DASHRATH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard Shri CP Patil, learned Advocate for Applicant-appellant and Shri BV Virdhe, learned APP for Respondent-State.

(2.) It has been vehemently submitted on behalf of the applicant that the applicant is uncle of the victim and it is alleged that the applicant has committed rape on the victim. The victim is aged 16 years at the time of the offence and it was further alleged that she became pregnant from the applicant-accused. However, if DNA report, given on 19.12.2018, is perused, it would show that though the victim was concluded to be the biological mother of the child and the present applicant-appellant was excluded to be biological father of the child. Therefore, the ocular evidence is not at all supported by the medical evidence. The DNA test was the crucial test and yet the present applicant has been excluded. The learned Trial Judge has failed to consider this aspect and he unnecessarily relied on the ocular evidence. The victim is a deaf and dumb girl and her mother is a blind. Therefore, taking into consideration this situation, the conviction awarded to the applicant-appellant is illegal and the appellant has every hope of success in the appeal, therefore, the conviction and sentence imposed against the applicant deserves to be suspended till hearing and conclusion of the appeal.

(3.) Per contra, learned APP vehemently submitted that, perusal of the judgment by the Trial Judge would make it clear that he has considered all the aspects involved. Taking into consideration the relationship, the appellant has not much disputed about the age of the victim girl. She is a 'child', as contemplated under the POCSO Act. In her FIR; statement under Section 164 of Cr.P.C. and testimony before the Trial Court, she has clearly stated that, she was raped by the present applicant-appellant and thereafter she has become pregnant. The learned Trial Judge has rightly held that there may be a mistake in taking the sample and, therefore, the said DNA test will not conclude that the applicant had not committed rape on the victim. The purpose of DNA test is different and even if it has come in negative; yet it does not rule out that the appellant never committed forcible sexual intercourse on the victim. The present appellant has taken disadvantage of the physical situation of the victim as well as her mother. He deserves no sympathy at all for committing such heinous crime.