Case Note & Summary
The appellant, Shaktiman Sondawale, was convicted by the Additional Sessions Judge, Nagpur, for offences under Section 376(2)(i)(n) IPC and Sections 5(i)(ii)(I)/6 of the Protection of Children from Sexual Offences Act (POCSO Act), and sentenced to 10 years rigorous imprisonment with fine. He appealed to the Bombay High Court at Nagpur. The prosecution case was that the appellant raped a mentally retarded minor girl, resulting in pregnancy which was aborted. The victim (PW6) turned hostile during trial. The key evidence was a DNA report (Exh.36) showing the appellant as the biological father of the aborted fetus. The appellant argued that the victim's mental retardation and hostile testimony warranted acquittal, and that the DNA report should be excluded due to improper preservation. The State argued that the DNA report was conclusive. The High Court, per V. M. Deshpande, J., held that the DNA evidence was sufficient to prove guilt beyond reasonable doubt, and the victim's hostility did not vitiate the conviction. The court dismissed the appeal, upholding the conviction and sentence.
Headnote
A) Criminal Law - Rape of Mentally Retarded Minor - DNA Evidence - Conviction under Section 376(2)(i)(n) IPC and Sections 5(i)(ii)(I)/6 POCSO Act - Appeal against conviction - Victim, a mentally retarded minor, turned hostile - DNA report (Exh.36) conclusively proved appellant as biological father of aborted fetus - Held that DNA evidence is sufficient to sustain conviction despite hostile victim and mental retardation - Appeal dismissed (Paras 1-4).
Issue of Consideration
Whether the conviction of the appellant under Section 376(2)(i)(n) IPC and Sections 5(i)(ii)(I)/6 POCSO Act is sustainable based on DNA evidence despite the victim turning hostile and being mentally retarded.
Final Decision
Appeal dismissed. Conviction and sentence under Section 376(2)(i)(n) IPC and Sections 5(i)(ii)(I)/6 POCSO Act upheld.
Law Points
- DNA evidence is conclusive proof of paternity
- hostile witness does not vitiate conviction if other evidence exists
- delay in lodging FIR is not fatal if explained
- evidence of mentally retarded victim is not automatically excluded
Case Details
2019 LawText (BOM) (01) 119
Criminal Appeal No.547/2017
Mr. R. M. Patwardhan (for appellant), Mr. M. K. Pahan (A.P.P. for respondent)
Shaktiman s/o Tulsidas Sondawale
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Nature of Litigation
Criminal appeal against conviction for rape and sexual offences under IPC and POCSO Act.
Remedy Sought
Appellant sought acquittal and setting aside of conviction and sentence.
Filing Reason
Appellant was convicted for rape of a mentally retarded minor girl and sentenced to 10 years imprisonment.
Previous Decisions
Trial court convicted appellant on 29.06.2017 in Special POCSO Case No.223/2016.
Issues
Whether the conviction is sustainable when the victim turned hostile?
Whether the DNA report (Exh.36) is admissible and conclusive?
Whether the evidence of a mentally retarded victim must be excluded?
Whether the delay in lodging the FIR is fatal?
Submissions/Arguments
Appellant argued false implication, victim's mental retardation and hostile testimony require exclusion of her evidence, DNA report should be excluded due to improper preservation, delay in FIR not explained.
State argued DNA report conclusively proves appellant as biological father of aborted fetus, trial court properly considered evidence, conviction should be upheld.
Ratio Decidendi
DNA evidence conclusively proving the appellant as the biological father of the aborted fetus is sufficient to sustain a conviction for rape under Section 376(2)(i)(n) IPC and POCSO Act, even if the victim turns hostile and is mentally retarded, as the DNA report provides independent corroboration of the offence.
Judgment Excerpts
DNA report Exh.36 is a conclusive proof to show that appellant is concluded to be biological father of aborted fetus of victim.
Though the victim is mentally retarded, her evidence has to be excluded... but DNA report is sufficient.
Procedural History
Trial court convicted appellant on 29.06.2017 in Special POCSO Case No.223/2016. Appellant filed Criminal Appeal No.547/2017 before Bombay High Court, Nagpur Bench, which was heard and dismissed on 29.01.2019.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 376(2)(i)(n), 506
- Protection of Children from Sexual Offences Act, 2012 (POCSO Act): 2(d), 5(i)(ii)(I), 6
