Dismissed

Vikas Shantaram Shinde v. the State of Maharashtra and Anr.

Bombay HC8 Mar 2022APEAL/743/2021

Case brief

AI extract

What is this about?

The court dismissed this criminal appeal challenging conviction under POCSO and IPC sections for rape and mental harassment. Upholding the trial court's finding based on victim testimony, medical reports, and corroborating DNA evidence, the court held that the material circumstances were properly put to the accused during his statutory reply. The appeal lacks merit.

What did the court decide?

The appeal against conviction and sentence is dismissed. Fees of appointed counsel to be paid as per rules.

Vikas Shantaram Shinde Vs the State of… — Child Sexual Offences (POCSO) | Bombay HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.743 OF 2021

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Shri Vikas Shantaram Shinde ]
Age: 28 years, Occup: Labourer,]
R/o. Kurtade, Shindewadi, Taluka, ]
District Ratnagiri, Maharashtra]
(Presently at Nagpur Central Prision)]..Appellant
(Original Accused)
v/s.
1.The State of Maharashtra ]
(Through Ratnagiri Gramin Police ]
Station)]
2.Smt. Priyanka Prakash Shinde]
Age 40 years, Occup: Agriculturist]
R/o. Kurtade, Shindewadi, Taluka]
District Ratnagiri, Maharashtra.]..Respondents.

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Mr. Amit Mane, for the Appellant.
Mr. Suraj S. Hulke, APP for Respondent No.1-State.
Ms. Grishma Lad, for Respondent No.2.

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Digitally signed by SMITA SMITA RAJNIKANT RAJNIKANT JOSHI JOSHI Date: 2022.03.11 16:44:48 +0530

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CORAM: VINAY JOSHI, J.
DATED : 8th MARCH, 2022.

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ORAL JUDGMENT:-

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Challenge in this appeal is to the judgment and order
of conviction dated 9th October, 2019 passed in Special Case No.4
of 2018 whereby the Appellant was held guilty for the offence
under Sections 376(2)(i)(j)(n) and 506 of Indian Penal Code (IPC)
and under Sections 4 and 6 of the Protection of Children From
Sexual Offences Act, 2012 (POCSO Act). The Trial Court has
imposed sentence to suffer Rigorous Imprisonment for 10 years

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and to pay fine of Rs.20,000/- with default clause, for the offence
punishable under Section 6 of the POCSO Act. No separate
punishment was awarded for the offence of rape by virtue of
Section 42 of the POCSO Act. For the offence punishable under
Section 506 of the IPC, accused was sentenced to suffer Rigorous
Imprisonment for 1 year along with fine of Rs.5,000. The Trial
Court directed that both the sentences shall run concurrently.

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2The accused was in jail during the trial as well as
during pendency of this appeal.

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3The prosecution case can be stated in brief that the
victim- girl aged 13 years 8 months, was a school going
intellectually disabled child of informant lady. The victim-girl
missed her menstrual cycle somewhere in the month of June,
2017. After few months i.e. on 10th November, 2017, informant-
mother took her to the hospital for said purpose. During
examination, it was diagnosed that victim was pregnant. On
enquiry, victim-girl disclosed about the incident of forcible sexual
intercourse committed by accused on several occasions.
Immediately victim’s mother lodged report to the police on the
very day i.e. on 10th November, 2017. On the basis of said report,
police registered crime and carried investigation. During course of
investigation, panchanama regarding place of occurrence was
drawn. Clothes of the victim were seized. Accused was arrested.
Birth certificate of victim was collected. Samples were extracted for
DNA profile. During mean time, the victim delivered a male child
on 10th March, 2018. Again samples of new born baby were

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extracted for DNA testing. After completing the usual formalities of
investigation, final report was came to be filed.

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4In order to establish the guilt, prosecution has
examined as many as 15 witnesses. Prosecution also banks upon
several documents. On the basis of oral as well as documentary
evidence, the Court below held that victim was a ‘child’ within the
meaning of Section 2 (d) of the POCSO Act, and the prosecution
has proved the offence of aggravated form of penetrative sexual
assault. The Trial Court has passed the aforesaid sentences for the
proved offences.

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5Heard learned Counsel Shri Mane, for the Appellant as
well as Mr. Shukle, learned APP for the State and Ms. Lad, learned
Counsel for Respondent No.2-victim. Perused entire record as well
as reported judgments cited on behalf of Appellant/Accused.

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6Since the accused is charged under the provisions of
POCSO Act, it is incumbent on the prosecution to establish that the
victim was a child as defined under Section 2(d) of the POCSO
Act. The defence has not challenged the age of victim meaning
thereby the aspect of minority of victim. It has come in the
evidence of prosecution witnesses that victim was 13 years and 8
months of age at the time of occurrence. The prosecution has
examined PW-12 – Smt. Minakshi M. Mohite on the point of birth
certificate. The prosecution has tendered on record birth certificate
issued by competent authority, showing that victim’s date of birth
was 27th July, 2004. There is no challenge to the said piece of
evidence, therefore, I have no hesitation to hold that victim was

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below 18 years of age at the relevant time.

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7It takes me to consider the evidence on core issue.
Police report has been lodged by victim’s mother (PW-1) on 10th
November, 2017. It is her case that victim was her daughter
amongst three other. Victim was mentally retired and was
studying in 8th standard at the relevant time. She stated that victim
has missed her menstruation cycle, therefore she took her to the
hospital on which learnt that victim was carrying pregnancy of 5
months. On enquiry, the victim-girl disclosed that accused used to
visit her house in the afternoon and by removing garments, used to
repeatedly commit sexual intercourse. On learning the things, she
lodged report.

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8It is profitable to directly go to the crucial evidence of
minor victim. The Trial Court has recorded the evidence of minor-
victim by following the mandate of Section 33 of the POCSO Act.
The victim’s evidence was recorded in question and answer form.
During her evidence, victim disclosed that accused who is her
neighbour, used to visit her house. Accused removed garments of
both and slept over her. Such things were happened on 5 to 6
occasion. She has narrated in detail that the accused used to arrive
at her house in the afternoon, bolting the door and used to raise
the voice of TV set and did the things. Victim was cross examined
at length but nothing emerged to discard her testimony.

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9After lodging the report, victim-girl was medically
examined by PW-6 – Dr. Leena M. Kumbhare, attached to Civil
Hospital, Ratnagiri. It has come in her evidence that, on 11th

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November, 2017 she has examined the victim-girl. On examination,
she found that hymen was ruptured and victim was pregnant of 21
weeks. She has prepared medico legal examination report (Exh.
68) to that effect.

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10It is the prosecution case that samples were collected
and DNA profile was matched. Prosecution has examined PW-8 –
Dr. Rajashree G. Dhavale who has extracted blood samples in DNA
kit. It is her evident that on 16th November, 2017, victim-girl was
brought to her, on which she has extracted blood samples in DNA
Kit, packed it, sealed it and along with DNA form, handed over to
the police. She deposed that on 10th March, 2018, victim delivered
a baby boy, therefore, she has collected DNA samples of new born
baby and after sealing, handed over to the police. Prosecution has
examined PW-9 – Dr. Vikas M. Kumare who has obtained blood
samples of accused in DNA kit. Prosecution has examined police
personnel who have carried DNA samples to the chemical analyzer.

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11Pertinent to note that though scientific evidence is
admissable under Section 293 of the Criminal Procedure Code,
prosecution has endevoured to examine PW-14 Sujata P. Jadhav,
who was Assistant Chemical Analyzer. It is the evident of PW-14 –
Sujata Jadhav that she has studied M.Sc. in Bio Chemistry. She was
working as Assistant Chemical Analyzer in Pune Laboratory. She
has prepared DNA profile of accused, victim as well as new born
baby. She found that they were matched with each other. She
stated that accused and victim are concluded to be biological
parents of the new born baby of the victim. Accordingly, DNA

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report has produced on record which fully corroborates the
testimony of the victim.

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12Learned Counsel appearing for the Appellant/ Accused
would submit that unless the samples were properly obtained, it is
not safe to rely on DNA report. In this regard, he relied on the
decision of the Supreme Court in case of Ganesh Laxman Madne
v/s. State of Maharashtra (MANU/MH/0805/2019). In said case,
this Court by relying on the decision of Supreme Court, observed
that though scientific evidence about DNA report is of conclusive
nature, however, samples, if not properly obtained or sealed, it is
not safe to rely. In case at hand, the Medical Officer who has
extracted DNA samples, has categorically deposed about the mode
and manner of extracting, packing and sealing of the samples.
Moreover, both carriers were examined to ensure that samples
were kept intact and properly delivered. The evidence of
Investigating Officer has also supported the proper seizures.
Therefore, there is no substance in the contention that DNA report,
cannot be relied.

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13Learned Counsel appearing for accused has submitted
that the victim-girl has not specifically stated about the incident of
sexual intercourse. He would submit that there is absence of
primary evidence of victim about sexual intercourse. He contended
that in absence of substantive evidence of victim, the
circumstantial evidence like medical examination report and DNA
report would not assist. It requires to once again go through the
evidence of victim. At the inception, it is to be noted that victim

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was intellectually challenged girl. PW-3 - Dr. Shashwat V. Shere
who is MD in psychological medicine, has examined the victim. It
is his evidence that the victim was referred for assessment of I.Q.
test. He found that mental age of victim was 7 years and I. Q. 53.
He opined that, it was the case of mild mental retardation, having
50% disability. Keeping in mind such mental incapacity of victim,
her evidence has to be assessed. Though in specific words, the
victim has not stated about sexual intercourse, however, in other
words, she stated that accused has removed her under garments,
his own garments and slept over her. She also stated that she got a
child from accused. The said evidence in unequivocal term
suggests about incident of sexual intercourse. Besides that, there is
a scientific evidence disclosing that accused was biological father
of new born baby of victim. Having regard to said aspect, there is
no substance in the contention that victim has not stated the
incident in specific terms. On the other hand, victim’s evidence is
quite, natural, reliable and trust-worthy which conveys the act of
sexual assault.

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14The learned Counsel appearing for the accused has
argued that the material incriminating circumstances are not put to
the accused during his statement under Section 313 of the Cr. P. C.
which has caused prejudice to the accused. The learned Counsel
appearing for accused by relying on the decision of the Supreme
Court in the case of Asraf Ali v/s. State of Assam
(MANU/SC/7839/2008) contend that, absence of putting material
circumstances to the accused, vitiates the trial. There can be no
dispute about said proposition of law. In the light of the said

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submission, statement of accused recorded in term of Section 313
of Cr. P. C., has re-visited. The Trial Court has formulated in all 40
questions in a bid to put all incriminating material to the accused
to seek his explanation. Perusal of the said statement, reveals that
the material circumstances like victim’s mental status, her age,
pregnancy, removal of clothes, repeated sexual intercourse were
specifically put to the accused. Apparently, the material which has
formed the basis for conviction, has been put to the accused.
Hence, the submission in this regard carries no merit.

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15Learned Counsel appearing for Appellant further
submitted that the chain of events has not put to the accused in
statement under Section 313 of Cr. P. C. He would submit that, as
to how the samples were extracted for DNA profile, how that were
carried for analysis and the fact of delivery of victim has not been
put to accused in sequence. In fact, the chain of events is a matter
of appreciation. Principally, the material circumstances are brought
to the notice of accused during the statement, therefore, no
prejudice has caused to the accused at all.

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16On re-examination of entire material, it emerges that
the victim was minor at the time of occurrence. The evidence of
victim was specific about sexual assault. Victim’s mother has
supported her evidence of material aspect. Moreover, medical
examination report coupled with DNA report strongly supports the
victim’s evidence. Though, delay in lodgment of FIR is criticized,
however, having regard to the peculiar facts, satisfactory
explanation is offered by the prosecution on the point of delay.

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Pertinent to note that, victim was intellectually challenged girl. As
and when her mother noticed that victim has missed her
menstruation cycle, she immediately took her to the Doctor. No
sooner victim’s mother learnt about the pregnancy, immediately
she enquired with the victim and, thereafter, lodged the report.
The prosecution evidence is cogent, reliable and trust-worthy. The
Trial Court has properly analyzed the evidence adduced by
prosecution. The finding of guilt can not be faulted with.

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17In view of the above, Appeal carries no merits. Hence,
deserves to be dismissed and, accordingly, stands dismissed. Fees of
appointed counsel be paid as per rules.

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 (VINAY JOSHI,J.)

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Vikas Shantaram Shinde v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Vikas Shantaram Shinde v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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