MANOJ LAXMAN ROUTREversusTHE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:43652


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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                               CRIMINAL APPLICATION NO. 3921 OF 2025
                                 IN CRIMINAL APPEAL NO. 789 OF 2025

                 Manoj s/o. Laxman Routre
                 Age 21 years, Occu. Water Supplier,
                 R/o. Gavli Lane, Purna,
                 Taluka Purna, District Parbhani.                  … Appellant.

                         Versus

                 1.      The State of Maharashtra
                         Through Police Station,
                         Purna Police Station,
                         Taluka Purna, District Parbhani.

                 2.      XYZ                                       … Respondents.
                                                    …..
                            Mr. Sanket S. Kulkarni, Advocate for the Applicant.
                           Mr. G. O. Wattamwar, APP for Respondent No.1-State.
                     Ms. Sumedha Thombre, Advocate for Respondent No.2 (appointed)
                                                    .....

                                           CORAM :        ABHAY S. WAGHWASE, J.
                                           Reserved on        : 24.09.2026
                                           Pronounced on      : 28.09.2026

                 ORDER :


                 1.      Instant application is for suspension of substantive sentence

                 and grant of bail in consequence to the judgment and order of

                 conviction dated 12.02.2025 passed by learned Special/Additional

                 Sessions Judge, Parbhani in Special (POCSO) Case No. 34 of 2022

                 recording guilt of the applicant for offence under Section 376(2)(l) of

                 IPC.
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2.     Learned counsel for the applicant would submit that there is

false implication. According to him, there was no legally acceptable

evidence to convict applicant for charge of Section 376(2)(l) of IPC.

He pointed out that, though applicant was tried for charges under

Section 376(2)(l) of IPC and Section 4 of the Protection of Children

from Sexual Offences Act, 2012 (POCSO Act), there is conviction only

for offence under Section 376(2)(l) of IPC and not under the

provisions of the POCSO Act. He would submit that here, there is no

conclusive proof of age of the victim. That, though victim was claimed

to be mentally challenged, there is no conclusive proof regarding the

same    and   psychiatrist/psychologist   are   not   examined.   Mere

provisional certificate is placed on record. Moreover, according to

him, though DNA report is placed on record, the same is directly

exhibited through the Investigating Officer who was not the authority

to vouch on the contents of the DNA report. That, in fact, the

forensic/DNA analyst who issued the report ought to have been

examined by prosecution, but said witness is not examined, which is

fatal to the prosecution. He also questions the chain of custody of

DNA samples and doubts its integrity for want of sufficient proof of

the same being retained untampered. Thus, according to him, there

are several good grounds which are to be dealt in appeal and as the
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same would take sufficiently long to be heard and decided, he prays

for relief of suspension of sentence and grant of bail.



3.    Learned APP as well as learned counsel for the victim have both

opposed on the ground that, on full fledged trial, conviction has been

recorded by accepting the case of prosecution. That, prosecution has

proved that victim was mentally challenged. That, accused, who was

in relation, was aware of her such mental condition and he took

disadvantage of the same. That, sexual offence is proved through DNA

report which is positive. Therefore, there is scientific evidence

confirming guilt of the accused and for such reasons, relief of

suspension of sentence and grant of bail is opposed.



4.    Perused the papers. Admittedly, charge was for offence under

Section 376(2)(l) of IPC and Section 4 of the POCSO Act. On visiting

the operative part of the order, there seems to be guilt recorded for

only offence under Section 376(2)(l) of IPC and guilt is not recorded

for offence under Section 4 of the POCSO Act. Even otherwise, in para

13 of its judgment, learned trial court has already held that

prosecution failed to prove victim to be minor on the date of incident.

Therefore, there is no conviction for offence under Section 4 of the

POCSO Act.
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5.    As regards to sexual offence under Section 376(2)(l) is

concerned, case of prosecution in trial court was that victim was

mentally challenged. Accused, her cousin, who knew her such

condition, exploited her and impregnated her. That, DNA sample of

the child born to victim and the DNA sample of accused matched and

therefore trial court recorded conviction for above charge.



6.    Here, the above conviction is challenged by way of appeal, but

during its pendency, relief of suspension of sentence and grant of bail

is urged for primarily on the ground that, prosecution did not prove

sexual assault beyond reasonable doubt. That, there is no conclusive

proof about mental state of the victim and secondly, DNA expert is

not examined for getting DNA report exhibited.



7.    Learned counsel for the applicant would strenuously submit

that, after evidence of prosecution was over and after recording

statement of accused under Section 313 of Cr.P.C., prosecution’s

application for production of DNA report came to be allowed without

say of the accused.



8.    In the light of above grounds, record is gone into. PW5 seems

to be the medical expert who has gathered and collected DNA
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samples of the victim and her child on 14.10.2019. This witness

speaks of handing over samples in sealed condition to the police. This

means that samples were handed over to the investigating machinery

on 14.10.2019 itself. Exhibit 86 shows that analyzer received sample

of victim on 23.10.2019 and analysis was done on 31.10.2019, but

report is issued on 03.12.2019. Similarly, DNA sample of accused is

got collected through PW9 on 30.10.2019, but Exhibit 87 shows

receipt of sample for analysis at Forensic Laboratory on 02.11.2019.

Admittedly, here, carrier is not examined to substantiate dispatch of

muddemal in sealed condition till it reached analyzer. Investigating

Officer has not named the authority who was in possession of DNA

samples since they were drawn by doctors and handed over to police.

Resultantly, there is issue about integrity and chain of custody of the

DNA samples.



9.    Further, DNA report, as pointed out, is got exhibited through

Investigating Officer PW10. Recently the Hon’ble Apex Court has

issued guidelines regarding sampling procedure and evidentiary value

of scientific evidence. In the case of Karandeep Sharma v State of

Uttarakhand, MANU/SC/0446/2025 acquitted the accused from the

charges under Section 376-A alongwith other penal sections holding

that, in order to make DNA evidence acceptable, reliable and
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admissible, prosecution would first be required to proved the chain of

custody of samples/articles right from their preparation/collection till

they reach the FSL. For this purpose, it is held that, link evidence

would have to be established by examining concerned witness.



10.    Likewise in another recent judgment by the Hon’ble Apex Court

in Irfan v. State of Madhya Pradesh MANU/SC/0148/2025 in para 22

observed as under :


      “22. It is an admitted position that the DNA profiling
      report (Exhibit-157) was formally exhibited by the
      Superintendent of Police (PW-31) in his evidence. None of
      the scientific experts involved in the process of conducting
      the DNA profiling examination and issuing the report have
      been examined by the prosecution.”

       Finally, the Hon’ble Apex Court remanded the matter back to

the trial court with directions to summon scientific expert associated

with the preparation and issuance of DNA report and thereby set

aside judgments passed by both, trial court as well as High Court.



11.    Here also, it is seen that DNA expert who issued report Exhibit

87 is not examined before getting the report exhibited. Apparently it

is got exhibited through the Investigating Officer.
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12.    Further, as regards to mental disability of the victim is

concerned, as pointed out, none of the doctors who certified her

mental disability are examined before the trial court by the

prosecution. As pointed out, it appears from the record that after

recording statement of accused under Section 313 of Cr.P.C. was

concluded on 26.09.2024, an application seems to have been moved

by learned APP on behalf of the State on 13.12.2024 praying to

accept the psychiatric report and to get it exhibited. Though there is

remark by trial court calling upon other side to submit say, there does

not seem to be any say by defence/accused. Even otherwise, as

pointed out, the psychiatric report Exhibit 104 is apparently

provisional impression report. Surprisingly, in the said report, age of

the victim is shown as 25 years and not 15 years as was the case of

prosecution in trial court.



13.    In the light of above discussion, indeed there seem to be good

grounds but to be dealt in appeal. The above shortcomings do go to

the core of the prosecution case. Resultantly, relief as prayed deserves

to be granted. Hence, the following order :

                                ORDER

I.    Criminal Application stands allowed.
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II.   The substantive sentence imposed on the applicant Manoj s/o.
      Laxman Routre in Special (POCSO) Case No. 34 of 2022 by the
      Special/Additional Sessions Judge, Parbhani on 12.02.2025
      stands suspended till the final hearing and disposal of Criminal
      Appeal No. 789 of 2025.


III. The applicant be released on P.R. Bond of Rs.15,000/- (Rupees
      Fifteen Thousand Only) with two solvent sureties in the like
      amount.


IV. The applicant shall not commit any criminal activity.


V.    The applicant shall remain present before the learned trial Judge
      once in six months, till final hearing and disposal of the appeal,
      commencing from the date he tenders bail papers and thereafter,
      the trial Judge to fix dates for his subsequent appearances.


VI. In case of two consecutive defaults on the part of the applicant to
      remain present before the trial court, the trial court to inform
      this court about the same and in that eventuality, the
      prosecution would be at liberty to file an application for
      cancellation of bail granted to the applicant.


VII. Bail before the trial court.



                                            [ABHAY S. WAGHWASE, J.]



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