained at the place of the occurrence

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for sometime, and later when she felt better, she stood up and walked
straight to her home. It is her case that while she stood up, she noticed that
she was bleeding. It is her case that the accused persons had threatened her
with dire consequences that if she would disclose to anyone about the
incident, they would kill her brother. According to her, such is the reason why
she kept quiet about the incident. It is also her assertion that on account of
the act alleged to have been committed by the accused persons, she
conceived. (Para 23)
First and the foremost thing which we should take into consideration is the
delay of almost nine months in lodging the First Information Report. We find
it very hard to believe that the prosecutrix maintained silence only on account
of the so called threats administered to her by the accused persons. The delay
per se is not a mitigating circumstance for the accused when the accusations
of rape are involved. As held by the Supreme Court in many of its decisions
that delay in lodging the First Information Report cannot be used as a
ritualistic formula for discarding the prosecution case and doubting it
authenticity. It only puts the Court on guard to search for and consider if any
explanation has been offered for the delay. Once it is offered, the Court is to
only see whether it is satisfactory or not. In case if the prosecution fails to
satisfactorily explained the delay, it is a relevant factor. In the case on hand,
we are not convinced with the explanation offered for the delay of almost nine
months. (Para 25)
The DNA profiling is an extremely accurate way to compare a suspect's DNA
with crime scene specimens, victim's DNA on the blood stained clothes of the
accused or other articles recovered. DNA testing can make a virtually positive
identification when the two samples match. As it is the case of the prosecutrix
that she conceived on account of the rape alleged to have been committed by
the appellants herein, the DNA test had to be carried out and the report of
such test indicates that none of the two appellants are the biological father of
the child delivered by the prosecutrix. What will be the effect of the DNA
report on the case of the prosecution?. It practically renders the entire case of
the prosecutrix false. If the DNA test report exonerates the appellants herein,
then the question is through whom the prosecutrix conceived?. This is
suggestive of the fact that the prosecutrix might be suppressing the true facts
and she does not want to reveal the name of the real person who impregnated
her. (Para 31)
In view of the peculiar facts, as discussed above, obviously the medical
evidence was not going to be of any assistance. When the incident had
admittedly taken place almost nine months before the filing of the First
Information Report, the examining doctor was unlikely to find any evidence

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which would either support or conflict with the version of the victim. Had the
oral deposition of the victim along with her mother and other witnesses being
the sole evidence on record, we would have certainly examined it minutely
and assessed the same with the aid of the well settled and established legal
principles. Serious questions such as the improbability of a pregnancy not
being noticed by the mother and other family members including Rekha at
Rajasthan would be one of the factors which would go into our consideration.
The suggestion of the defence that there was another male studying with the
prosecutrix might be the person involved in making the girl pregnant would
also require serious consideration. However, this lengthy discussion is
absolutely futile since the victim gave birth to a child allegedly born out of the
episode of rape. The charge, Exh.5, framed against the accused persons is
very specific in this regard. It is not the case of the prosecution that other
than the alleged rape by the accused persons, the victim girl voluntarily or
otherwise had sexual intercourse with any other man. In that view of the
matter, the DNA test report assumes significance. When according to the case
of the prosecution the child was born out of the pregnancy resulting from the
rape by the accused persons, this accusation of rape against the accused must
succeed or fail on the basis of the DNA analysis. We have reproduced the
conclusion of the DNA expert. The report was conclusive and unequivocally
opined that the prosecutrix was the mother of the child but either of the
accused persons are not his father. (Para 36)
In the overall view of the matter, we are convinced that the Trial Court
committed a serious error in holding the appellants guilty of the offences
enumerated above. (Para 53)
[B] Indian Evidence Act, 1872 - S. 114B, S. 118 and S. 133 - Indian Penal
Code, 1860 - S. 376 - Offence of Rape - Evidentiary Value of the prosecutrix -
In the cases of rape, the law does not require corroboration and therefore if
the evidence of the prosecutrix is believed, there is no bar to convict the
accused on her testimony alone - However, if the statement of the prosecutrix
suffers from serious infirmities, inconsistencies and the over all case put up
by the prosecution does not inspire confidence, then it would be very
hazardous to base the conviction solely on the evidence of the prosecutrix.
In the cases of rape, the law does not require corroboration and, therefore, if
the evidence of the prosecutrix is believed, there is no bar to convict the
accused on her testimony alone. To put it in other words, there is no such law
which requires corroboration before the statement of the prosecutrix is acted
upon. Indisputably, a prosecutrix is a competent witness (vide Section 118 of
the Evidence Act). She is not an accomplice within the domain of Section 133
of the Evidence Act. Thus, her statement, as such, does not require a

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corroboration within the meaning of Section 114-B (114-A) of the Evidence

Act which provides that an accomplice is unworthy of credit unless she is
corroborated in material particulars. The prosecutrix is a victim like any other
victim of any other offence. Hence, the same weight is to be attached to her
statement which requires to be attached to the statement of an injured
person. Therefore, if the statement of the prosecutrix is quite clear and
unequivocal on the point as to who has ravished her, there is no reason,
whatsoever, as to why the said statement, without any corroboration from
any quarter, whatsoever, cannot form the basis of conviction. Thus, her
statement is to be scrutinized like the statement of any other witness and if
there is a ring of truth about it and if it inspires confidence, the Courts would
be under an obligation to rely thereupon. However, the principal question we
need to answer is to what extent we should accept the case of the prosecutrix
having regard to the evidence on record. If the statement of the prosecutrix
suffers from serious infirmities, inconsistencies and the overall case put up by
the prosecution does not inspire any confidence, then it would be very
hazardous to base the conviction solely on the evidence of the prosecutrix.
(Para 22)
[C] Protection of Children from Sexual Offences Act, 2012 - S. 29 -
Presumption - The presumption to be drawn under the provision is a
rebuttable presumption - Section 29 should be strictly construed in as much
as penal consequences are involved.
Although a presumption under Section 29 of the POCSO Act arises and it is
presumed that the accused has committed the offence for which he is charged
under the said Act, unless the contrary is proved, such a presumption cannot
be absolute. Therefore, there can be no doubt about the proposition that no
presumption is absolute and that every presumption is rebuttable. (Para 44)
In a case of this nature, the provisions of Section 29 of the POCSO Act have to
be strictly construed in as much as the penal consequences are involved. The
Section does not say that it is an irrebuttal presumption and in this context it
can be safely concluded that the presumption to be drawn under the provision
is a rebuttal presumption. (Para 45)
[D] CRIMINAL JURISPRUDENCE - Trial - The Trial Court should make an
endeavour to separate the grain from the chaff i.e. the truth from the false
hood - But while under taking such exercise, the Trial Court is not supposed to
make altogether a different case then the one put forward by the prosecution.
(See: Para 39)

Acts Referred:
Indian Penal Code, 1860 Sec 376, Sec 114, Sec 506, Sec 376(D)

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Code Of Criminal Procedure, 1973 Sec 164, Sec 313

Evidence Act, 1872 Sec 118, Sec 114A, Sec 133, Sec 114B
Protection Of Children From Sexual Offences Act, 2012 Sec 6, Sec 29, Sec 9, Sec 30,
Sec 17, Sec 7, Sec 5, Sec 4, Sec 3

Final Decision: Appeal allowed

Advocates: Pratik B Barot, A A Zabuwala, H K Patel

Cases Cited in (+): 2

Cases Referred in (+): 24

J.B.Pardiwala, J.

[1] As both the captioned appeals arise from a selfsame judgment passed by the
Special Judge (POCSO) & 2nd Addl. Sessions Judge, Panchmahals, Godhra in the
Special (POCSO) Case No.14 of 2016, those were heard analogously and are being
disposed of by this common judgment and order.

[2] The captioned criminal appeals are at the instance of two convicts of the offence of
rape and are directed against the judgment and order of conviction and sentence
passed by the Special Judge (POCSO) & 2nd Addl. Sessions Judge, Panchmahals at
Godhra dated 20th April, 2017 in the Special (POCSO) Case No.14 of 2016, by which,
both the appellants came to be convicted by the Special Court for the offences
punishable under sections 376(d), 506(2) read with 114 of the Indian Penal Code and
section 4 of the Protection of Children from Sexual Offences Act, 2012 ( for short "the
POCSO"). Both the appellants have been sentenced to undergo 20 years of rigorous
imprisonment for the offence punishable under section 376(d) read with section 114 of
the Indian Penal Code with fine of Rs.10,000/- and in default of the payment of fine, to
undergo further six months of simple imprisonment. The appellants came to be
sentenced to undergo two years of rigorous imprisonment for the offence punishable
under sections 506(2) read with section 114 of the IPC with fine of Rs.500/- and in
default of the payment of fine, to undergo further simple imprisonment for a period of
one month. The appellants have been sentenced to undergo seven years of rigorous
imprisonment with fine of Rs.5000/- for the offence punishable under section 4 of the
POCSO Act and in default of the payment of the amount of fine, to undergo further
simple imprisonment for a period of three months. The appellants, however, came to
be acquitted by the Trial Court of the offence punishable under section 6 of the POCSO.
The Trial Court directed that the sentences shall run concurrently.

[3] We take notice of the fact that, in all, three accused including the two appellants
herein were put on trial for the offences enumerated above. The original accused No.3,

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namely, Sanjaybhai Anopbhai Damor came to be acquitted by the Trial Court of all the
charges.

[4] Case of the prosecution:

4.1 The mother of the victim, P.W. 2-Kaliben Bharatbhai Taviyad lodged the first
information report, Exh.21 dated 20th December, 2015 at the Morva Police Station,
inter alia, stating as under:

"My name is Kaliben W/O Bharatbhai Salabhai Taviyad, Aged: 37 years,

Occupation: House wife, Residing at: Rajayata, Navi Vasahat, Moti Kyar, Ta-
Morva(Ha)

Upon being personally present, I hereby state the fact of my complaint that I have
been residing with my family at the above mentioned address and do the
household work. I have one son and two daughters. Of which, the eldest daughter
is Jasodaben then the son Hemanshukumar and the youngest daughter is XXXXX
aged: 16 years. My three children are unmarried. My daughter XXXXX was
admitted in Pichhoda primary school in standard-9 and she used to attend the
school from the home. She appeared in the Board examination of 10th standard
last year. As the result of standard-10th was declared, my daughter Jalpeben failed
in three subjects. Therefore, she remained home and did the household work. As
my sister in law Maniben Zaverbhai Nathabhai Garasiya's daugher Rekhaben W/O
Dharmendrabha Vechatbhai Bhamat, residing at: Panchamuvadi, Ta-Santrampur,
Dist-Panchamahal had been serving at Kajada-Javahar Navodaya Vidayalaya, Ta-
Surajgadh, Dist: Zujanu(Rajasthan), my daughter XXXXX went to Rajasthan two
months ago to make preparation of the subjects in which she failed in standard-
10th.

On 28/10/2015, nephew Anilbhai Zaverbhai Garasiya residing at: Ukhareli informed

me on phone that, he received phone of Rekha from Rajasthan and she informed
that XXXXX had a normal delivery in the room and she gave birth to a boy child.
That child was thrown out of the compound wall of the school. Therefore, I knew
this. Thereafter, I and my nephew in law Dharmendrabhai Vechatbhai Bhamat
residing at: Panchamuvadi, Ta-Santarampur, Dist: Mahisagar and Anilbhai
Zaverbhai Garasiya, residing at: Ukhareli, Ta-Santarampur, Dist:Mahisagar left from
there in the late night and reached at Kajada(Rajasthan) on the next day morning
at the house of Rekhaben. At that time, Rekhaben and XXXXX met us on the room.
I came to know from Rekhaben that, XXXXX has given birth to a boy child and left
the child out of the compound wall. As police came to know about this, police has
taken actions. During this time, Police also arrived there on the room and inquired

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Rekhaben and XXXXX. I also went with the police. Police inquired me there.
Thereafter, on the next day, XXXXX was sent to the Hospital for the treatment. She
was given treatment in the hospital for two to three days. As she was discharged
from the hospital, we came on the room. Thereafter, the police called XXXXX and
produced her before the court. Thereafter, she was sent to the remand home for
four to five days. Thereafter, my daughter XXXXX was released on bail and we took
XXXXX home. During this time, as we asked our daughter XXXXX, she stated that,
before nine months, I was at home. As the motor was to be installed in our well
near our home at about eight o'clock in the evening, I went to the well to see the
motor. At that time, Damor Sanjaybhai Anopbhai Nano of our village came at the
well to take water. He told me to take the water pot at his home. As he told so, I
took the pot and put the pot at the support of the fence near his house. When I
was returning from there, Vajesing Dalpat Damor and Ajitkumar Kumarsinh
Bhagora of our village who had hidden around that place, came to me and Ajit
caught my hand and made me fell down. Thereafter, Vajesinh Dalpat Damor
pressed my mouth. Ajit removed my pent and under wear. Ajit mounted on me and
committed rape. Thereafter, Ajit kept my mouth pressed and told Vajesing that now
it is your turn. Therefore, Vajesinh Dalpat Damor mounted on me and committed
rape. They told me that, if you tell about this to anyone at your home, we shall kill
your parents. They threatened me so and I became almost unconscious.
Thereafter, they left me there and fled. Thereafter, I put on the clothes and came
home. As I was threatened, I did not tell the incident to anyone. Such fact was told
by her. Thereafter, the members of my family came to know this fact. The leader of
my village Galapbhai Chunabhai Taviyad and Champakbhai Nathabhai Taviyad were
sent to the home of Vajesinh Dalpat Damor, Ajitkumar Kumarsinh Bhagora and
Damor Sanjaybhai Anopbhai to inquire about the incident but they did not state
anything. Sanjaybhai Anopbhai Damor of our village had sent my daughter XXXXX
aged: 16 years to the fence side from the well under the pretext of putting the
water pot and Vajesinh Dalpat Damor and Ajitkumar Kumarsinh Bhagora had
caught my daughter XXXXX and made her fallen down and committed rape on her
one after another and threatened her to kill. As my daughter XXXXX became
pregnant by this incident, she gave birth to a boy child on 28/10/2015 at Kajada
village in Rajasthan. Therefore, I have come here alongwith my daughter XXXXX
and my nephew Anilbhai Zaverbhai Garasiya residing at: Ukhareli, Ta-Santarampur,
Dist:Mahisagar and Kesharabhai Ramjibhai Taviyad of our village to make complain.
Hence, it is my complaint to make legal investigation. I hereby produce the
certificate of Moti Kyar Primary School in Rajayata in which my daughter XXXXX
had studied. As per this certificate, birth date of XXXXX is 04/05/1999. I make my
complaint in presence of Simaben Gokuldas Shah of Anandi Institute and Jivikaben

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Shiv. My witnesses and evidence are the persons mentioned in my complaint and
the persons who will reveal in the investigation.

The above is the fact of the complaint. "

4.2 Thus, it is the case of the prosecution that before about ten months from the
date of the filing of the complaint, at around 8:00 Clock in the late evening, the
victim, aged 16, residing at village Rajayta, Taluka: Morva, District: Panchmahals
had gone to watch the electric motor which was installed on the well situated near
her house. At that point of time, the original accused No.3 (acquitted) came at the
well to fetch the water. The original accused No.3 asked the victim to fetch a pot of
water and deliver it at his house. The victim carried the pot of water, and after
putting the pot at the house of the original accused No.3, was returning back to her
house and at that point of time, according to the case of the prosecution, the
appellants herein were hiding themselves. The two appellants are alleged to have,
all of a sudden, caught hold of the victim. One of the appellants herein is alleged to
have caught hold of the hand of the victim and made her fall down. The another
appellant is alleged to have gagged the mouth of the victim. The two appellants
herein are alleged to have, thereafter, committed rape on the victim one after
another. After the incident, the victim is said to have returned to her home. She did
not disclosed about the incident to anyone. According to the case of the
prosecution, the act of rape alleged to have been committed by the two appellants
impregnated the victim. The victim kept absolutely quite for a period of almost
seven months. It appears from the case of the prosecution that the victim went to
Rajasthan at the house of her cousin sister, PW 9-Rekhaben. While she was at
Rajasthan, she delivered the baby and later surreptitiously abandoned the baby in
one school premises. The abandoned infant was spotted by few people and they, in
turn, informed the police. The police conducted an inquiry and ultimately the
inquiry revealed that it is the victim who had delivered the baby and had
abandoned her in the school compound. According to the case of the prosecution,
the victim, for the first time, revealed that she had conceived on account of the
rape alleged to have been committed upon her by the two appellants nine months
back. This is how the PW 9-Rekhaben, at whose house the victim was residing at
Rajasthan past two months, came to know that the victim was pregnant and she
delivered the baby. Later, the parents of the victim also came to know about the
child being delivered by the victim at Rajasthan.

4.3 It appears that the village Panchayat was assembled to probe into the entire
episode, and in the meeting convened by the members of the village Panchayat,
the accused persons were also confronted. They were confronted as regards the
accusations and they denied such accusation outright before the village Panchayat.

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4.4 Upon registration of the first information report, the investigation had
commenced. The accused persons were arrested. The accused persons were
subjected to medical examination. The Panchnama of the place of occurrence,
Exh.33, was drawn. The victim was also sent for the medical examination at the
Community Health Center, Morva. The clothes said to have been worn by the victim
at the time of the incident were collected by drawing the Panchnama, Exh.37 in the
presence of the Panch witnesses. The clothes said to have been worn by the
appellants herein at the time of the commission of the offence, Exh.40, were
collected in the presence of the Panch witnesses. The blood samples of both the
appellants were drawn and collected for the purpose of the DNA test. The blood
sample of the infant was also drawn and collected for the purpose of the DNA test.
The articles collected by the Investigating Officer in the course of the investigation
were sent for chemical analysis to the FSL. The DNA testing was undertaken and
the report of the test revealed that none of the two appellants herein are the
biological father of the child delivered by the victim. The statements of various
other witnesses were recorded. At the end of the investigation, charge-sheet was
filed and the filing of the charge-sheet in the Special Court, ultimately, culminated
in the Special (POCSO) Case No.14 of 2016.

4.5 The Special Court, vide order dated 23rd May, 2016, Exh.6 proceeded to frame
the charge against the appellants herein. The charge reads thus:

"I, K.J. Dasondi, Additional Sessions Judge and Special Judge (POCSO),
Panchmahals at Godhra, frame the charge against you, accused (1) Ajitkumar
Kumarsinh Bhagora, aged 20 years (2) Vajesing Dalapbhai Damor, aged 31 years
(3) Sanjaybhai Anopbhai Damor, aged 28 years, all residing at Rajayta, Taluka
Morva (Hadaf), District Panchmahals, that,

(1) In this case, at about eight o'clock in the evening, ten months before
20/12/2015, the victim, being daughter of the complainant, aged about 16 years,
residing at Moje village Rajayta was going to see the motor installed at the well
situated near her house. At that time, you accused No. 3 had come to the said well
for fetching the water and you told her that "take the water pot to my house". As
you told such, the victim took the water pot and she was returning after putting the
water pot at the support of the fence at a nearby place. At that time, you accused
Nos. 1 and 2 were hiding at a nearby place and then, you came near the victim and
you accused No. 1 caught hold of her hand and made her to fall down and you
accused No. 2 pressed her mouth, made her to fall down, removed the clothes
worn by her, threatened to kill her and, thereby, both of you accused Nos. 1 and 2
one by one committed sexual intercourse against her consent and you accused No.
3 abetted in doing so. Due to this reason, the victim became pregnant and on

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28/10/2015, she gave birth to a child at Kajada village of Rajasthan. In this way,
you the accused persons have, in collusion with one another, committed an offence
as per Sections 376(D), 506(2) read with Section-114 of the Indian Penal Code,
within the jurisdiction of this Court.

(2) At the above-mentioned date, time and place, you accused persons committed
rape and penetrative sexual assault and sexual exploitation on the victim aged 16
years, being minor daughter of the complainant, against her will, despite knowing
her to be a minor and, thereby, you have committed an offence punishable under
Sections 4, 6, 17 of the Protection of Children from Sexual Offences Act, 2012,
within the jurisdiction of this Court.

(3) Hence, I hereby order to conduct trial of the offences under Sections 376(D),
506(2), 114 of the Indian Penal Code and Sections 4, 6, 17 of the Protection of
Children from Sexual Offences Act, 2012 against you accused persons in this Court,
as this Court has jurisdiction and this Court is competent to try all the above
offence."

4.6 The prosecution, in the course of the trial, led the following oral evidence:

Sr.
Detail - Exh.
No.
1 Victim Victim 16
2 Kaliben Bharatsinh Taviyad Complainant 20
3 Bharatbhai Salabhai Taviyad Witness 22
4 Anilkumar Zaverbhai Garasiya Witness 23
Medical
5 Dr. Sudeep Harishankar Sharma 25
Officer
Medical
6 Dr. Kalpesh Punjabhai Machhar 27
Officer
7 Gulabsinh Sunabhai Witness 32
Panch
8 Motibhai Ramjibhai Taviyad 39
witness
Rekhaben Dharmendrakumar
9 Witness 47
Bhamat
Dharmendrakumar Vechatbhai
10 Witness 48
Bhamat
11 Laxmansinh Manjibhai Taviyad Witness 49
Medical
12 Dr. Nandlal Bhuraram Disaniya 61
Officer
Investigating
13 Bhikhabhai Kanabhai Bharwad I 64
Officer

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4.7 The prosecution led the following pieces of the documentary evidence:

Sr. No. Detail Exh.

1 Complaint 21
2 Medical certificate of the victim 26
Medical examination report of the victim
3 issued by the Community Health Center, 28
Mora
Yadi sent to the Medical Officer, Mora for
4 the purpose of medical examination of 29
the accused.
MLC certificate of the accused, namely,
5 30
Ajirkumar issued by the C.H.C., Mora
MLC certificate of the accused, namely,
6 31
Vajesinh issued by the C.H.C., Mora
7 Panchnama of the scene of offence 33
Panchnama drawn for collection of the
8 clothes worn by the victim at the time of 37
the incident
Panchnama drawn for collection of the
9 clothes worn by the accused at the time 40
of the incident.
A copy of the certificate showing the date
10 of birth of the victim issued by the 50
Rajayta Primary School.
Forwarding letter sent for the purpose of
11 56
obtaining the blood sample of the child
Letter as regards obtaining the blood
12 57
sample of the child
Letter sent by the PSI of the Morva Police
13 Station for obtaining the blood sample of 58
the child
Forwarding letter issued by the Deputy
14 59
Director, Surat.
15 Report of the DNA Department 60
16 List 65
Forwarding letter sent to the FSL,
Vadodara for testing of the Muddamal,
17 66
remark of sending of Muddamal and the
authority certificate
Receipt of receiving the Muddamal by the
18 67
FSL, Vadodara
19 Forwarding letter sent to the FSL, Surat 68
for testing of the Muddamal, remark of

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sending of Muddamal and the authority

certificate
Receipt of receiving the Muddamal by the
20 69
FSL, Surat
Forwarding letter sent to the FSL, Surat
for testing of the Muddamal, remark of
21 70
sending of Muddamal and the authority
certificate
Receipt of receiving the Muddamal by the
22 71
FSL, Surat
Forwarding letter issued by the Deputy
23 72
Director, Surat to the CPI, Godhra
24 Report of the DNA Department 73
Forwarding letter issued by the Deputy
25 75
Director, Vadodara to the CPI, Godhra
26 FSL report 76
27 Report of the Serology 77

4.8 The statement of the appellants under section 313 of the Cr. P.C. were
recorded, in which, both the appellants stated that they were innocent and a false
case had been instituted against them on account of enmity with the family of the
victim.

[5] Submissions on behalf of the appellants:

5.1 Mr. Barot, the learned counsel appearing for the appellant of the Criminal
Appeal No.1110 of 2017 vehemently submitted that the Trial Court committed a
serious error in holding his client guilty of the offences charged with. Mr. Barot
submitted that it is true that the evidence of the prosecutrix is to be construed to
be that of an injured witness so much so that no corroboration is necessary but the
same would hold good if the evidence of the prosecutrix is found to be absolutely
true, trustworthy, reliable and inspiring total confidence. He would submit that if
the evidence of the prosecutrix is found to be shaky or not, at all, inspiring any
confidence, then, in such circumstances, the Court may insist for corroboration in
material particulars. He would submit that the testimony of the victim in cases of
sexual assault though commands great weight, but the same cannot necessarily be
universally and mechanically accepted to be as a gospel truth in any
circumstances.. Mr. Barot laid much emphasis on the fact that the first information
report came to be lodged almost after a period of nine months from the date of the
incident. He would submit that in cases like the one on hand, where the sole
testimony of the prosecutrix is available, it is very dangerous to convict the
accused, more particularly, when the prosecutrix could venture to wait for almost

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nine months for filing the first information report for rape. Mr. Barot would submit
that the delay of nine months in the present case left the accused persons totally
defenceless. He submitted that had the prosecutrix lodged the complaint soon after
the incident there would have been some supporting evidence like the medical
report or any other injury on the body of the prosecutrix so as to show the sign of
rape. Mr. Barot submitted that as the prosecutrix conceived and delivered a baby,
the DNA test was also conducted to find out whether the child was born out of the
said incident of rape and that the accused persons herein were responsible for the
said child. It is pointed out by Mr. Barot that the DNA test conducted reveals that
none of the two accused herein before this Court are the biological father of the
child delivered by the victim. According to Mr. Barot, the same is suggestive of the
fact that the prosecutrix did not get impregnated on account of the act of rape
alleged to have been committed by the appellants. Mr. Barot submitted that the
Trial Court, in its judgment, in para-27, has discussed the DNA test report.
According to Mr. Barot, the findings recorded by the Trial Judge in para-27 could be
termed as quite erroneous. Mr. Barot submitted that the reasons assigned by the
Trial Judge, as contained in para-27 of the judgment, gives an indication that the
Trial Court had, in its mind, that the pregnancy had nothing to do with the act of
rape. To put it in other words, the reasoning gives an impression that what was in
the mind of the Trial Court was that the prosecutrix might be pregnant through
some another person at the time when the act of rape, as alleged, was committed
and that could be the reason why the DNA test is negative. According to Mr. Barot
such line of reasoning is something contrary to the case of the prosecution or
rather something contrary to what has been stated in the charge framed by the
Trial Court against the appellants.

5.2 Mr. Barot next submitted that the Trial Court committed a serious error in
convicting the appellants by drawing presumption under section 29 of the Act of
having committed the offence under section 3 of the POCSO punishable under
section 4 of the POCSO. Mr. Barot submitted that for the purpose of drawing
presumption as envisaged under section 29 of the POCSO Act, the prosecution is
obliged to lay the foundational facts, prima facie, establishing the commission of
the offence. He would submit that the statutory presumption has been understand
by the Trial Court to mean that the prosecution version is to be treated as a gospel
truth in every case. He would submit that if the evidence of the prosecutrix
otherwise, by itself, is not reliable and trustworthy, then there is no question of
drawing any presumption under section 29 of the POSCO Act. Mr. Barot submitted
that there is no way, in which, the prosecution can ignore the DNA test report. The
same has been accepted by the prosecution. If the Public Prosecutor, in the Trial
Court, had any doubts as regards the contents of the DNA test report or the

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authenticity of such a report, then he could have examined any expert witness in
this regard. No such expert witness has been examined to confront him with the
DNA test report. He submitted that over a period of time, the science of DNA, by
and large, is now perfect. In such circumstances, referred to above, Mr. Barot, the
learned counsel prays that there being merit in his appeal, the same be allowed
and the judgment and order of conviction and sentence be quashed and set aside.

[6] Mr. A.A. Zabuwala, the learned counsel appearing for the appellant of the Criminal
Appeal No.845 of 2017 has, by an large, adopted all the submissions canvassed by Mr.
Barot. Mr. Zabuwala has nothing more to add.

[7] Submissions on behalf of the State:

7.1 Mr. Patel, the learned APP appearing for the State has vehemently opposed
both the appeals. Mr. Patel made a gallant effort to convince this Court that the
judgment and order of conviction passed by the Trial Court deserves to be affirmed.
Mr. Patel submitted that the prosecution should not fail merely because there was a
delay in lodging the first information report. According to Mr. Patel, the victim hails
from a poor strata of the society. It is submitted that the victim might not have
mustered the courage of disclosing about the incident to her parents or any other
person, and this could be for number of reasons. Mr. Patel would submit that there
was no good reason for the prosecutrix to point her finger towards the accused
persons as the culprits. He submitted that the oral evidence of the prosecutrix is
quite natural and deserves to be accepted without entertaining any doubt. He
would submit that the accused are not entitled to acquittal only on the strength of
the DNA test report, which exonerates them. He submitted that once the
foundational facts are laid, a presumption would arise under section 29 of the
POCSO Act that the accused committed the crime. Mr. Patel submitted that the
word used in section 29 of the POCSO Act is "shall". It is suggestive of the fact that
there is a mandate of the statute that the Court must presume that the accused
committed the crime unless any evidence irrebuttable of the same is led by the
accused. Mr. Patel submitted that no evidence worth the name has been led by the
accused to rebut the presumption under section 29 of the POCSO Act. Mr. Patel also
laid much emphasis on the fact that the case on hand is one of gang rape. He
submitted that the third accused might have been acquitted by the Trial Court, but
that by itself, would not be sufficient to raise a doubt as regards the complicity of
the appellants herein in the crime. In such circumstances, referred to above, Mr.
Patel, the learned APP, prays that there being no merit in both the appeals, those
be dismissed and the judgment and order of conviction passed by the Trial Court
may be affirmed.

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[8] Before adverting to the rival submissions canvassed on either side, we propose to
look into the oral evidence on record. The prosecution has examined the victim, PW 1,
Exh.16. As the entire case hinges on the evidence of the victim, we deem fit to
reproduce the same as under:

"2) My parents are doing the agricultural work. I was doing my household chores. I
do not remember the date of the incident. The incident took place at the time of
Board examinations. My father installed the electric motor pump for irrigation at
the farm. He came home keeping the pump on. He was taking rest. As the
irrigation water was running in the farm, I went to switch the electric motor pump
off at around eight o'clock. I went to the farm alone. When I went to the well,
Sanjay Damor of our village came to fetch water at our well. After filling the water
pot, he told me to take that pot to his home. Therefore, when I was returning after
delivering the pot at his home, Vajesinh Dalpatbhai Damor and Ajeetkumarsinh
Bhagora of our village came. They held me near the embankment of our farm.
Vajesinh fell me down and Ajeet gagged my mouth. Ajeet removed my pent and
shirt and Vajesing committed rape. Vajesing removed his underwear and he also
removed my underwear and he committed rape. I shouted to save me, but they did
not save me. After committing rape, Vajesing told Ajeet that now it is your turn.
Thereafter, he gagged my mouth and mounted upon me and committed rape
forcefully. After getting up, they intimidated me that, if you tell anyone, we will kill
your parents. At that time, I was partially unconscious. Thereafter, they left the
farm. Thereafter, when I stood up after being conscious, my vagina was bleeding.
Therefore, I put on my clothes and went home. All those three threatened me and
therefore I was frightened. Therefore, I did not inform about the incident to
anyone.

(3) After eight months of the incident, my parents sent me to the place of my
aunt's daughter Rekha, who is a teacher in Kajara Navodaya Vidhyalay, Rajsthan,
to take care of her younger daughter and to prepare for the three subjects in which
I had failed. When I was at my sister's place, I felt a sudden stomach ache and
thereafter, I went to toilet where I gave birth to a child. I was frightened and
therefore, I took this child and kept it outside the court. Thereafter, I came back to
home and slept. I did not inform Rekha about it. On the next day, the people of the
village admitted this child in the hospital. I fell sick. I did not inform anyone about
the incident. Thereafter, when I told Rekha, she informed the police. I stated to the
police that this child is mine. I was admitted to the hospital as I was sick. Police
sent me to the juvenile home. I stayed there for about three to four days. My
parents got me released on bail. I told my mother about the incident after she got
me released. After informing about the incident, we came to our village. Thereafter,

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my parents informed about it to the Pancha, but the said boys stated before the
Pancha that they had not done any such things. Thereafter, my mother lodged a
complaint in the Morva police station. The police recorded my statement after my
mother lodged the complaint. I was taken to a hospital for my medical examination
with my consent after the complaint was lodged by my mother. I had been
examined by a doctor.

My child is in a hospital at Rajasthan. I showed the place of the offence to the

police and the police drew a panchnama in presence of the pancha. I had kept the
clothes in my home which I had worn at the time the incident. I gave those clothes
to the police. I gave to the police a pent, shirt and an underwear. I can identify
those clothes if they are shown to me.

Note : As the permission is sought by the public prosecutor to identify the sealed
clothes of the victim, the same is granted.

I am shown muddamal article no-7 which is not my blue coloured jeans pent. As
there is a mistake in muddamal article no - 7, the public prosecutor seeks
permission to show the muddamal article no - 4. Therefore, when the muddamal
article no - 4, which bears a slip mentioning that muddamal article no - 4 is seized
from the accused Vajesing Dalpatsinh Damor in the presence of the pancha, is
shown to the victim, she identifies muddamal article no - 4 as her blue jeans pent.
When article no - 8, which is a half sleeved top with lining and article - 9, which is a
light yellow underwear worn by the victim at the time of the incident, are shown to
her, she identifies them as the same which were handed over to the police.

The police took me to the officer for an inquiry in the court. The officer questioned
me there and I gave statement and he recorded it.

Note : As the public prosecutor submits an application to bring the statement of the
victim, which was given before the J.M.F.C u/s 164 of CrPC and which is in the
custody of the Nazir of the court, the application has been granted. When the
sealed cover is produced by Nazir of Godhara, Mr. Pandya along with the register, it
is written on it The statement of the victim u/s 164 of CrPC in the offence of Morva
(H) Police Station, I - CR No - 89/15. This sealed cover has been opened in the
presence of the public prosecutor Ms. L.R. Sheth and the defense advocate Mr. S.N.
Chavda. A copy of complaint, a letter of the investigation officer and a sealed cover
have been found from this cover and the said sealed cover has been opened in the
court.

(6) I dictated the facts of the incident to the J.M.F.C Morva (H). After writing it, my
signature was obtained in her presence. I am shown that statement. It bears my

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signature. As it has been identified by the witness, the statement u/s 164 of CrPC
has been assigned Exhibit-18. The prosecution has been ordered to give a copy of
the victim's statement with Exhibit-18 to the defense. The accused persons
Vajesing, Ajeet Bhagora and Sanjay are present in the court today and they are
sitting behind the curtain. The witness identifies them.

Cross Examination by

Ld. Adv. Mr. S.N.Chavda for the Accused:

7) It is not true that the incident happened eight to ten months after my 10th
standard result. The incident happened in summer. It is true that the house, where
my father had gone after starting the motor in the farm, is about one kilometer
away from the farm. It is true that Taviyad, Bhagora and various other streets are
situated at Rajayata village. It is true that there are houses in almost in every farm
in my village. It is true that the farm of the accused Vajesang is situated adjoining
to our farm. It is true that I have been knowing Ajit, Vajesing and Sanjay prior to
the incident as they belong to my village. It is not true that there is dispute
regarding trees between my and Vajesingh's farms since long. It is not true that
mediators were called twice-thrice for the said dispute. It is not true that there was
dark when I went to stop the motor. It is true that there was no electricity facility
surrounding to my farm. It is true that no occasion arose after the incident till the
complaint to meet the accused and I have not seen him. It is true that my and the
accused' house are located in different streets. I went Rajasthan six months after
the incident. It is true that no one from the village was knowing that I went
Rajasthan. It is true that I had not informed my sister Rekha about this incident.
No one interrogated me after the incident till the delivery of child. My sister Rekha
is about twenty five years old. My sister Rekha had not asked me about changes
took place in my body till I stayed with her. It is true that I had not discussed about
the incident till I was discharged on bail.

I was studying at Pinchhoda village and I gave examination of Std.10 in Sanjeli

village. I was commuting from Pinchhoda village to my village when I was studying.
The police interrogated me one week after giving the complaint by my mother. The
police took my signature in the statement given by me. I read my statement before
making my signature.

It is not true that I had not dictated in my police statement that Vajesingh pulled
me down. It is not true that I had not dictated in my police statement that Ajit
gagged my mouth. It is not true that I had not dictated in my police statement that
Ajit put his shirt off. It is not true that I had not dictated my date of birth in my

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police statement. Police took me to the hospital for my medical examination when
my statement was recorded. My clothes, which were recovered by the police, were
recovered two days after my medical examination. I showed scene of offence to the
police when police recorded my statement. It is not true that Sanjay told me to put
the water when I went at farm and Vajesingh and Ajit might have met there and
though no incident took place with me, I am stating false fact due to dispute
regarding trees in the farm at the behest of my parents. It is not true that the
incident happened somewhere else but I have given false names of the accused
due to dispute. It is not true that I am giving false deposition at the behest of my
parents."

[9] Thus, according to the victim, the two accused herein caught hold of her at around
8:00 O' clock in the late evening while she was returning home after putting the pot of
water at the house of the original accused No.3 (acquitted) and committed rape upon
her. According to the victim, after the sexual assault, she fell almost unconscious. After
sometime, when the victim felt better, she stood up, and at that point of time, she
noticed that she was bleeding from her private part. She put up her clothes and
proceeded towards her house. According to her, as she was threatened by the accused,
she did not disclosed about the assault to anyone. After eight months from the date of
the incident, her parents asked her to go to Rajasthan at the house of her cousin sister
(daughter of father's sister). The cousin sister of the prosecutrix, namely, Rekha is
serving as a teacher in a school at village Kajra, Rajasthan. The prosecutrix was asked
to stay at the house of her cousin sister so that she could play with the new born child
and also take care of her. While she was at the house of her cousin sister at Rajasthan,
he experienced pain in her stomach and while attending nature's call, she delivered the
baby. She got frightened and, therefore, picked up the baby and abandoned her in the
school premises and came back home and went to sleep. This fact was not even
disclosed by the prosecutrix to her cousin sister Rekha. On the next day, few persons,
who spotted the infant abandoned by the prosecutrix, picked up the infant and
admitted her in the dispensary. According to the prosecutrix, she fell sick. Even
,thereafter, she did not disclosed anything about the delivery. Sometime thereafter, she
disclosed about the entire episode before her cousin sister-Rekha and that is how
Rekha informed to the police at Rajasthan. The prosecutrix, thereafter, admitted that
the child abandoned in the school premises was delivered by her. The parents of the
prosecutrix reached Rajasthan and got the prosecutrix released from the custody of the
police. The prosecutrix was, thereafter, brought to her home at village Rajayta, Taluka:
Morva, District: Panchmahals (Gujarat). In her cross-examination, she has stated that
there are many small localities in the village Rajayta. She admitted that practically, in
every field, there is a house. She also admitted that adjoining her agricultural field is
the agricultural field of Vajesinh (accused No.2). She admitted that all the accused are

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residents of her village and she knew them much before the incident. A suggestion was
put to her that before the incident, a quarrel had ensued between her family and
Vajesinh as regards the trees standing on the boundary of their agricultural field. This
suggestion, however, has been denied. She denied the suggestion that on three
occasions, the elders of the village had met to resolve the controversy as regards the
trees. She admitted in her cross-examination that after the incident and filing of the
first information report she had no occasion to meet the accused persons or even see
them. She has stated in her cross-examination that she left for Rajasthan after eight
months from the date of the incident. She has admitted that except her parents,
nobody else in the village knew about her leaving for Rajasthan. She also admitted
that she did not disclosed about the incident to her sister-Rekha. She has admitted
that after the incident and till the time she delivered the baby, no one had inquired
with her about anything. She has deposed that no one inquired with her as regards the
change in her physical appearance. She has deposed that it is after the registration of
the first information report, the police recorded her statement. She has also deposed
that she had signed the statement given by her. She denied the suggestion that she
had not stated before the police that Vajesinh threw her down at the time of the
incident. She also denied the suggestion that she had not stated before the police that
Ajitkumar had gagged her mouth at the time of the incident. She admitted that she
had not stated before the police that Ajit took off his shirt. All other suggestions put to
her by the defence counsel were denied.

[10] At this stage, we may also look into the statement of the prosecutrix recorded by
the JMFC, Morva under section 164 of the Cr.P.C. The statement reads thus:-

"Question : What is the name of your parents, where are you residing ?

Answer : The name of my father is Bharatbhai Salabhai by caste - Taviyad, who is

doing the business of agriculture. The name of my mother is Kaliben. I am residing
with my parents at village Rajayta.

Question : Up to which standard you have studied ? In which school you have
studied ?

Answer : I have studied up to standard 10th, in the Secondary School at Pichoda,

Tal. - Sanjeli, Dist. Dahod. At present I am not studying. I know that I should not
speak lie.

Looking to the aforesaid questionnaire, it is found that though the witness is minor
but she is capable to give the statement, she understands the seriousness of the
oath, and as she wants to record the statement by her own willingness without any

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type of pressure. Hence, her statement has been recorded in-camera today at
14:00 hours on 28-12-015.

Oath Administered.

I am residing with my parents at village - Rajaita, and I am doing house-hold work

at my home. I went to Navoday Vidhyalay, at village Kajda in Rajasthan to take
care of the daughter of my sister Rekhaben, where she is doing job. There I gave
birth to a child. The accused persons Vajesinh Dalpatbhai and Arjitbhai Bhagora
had committed rape upon me at village Rajaita, due to which I had given birth to a
child. Hence my mother Kaliben had lodged complaint at Morva(H) Police Station
against the accused. Except this, I do not want to say anything else. Such is my
fact. "

[11] The prosecution examined PW 2-Kaliben Bharatbhai Tavadiya, Exh.20. She is the
mother of the victim. The PW 2, in her evidence, has deposed that her daughter
(victim) was sent to Rajasthan. From Rajasthan, the PW 2 received a phone call from
Rekha informing that the victim had delivered a baby boy. The PW 2 was also informed
by Rekha that the victim had abandoned the baby after giving birth. On receipt of such
information from Rekha, the PW 2 along with few of her relatives, went to Rajasthan at
the house of Rekha. The PW 2 has deposed that when they reached Rajasthan, her
daughter was admitted in a dispensary and, thereafter, the police took the victim along
with them. At Rajasthan, the victim had lodged the complaint. The PW 2 has deposed
that as her daughter was arrested, they got her released on bail. Thereafter, they all
came back to their village Rajayta. At that point of time, the victim disclosed, for the
first time, before her mother that before about nine months when she had gone to the
well to switch off the electric motor, she was raped by the accused persons. The PW 2
has deposed that her daughter told her that the accused persons had administered
threats that if she would disclose about the incident to anyone, then they would kill her
parents. She has deposed that before lodging the first information report, a village
Panch was convened. As the issue could not be resolved in the Panch meeting, the first
information report had to be lodged ultimately. In her cross-examination, the PW 2 has
stated that the agricultural field of Vajesinh (accused No.2) is adjoining to her field.
She denied the suggestion that she is at inimical terms with Vajesinh on account of the
trees standing on the boundary of the two fields. She has deposed in her cross-
examination that she came to know about the entire incident only after Rekha called
her up. She has deposed that when her daughter left for Rajasthan, she did not noticed
any change in the physical appearance or in the body weight or other features of her
daughter. She has deposed that even while her daughter left for Rajasthan, or before
that, no occasion to inquire about anything with her daughter had arisen. She has
deposed that even Rekha at Rajasthan did not inform her that some changes were to

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be seen in the victim. She admitted that she lodged the first information report in
accordance with what was stated by her daughter.

[12] The prosecution examined PW 3-Bharatbhai Salabhai Taviyad, Exh.22. The PW 3

is the father of the victim. However, the PW 3 has not supported the case of the
prosecution. He was declared hostile. In the cross-examination of the PW 3 by the
defence counsel, he has admitted that he came to know about his daughter having
delivered a baby on 28th October, 2015 through his nephew, namely, Anilbhai
Zaverbhai Garasiya, resident of village Ukhreli, Taluka: Santrampur, Vadodara.

[13] The prosecution has examined PW 4-Anilkumar Zaverbhai Garasiya. He happens

to be the brother of Rekha. He has not supported the case of the prosecution. He has
been declared as a hostile witness. The only part of his evidence which we may take
note of is that the victim was interrogated by the police at Rajasthan and in the course
of the interrogation, the victim had stated about the incident of rape.

[14] The prosecution has examined PW 5-Dr. Sandeep Harishankar Sharma, Exh.25.
Dr. Sharma, in his evidence, has deposed that on 22nd December, 2015, he was on
duty as the Medical Officer at the Godhra Civil Hospital. At that point of time, a rape
victim was brought at the hospital for medical examination. Dr. Sharma has deposed
that on inquiring with the victim as regards the history of the incident, she failed to
give full cooperation. However, ultimately, according to Dr. Sharma, the victim
disclosed that about eight to ten months back, she was raped by the accused. Dr.
Sharma produced the medical certificate of the victim, Exh.26.

[15] The prosecution examined PW 6-Dr. Kalpesh Punjabhai Machhar, Exh.27. Dr.
Machhar had examined the victim on 21st December, 2015. According to Dr. Machhar,
the victim had narrated about the incident of rape in the form of history, which has
been recorded in the medical certificate issued by Dr. Machhar, Exh.28. Dr. Machhar
also examined the two accused herein and produced the medical certificates Exhs. 29
and 30 respectively. Dr. Machhar collected the blood samples of both the accused for
the purpose of the DNA test. According to Dr. Machhar, none of the two accused stated
anything in the form of history at the time of their medical examination.. He has
deposed that the accused persons conveyed to him that no such incident, as alleged,
had ever occurred.

[16] The prosecution examined PW 7-Gulabsinh Sunabhai, Exh.32 as one of the Panch
witnesses. The PW 7 is the Panch witness of the Panchnama of the scene of the
offence. The PW 7 also acted as one of the Panch witnesses to the other three
Panchnamas, Exhs. 34,35 and 36 respectively regarding collection of the clothes of the
victim.

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[17] The prosecution examined PW 9-Rekhaben Dharmendrakumar Bhamat, Exh. 47.

The PW 9, in her evidence, has deposed that she is serving as a teacher since 2006 in
a school by name Navoday Vidhyalay at Rajasthan. Her husband is a teacher in a
primary school at village Orvada, Taluka: Godhra. According to the PW 9, she visited
the house of her husband at Godhra during the Diwali period with her daughter named
Hetli. The PW 9 was very keen to take her daughter along with her to Rajasthan but
the difficulty was that there was no one to look after her as she was serving in the
school. According to the PW 9, as the victim had failed in her standard 10th exam, she
took the victim along with her to Rajasthan so that she could look after her daughter
and the victim could also start preparing for her 10th standard exam. The PW 9 has
deposed that she left in the morning for her school. Her daughter and the victim were
all alone at home. In the afternoon hours, someone left behind a newly born infant
near the wall of the school. The police arrived at the school. According to the PW 9, she
returned home in the evening and found the victim sleeping. When the PW 9 inquired
with the victim, she started crying. The PW 9 thought that the victim might have got
disturbed having come to know that a newly born infant had been abandoned and left
near the wall of the school. Thereafter, she informed about the entire event to her
husband and her brother. On the next day, everyone came to Rajasthan. In the course
of the interrogation by the police, the victim is said to have disclosed about the alleged
rape and being impregnated.

[18] In her cross-examination, the PW 9 has deposed that if any female gets
pregnant, then the change in her physical appearance etc. would be very prominent.
She has deposed that while she got the victim with her to Rajasthan and even during
her stay at Rajasthan till the time the victim delivered the baby, she did not get to
know that the victim was pregnant.

[19] The prosecution examined PW 13- Bhikhabhai Kanabhai Bharwad, Exh. 64 as the
Investigating Officer. The PW 13, in his evidence, has given more than a fair idea about
the entire investigation carried out by him. He has deposed as to how the statement of
the victim under section 164 of the Cr.P.C was recorded. He has also deposed how the
blood samples etc. were collected and forwarded to the FSL for the DNA test etc.

ANALYSIS

[20] Having heard the learned counsel appearing for the parties and having
considered the materials on record, the only question that falls for my consideration is
whether the Trial Court committed any error in holding the accused persons guilty of
the offence of rape.

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[21] We have lent our anxious consideration to the materials on record as well as the
competing arguments based thereon. Having regard to the charge levelled, the fulcrum
of the prosecution case logically is the testimony of the prosecutrix. Undeniably
therefore the credibility and trustworthiness of the victim's version is the decisiving
factor to adjudge the culpability of the appellants.

[22] In the cases of rape, the law does not require corroboration and, therefore, if the
evidence of the prosecutrix is believed, there is no bar to convict the accused on her
testimony alone. To put it in other words, there is no such law which requires
corroboration before the statement of the prosecutrix is acted upon. Indisputably, a
prosecutrix is a competent witness (vide section 118 of the Evidence Act). She is not
an accomplice within the domain of section 133 of the Evidence Act. Thus, her
statement, as such, does not require a corroboration within the meaning of section
114-B (114-A) of the Evidence Act which provides that an accomplice is unworthy of
credit unless she is corroborated in material particulars. The prosecutrix is a victim like
any other victim of any other offence. Hence, the same weight is to be attached to her
statement which requires to be attached to the statement of an injured person.
Therefore, if the statement of the prosecutrix is quite clear and unequivocal on the
point as to who has ravished her, there is no reason, whatsoever, as to why the said
statement, without any corroboration from any quarter, whatsoever, cannot form the
basis of conviction. Thus, her statement is to be scrutinized like the statement of any
other witness and if there is a ring of truth about it and if it inspires confidence, the
Courts would be under an obligation to rely thereupon. However, the principal question
we need to answer is to what extent we should accept the case of the prosecutrix
having regard to the evidence on record. If the statement of the prosecutrix suffers
from serious infirmities, inconsistencies and the overall case put up by the prosecution
does not inspire any confidence, then it would be very hazardous to base the
conviction solely on the evidence of the prosecutrix.

[23] Here is a case, in which, the prosecutrix claims that late in the evening at about
8:00 O' clock, she was sexually assaulted by the appellants herein. It is her case that
as she was ravished by two persons, she practically became unconscious. According to
her, she remained at the place of the occurrence for sometime, and later when she felt
better, she stood up and walked straight to her home. It is her case that while she
stood up, she noticed that she was bleeding. It is her case that the accused persons
had threatened her with dire consequences that if she would disclose to anyone about
the incident, they would kill her brother. According to her, such is the reason why she
kept quiet about the incident. It is also her assertion that on account of the act alleged
to have been committed by the accused persons, she conceived.

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[24] We find it extremely difficult to believe the prosecutrix. The overall evidence on
record and the other circumstances renders the entire case put up by the prosecutrix
highly doubtful.

[25] First and the foremost thing which we should take into consideration is the delay
of almost nine months in lodging the first information report. We find it very hard to
believe that the prosecutrix maintained silence only on account of the so called threats
administered to her by the accused persons. The delay per se is not a mitigating
circumstance for the accused when the accusations of rape are involved. As held by the
Supreme Court in many of its decisions that delay in lodging the first information
report cannot be used as a ritualistic formula for discarding the prosecution case and
doubting it authenticity. It only puts the Court on guard to search for and consider if
any explanation has been offered for the delay. Once it is offered, the Court is to only
see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily
explained the delay, it is a relevant factor. In the case on hand, we are not convinced
with the explanation offered for the delay of almost nine months.

[26] Mr. Barot, the learned counsel is justified in his submission that delay in the
present case has assumed significance. He is justified in his submission that had the
prosecutrix lodged the first information report soon after the incident, there would
have been some supporting evidence like the medical report or any other injury on the
body of the prosecutrix so as to show the sign of rape. If a long and inordinate delay of
almost nine months in lodging the first information report is to be ignored and the
prosecutrix is also to be believed in toto, at the same time, the same would leave the
accused practically defenceless.

[27] In the aforesaid context, we may refer to a decision of the Supreme Court in the
case of Vijayan vs. State of Kerala, 2008 14 SCC 763. In the said case, the prosecutrix
who was aged about 17 years, was the neighbour of the accused. In her testimony, the
prosecutrix set up the case that the accused had raped her when no one else was there
in the house and she was raped in the house. She did not give any complaint either to
her parents or to the police in view of the promise alleged to have been made by the
accused to get married to her. She became pregnant and while she was carrying a child
of seven months, she requested the accused to marry her. The accused declined.
Thereafter, a complaint was lodged after seven months. On such facts, the Supreme
Court noted that no complaint or grievance was made either to the police or the
parents thereto. The Court held as follows:

"..........In cases where the sole testimony of the prosecutrix is available, it is very
dangerous to convict the accused, specially when the prosecutrix could venture to
wait for seven months for filing the FIR for rape. This leaves the accused totally

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defenceless. Had the prosecutrix lodged the complaint soon after the incident,
there would have been some supporting evidence like the medical report or any
other injury on the body of the prosecutrix so as to show the sign of rape. If the
prosecutrix has willingly submitted herself to sexual intercourse and waited for
seven months for filing the FIR it will be very hazardous to convict on such sole oral
testimony. Moreover, no DNA test was conducted to find out whether the child was
born out of the said incident of rape and that the appellant-accused was
responsible for the said child. In the face of lack of any other evidence, it is unsafe
to convict the accused."

[28] In the case of Kaini Rajan v. State of Kerala, 2013 9 SCC 113, on 17.9.1997 at
about 8.30 a.m. it was alleged the prosecutrix was raped at a site which was by the
side of a public road. It was the case of the prosecutrix that she tried to make hue and
cry but was silenced by the accused by stating that he would marry her. Even after this
incident he had sexual intercourse on more than one occasion. The prosecutrix became
pregnant, gave birth to a child and accused did not keep his promise to marry her. It is
thereafter that on 26.7.1998 nearly 10 months after the alleged rape that a case was
registered. The Supreme Court referred the Vijayan's case (supra), took note of the
place being on the side of a public road, the aspect of delayed filing of the report and
also the behavior of the parents of the prosecutrix in not approaching the family
members of the accused for marrying the prosecutrix and instead lodging the report.
The Court also found that having regard to the site, if the prosecutrix has made any
resistance or made hue and cry it would have attracted large number of people from
the locality. The appeal filed by the accused was allowed.

[29] What does the prosecution has to say about the DNA test conducted in the
present case. The prosecution has accepted the report of the DNA test. The DNA test
confirms that none of the two appellants herein are the biological father of the child
delivered by the prosecutrix. The DNA test report is on record. The same has been
produced at Exh.73. The DNA test report reads thus:

From above result, it is observed that:

"1, One of the allele of the DNA profile of Blood sample , said to be of the child
baby Prince(source of Ex.A,Case no.16/DNA/6) matches with one of the respective
allele of the DNA Profile of blood sample of the mother XXXXX Bharatbhai Taviyad
(Source of Ex-A,Case no.16/DNA/133).

2. Non-maternal alleles of the DNA Profile of Blood sample of the child baby
Prince(source of Ex.A,Case no.16/DNA/6) are not present in the DNA Profile of
blood sample of Ajitsinh Kumarsinh Bhagora(Source of Ex-A,Case no.15/DNA/410).

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3. Non-maternal alleles of the DNA Profile of Blood sample of the child baby
Prince(source of Ex.A,Case no.16/DNA/6) are not present in the DNA Profile of
blood sample of Vajesinh Dalpatbhai Damor (Source of ExB,Case no.15/DNA/410).

From the above observations, it is concluded that

1. STR profiles of Ms. XXXXX Bharatbhai Taviyad (source of Ex.A:blood sample,case

no 16/DNA/133) is consistent as biological mother of the child baby Prince (source
of Ex.A:blood sample,Case no.16/DNA/6).

2. STR profiles of Mr. Ajitsinh Kumarsinh Bhagora (source of Ex.A:blood sample,

case no 15/DNA/410) & Mr. Vajesinh Dalpatbhai Damor (source of Ex.B:blood
sample,case no 15/DNA/410) are not consistent as biological father of the child
baby Prince (source of Ex.A:blood sample, Case no.16/DNA/6). N0te:Results relate
only to the exhibits tested. Date of Starting the Analysis: 03-05-2016 Date of
Completing the Analysis: 08-06-2016"

[30] The DNA technology over a period of time has made significant progress and
achieved sophistication to the extent that the Courts world over with increasing level of
confidence, have been relying on the DNA testing. Scientific literature suggests that
subject to genuineness of the samples and the laboratory analysing the samples
following scientific protocols, the DNA results would be unquestionable and may lead
conclusively either to involvement or exoneration of the accused in certain cases. In
the case of State of Gujarat v. Mohan Hamir Gohil and others (Criminal Confirmation
Case No.1/2012), a Division Bench of this Court after referring to various authorities on
DNA technology, different methodology used for testing and the scientific
advancements made world over, noticed that over a period of time the Courts across
the world including in India have been placing heavy reliance on DNA results. It was
observed as under :

"33. From the above literature, it can be seen that over a period, the technology of
DNA testing has made great strides and achieved sophistication leading to results
which can often times be used either for inclusion or exclusion of the accused. DNA
of a person is considered unique to himself (except in cases of identical twins) and
can be traced from smallest quantity of blood, saliva, semen, root of hair, skin, nail
and such like. Subject, of course, to the laboratory analyzing the sample following
the scientific protocols, the DNA result becomes absolutely unquestionable.

34. Let us now see how the courts have viewed the advancement in DNA
technology. Section 53A of the Criminal Procedure Code was introduced by
Amendment Act 25 of 2005 with effect from 25.3.2006. Sub-section (1) section
53A, provides that a when a person is arrested on a charge of committing an

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offence of rape or an attempt to commit rape and there are reasonable grounds for
believing that an examination of his person will afford evidence as to the
commission of such offence, it shall be lawful for a registered medical practitioner
to make such an examination of the arrested person and to use such force as is
reasonably necessary for that purpose. Consent of the accused thus in giving blood
sample, etc. is no longer necessary. Sub-section (2) of section 53A provides that
such medical practitioner conducting the examination shall without delay, examine
such person and prepare a report of his examination giving various details including
the description of the material taken from the person of the accused for DNA
profiling. This provision came up for consideration before the Supreme Court in the
case of Krishan Kumar Malik v. State of Haryana, 2011 CrLJ 4274, in which it was
observed as under:

45. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code,
w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-
State, it has become necessary for the prosecution to go in for DNA test in such
type of cases, facilitating the prosecution to prove its case against the accused.
Prior to 2006, even without the aforesaid specific provision in the Cr.P.C.
prosecution could have still resorted to this procedure of getting the DNA test or
analysis and matching of semen of the Appellant with that found on the
undergarments of the prosecutrix to make it a foolproof case, but they did not do
so, thus they must face the consequences.

In the case of Raghuvir Dessai v. State, 2007 CrLJ 829, learned Single Judge of the
Bombay High Court observed as under:

........... The clinching evidence has come from the Senior Scientific Officer Shri
Sathian PW 15 who carried out the DNA test on the basis of the material forwarded
to him and which was ;collected by Dr.Sapeco/PW 5. He has confirmed that the
accused is the contributor of the semen which was collected by Dr.Sapeco in the
form of vaginal swab. DNA (Deoxyribonucleic acid) is found specially in cell nuclei
which are the foundation of heredity. DNA is the genetic blue print for life and is
virtually contained in every cell. NO two persons, except identical twins have ever
had identical DNA. DNA testing can make a virtually positive identification when the
two samples match. It exonerates the innocent and helps to convict the guilty (See
page 249 of Jhala and Rajus Medical Jurisprudence Sixth Edition). The DNA testing
hits the nail on the head of the accused and is the last and clinching piece of
evidence which shows that it is the accused and the accused alone who committed
the rape of the victim/PW11.

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In the case of State (through C.B.I) v. Santosh Kumar Singh, 2007 CrLJ 964, a
Division Bench of the Delhi High Court observed as under:

Dr.A.K.Sharma has held that while conducting past-mortem on local physical

examination of private parts, it was noticed that black, curly, non-matted pubic hair
and hymen intact, no tearing present, admitting one finger only. He has also given
his opinion that the deceased has not been subjected to sexual intercourse.
However, it is the DNA test conducted on the vaginal swabs, vaginal slide and
underwear of the deceased compared with the blood sample of the accused that
the experts have come to the conclusion that there is sperm present in the vaginal
swabs and the DNA of the sperm so found present, matches with DNA of the
accused obtained from his blood sample.

xxxx

48. The next question that engages us is whether the DNA test conducted was
proper? It is in evidence of Dr.Lalji that the method used and the test conducted in
determining and arriving at the conclusion were done as per standard practice as
also per scientific technology suitable for such tests. The trial Court has elaborately
introduced its learning based on literature which, to a large extent, was never even
put to the expert witness and even otherwise there is no positive evidence on
record to show that the test so conducted by the experts were perverse and/or not
in keeping with the standard scientific methodology. We may make useful reference
to judgments of the Supreme Court in Sundar Lal v. State of Madhya Pradesh, 1954
AIR(SC) 28 : (1954 Cri LJ 257); Bhagwan Das v. State of Rajasthan,1957 AIR(SC)
580 : (1957 Cri LJ 889); wherein it has been held by the Supreme Court that
findings of an expert witness can not be set aside by a Court by making a reference
to some literature/book without confronting the expert with them and directing his
opinion on it. In another case decided by the Honble Supreme Court in Gambhir v.
State of Maharashtra, 1982 AIR(SC) 1157 : (1982 Cri LJ 1243) it was held that the
Court should not usurp the function of an expert by arriving at its own conclusions
contrary to the one given by the expert witness. There has been great effort made
by counsel for the accused to discredit the test conducted as such by referring to
either possibility of contamination and/or with reference to snippets of replies given
by the experts in cross-examination but we find that at no stage has any of the
expert witness said that the tests conducted by them have given a wrong result or
there is a possibility that the test so conducted by them would have l;given a
wrong result. On the contrary, they have categorically ruled out any such possibility
of contamination and/or erroneous results.

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In the case of Thogorani v. State of Orissa, 2004 CrLJ 4003, a Division Bench of the
Orissa High Court observed as under:

11. Before answering the above contentions raised by the learned counsel for
opponent No.3 it would be apt to note that the DNA evidence is now a predominant
forensic technique for identifying criminals when biological tissues are left at scene
of crime. DNA testing on samples such as saliva, skin, blood, hair or semen not
only helps to convict but also serves to exonerate. The sophisticated technology
makes it possible to obtain conclusive results in case win which the previous testing
had been inconclusive. Moreover, DNA sampling may also impinge on familial
privacy where information obtained from one persons sample provides information
regarding his or her relatives.

In the case of Pantangi Balarama Venkata Ganesh v. State of A.P., 2003 CrLJ 4508,
a Division Bench of the Andhra Pradesh High Court described DNA as a perfect
science and observed as under:

Thus, the evidence of DNA expert is admissible in evidence as it is a perfect

science. In the cross-examination P.W.46 has deposed as under:

If the DNA fingerprint of a person matches with that of a sample, it means that the
sample has come from that person only. The probability of two persons except
identical twins having the same DNA fingerprint is around 1 in 30 million world
population.

It means that DNA test gives the perfect identity. It is very advanced science.

In the case of Sajeera v. P.K.Salim, 2000 CrLJ 1208, learned Single Judge of the
Kerala High Court observed that DNA fingerprinting test has been much advanced
and resorted by the courts of law to resolve the dispute regarding paternity of the
child. It was observed as under:

15. It has been held in several cases that blood test is an important piece of
evidence to determine the paternity of the child. Though by a blood test it cannot
positively establish the paternity of the child, it can certainly exclude certain
individual as the father of the child. Therefore, while the negative finding in a blood
test is definite, the positive finding only indicates a possibility. Now the DNA finger-
printing test has been much advanced and resorted to by the Courts of law to
resolve the dispute regarding paternity of the child. It is true that without the
consent of the person blood test cannot be conducted and there is no law in India
enabling the Court to compel any person to undergo blood test as available in
England.

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35. From the above, it can be seen that several courts in India over a period of
time have accepted DNA analysis as totally reliable, of course, as long as, the
laboratories employ sufficient skill and care in doing so. DNA analysis is employed
by various countries for criminal investigation and prosecution. Various countries
have created data banks of DNA profile of the persons who are already convicted
which can be matched with DNA profile of the samples collected from crime scene.
We are aware that creating such data-base has several legal and constitutional
issues. We are, however, in the present case, neither required nor called upon to
enter such arena. We are only trying to demonstrate effectiveness of the DNA
technology and that when properly done its results are infallible.

36. We are not unmindful of a decision of this Court in the case of Premjibhai
Bachubhai Khasiya v. State of Gujarat, 2009 CrLJ 2888 wherein a Division Bench of
this Court observed that if the DNA report is the sole piece of evidence, even if it is
positive, cannot conclusively fix the identity of the miscreant, but if the report is
negative, it would conclusively exonerate the accused from the involvement or
charge. It was observed that science of DNA is at a developing stage and it would
be risky to act solely on a positive DNA report. This decision was rendered more
than four and a half years back. Science and Technology has made much
advancement, and world over DNA analysis technology is being relied upon with
greater confidence and assurance. We do not think that the Indian Courts need to
view the technology with distrust. Of course, subject to the laboratory following the
usual protocols, DNA result can be of immense value to the investigators,
prosecutors as well as courts in either including or excluding a person from
involvement in a particular act. The said decision of this Court must be viewed in
the background of the facts in which it was rendered. It was a case where the
accused were charged with offence under sections 363, 366, 376 read with section
114 of the Indian Penal Code. All important witnesses including the prosecutrix
herself had turned hostile and did not support the prosecution. Despite which, the
trial Court handed down conviction primarily on the basis of DNA report which
opined that the DNA profiling of the foetus matched with that of the appellant
original prime accused. It was in this background while reversing the conviction,
the above noted observations were made. It can thus be seen that mere
establishment of the identity of the father of the foetus in any case would not be
sufficient to record conviction of the accused for rape and gang-rape under section
363, 366 and 376 of the Indian Penal Code. The said decision, in our opinion,
therefore, cannot be seen as either rejecting the reliability of the DNA technology
or laying down any proposition that in every case the DNA result must be
corroborated by independent evidence before the same could be relied upon.

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[31] The DNA profiling is an extremely accurate way to compare a suspect's DNA with
crime scene specimens, victim's DNA on the blood stained clothes of the accused or
other articles recovered. DNA testing can make a virtually positive identification when
the two samples match. As it is the case of the prosecutrix that she conceived on
account of the rape alleged to have been committed by the appellants herein, the DNA
test had to be carried out and the report of such test indicates that none of the two
appellants are the biological father of the child delivered by the prosecutrix. What will
be the effect of the DNA report on the case of the prosecution?. It practically renders
the entire case of the prosecutrix false. If the DNA test report exonerates the
appellants herein, then the question is through whom the prosecutrix conceived?. This
is suggestive of the fact that the prosecutrix might be suppressing the true facts and
she does not want to reveal the name of the real person who impregnated her. As
regards the science of DNA profiling, we may refer to the observations made by the
Supreme Court in one of its very recent pronouncements in the case of Rajendra
Pralhadrao Wasnik vs. State of Maharashtra, 2019 AIR(SC) 1. We may quote the
relevant observations:

"55. In Mukesh a separate opinion was delivered by Justice Banumathi and in

paragraph 455 of the Report it was held that DNA profiling is an extremely accurate
way of comparing specimens and such testing can make a virtually positive
identification. It was stated:

"455. DNA profiling is an extremely accurate way to compare a suspect's DNA with
crime scene specimens, victim's DNA on the blood-stained clothes of the accused
or other articles recovered, DNA testing can make a virtually positive identification
when the two samples match. A DNA finger print is identical for every part of the
body, whether it is the blood, saliva, brain, kidney or foot on any part of the body.
It cannot be changed; it will be identical no matter what is done to a body.

Even relatively minute quantities of blood, saliva or semen at a crime scene or on

clothes can yield sufficient material for analysis. The Experts opine that the
identification is almost hundred per cent precise. Using this i.e. chemical structure
of genetic information by generating DNA profile of the individual, identification of
an individual is done like in the traditional method of identifying finger prints of
offenders."

(Emphasis supplied by us).

56. In the context of importance of scientific and technological advances having

been made, we may recall the observation of this Court in Selvi v. State of

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Karnataka36 in paragraph 220 of the Report that "The matching of DNA samples is
emerging as a vital tool for linking suspects to specific criminal acts."

[32] It is also not the case of the prosecution that the DNA test report is not accurate
or no implicit reliance should be placed upon the same by this Court. The Supreme
Court in Santosh Kumar Singh v. State, 2010 9 SCC 747 has observed that the DNA is
practically accurate and exact science and that the Court would not be justified in
rejecting the DNA report. The DNA evidence is now a predominant forensic technique
for identifying the criminals. Such DNA test not only helps to convict the accused but
also serves to exonerate.

[33] In Mukesh & Anr vs State for Nct Of Delhi & Ors, 2017 6 SCC 1, her Ladyship
Justice Banumathi has observed in para-457 as under:-

" DNA evidence is now a predominant forensic technique for identifying criminals
when biological tissues are left at the scene of crime or for identifying the source of
blood found on any articles or clothes etc. recovered from the accused or from
witnesses. DNA testing on samples such as saliva, skin, blood, hair or semen not
only helps to convict the accused but also serves to exonerate. The sophisticated
technology of DNA finger printing makes it possible to obtain conclusive results.
Section 53A Cr.P.C. is added by the Code of Criminal Procedure (Amendment) Act,
2005. It provides for a detailed medical examination of accused for an offence of
rape or attempt to commit rape by the registered medical practitioners employed in
a hospital run by the Government or by a local authority or in the absence of such
a practitioner within the radius of 16 kms. from the place where the offence has
been committed by any other registered medical practitioner."

[34] In Kamalanantha And Ors vs State Of Tamil Nadu, 2005 5 SCC 194, the Supreme
Court has observed in para-61 as under:

"Regarding Data Base and contamination Dr.Lalji has stated in cross- examination
as under :-"

"As far as Paternity is concerned, the Paternity of the child is determined by

identifying which are the bands of maternal and which are paternal. Therefore,
comparison of DNA fingerprinting of the child with the mother will identify which
are the bands maternally inherited. Elimination of these bands will leave those
bands inherited from the childs to father, the paternally specific bands. If the
alleged Father's Fingerprinting pattern contains all of these bands, then he is the
true Biological Father of that Child and Paternity is confirmed. The article published
by a Laboratory - CELLMARK, United States is Ex.D.42."

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The witness further clarified that a laboratory error can produce mismatch but it
cannot produce a proper match."

[35] Thus, there is no good reason for us to doubt the authenticity of the DNA test
report in the present case.

[36] In view of the peculiar facts, as discussed above, obviously the medical evidence
was not going to be of any assistance. When the incident had admittedly taken place
almost nine months before the filing of the first information report, the examining
doctor was unlikely to find any evidence which would either support or conflict with the
version of the victim. Had the oral deposition of the victim along with her mother and
other witnesses being the sole evidence on record, we would have certainly examined
it minutely and assessed the same with the aid of the well settled and established legal
principles. Serious questions such as the improbability of a pregnancy not being
noticed by the mother and other family members including Rekha at Rajasthan would
be one of the factors which would go into our consideration. The suggestion of the
defence that there was another male studying with the prosecutrix might be the person
involved in making the girl pregnant would also require serious consideration. However,
this lengthy discussion is absolutely futile since the victim gave birth to a child
allegedly born out of the episode of rape. The charge, Exh.5, framed against the
accused persons is very specific in this regard. It is not the case of the prosecution that
other than the alleged rape by the accused persons, the victim girl voluntarily or
otherwise had sexual intercourse with any other man. In that view of the matter, the
DNA test report assumes significance. When according to the case of the prosecution
the child was born out of the pregnancy resulting from the rape by the accused
persons, this accusation of rape against the accused must succeed or fail on the basis
of the DNA analysis. We have reproduced the conclusion of the DNA expert. The report
was conclusive and unequivocally opined that the prosecutrix was the mother of the
child but either of the accused persons are not his father.

[37] Unfortunately, the Trial Court brushed aside such findings of highly sophisticated
scientific technology which would destroy the entire prosecution case by simply
suggesting that mere negative report of DNA would not mean one should discard the
oral testimony of the prosecutrix. We find such conclusion arrived at by the Trial Court
quite erroneous. This conclusion was not backed or supported by any discussion on the
scientific methodology or judicial pronouncements.

[38] We may reproduce para-27 of the judgment passed by the Trial Court, in which,
the Trial Judge has discussed as regards the DNA test report. The true English
translation of para-27 reads thus;

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" In the course of the investigation carried out by the police, the DNA test of the
child delivered by the victim has been done. The DNA report is produced at Exh.33.
Taking into consideration the DNA report, it appears that none of the two accused
herein are the biological father of the child delivered by the victim, namely, Prince.
The said report is being given by the FSL, Surat. However, on the basis of the said
report, it cannot be concluded that the accused Nos.1 and 2 have not committed
the alleged offence of rape upon the victim. Because, in the case on hand, the
question is not whether who is the father of the child delivered by the victim, either
the accused No.1 or the accused No.2, and there is no provision in law that the
child or the woman must conceive on account of the sexual assault made
committed upon her. Even it is not argued on behalf of the complainant side as
regards the corroboration between the oral evidence of the victim and the medical
evidence (Exhs.76 and 77). As the complaint has been filed after a long period of
time, of course, the victim took shower, washed off her clothes wore at the time of
the incident and as the same has been collected after a long period of time, it is
difficult to find out any scientific proof. However, when the oral evidence of the
victim appears to be trustworthy, the law requires that reliance should be placed
upon the oral evidence of the victim. Moreover, the provisions of sections 29 and 30
of the POCSO Act are also required to be taken into consideration. The provisions of
the above two sections are as under."

[39] We find the reasonings assigned by the Trial Court, referred to above, quite
erroneous. One of the cardinal principles of criminal jurisprudence is that the Trial
Court should make an endevour to separate the grain from the chaff, i.e., the truth
from the falsehood. But while undertaking such exercise, the Trial Court is not
supposed to make altogether a different case than the one put forward by the
prosecution. It goes without saying that even the evidence is to be led in accordance
with the charge framed by the Trial Court against the accused. The reasonings
assigned by the Trial Court in para-27, altogether makes out a different case than the
one put up by the prosecution. This is not permissible in law.

[40] We are of the view that in view of the clear and emphatic conclusion of the DNA
report, the accused deserves to be acquitted.

[41] A lot was argued by the learned APP appearing for the State on the presumption
which the Court is obliged to raise as provided in section 29 of the POCSO Act. This
issue as regards presumption to be drawn requires due consideration. Section 29 of the
Act 2012 reads thus:

"29. Presumption as to certain offences - Where a person is prosecuted for

committing or abetting or attempting to commit any offence under sections 3,5,7

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and section 9 of this Act, the Special Court shall presume, that such person has
committed or abetted or attempted to commit the offence, as the case may be
unless the contrary is proved."

[42] The provisions of section 29 of the POCSO Act, 2012 appear to have been
inserted to fulfill the object of the Act which is to protect the children from the offences
of sexual assault and to secure that the children of tender age are not abused. The
mandate of section 29 of the POCSO Act, 2012 lays down that if any person is
prosecuted for committing or abetting or attempting to commit any offence under
sections 3,5,7 and 9 of the POCSO Act, 2012, the Court has to presume that the
offence is committed by the person who is prosecuted unless the accused proves to the
contrary.

[43] We take notice of the fact that one of the grounds, or we may say the main
ground, on the basis of which, the appellants have been convicted is that the
presumption under section 29 of the Act operated against them in full force which they
had failed to rebut in the facts and circumstances of the present case. Therefore, it
becomes absolutely necessary to examine as to what would be the extent to which the
aforesaid presumption would operate against the accused charged with the offences
under the provisions of the POCSO Act.

[44] Although a presumption under Section 29 of the POCSO Act arises and it is
presumed that the accused has committed the offence for which he is charged under
the said Act, unless the contrary is proved, such a presumption cannot be absolute.
Therefore, there can be no doubt about the proposition that no presumption is absolute
and that every presumption is rebuttable. In the case of Babu vs State of Kerala, 2010
9 SCC 189, the Supreme Court has held as follows :-

"27. Every accused is presumed to be innocent unless the guilt is proved. The
presumption of innocence is a human right. However, subject to the statutory
exceptions, the said principle forms the basis of criminal jurisprudence. For this
purpose, the nature of the offence, its seriousness and gravity thereof has to be
taken into consideration. The courts must be on guard to see that merely on the
application of the presumption, the same may not lead to any injustice or mistaken
conviction. Statutes like the Negotiable Instruments Act, 1881; the Prevention of
Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act,
1987, provide for presumption of guilt if the circumstances provided in those
statutes are found to be fulfilled and shift the burden of proof of innocence on the
accused. However, such a presumption can also be raised only when certain
foundational facts are established by the prosecution. There may be difficulty in
proving a negative fact.

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28. However, in cases where the statute does not provide for the burden of proof
on the accused, it always lies on the prosecution. It is only in exceptional
circumstances, such as those of statutes as referred to hereinabove, that the
burden on proof is on the accused. The statutory provision even for a presumption
of guilt of the accused under a particular statute must meet the tests of
reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution.
(Vide Hiten P. Dalal v. Bratindranath Banerjee, Rajesh Ranjan Yadav v. CBI, Noor
Aga v. State of Punjab and Krishna Janardhan Bhat v. Dattatraya G. Hegde."

[45] In a case of this nature, the provisions of section 29 of the POCSO Act have to be
strictly construed inasmuch as the penal consequences are involved. The section does
not say that it is an irrebuttal presumption and in this context it can be safely
concluded that the presumption to be drawn under the provision is a rebuttal
presumption. We may, with profit, refer to one decision of the Calcutta High Court in
this regard in the case of Shahid Hossain Biswas vs. State of Wet Bengal, 2017 3 CalLT
243. The observations of his Lordship are worth being extracted as under:

"22] The law. therefore. provides for a reverse burden upon the accused in a
prosecution under sections 3, 5, 7 and 9 of the aforesaid Act. The statutory
presumption creates an exception to the ordinary rule of presumption of innocence
available to an accused in a criminal trial and puts the onus on the accused to rebut
such presumption and establish his innocence. Presumption of innocence is a basic
human right which is a vital facet of fair trial rights enshrined in various
international covenants like the Universal Declaration of Human Rights and the
International Covenant of Civil and Political Rights (to which India is a signatory)
but is not a fundamental right under Part III of the Constitution. [See Noor Aga vs.
State of Punjab, 2008 16 SCC 417]. The concept of presumption of innocence has,
in recent times, been reversed in many situations by creating statutory
presumptions like under sections 113A, 1138 or 114A of the Evidence Act shifting
the burden on the accused to prove his innocence. Section 29 of the POCSO is,
therefore, a species of such exception to the ordinary rule of presumption of
innocence and must be borne in mind while appreciating the evidence of
prosecution witnesses in a trial under the POCSO Act. The expressions "shall
presume" and "unless contrary is proved" in the aforesaid provision creates a
reverse burden on an accused to prove his innocence to earn an order of acquittal
and absolves the burden of the prosecution to prove his guilt beyond reasonable
doubt. How is the accused to discharge such burden? Sections 3 and 4 of the
Evidence Act define the words 'proved', 'shall presume' and 'disproved' as follows:

Section 3:

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"Proved" A fact is said to be proved when, after considering the matters before it.
the Court either believes it to exist, or considers its existence so probable that a
prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it exists. "Disproved" A fact is said to be disproved when, after
considering the matters before it. the Court either believes that it does not exist, or
considers its non-existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it does not
exist.

Section 4

"Shall presume". Whenever it is directed by this Act that the Court shall presume a
fact, it shall regard such fact as proved, unless and until it is disproved."

23] A conjoint reading of the statutory provision in the light of the definitions, as
aforesaid, would show that in a prosecution under the POCSO Act an accused is to
prove 'the contrary', that is, he has to prove that he has not committed the offence
and he is innocent. It is trite law that negative cannot be proved [see Tarajee
Khimchand vs. Yelamatri, 1972 4 SCC 562, Para-15]. In order to prove a contrary
fact, the fact whose opposite is sought to be established must be proposed first. It
is, therefore, an essential prerequisite that the foundational facts of the prosecution
case must be established by leading evidence before the aforesaid statutory
presumption is triggered in to shift the onus on the accused to prove the contrary;

24] Once the foundation of the prosecution case is laid by leading legally
admissible evidence, it becomes incumbent on the accused to establish from the
evidence on record that he has not committed the offence or to show from the
circumstances of a particular case that a man of ordinary prudence would most
probably draw an inference of innocence in his favour. The accused may achieve
such an end by leading defence evidence or by discrediting prosecution witnesses
through effective cross-examination or by exposing the patent absurdities or
inherent infirmities in their version by an analysis of the special features of the
case. However, the aforesaid statutory presumption cannot be read to mean that
the prosecution version is to be treated as gospel truth in every case. The
presumption does not take away the essential duty of the Court to analyse the
evidence on record in the light of the special features of a particular case, eg.
patent absurdities or inherent infirmities in the prosecution version or existence of
entrenched enmity between the accused and the victim giving rise to an irresistible
inference of falsehood in the prosecution case while determining whether the
accused has discharged his onus and established his innocence in the given facts of
a case. To hold otherwise, would compel the Court to mechanically accept the mere

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ipse dixit of the prosecution and give a stamp of judicial approval to every
prosecution, howsoever, patently absurd or inherently improbable it may be."

[46] We may also refer to one decision of the Bombay High Court (Nagpur) Bench in
the case of Sachin S/o. Shivaji Dhongade vs. The State of Maharashtra, Criminal
Appeal No.38 of 2015, decided on 26th February, 2016. In the case of Sachin (supra)
the Bombay High Court held as follows:

"17. Thus, when a person is prosecuted for commission of the offence specified in
the said section, the court is required to presume that the said person has
committed the said offence unless the contrary is proved.

18. The presumption, however, cannot be said to be irrebuttable. In-fact, no

presumption is irrefutable in law, as this cannot be equated with conclusive proof.
The provisions of section 29 of the POCSO Act mandates the Court to draw the
presumption unless contrary is proved.

19. One has to keep in mind, as expressed by an eminent jurist that presumptions
are bats in law; they fly in a twilight but vanish in the light of facts."

[47] In Kali Ram v. State of Himachal Pradesh, 1973 2 SCC 808, Khanna, J., speaking
for the 3-Judge Bench, held:

"One of the cardinal principles which has always to be kept in view in our system of
administration of justice for criminal cases is that a person arraigned as an accused
is presumed to be innocent unless that presumption is rebutted by the prosecution
by production of evidence as may show him to be guilty of the offence with which
he is charged. The burden of proving the guilt of the accused is upon the
prosecution and unless it relieves itself of that burden, the courts cannot record a
finding of the guilt of the accused. There are certain cases in which statutory
presumptions arise regarding the guilt of the accused, but the burden even in those
cases is upon the prosecution to prove the existence of facts which have to be
present before the presumption can be drawn. Once those facts are shown by the
prosecution to exist, the Court can raise the statutory presumption and it would, in
such an event, be for the accused to rebut the presumption. The onus even in such
cases upon the accused is not as heavy as is normally upon the prosecution to
prove the guilt of the accused. If some material is brought on the record consistent
with the innocence of the accused which may reasonably be true, even though it is
not positively proved to be true, the accused would be entitled to acquittal."

[48] In The State through the Delhi Administration v. Sanjay Gandhi, 1978 AIR(SC)
961, it was stated:

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"Indeed, proof of facts by preponderance of probabilities as in a civil case is not

foreign to criminal jurisprudence because, in cases where the statute raises a
presumption of guilt as, for example, the Prevention of Corruption Act, the accused
is entitled to rebut that presumption by proving his defence by a balance of
probabilities. He does not have to establish his case beyond a reasonable doubt.
The same standard of proof as in a civil case applies to proof of incidental issues
involved in a criminal trial like the cancellation of bail of an accused.

The evidences adduced by the parties before the trial court lead to one conclusion
that the Appellant had been able to discharge his initial burden. The burden
thereafter shifted to the Second Respondent to prove his case. He failed to do so.

The submission of the Second Respondent that the Appellant had not denied his
entire responsibility and the dispute relating only to the quantum of debt cannot be
accepted. "

[49] Section 30 of the POCSO Act, 2012 reads thus;

"30. Presumption of culpable mental state.-

1. In any prosecution for any offence under this Act which requires a culpable
mental state on the part of the accused, the Special Court shall presume the
existence of such mental state but it shall be a defence for the accused to prove
the fact that he had no such mental state with respect to the act charged as an
offence in that prosecution.

For the purposes of this section, a fact is said to be proved only when the Special
Court believes it to exist beyond reasonable doubt and not merely when its
existence is established by a preponderance of probability.

Explanation.- In this section, "culpable mental state" includes intention, motive,

knowledge of a fact and the belief in, or reason to believe, a fact.."

[50] The burden of proof cast on the accused under Section 30 can be discharged
through different modes. One is that, he can rely on the materials available in the
prosecution evidence. Next is, in addition to that be can elicit answers from
prosecution witnesses through cross- examination to dispel any such doubt. He may
also adduce other evidence when he is called upon to enter on his defence. In other
words, if circumstances appearing in prosecution case or in the prosecution evidence
are such as to give reasonable assurance to the court that appellant could not have
had the knowledge or the required intention, the burden cast on him under Section 30

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of the Act would stand discharged even if he has not adduced any other evidence of his
own when he is called upon to enter on his defence.

[51] As we have found the evidence of the prosecutrix absolutely unreliable and also
keeping in mind the DNA test report which completely proves the innocence of the
accused persons, we may refer to the decision of the Supreme Court in in Raju and
others Vs. State of Madhya Pradesh, 2008 15 SCC 133. In the said case, the Supreme
Court held that the accused must be protected against the possibility of false
implication. It has been further held that in so far as the allegations of rape are
concerned, the evidence of prosecutrix must be examined as that of an injured witness
whose presence at the spot is probable but it can never be presumed that her
statement should without exception be taken as the gospel truth. It was held:

"10. The aforesaid judgments lay down the basic principle that ordinarily the
evidence of a prosecutrix should not be suspect and should be believed, the more
so as her statement has to be evaluated at par with that of an injured witness and
if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid
observations must carry the greatest weight and we respectfully agree with them,
but at the same time they cannot be universally and mechanically applied to the
facts of every case of sexual assault which comes before the Court.

11. It cannot be lost sight of that rape causes the greatest distress and humiliation
to the victim but at the same time a false allegation of rape can cause equal
distress, humiliation and damage to the accused as well. The accused must also be
protected against the possibility of false implication, particularly where a large
number of accused are involved. It must, further, be borne in mind that the broad
principle is that an injured witness was present at the time when the incident
happened and that ordinarily such a witness would not tell a lie as to the actual
assailants, but there is no presumption or any basis for assuming that the
statement of such a witness is always correct or without any embellishment or
exaggeration."

[52] In Tameezuddin alias Tammu Vs. State (NCT of Delhi), 2009 15 SCC 566, it has
been held that though evidence of the prosecutrix must be given predominant
consideration, but to hold that this evidence has to be accepted even if the story is
improbable and belies logic, would be doing violence to the very principles which
govern the appreciation of evidence in a criminal matter. It had been held as follows:

"9. It is true that in a case of rape the evidence of the prosecutrix must be given
predominant consideration, but to hold that this evidence has to be accepted even
if the story is improbable and belies logic, would be doing violence to the very

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principles which govern the appreciation of evidence in a criminal matter. We are of

the opinion that story is indeed improbable."

[53] In the overall view of the matter, we are convinced that the Trial Court committed
a serious error in holding the appellants guilty of the offences enumerated above.

[54] In the result, both the appeals succeed and are hereby allowed. The judgment
and order of conviction and sentence passed by the Trial Court against the two
appellants herein in the Special (POCSO) Case No.14 of 2016 are hereby ordered to be
quashed and set aside. The appellants are acquitted of all the charges. The appellants
shall be released forthwith, if not required in any other case.

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