Bombay High Court
Samsun Savra vs State Of Maharashtra And Anr on 4 July, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:27642 13 PT81-APEAL-368-2022(J).DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.368 OF 2022
Samsun Savra ...Appellant
Versus
State of Maharashtra & Anr. ...Respondents
Mr. M. G. Shukla, for the Appellant.
Ms. S. D. Shinde, APP, for the Respondent-State.
Mr. Akshay Dingale, for Respondent No.2.
CORAM: MADHAV J. JAMDAR, J.
DATED : 4th JULY 2025
JUDGMENT.:
1. Heard Mr. Shukla, learned Counsel for the Appellant, Ms.
Shinde, learned APP for the Respondent-State and Mr. Dingale,
learned Counsel appointed to represent the interest of Respondent
No.2.
2. The challenge in this Criminal Appeal is to the Judgment
and Order dated 22nd August, 2019 passed by the learned
Designated Court, under Protection of Children from Sexual
Offences Act, 2012 ("POCSO Act") in POCSO Case No.250 of 2018.
By the impugned Judgment and Order the learned Trial Court
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convicted the Appellant for the offence punishable under Section
376(2) of the Indian Penal Code, 1860 ("IPC") and sentenced him
to suffer R.I. for 10 years and fine of Rs.1000/- i/d to suffer S.I. for
7 days.
3. Mr. Shukla, learned Counsel appearing for the Appellant
submitted that, except the testimony of the victim there is no other
evidence against the Appellant. He submits that, the testimony of
the victim is not reliable. Medical evidence is not supporting the
prosecution case. The DNA profile do not support the prosecution
case. He submitted that charge framed against the Appellant is not
proper. Mr. Shukla, learned Counsel submitted that, the charge is
framed under Section 376(2) of IPC, however as Section 376(2) is
in several parts being Section 376(a) to Section 376(n) specific
provisions should have been mentioned. He submits that therefore
the Appellant-Accused is not in a position to answer such a faulty
and vague charge. He also submits that even the other charge is
under Section 6 of the POCSO Act, when Section 6 is concerning
punishment for aggravated penetrative sexual assault and
penetrative sexual assault is defined in Section 5. He states that
Section 5 is also in several parts being Section 5(a) to Section 5(u).
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He therefore submits that, vague charge is framed and therefore
the entire trial has vitiated as the Appellant was required to answer
such a vague charge.
4. Mr. Shukla, learned Counsel points out the FIR at (Exhibit-9)
as well as the statement recorded of the victim under Section 164
of the Code of Criminal Procedure, 1973 ("CrPC") which is at
(Exhibit-10) and submits that the victim in her statement recorded
under Section 164 of CrPC has only mentioned that, one boy has
sexually assaulted the victim and in the said statement answer to
the question no.16, she states that, name of said boy was Samshan
or something like the same. He points out FIR dated 18 th February,
2018, where the mother of the victim i.e. PW1 has stated the name
of persons who were staying in the said building are Kismat,
Shamim, Samsher, Samsun Tarun Savra, his brother-in-law and his
family. Thus, he submits that the identity of the person who has
committed sexual assault is not established. He submitted that the
evidence on record do not conclusively prove the guilt of the
Appellant and therefore the Appellant be granted benefit of doubt.
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5. On the other hand, Ms. Shinde, learned APP for the State of
Maharashtra submitted that the evidence of victim i.e. PW2 is
reliable and the involvement of the Appellant is completely
established. She submitted that as far as the contention that
medical evidence do not support the prosecution case, as per the
settled legal position, even if, medical evidence do not support the
prosecution case then also on the basis of the testimony of the
victim and the other material on record the prosecution case can
be established. Apart from this contention, learned APP submits
that, in this particular case except some part of the medical
evidence other evidence supports the prosecution case. She
submits that, the prosecution evidence laid by the prosecution is
reliable and therefore the Appellant has been rightly convicted. As
far as the contention that, the charge is vague and therefore the
Appellant could not answer such a vague charge, she submits that,
the said contention is raised for the first time, at the time of
hearing the Appeal. She submitted that said contention should
have been raised before the learned Trial Court. She therefore
submitted that the said contention be not taken into consideration.
She therefore submitted that the Criminal Appeal be dismissed.
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6. Mr. Dingale, learned Counsel appointed to represent the
interest of Respondent No.2 submitted that, the evidence on record
clearly establishes the involvement of the Appellant in the crime.
The evidence of the victim and the evidence of PW1-mother of the
victim as also evidence of PW3 - Dr. Prashant Waghmare, clearly
establishes the involvement of the Appellant in the serious crime.
He submits that the Crime is very serious, where the victim of 15
years was subjected to aggravated penetrative sexual assault and
therefore no interference in the impugned Judgment and Order of
conviction and sentence is warranted. He submitted that, as the
evidence on record show that samples were not properly collected
and therefore no reliance can be placed on the fact that DNA
sample has not matched with that of the Appellant and it is not
proved that the Appellant is the biological father of the fetus. He
submitted that, in the statement recorded under Section 313 of
CrPC the Appellant has not given any explanation. He therefore
submitted that the Criminal Appeal be dismissed.
7. The prosecution case is set out in Paragraph No.2 of the
impugned Judgment and Order which reads as under:-
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"2. Facts giving rise to prosecution case are as under-
Complainant is a mother of the victim. She is doing
labour work on construction site. She was residing in labour
colony. She is residing on 8th floor. She has four daughters.
Victim is her elder daughter. Victim was working with her
mother and helping her for household work. On 24th
December 2017 complainant along with her three younger
daughters went to her native place at Ballah Pandol, Dist.
Madhubani Bihar State. However victim stayed on address
at Mumbai in the above building. On 6.1.2018 when she
returned from native place complainant found that victim is
suffering from vomiting. So she asked therefore
complainant took her towards doctor. Victim refused to go
with her and therefore complainant suspected about her
behavior. She brought pregnancy kit from medical store and
given to the victim. She found that victim is pregnant and
therefore she has taken her in confidence and made inquiry
wherein she came to know the fact that accused who was
residing in the said building given make up kit and
luxurious article and forcibly committed rape upon her
repeatedly by going to her house. Victim was minor 15
years old and accused has taken disadvantage of her
minority and absence of complainant in the house at the
relevant period. Therefore, complainant along with her
daughter went to police station and filed the complaint
against accused. Crime was registered vide C.R.No.44/2018
for the offence punishable u/s. 376 of IPC r/w sections 4, 8
and 9 of POCSO Act. Accused is charge-sheeted before the
court. After due investigation both accused were charge-
sheeted before the court."
8. Before considering the rival contentions, it is necessary to set
out the chart which has been tendered by Ms. Shinde, learned APP.
In the said chart important details including that of evidence on
record is mentioned. The said chart is as under:-
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Page 163 Judgment
22/08/2019 Conviction -U/s 376(2) 10 years + fine 1000/-
i/d. 7 days
Exh.3 Charge
Page 21 u/s. 376(2) of IPC u/s 6 of POCSO
PW 1 Anjari Khatoon
Pg. 27 Complainant
(mohter of Victim)
Victim - 15 years Age
Exh. 9 F.I.R. dated 18/02/2018
Page 35 Complainant came to know about pregnancy
of victim
-Victim told about the incident
22/02/2018 -MTP
page 39 Statement of Victim
u/s 164 of Cr.P.C.
PW 2 -Victim/minor
Page No.43 -Incident
-Scared/threatened
-Repeated Offence
-MTP
-identified Accused
PW 3 Dr. Prashant Waghmare
Pg.53 Examined victim
Exh. 15 -History given by victim
Page 62 -Aberration on victim
-opinion - 8 weeks 4 days pregnancy
Exh. 16 -Age 16 to 17 years
Page.69
Page 66 -Hymen
Multiple old scars
-Aslo Examined Accused.
PW 4 Vinayak Kamble
Page 75 Panch -Spot Panchnama
Exh.21 -Spot Panchnama
Page No.79
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PW 5 Pushpa Nathwale
Exh. 28,29 Assistant C. A.
Page No.95 to -DNA Sample
98 Not supporting
-POC and placenta matching with victim but
not with Accused.
PW No.6 Amol Aughade
Page No.100 (Police Constable)
Found accused near spot
PW7 Lavesh Pulekar
Page No.104 Police Constable
Carrier of samplers to C.A.
PW 8 Maruti Dalvi
Page No.107 Panch - Production Panchnama
Exh. 33 Medical Kit
Page No.110 Panchnama
PW 9 Sanjay Thakur, API.
Page No.112 Investigating Officer
PW 10 Dr. Rajshri Tayshetty
Page No.136 Examined Victim
Exh.15 -Medical Report
Page No.62 -8 weeks and 4 days pregnancy
PW 11 Vishwajit Dattaram Nakashe
Page No.149
9. As far as the contention that proper charge has not been
framed and therefore the Appellant could not answer the charge
effectively, it is necessary to set out the relevant portion of the
charge which reads as under:-
"C H A R G E
I, SMT M. A. BARALIYA, Designated Judge for the
Protection of Children from Sexual Offences Act, 2012,
for Greater Bombay do hereby charge you accused:
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Samsun Tarun Savra, Age, 32 years as follows:
Firstly: That you accused in between 24.12.17 to
06.01.18 at the residential place 5 th floor, Shivjicharan,
H. Building, Labour colony, near J building, J. R. Boricha
marg, Satrasta, Mumbai, repeatedly rapped victim girl
Rabina Khatoon 15 yrs old against her will and thereby
committed offence punishable U/sec. 376(2) of IPC
within my cognizance.
Secondly: That you accused during the above
mentioned period and place repeatedly established pino
vaginal sex with Rubia Khatoon 15 yrs old and
impregnate her and thereby committed offence of
Aggravated penetrative sexual assault punishable U/sec.
6 of POCSO Act, within my cognizance.
And I hereby direct that you be tried by this Court on
the aforesaid charges."
10. For appreciating the contention of Mr. Shukla, learned
Counsel appearing for the Appellant Section 376(2) is reproduced
herein below:-
"Section 376(2) :Whoever,--
(a) being a police officer, commits rape--
(i) within the limits of the police station to which
such police officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer's custody or
in the custody of a police officer subordinate to
such police officer; or
(b) being a public servant, commits rape on a woman
in such public servant's custody or in the custody of a
public servant subordinate to such public servant; or
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(c) being a member of the armed forces deployed in
an area by the Central or a State Government
commits rape in such area; or
(d) being on the management or on the staff of a jail,
remand home or other place of custody established by
or under any law for the time being in force or of a
women's or children's institution, commits rape on
any inmate of such jail, remand home, place or
institution; or
(e) being on the management or on the staff of a
hospital, commits rape on a woman in that hospital;
or
(f) being a relative, guardian or teacher of, or a
person in a position of trust or authority towards the
woman, commits rape on such woman; or
(g) commits rape during communal or sectarian
violence; or
(h) commits rape on a woman knowing her to be
pregnant; or
(j) commits rape, on a woman incapable of giving
consent; or
(k) being in a position of control or dominance over a
woman, commits rape on such woman; or
(l) commits rape on a woman suffering from mental or
physical disability; or
(m) while committing rape causes grievous bodily
harm or maims or disfigures or endangers the life of a
woman; or
(n) commits rape repeatedly on the same woman,
shall be punished with rigorous imprisonment for a
term which shall not be less than ten years, but which
may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's
natural life, and shall also be liable to fine.
Explanation.-For the purposes of this sub-section--
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(a) "armed forces" means the naval, military and air
forces and includes any member of the Armed
Forces constituted under any law for the time being
in force, including the paramilitary forces and any
auxiliary forces that are under the control of the
Central Government or the State Government;
(b) "hospital" means the precincts of the hospital
and includes the precincts of any institution for the
reception and treatment of persons during
convalescence or of persons requiring medical
attention or rehabilitation;
(c) "police officer" shall have the same meaning as
assigned to the expression "police" under the Police
Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an
institution, whether called an orphanage or a home
for neglected women or children or a widow's
home or an institution called by any other name,
which is established and maintained for the
reception and care of women or children."
(Emphasis added)
11. A perusal of Section 376(2) clearly shows that the Sub-
Sections of the same namely (a) to (n) are applicable to persons
belonging to different classes and various different situations.
Thus, Mr. Shukla, learned Counsel is right in contending that
charge framed under Section 376(2) of IPC is vague.
12. The second charge mentions that the Appellant has
committed offence of aggravated penetrative sexual assault
punishable under Section 6 of the POCSO Act. Section 5 of the
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POCSO Act is concerning aggravated penetrative sexual assault
and the same is reproduced hereunder:
"(a) Whoever, being a police officer, commits
penetrative sexual assault on a child --
(i) within the limits of the police station or premises
at which he is appointed; or
(ii) in the premises of any station house, whether or
not situated in the police station, to which he is
appointed; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as, a police
officer; or
(b) whoever being a member of the armed forces or
security forces commits penetrative sexual assault
on a child--
(i) within the limits of the area to which the person
is deployed; or
(ii) in any areas under the command of the forces or
armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where the said person is known or identified as
a member of the security or armed forces; or
(c) whoever being a public servant commits penetrative
sexual assault on a child; or
(d) whoever being on the management or on the staff
of a jail, remand home, protection home, observation
home, or other place of custody or care and protection
established by or under any law for the time being in
force, commits penetrative sexual assault on a child,
being inmate of such jail, remand home, protection
home, observation home, or other place of custody or
care and protection; or
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(e) whoever being on the management or staff of a
hospital, whether Government or private, commits
penetrative sexual assault on a child in that hospital; or
(f) whoever being on the management or staff of an
educational institution or religious institution, commits
penetrative sexual assault on a child in that institution;
or
(g) whoever commits gang penetrative sexual assault
on a child.
Explanation.-- When a child is subjected to sexual
assault by one or more persons of a group in
furtherance of their common intention, each of such
persons shall be deemed to have committed gang
penetrative sexual assault within the meaning of this
clause and each of such person shall be liable for that
act in the same manner as if it were done by him alone;
or
(h) whoever commits penetrative sexual assault on a
child using deadly weapons, fire, heated substance or
corrosive substance; or
(i) whoever commits penetrative sexual assault causing
grievous hurt or causing bodily harm and injury or
injury to the sexual organs of the child; or
(j) whoever commits penetrative sexual assault on a
child, which--
(i) physically incapacitates the child or causes the
child to become mentally ill as defined under clause
(l) of section 2 of the Mental Health Act, 1987 (14
of 1987) or causes impairment of any kind so as to
render the child unable to perform regular tasks,
temporarily or permanently;
(ii) in the case of female child, makes the child
pregnant as a consequence of sexual assault;
(iii) inflicts the child with Human
Immunodeficiency Virus or any other life
threatening disease or Infection which may either
temporarily or permanently impair the child by
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rendering him physically incapacitated, or mentally
ill to perform regular tasks;
2[(iv) causes death of the child; or]
(k) whoever, taking advantage of a child's mental or
physical disability, commits penetrative sexual assault
on the child; or
(l) whoever commits penetrative sexual assault on the
child more than once or repeatedly; or
(m) whoever commits penetrative sexual assault on a
child below twelve years; or
(n) whoever being a relative of the child through blood
or adoption or marriage or guardianship or in foster
care or having a domestic relationship with a parent of
the child or who is living in the same or shared
household with the child, commits penetrative sexual
assault on such child; or
(o) whoever being, in the ownership, or management,
or staff, of any institution providing services to the
child, commits penetrative sexual assault on the child;
or
(p) whoever being in a position of trust or authority of
a child commits penetrative sexual assault on the child
in an institution or home of the child or anywhere else;
or
(q) whoever commits penetrative sexual assault on a
child knowing the child is pregnant; or
(r) whoever commits penetrative sexual assault on a
child and attempts to murder the child; or
(s) whoever commits penetrative sexual assault on a
child in the course of 3[communal or sectarian violence
or during any natural calamity or in similar situations];
or
(t) whoever commits penetrative sexual assault on a
child and who has been previously convicted of having
committed any offence under this Act or any sexual
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offence punishable under any other law for the time
being in force; or
(u) whoever commits penetrative sexual assault on a
child and makes the child to strip or parade naked in
public, is said to commit aggravated penetrative sexual
assault."
(Emphasis added)
13. Thus, it is clear that, Section 5 defines aggravated
penetrative sexual assault in various circumstances, where police
officer commits penetrative sexual assault, member of the police
officer, member of the armed forces or security force, public
servant commits penetrative sexual assault, a person in the
management or on the staff of a jail, remand home, protection
home, observation home, committed sexual assault being
management or staff of hospital whether government or private
staff of an education institution or religious institution, commission
of offence by one or more persons of group in furtherance of
common intention etc.. It is clear that, perusal of Section 5 clearly
shows that various different categories are specified.
14. Thus, there is substance in the contention raised by Mr.
Shukla, learned Counsel appearing for the Appellant that, charge is
not properly framed and therefore the Appellant is not in a
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position to answer the same effectively. There is some substance in
the contention raised by Ms. Shinde, learned APP that this point
should have been raised before the learned Trial Court. Apart from
that learned APP submitted that the charge framed clearly sets out
the case which the Appellant has to meet. However, there is
substance in the contention that the charge framed is vague and
not specific.
15. Assuming that the above point should have been raised
before the learned Trial Court and further assuming that the
charge is properly framed, perusal of the evidence of PW2 i.e. the
victim shows that, victim has specifically stated that the Accused
had committed Dirty Acts with her and due to the same she
became pregnant. Her evidence further shows that, although no
details are given about the said Dirty Acts, however, it has been
mentioned that the Appellant removed her clothes and committed
the sexual assault and because of the said Dirty Acts she became
pregnant. Perusal of the evidence of PW2 shows that on many
occasions, the victim was indicating what she want to say by signs.
The learned Trial Court has recorded that, the same was done as
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the witness was not understanding Hindi as her mother tongue is
Bihari.
16. The oral deposition of the victim shows that although she
has been extensively cross-examined the evidence on record shows
that, in her testimony the Appellant has stated that the Appellant
has sexually assaulted her and therefore she has become pregnant.
In view of this, what is important to note is the evidence regarding
DNA report. The PW5 - Pushpa Pandharinath Nathwale, who is the
Assistant Chemical Analysis, working at FSI Kalina, Mumbai
admitted in the cross-examination that it is not proved that
Accused is the biological father of the fetus. She has stated in
examination-in-chief as under:-
"5. 1 initially analysized blood sample of accused
samsung sawara. Now I am shwon examination report, it
bears my signature at portion mark A, its contents are
correct. Marked as exhbit-28. Then I analyzed blood
sample of Rubina and POC (product of conception) and
placenta. I analyzed it by method of EZ-1, the automatic
method. In analysis shows that regarding POC and
Placenta matching with Rubina as a mother.
However POC does not show matching with father
samsung Tarun sawara. In the sample of Fetus the father's
allele were not found in the proper contents. The sample
was defective. In the sample of fetus only blood sample of
fetus was received. As the fetus was terminited when
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pregancy was hardly two moths and bones were not
developed and tissue of bon were not send in the sample,
the sample was not interpretable, Therefore the DNA from
the fetus could not be extracted. Therefore comparison
and matching of Fetus with the father i.e samsung sawara
could not be done. Now I am shown my report, the result
of analysis. It bears my signature at portion mark A, its
contents are correct. Report is marked as exhibit-29.
6. As the sample of femur bone of the fetus was not
received, I could not analyze it properly, therefore I
mentioned in my report that no interpretable DNA profile
is obtained from product of conception."
(Emphasis added)
PW5 has admitted in her cross-examination that it is not proved
that the Accused is the biological father. Thus, there is doubt about
the prosecution case.
17. It is also required to note that in statement recorded under
Section 164 of CrPC the victim only states that a boy has sexually
assaulted her. Thereafter, at the fag end of the said statement she
states that, the name of the said boy was Samshan or something
like the same. In the FIR registered by the mother of the victim i.e.
PW1 it is stated that the name of persons who were staying in the
said building are Kismat, Shamim, Samsher, Samsun Tarun Savra,
his brother-in-law and his family. Thus, there is similarity in the
three names namely Shamim, Samshan and Samsun. In the
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statement recorded under Section 164 of CrPC the victim has
stated name of the Accused as Samshan and the victim's mother
has stated that Shamim, Samshan and Samsun were staying in the
said building. Thus, in fact there is grave doubt about the identity
of the Accused and therefore involvement of the Appellant in the
crime. This is more so as the evidence on record do not
conclusively show that the Appellant is the father of the fetus.
Thus, the Appellant is entitled for benefit of doubt.
18. Ms. Shinde, learned APP is right in pointing out that, the
victim has identified, the Accused in the Court and has stated that
the Accused has committed Dirty Acts with her. However, as noted
herein above, there is doubt about the prosecution case. The victim
has answered some questions by signs as she was having difficulty
in understanding Hindi.
19. It is also required to be noted that, the FIR was lodged as
victim started vomitting and therefore PW1-mother performed
pregnancy test with the medical kit available in the medical shop
and as the test was positive FIR was lodged. The evidence on
record show that the mother of the victim was at native place
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when the incident took place and she has no personal knowledge.
Thus, although there is some evidence which shows the
involvement of the Appellant in the crime, however, by considering
the entire evidence on record the Appellant is entitled for the
benefit of doubt.
20. It is also required to be noted that the sentence imposed on
the Appellant is of 10 years and the Appellant has completed
actual imprisonment of about 7 years and 5 months and completed
imprisonment including remission of about 9 years and 2 months.
21. Accordingly, for the above reasons the Criminal Appeal is
allowed by passing following operative order.
ORDER
1. The Criminal Appeal No.368 of 2022 is allowed.
2. The Judgment and Order dated 22nd August 2019 passed by
the learned Special Judge under POCSO Act, Gr. Mumbai in
POCSO Case No.250 of 2018 for the offence punishable under
Section 376(2) of the Indian Penal Code, 1860, is quashed and set
aside.
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3. The Appellant-Samsun Savra be released forthwith, unless
he is required in any other case.
4. The Criminal Appeal is disposed of accordingly.
(MADHAV J. JAMDAR, J.)
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