1. The question that arises for consideration in this appeal is whether the trial Court was justified in convicting and sentencing the appellant for an offence punishable under Section 376 (2), (f), (i) (n) of the Indian Penal Code (IPC) and Section 5 (j) (l) (n) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for the rape of his own daughter, when the material witnesses had turned hostile and the conviction was recorded on the basis of scientific evidence in the form of Deoxyribonucleic Acid (DNA) report.

2. The appellant has been sentenced by the Court of Special Judge under the POCSO Act, Nagpur for the offence stated above, to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/. The case of the prosecution was that the prosecutrix was the daughter of the appellant and his wife (complainant) and that they were residing with other members of the family in their house at Sangam Nagar, Nagpur. About a month prior to lodging of report, in the present case, the prosecutrix fell ill and when she was taken to the hospital, the Doctor informed the complainant Shafikunnisa Salim Ahmed Ansari (PW3) that her daughter i.e. the prosecutrix was pregnant. When complainant Shafikunnisa (PW3) inquired from her daughter prosecutrix as to what had happened, she stated that the appellant i.e. her father had taken her to the house of Nilima Meshram (PW5) in March2014 and that he had forcibly committed sexual intercourse with her. She further revealed that, thereafter on several occasions, the appellant committed the said act with her. On that basis, on 28.08.2014, the report was lodged with police by complainant Shafikunnisa (PW3), when the prosecutrix was already five months pregnant. On this basis, a First Information Report (FIR) was registered against the appellant and investigation was undertaken by the investigating officer Rajesh Thakur (PW7).

3. During the course of investigation, statements of witnesses were recorded and the prosecutrix was sent for medical examination. After the prosecutrix delivered a girl child, blood samples of the appellant, the prosecutrix and the girl child were sent for DNA analysis. Report of the DNA test revealed that the appellant and the prosecutrix were indeed biological father and mother of the girl child. On the basis of such material, the prosecution examined 13 witnesses, in support of its case. These witnesses included; mother of the prosecutrix, her brother, prosecutrix herself, the Doctors and the Chemical Analyser, who had conducted the DNA text. The prosecutrix (PW6), her mother complainant Shafikunnisa (PW3), neighbour Maya Patel (PW2), brother of the prosecutrix Salman Ansari (PW4), employer of the appellant in whose house the appellant first sexually assaulted the prosecutrix Nilima Meshram (PW5) and the pancha witness Pawan Kolte (PW1), all turned hostile. Therefore, it was evidence of only Doctors, investigating officer and other police officer and the Chemical Analyser that supported the prosecution case.

4. By the impugned judgment and order, the trial Court found that the prosecutrix, her mother and her brother had turned hostile because the appellant was the only bread winner of the house. The trial Court also found that evidence on record, particularly DNA report read with the documentary evidence on record, proved the prosecution case beyond reasonable doubt. On this basis, the appellant stood convicted and sentenced in the aforesaid manner.

5. Mr. Amit Choube, Advocate, learned counsel appointed to appear on behalf of the appellant, submitted that when the prosecutrix herself and other material prosecution witnesses had disowned the prosecution and they had turned hostile, the trial Court was not justified in convicting and sentencing the appellant. It was submitted that even if the DNA test was to be accepted as proved, if there was lack of evidence and material to show that blood samples were collected in