Bombay High Court
Gaurav S/O Gajananrao Ade vs The State Of Maharashtra Thr. Its. … on 15 July, 2025
2025:BHC-NAG:6776
Judgment
430 apeal494.24
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.494 OF 2024
Gaurav s/o Gajananrao Ade, aged
about 26 years, occupation: student/
agriculturist, r/o Vikhni, Jasapur,
tahsil Samudrapur, district Wardha. ..... Appellant.
:: V E R S U S ::
1. The State of Maharashtra, through
its Police Station Officer, Police
Station Bela, district Nagpur.
2. XYZ (victim of crime bearing First
Information Report No.154/2022
registered at respondent no.1
police station). ..... Respondents.
Shri Adwait Manohar, Counsel and Shri Tejas Deshpande
& Shri Suyog Deshpande, Advocates for the Appellant.
Mrs.S.V.Kolhe, Additional Public Prosecutor for the
Respondents/State.
Shri K.G.Rathi, Counsel Appointed for the Victim.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 20/06/2025
PRONOUNCED ON : 15/07/2025
JUDGMENT
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1. By this appeal, the appellant (accused) has
challenged judgment and order dated 2.4.2024 passed
by learned Additional Sessions Judge-13, Nagpur
(learned Judge of the trial court) in Sessions Case
No.539/2022.
2. By the said judgment impugned, the accused is
convicted for offence under Section 376-D read with
Section 34 of the IPC and sentenced to undergo
rigorous imprisonment for 20 years and to pay fine
Rs.15,000/-, in default, to undergo rigorous
imprisonment for 1 year.
He is also convicted for offence under Section
506 read with 34 of the IPC and sentenced to undergo
rigorous imprisonment for 1 year.
3. Brief facts of the prosecution case can be
summarized, thus:
…..3/-
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The crime is registered on the basis of report
lodged by the victim on 18.5.2022 alleging that on that
day, at about 8:00 am, when she had been to Jasapur
Forest to graze cattle, near the field of one Ramesh
Warade, at the relevant time, at about 9:00 am, the
accused along with Subhash (the co-accused) came out of
bushes, adjacent to boundary of field near a stream, and
came near to her and caught hold her neck and the co-
accused by disrobing her subjected her for forceful sexual
assault. Thereafter, the other co-accused caught hold her
hands and the present accused also subjected her for
forceful sexual assault. Though she shouted, nobody was
there and she was threatened by both the accused. By
obtaining her clothes, she left the place of incident and
came on the road wherein she met one Naresh Zilpe to
whom she disclosed the incident and wore her saree.
There were blood stains on her petticoat. She narrated
…..4/-
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the incident to said Naresh and subsequently, came at
home and disclosed the incident to her husband and,
thereafter, they approached the police station and lodged
report.
4. After registration of the crime, wheels of
investigation started rotating. The investigating officer
has visited the alleged spot of the incident and drawn
spot panchanama. During the investigation, the clothes of
the victim, the present accused, and the co-accused were
were seized and the same were forwarded for chemical
analysis. The victim as well as the present accused and
the co-accused were referred for medical examination.
After conducting medical examination, the victim
returned to home. After completion of due investigation,
chargesheet was submitted against the accused.
…..5/-
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5. As the offences under Sections 376D and 506 of
the IPC were exclusively triable by Sessions Judge,
learned Magistrate committed the case to the Court of
Sessions. Learned Judge of the trial court framed charge
vide Exh.7. The contents of the charge are read over and
explained to the accused and the accused pleaded not
guilty and claimed to be tried.
6. In support of the prosecution case, the
prosecution examined as many as 14 witnesses, which
are as follows:
PW Names of Witnesses Exh.
Nos. Nos.
1 The victim 20
2 Naresh Zilpe 23
3 Dr.Nitin Johnson Laila, the medical 25
officer
4 Krushna Banabakode 39
5 Anil Ade 49
6 Bandu Sarate 50
7 Dr.Shubham Munde 56
.....6/-
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6
8 Arvind Titare 57
9 Pankaj Waghode 60
10 Puja Gaikwad, the investigating officer 65
11 Pranali Bhandakkar, police constale 81
12 Shailendra Mankar, police constable 83
13 Tushar Salam, police constable 85
14 Savita Khobragade, Chamical Analysist 87
7. Besides the oral evidence, the prosecution placed
reliance on report Exh.21, FIR Exh.22, medical report
Exh.26, medical report of co-accused Subhash Exh.27,
medical report of the present accused Exh.29, seizure
memo as to clothes of the victim Exh.41, seizure memo as
to the clothes of co-accused Subhash Exh.42, seizure
memo as to the clothes of the present accused Exh.43,
spot panchanama Exh.44, seizure memo as to samples of
victim Exh.45, seizure memo as to samples of the present
accused Exh.46, seizure memo as to samples of co-
accused Subhash Exh.47, seizure memo of motorcycle
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Exh.48, arrest memos Exhs.61 and 62, letter to C.A.
Exhs.73 and 75, and DNA Report Exh.79.
8. All incriminating evidence appearing against the
present accused and the co-accused is put to them in
order to obtain their explanation as to evidence appearing
against them by recording their statements under Section
313 of the CrPC. The defence of the accused is of total
denial and false implication.
9. After hearing learned counsel for the accused
persons perusing the evidence on record, learned Judge of
the trial court held both the accused guilty and convicted
them as the aforesaid.
10. Heard learned counsel Shri Adwait Manohar for
the accused, learned Additional Public Prosecutor
Mrs.S.V.Kolhe for the State, and learned counsel Shri
K.G.Rathi appointed for the victim. With their able
…..8/-
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assistance, I have gone through the entire material on
record.
11. Learned counsel for the accused submitted that the
evidence of the victim, alleging that the present accused
has subjected her for the forceful sexual assault, is neither
substantiated by medical evidence nor by any
circumstantial evidence. He invited my attention towards
the evidence of the victim and submitted that it came in
the evidence of the victim that the alleged incident has
taken place in forest area near nullah or stream. As per
her evidence, she was holding a stick in her hand at the
relevant time. Her cross examination shows that she has
not attempted to resist by means of that stick. Even,
accepting the allegations that she was assaulted sexually
by using the force by both the accused, though it is hard
and rough surface, not a single scratch was found on her
person. Her evidence itself shows that there were trees
…..9/-
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and bushes near the spot of the incident. She was
disrobed and, thereafter, by using force, she was subjected
for sexual assault by both the accused. Despite the said
facts, she has not received a single injury on her person.
Her evidence further shows that at the spot of the
incident, other villagers also used to come for grazing the
cattle. There used to be villagers present along with the
cattle. The spot of the incident is surrounded by the
agricultural fields and not a single person came forward
in support of the victim to show that the accused persons
were seen at the spot of incident and presence of the
victim was also noted. The medical officer has obtained
the samples and forwarded the same for DNA
Examination. DNA Report, as far as present accused is
concerned, is negative. The clothes of the accused are
also seized and no blood stains are found on his clothes.
There is a contradiction as to the medical examination of
…..10/-
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the victim. As per evidence, she approached the police
station on 18.5.2022 itself. Her medical examination is
carried out in the intervening night of 18.5.2022 and
19.5.2022 at about 2 am. The evidence of Police
Constable Pranali Bhandakkar shows that she has taken
the victim for medical examination along with the
requisition and duty pass at about 9:00 to 9:30 pm and
the victim was examined after 1 to 2 hours. Whereas, the
medical report shows that the victim was examined at
2:00 am. Not a single injury was witnessed by the
medical officer. The evidence of Medical Officer PW3
Dr.Nitin Johnson Laila shows that no fresh injury was
noted by him though she was examined within 24 hours
of the incident. There was no tenderness as per the
complaint made by the victim on her person. The said
medical officer noted old healed tear and there was no
…..11/-
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11
fresh bleeding. Whereas, the clothes seized show that
blood stains are found on her petticoat.
He further submitted that PW2 Naresh Zilpe, has
not supported the prosecution case as far as disclosure of
the name of the present accused by the victim to him is
concerned.
As per the prosecution, PW5 Anil Ade, to whom
co-accused Subhash disclosed as to the commission of the
rape. However there is no such disclosure by the present
accused. Thus, the entire evidence, as far as the
involvement of the accused is concerned, is doubtful and,
therefore, the conviction on the basis of such doubtful
evidence, which is not inspiring confidence, is erroneous
and liable to be quashed and set aside.
In support of his contentions, learned counsel for
the accused placed reliance on following decisions:
…..12/-
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12
1. Pratap Misra and ors vs. State of Orissa, reported
in (1977)3 SCC 41;
2. Emperor vs. Mallangowda Parwatgowda,
reported in AIR 1917 130;
3. State of Haryana vs. Ram Singh, reported in
(2002)2 SCC 426;
4. Criminal Appeal No.996/2017 with other
connected matters (Abhijit @ Rohit Chandrakant
Paware vs. State of Maharashtra) decided by this
court on 5.1.2024;
5. Sanjay Devaji Ramteke vs. State of Maharashtra,
through PSO, reported in 2020 SCC OnLine Bom
431;
6. State of Punjab vs. Madan Mohan Lal Verma,
reported in (2013)14 SCC 153, and
7. Mukhtiar Ahmed Ansari vs. State (NCT of Delhi),
reported in (2005)5 SCC 258.
12. Per contra, learned Additional Public Prosecutor for
the State supported the judgment impugned in the
appeal. She submitted that the evidence of the victim,
…..13/-
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coupled with evidence of PW2 Naresh Zilpe and PW5 Anil
Ade, is supported by the medical evidence and DNA
Report sufficiently shows involvement of the present
accused in the alleged incident. The prosecution has also
examined Chemical Analyzer Savita Khobragade,
Chemical Analyst, who in detail, narrated about the
procedure adopted by her while conducting the DNA Test.
Exh.79 DNA Report connects the accused with the blood
stains found on the articles. Thus, the evidence of the
victim supported by the other circumstantial evidence
sufficiently proves the guilt of the accused.
13. Learned counsel for the victim placed reliance on
his written statement and endorsed the same contentions
that the evidence of the victim, duly corroborated by the
circumstantial evidence, shows involvement of accused in
the alleged incident and learned Judge of the trial court
…..14/-
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14
has appreciated the evidence and rightly convicted the
accused.
14. In support of his contentions, learned counsel for
the victim has placed reliance on following decisions:
1. Bharwada Bhoginbhai Hirjibhai vs. State of
Gujarat, reported in (1983)3 SCC 217;
2. State of Punjab vs. Gurmit Singh and ors,
reported in (1996)2 SCC 384;
3. State of H.P. vs. Shree Kant Shekari, reported in
(2004)8 SCC 153;
4. State of Karnataka vs. K.Yarappa Reddy, reported
in (199)8 SCC 715;
5. Ramesh vs. State of MP, reported in 2003
LawSuit (MP) 1039;
6. Sri Narayan Saha and anr vs. State of Tripura,
reported in AIR 2005 SC 1452;
7. Devraj vs. State of Chhattisgarh, AIR 2016 SC
3498, and…..15/-
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8. Pandappa Hanumappa Hanamar and anr,
reported in (1997)10 SCC 197.
15. The charge against the accused is that along with
the co-accused he has subjected the victim who is a
married woman for sexual assault by threatening her and
thereby committed offences under Sections 376D and 506
of the IPC. To establish the charge, the prosecution
mainly placed reliance on the evidence of the victim
examined vide Exh.20. As per her evidence, she is
residing along with her husband and children. On
18.5.2022, at about 8:00 am, she had been to Jasapur-
Shivar, Samudrapur in a forest for grazing goats. At the
relevant time, the present accused and the co-accused
came out of the bushes, caught her near her neck,
disrobed her, and subjected her for the forceful sexual
assault. The allegations of the forceful sexual assault is
levelled against both the accused. As per her evidence,
…..16/-
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16
the alleged incident has taken place adjacent to the field
of Ramesh Warade and there were trees and bushes at
that place and the alleged incident took place near a
nullah. After the incident, she wore petticoat stained with
blood and blouse on her person and immediately ran
towards the road. On the road, she met PW2 Naresh
Zilpe to whom she has narrated the incident. He took her
to the road and thereby she went at the house and
disclosed the incident to her husband. Thereafter, they
approached the police station and lodged the report,
which is at Exh.21 and FIR is at Exh.22. She was
immediately referred to the Nagpur Medical Hospital and
her medical examination was carried out. Article-A saree,
Article-B blouse, Article-C petticoat, and Article-D nicker
are identified by her. She has also identified both the
accused before the court.
…..17/-
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17
16. To corroborate the version of the victim, the
prosecution has examined PW2 Naresh Zilpe, vide
Exh.23. He has supported the prosecution case only to
the extent that he saw the victim in petticoat and blouse
and her saree was in her hand. He disclosed that the
victim only disclosed to her that she was subjected for
sexual assault, but did not disclose names of the
assailants.
17. PW5 Anil Ade, is also examined vide Exh.49. His
evidence is to the extent that on 18.5.2022 the victim
disclosed to him about the incident and, thereafter, he
went at the spot where both the accused persons were
taking bath and he enquired with them and the co-
accused disclosed to him that he committed rape.
18. The victim is cross examined at length. Her cross
examination shows that daily she takes her goats for
…..18/-
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18
grazing. Like her, other villagers also do the same work.
The spot where the alleged incident took place is near to
the village. The villagers also graze their cattle in the
morning. They bring their cattle at 12:00 pm and again
at 3:00 pm. The other villagers also observe the same
timing as far as grazing of the cattle is concerned.
However, she stated that at the time of the incident, there
were no goats of other people. The accused were not
acquainted to her as they are not residents of the same
village. She never met them prior to the incident. As far
as the incident is concerned, she deposed that the present
accused disrobed her though she resisted his act and they
were heavily drunk. She admitted that at the relevant
time she was having a stick, but she did not attempt to
save herself by using the said stick. Her cross
examination further shows that she knows PW2 Naresh
Zilpe as she is working in his field. She sustained injury
…..19/-
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19
on her hand and disclosed the said injury to the medical
officer.
Her cross examination further shows that the
clothes identified by her were on her person, till filing of
the report. She also visited the spot of the incident by
wearing the same clothes.
One omission is brought on record that she has not
disclosed the police while recording her statement that
the present accused pressed her mouth and neck.
19. As already observed, PW2 Naresh Zilpe, though
supported the prosecution case, he has not disclosed
initially that the victim disclosed to him who has
committed rape on her. During cross examination by APP,
he admitted that the victim disclosed names of the
present accused, but he denied that he has witnessed both
the accused taking bath at the nullah.
…..20/-
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20
During his cross examination by defence counsel,
he admitted that when the victim met him, she has not
disclosed names of the accused. He also admitted that he
met the victim when she was was returning along with
the goats. The police station is at 7 to 8 kilometers from
the spot of the incident.
20. As far as the evidence of PW5 Anil Ade is
concerned, it nowhere shows that it was the present
accused who also disclosed to him that sexual assault was
committed by him.
His cross examination shows that on the day of the
incident he was in the house. The spot of the incident
from his village is one and half kilometers. He did not go
to the field on 18.5.2022 because there was a marriage in
the house. He further admitted that the marriage was in
the evening and he was busy in the marriage function.
…..21/-
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21
He specifically admitted that he is unable to tell which
clothes are worn by the present accused.
Thus, his cross examination shows that due to the
marriage, he was in the house and was busy in the
arrangement of marriage.
21. To corroborate the version of the victim, the
prosecution has examined PW3 Dr.Nitin Johnson Laila
who examined the victim and both the accused. His
evidence shows that in the intervening night of 18.5.2022
and 19.5.2022, the victim was referred to him for medical
examination. The history narrated by the victim was
taken by him. During examination, he found that there
was no injury on her body. There was no fresh bleeding.
On examination of the genitals, it revealed old healed
tear. There were sand particles on lower back part of the
body of the victim. He obtained the samples and opined
…..22/-
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22
that sexual intercourse/assault cannot be ruled out.
Accordingly, he issued medical report Exh.26.
On the same day, he had also examined co-accused
Subhash and the present accused. He has not noted any
injuries on their persons. As per the evidence, there was
nothing to suggest that both the accused are incapable of
performing sexual intercourse. The said medical
certificates are at Exhs.27 and 29.
His cross examination shows that that there was no
injury found either on the body of co-accused Subhash or
the present accused. As per the history, the victim was
subjected for the sexual assault on 18.5.2022 at 8:00
p.m.. There was no injury on the victim. The injury on
the hymen was not fresh. There were no injuries either
on the buttock or back. There was no visible bleeding
injury on her mouth. He obtained the blood sample. He
…..23/-
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23
has also obtained Form No.C and Alcohol Examination
Form and both the forms reveals that there was no alcohol
in the blood of the accused at the time of the
examination.
22. PW7 Dr. Shubham Munde, is the another Medical
Officer, who testified that on 19.5.2022 he examined co-
accused Subhash. He narrated the history. He also
ascertained that there is nothing to suggest that the
accused is not capable of performing sexual activity. He
also admitted that there was no injury found on the
persons of the accused and, therefore, question of oozing
of blood from internal and external body of the accused
does not arise.
23. PW11 Pranali Bhandakkar, is a police constable
who testified that on 18.5.2022 she was sent with the
victim for medical examination. Duty pass was issued to
…..24/-
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24
her which is at Exh.82. She took the victim to the Nagpur
Medical Hospital in the night around 9:00 to 9:30 pm.
The victim was examined after 1-2 hours. The medical
officer had given nine samples consisting blood samples
and swab samples etc. All the samples were sealed. She
handed over the said samples to the investigating officer.
Accordingly, seizure panchanama was drawn.
24. Police Constables PW21 Shailendra Mankar and
PW13 Tushar Salam, took both the accused for medical
examination. Their evidence is formal in nature.
25. PW4 Krushna Banabakode, acted as a pancha on
various panchanamas including clothes, seizure of the
victim, clothes seizure of both the accused, and spot
panchanama. As per his evidence, he along with the
police went to Jasapur-Shivar near the field of Ramesh
Warade. They visited the said place at 9:00 pm. The spot
…..25/-
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25
was shown by the woman which was at the side of nullah.
There was big grass. The police seized the grass and
simple soil. Accordingly, panchanama was drawn at
Exh.44. The photographs are also taken at the spot. His
evidence further shows that in his presence at the police
station the clothes of the victim were seized and kept on
the table. Accordingly, panchanama was drawn which is
at Exh.41. On the same day, clothes of co-accused
Subhash and clothes of the present accused were seized
and panchanama was drawn vide Exh.43. In his
presence, samples of the victim as well as the accused are
also seized and the seizure memos are at Exhs.45 to 47.
The said witness in his cross examination admitted
that he was called at the spot and at the police station. He
also admitted that the clothes were on the table which
were seized.
…..26/-
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26
Thus, his evidence shows that the clothes were not
produced in his presence.
26. Perusal of the spot panchanama, shows that the
alleged spot of the incident was situated at Jasapur-
Shivar. There were agricultural lands adjacent to the
alleged spot of the incident. There were trees and bushes
near the spot of the incident.
27. PW6 Bandu Sarate, another witness from the
village, deposed that on 18.5.2022, at about 8:00 to 8:30
pm, he has seen both the accused near the nullah. He
enquired with the present accused who informed him that
he is going to drink liquor and, thereafter, he came near
the nullah. His cross examination shows that he was
proceeding by vehicle along with the gunny bag of pulse.
The evidence, that he met the accused and enquired with
…..27/-
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27
them, was not narrated by him before the investigating
officer.
Thus, his evidence is brought in the form of
omissions.
28. PW8 Arvind Titare, the police constable, was
deputed on duty on 18.5.2022 at Bela Police Station. As
per his evidence, the victim approached the police station
at about 5:00 pm to 5:30 pm and lodged the report. The
said report was reduced into writing by PW11 Pranali
Bhandakkar. A representative of Mahila Dakshata Samiti
was also present.
Thus, his evidence is only to the extent that in his
presence the victim approached the police station.
29. PW9 Pankaj Waghode, another police officer, has
reduced into writing the report of the victim. His
evidence is also formal in nature.
…..28/-
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28
His cross examination shows that the team which
went to draw the spot panchanama was returned to the
police station at 10:00 pm.
30. Chemical Analyzer PW14 Savita Khobragade, at
the relevant time, was serving in Regional Forensic
Science Laboratory at Nagpur. She received a letter dated
20.5.2022 Exh.73. The blood samples for DNA Analysis
are received. The blood stains on the clothes of the victim
and on the grass along with blood samples of the accused
and the victim were forwarded for DNA Analysis. The
forwarding letter is At Exh.88. She extracted the DNA
from the above samples by using the PCR Technique. She
also generated DNA Profile by using STR Technique. She
did the comparative study of DNA Samples of the accused
and victim and opined that DNA Profiles obtained from
blood detected on Exh.3 saree, Exh.5 nicker, Exh.6
petticoat, in Bn/2063/2022 are identical and from one
…..29/-
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29
source and the same source of male origin and matched
with DNA Profile obtained from Exh.5 prepared blood
stain of co-accused Subhash in Bn/2065/2022. DNA
Profile obtained from blood detected on Exh.2 underwear
in Bn/2063/2022 is of a male origin and matched with
Exh.5 prepared blood stains of the present accused in Bn/
2066/2022. Control Female DNA Profile is obtained from
Exh.1 prepared blood stain of the victim in
Bn/2064/2022. Accordingly, she issued report Exh.79.
Though the said witness is cross examined at
length, nothing incriminating is brought on record to
shatter the evidence as to the DNA examination is
concerned.
31. Investigating Officer PW10 Puja Gaikwad, narrated
about the investigation carried out by her. She deposed
that after registration of the crime, the accused were
…..30/-
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30
arrested and the investigation was handed over to her.
During investigation, she seized clothes of the both
accused in presence of panchas which are at Exhs.42 and
43. She has also seized clothes of the victim vide Exh.41.
The victim has shown spot of incident. The spot
panchanama was drawn in presence of the victim. The
victim was referred for medical examination and her
medical examination was carried out. The samples
obtained by the medical officer are forwarded to the
Chemical Analyzer. After completion of the investigation,
she filed chargesheet.
Her cross examination shows that, she reached at
7:30 am in the police station and she has issued letter to
the Tahsildar for calling panchas. She denied that the
victim was not knowing the accused. She further
admitted that in panchanama Exhs.41, 42, and 43
nowhere it is mentioned that the clothes were seized. In
…..31/-
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31
the seizure panchanama of samples it is also not
mentioned that samples were in sealed condition. There
was no specimen of seal in the panchanama. Rest of the
cross examination is in the denial form.
32. As per the prosecution, the alleged incident has
taken place on 18.5.2022 at about 9:00 to 9.30 am. FIR
is allegedly registered at 9:15 pm. The information was
received at the police station at 18:38 (6:38). The general
diary entry also discloses the information as to receipt of
the information at about 18:38 pm. The evidence of the
victim shows that after the incident, she immediately
went at home, narrated the incident to her husband and
they approached the police station.
33. The evidence of PW8 Arvind Titare, the police
constable, shows that the victim approached the police
station at about 5:00 pm to 5:30 pm. PW11 Pranali
…..32/-
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32
Bhandakkar, the police constable, took her for the
medical examination at about 9:00 pm to 9:30 pm and
the evidence of Medical Officer PW3 Dr.Nitin Johnson
Laila shows that the victim was examined at about 2:00
am.
34. In the light of the above circumstances, the
evidence of the victim is to be appreciated.
35. As per the evidence of the victim, both the accused
persons were unknown to her. Prior to the incident, she
never met both the accused. They are not from her
village. First time, she met the accused. She specifically
admitted that there was no acquaintance with the accused
as they do not reside near to her house. She never met
the accused prior to the incident. She has not seen them
earlier and first time she saw them on the day of the
incident.
…..33/-
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33
Thus, this cross examination shows that the
accused and the co-accused were completely unknown to
her.
Whereas, in the cross examination of Investigating
Officer PW10 Puja Gaikwad has denied that the accused
were unknown to the victim. The test identification
parade of the accused is not held by the investigating
officer.
The further cross examination of the victim shows
that the alleged incident has occurred in the forest near
the agricultural field of one Ramesh Warade during the
day time i.e. about 9:00 am to 9:30 am when she had
been to graze her goats. Her evidence further shows that
several villagers came at the said spot for grazing their
goats. She further admitted timing of grazing of the goats
is also similar. In specific words, she admitted that the
…..34/-
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34
goats are to be brought for grazing in the morning and
other villagers also do the same work during the said
period. The other villagers residing adjacent to the village
also follow the same timing. Her evidence further shows
that the alleged spot of the incident is surrounded by
agricultural field. The spot panchanama which is drawn
and proved by the prosecution also shows that the alleged
spot of incident is surrounded by agricultural lands of
various agriculturists.
Thus, this evidence is sufficient to show that the
alleged spot of incident is not an isolated place.
The evidence of the victim further shows that there
was sand and soil at the spot of the incident.
The evidence of Medical Officer PW3 Dr.Nitin
Johnson Laila also shows that he has seen some sand
particles on the back of the victim. Admittedly, no single
…..35/-
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35
injury was found on the person of the victim though
allegedly she was subjected for the forceful sexual assault
by both the accused. The evidence of the medical officer
sufficiently shows that there was no injury on her body.
There was no fresh bleeding. No injury is seen by him on
examination of genitals. However, he has opined that the
evidence of sexual intercourse/assault cannot be ruled
out. Admittedly, the victim is a married lady. Neither
Medical Officers PW3 Dr.Nitin Johnson Laila nor PW7
Dr.Shubham Munde, has witnessed any injuries either on
the person of the victim or on the person of the accused
persons.
The cross examination of the victim further shows
that at the relevant time she was holding a stick, but she
has not resisted the act of the accused by using that stick.
Even, accepting that she was overpowered by the accused,
but not a single scratch or abrasion was witnessed on the
…..36/-
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430 apeal494.24
36
person of the victim. The cross examination of the victim
further shows that the work in the field is to be carried
out from 8:00 am to to 12 pm. No independent witness
came forward to narrate about the presence of the victim
or the accused at the spot of the incident.
36. As per the evidence of the victim, after the
incident, she immediately came out of the forest and met
PW2 Naresh Zilpe to whom she narrated the incident.
PW2 Naresh is examined. He has not supported the
version of the victim as far as disclosure of the names by
the victim are concerned. Though he admitted during
cross examination that the victim disclosed to him that
those persons were accused who subjected her for sexual
assault, but during cross examination by defence he admitted
that the victim has not disclosed to him the names of the
accused. His cross examination further shows that when he
met the victim, she was returning along with the goats.
…..37/-
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430 apeal494.24
37
37. PW5 Anil Ade, is the another witness who though
stated that after disclosure by the victim, he went at the
spot where he witnessed both the accused taking bath and
the co-accused admitted before him that he had sexual
intercourse with the victim, there is no whisper that the
present accused has also disclosed about his participation
in the sexual assault.
The cross examination of this witness shatters his
evidence as he has admitted that on the day of the
incident he was at home. He did not visit his field as
there was marriage in the house.
38. PW6 Bandu Sarate, another witness from the
village, has also allegedly seen both the accused at Jasapur
nullah and the communication between him and both the
accused narrated by him. His evidence shows that on
18.5.2022 between 8:00 pm to 8:30 pm, he was going by
…..38/-
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430 apeal494.24
38
vehicle and due to the nature’s call, he stopped the
vehicle and went near the nullah whereat he has seen the
present accused informing him that he is going to drink
liquor, is an omission proved through the evidence of the
investigating officer.
39. As observed earlier, no injuries are found on the
person of the victim when she was medically examined,
though as per her evidence, the alleged spot of incident
was surrounded by bushes and trees and there were the
sand and soil at the spot of incident. Her evidence further
shows that she was disrobed by the accused and,
thereafter, she was subjected for the forceful sexual
assault. Admittedly, the spot of the incident is near the
agricultural field and the surface was hard and rough.
Despite she was subjected for sexual assault by two
persons, she has not sustained a single abrasion on her
person, is the issue requires to be considered.
…..39/-
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430 apeal494.24
39
40. To corroborate the version of the victim, the
prosecution placed reliance on DNA Evidence also.
41. Exh.3 is the blood stained saree and Exh.5 is blood
stained nicker and Exh.6 is the blood stained petticoat of
the victim. Exh.12 is the blood stained underwear of the
present accused. Exh.1 is the prepared blood stains of
victim and Exh.5 is the prepared blood stain of co-accused
Subhash and Exh.5 is prepared blood stain of the present
accused. The DNA Analysis shows that DNA Profiles
obtained from blood detected on Exh.3 saree, Exh.5
nicker and Exh.6 petticoat in Bn No.2063/2022 are
identical and from one and the same source of male origin
and matched with the DNA Profile obtained from Exh.5
prepared blood stains of Subhash.
42. Thus, it reveals that the blood stains detected on
saree, nicker, and petticoat are matched with the DNA
…..40/-
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430 apeal494.24
40
Profiles obtained from prepared blood stained of co-
accused Subhash and the same appears to be of same
source of male origin.
43. As far as the present accused is concerned, the
DNA Report shows that blood detected on Exh.12
underwear matched with Exh.5 prepared blood stain of
his own. Thus, blood stains found on the underwear of
the present accused Gaurav are of his own blood stains.
Exh.43 is the seizure panchanama of the clothes of the
present accused. The said seizure memo nowhere shows
that any blood stains are found on the clothes especially
underwear of the accused.
44. The testimony of the victim of sexual assault is vital
and unless there are compelling reasons, which requires
corroboration of her statement, the courts should find no
difficulty to act on the testimony of a victim of sexual
…..41/-
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430 apeal494.24
41
assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the
same, as a rule, in such cases amounts to adding insult to
injury. The court while appreciating the evidence of a
prosecutrix may look for some assurance of her statement
to satisfy its judicial conscience, since she is a witness
who is interested in the outcome of the charge levelled by
her, but there is no requirement of law to insist upon
corroboration of her statement to base conviction of an
accused. The evidence of a victim of sexual assault stands
almost on a par with the evidence of an injured witness
and to an extent is even more reliable. The corroborative
evidence is not an imperative component in every case of
rape.
45. In the present case, the admitted position is that
the victim is fully grown up lady having children and
…..42/-
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430 apeal494.24
42
habituated to sexual activities. The opinion of the
medical expert shows that there were no injuries on her
person. On appreciating the circumstances, that the
alleged incident has taken place at a hard and rough
surface, the evidence of the victim itself shows that there
was sand and soil at the spot of the incident. Though two
persons subjected her for forceful sexual assault by
disrobing her and especially when the alleged spot was
only having hard and rough surface and was also
surrounded by the trees and bushes and no injuries are
found on the persons of the victim, the same is difficult to
accept. As per the evidence of the victim, the clothe i.e.
her petticoat was stained with blood after the incident.
Within 24 hours, she was examined by the medical officer
and the medical officer has not noted fresh bleeding, the
same requires to be appreciated. It is difficult to accept
that when the blood stains were found on the clothes of
…..43/-
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430 apeal494.24
43
the victim especially nicker and her petticoat, no fresh
blood was witnessed by the medical officer while
examining her, which also creates a doubt about the
evidence of the prosecution. Admittedly, sole testimony
of the prosecutrix could be relied upon if it inspires
confidence. If the version given by the prosecutrix is
unsupported by any medical evidence or whole
surrounding circumstances are highly improbable and
belie the case set up by the victim, the court shall be
extremely careful in accepting the sole testimony of the
victim when the entire case is improbable and unlikely to
happen.
46. Learned counsel for the victim placed reliance on
catena of decisions wherein basic principles laid down are
that the testimony of the victim of a sexual assault is vital
and unless there are compelling reasons looking for her
statement, the court should find no difficulty in acting on
…..44/-
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430 apeal494.24
44
the testimony of the victim. There is no disagreement to
the proposition laid down by the Hon’ble Apex Court. At the same time,
it is also well settled that the version of the prosecutrix if
believed and found to be credible and consistent, the
same would form the basis of conviction. Corroboration
is not sine qua non for conviction in rape. However, if the
evidence of the prosecutrix suffers from discrepancies and
found unworthy, the benefit of doubt would go to the
accused.
47. In the case of Sadashiv Ramrao Hadbe vs. State of
Maharashtra and anr, reported in (2007)1 SCC Cri 161,
the Hon’ble Apex Court reiterated that the sole testimony
of the prosecutrix could be relied upon if it inspires
confidence of the court.
48. In the light of the well settled principles of law, if
the quality of the evidence of the victim is tested, it shows
…..45/-
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430 apeal494.24
45
that the alleged incident has taken place near the
agricultural field of Ramesh Warade. Her cross
examination shows that the other villagers used to come
at the same place for grazing cattle. The spot of incident
is also surrounded by agricultural fields. The cross
examination further discloses that several villagers use the
said place for grazing cattle. However, on that day,
nobody was present, is difficult to accept. She further
admitted that during morning times, villages carry out
their agricultural operations. Thus, the spot of the
incident was not an isolated. The medical evidence
nowhere corroborates as far the sexual assault on her is
concerned as no fresh injury was seen by the medical
officer. Medical Officer PW3 Dr.Nitin Johnson Laila
observed old healed in hymen and there was no fresh
blood witnessed by him. PW2 Naresh Zilpe has not
supported as far as disclosure as to the names of the
…..46/-
Judgment
430 apeal494.24
46
accused persons are concerned. The DNA Report
exculpates the present accused as no blood stains origin of
the victim was found on the clothes of the present
accused. The blood stains found on the clothes of the
victim are matched with blood samples of the co-accused.
49. In Mukesh Singh vs. The State (NCT of Delhi),
reported in AIR 2017 SC 2161, known as Nirbhaya’s case,
it is observed that DNA is the abbreviation of Deoxyribo
Nucleic Acid. It is the basic genetic material in all human
body cells. It is not contained in red blood corpuscles. It
is, however, present in white corpuscles. It carries the
genetic code. DNA structure determines human character,
behaviour and body characteristics. DNA profiles are
encrypted sets of numbers that reflect a person’s DNA
makeup which, in forensics, is used to identify human
beings. DNA is a complex molecule. It has a double helix
…..47/-
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430 apeal494.24
47
structure which can be compared with a twisted rope
‘ladder’.
It has been further held that DNA testing has an
unparalleled ability both to exonerate the wrongly
convicted and to identify the guilty. Modern DNA testing
can provide powerful new evidence unlike anything
known before. DNA technology as a part of Forensic
Science and scientific discipline not only provides
guidance to investigation but also supplies the Court
accrued information about the tending features of
identification of criminals. It is further observed that there
is 100 % accuracy regarding DNA results. It is now often
possible to determine whether a biological tissue matches
a suspect with near certainty. While of course many
criminal trials proceed without any forensic and scientific
testing at all, there is no technology comparable to DNA.
…..48/-
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430 apeal494.24
48
Only care is to be taken to ascertain whether there was
any possibility of tampering of the samples.
50. PW5 Anil Ade and PW6 Bandu Sarate, another
witness from the village, though disclosed that they have
seen the accused taking bath, the evidence of PW5 Anil
Ade is shattered during cross examination as he admitted
that on the day of the incident he was at home and not
visited his agricultural field as there was marriage in the
house. The evidence of PW6 Bandu Sarate is in the
nature of omission.
51. There is a discrepancy as far as timing of medical
examination of the victim is concerned.
52. As per the evidence of PW11 Pranali Bhandakkar,
the police constable, she took the victim for medical
examination at 9:00 pm to 9:30 pm and as per her
evidence, the medical examination was carried out within
…..49/-
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430 apeal494.24
49
1 or 2 hours. Whereas, the timing shown in the medical
examination is of 2.00 am.
53. Thus, the evidence of the victim does not inspire
the confidence. It is doubtful. The presence of the victim
at the spot of the incident along with the accused is not
corroborated by any independent witnesses. It is also not
corroborated by the circumstantial evidence as, though
the alleged incident has taken place at hard and rough
surface, not a single scratch was found on the person of
the victim though she was subjected for the forceful
sexual assault by two persons by disrobing her. When
there are allegations of rape by two persons and no injury
is noticed, certainly the same is an important factor and if
the prosecutrix version is credible, no such corroboration
is necessary.
…..50/-
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430 apeal494.24
50
54. Considering these circumstances, the prosecution
failed to establish the charges levelled against the accused
and, therefore, the accused is entitled for benefit of doubt.
55. On re-appreciation of the entire evidence, I have no
hesitation in my mind to hold that the prosecution failed
to establish the charges against the accused and there is
no reasonable ground to come to conclusion that it is the
only accused who has committed the sexual assault on
victim and, therefore, the appeal deserves to be allowed,
as per order below:
ORDER
(1) The Criminal Appeal is allowed.
(2) The judgment and order dated 2.4.2024 passed by
learned Additional Sessions Judge-13, Nagpur in
Sessions Case No.539/2022 is hereby quashed and set
aside.
…..51/-
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430 apeal494.24
51
(3) The accused is acquitted of offences for which he is
convicted and sentenced.
(4) The accused be set at liberty forthwith, if he is not
required in any other offence.
(5) Fees of learned counsel Shri K.G.Rathi appointed for
the victim be quantified and the same be paid to him as
per Rules.
Appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 16/07/2025 16:45:35
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