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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MILIND N. JADHAV, J.
Rupesh Tukaram Kondhalkar - Appellant
Versus
The State of Maharashtra and Another - Respondents
Bail Application No. 4504 of 2024
Decided On : 23-04-2025
(A) Code of Criminal Procedure, 1973 - Section 439 - Indian Penal Code, 1860 - Section 376(3) - Protection of Children from Sexual Offences Act, 2012 - Section 6 - Bail application in a case of sexual assault against a minor - The applicant, accused of sexual assault, sought bail after being incarcerated for over two years pending trial. The court considered the DNA report linking the applicant to the victim but noted the need for the report to be proved in court. The court emphasized the presumption of innocence and the necessity for the prosecution to establish foundational facts before the presumption under Section 29 of the POCSO Act could apply. The court ultimately granted bail, allowing the applicant to contest the charges at trial. (Paras 2, 25, 26, 27)
(B) Bail - Considerations - The court highlighted that the grant of bail is discretionary and must consider the length of incarceration, the nature of the allegations, and the reliability of evidence presented at the bail stage. (Paras 12, 25)
Based on the provided legal document, here are the key points relevant to your inquiry:
DNA Evidence and Its Proving in Court: The court emphasized that while a DNA report is a significant piece of evidence, it must be proved in court before it can be relied upon, especially at the bail stage. The DNA report is considered an opinion and requires proper legal procedures for admissibility. Its reliability depends on the quality of sample collection, handling, and testing, and it is not infallible (!) (!) (!) .
Presumption Under Statute: There is a statutory presumption that certain offences are committed if the prosecution proves the foundational facts, but this presumption is not absolute. It can be rebutted if the accused raises serious doubts or evidence that makes the prosecution's version highly improbable. The presumption under the relevant statute does not mean the prosecution's case is accepted as gospel without proof (!) (!) .
Discrepancies and Credibility of Evidence: The court noted discrepancies in the dates and duration of the stay at the accused's house, as well as conflicting statements from the victim and witnesses. The victim's statement regarding the incidents was inconsistent with the statements of other witnesses, which raised doubts about the prosecution's version (!) .
Long Incarceration and Bail Consideration: The accused had been incarcerated for over two years pending trial. The court considered that the trial had not yet commenced and there was uncertainty about when it would conclude. This long period of detention, coupled with the absence of definitive trial progress, was a factor favoring the grant of bail (!) (!) .
Delay in Medical and DNA Reports: The delay in conducting the DNA analysis was noted as unexplained and significant, which affects the weight and reliability of the DNA evidence at this pre-trial stage. The court held that the DNA report, being an opinion, requires formal proof in court before it can be used to establish guilt (!) (!) .
Risk of Tampering and Threat: The prosecution argued that the accused might pose a threat to the victim and could tamper with evidence if released. The court acknowledged this concern but balanced it against the long incarceration and the need for a fair trial (!) .
Conditions for Bail: The court granted bail with specific conditions, including a surety bond, reporting requirements, attendance at trial, non-influence of witnesses, and restrictions on the accused’s contact with the victim. These conditions aim to prevent tampering and ensure cooperation with the trial process (!) .
Order Limitation: The court clarified that its observations are limited to the bail stage and do not constitute a final judgment on the merits of the case. The trial will proceed based on evidence presented and will be decided on its own merits (!) .
In summary, the court’s decision to grant bail was influenced by the need for the DNA evidence to be formally proved in court, the long period of incarceration, discrepancies in witness statements, and the procedural safeguards imposed through bail conditions.
JUDGEMENT :
MILIND N. JADHAV, J.
1. Heard Ms. Shaikh, learned Advocate for Applicant; Ms. Ganapathy, learned APP for Respondent No.1 and Ms. Chavan, learned Advocate for Respondent No.2 appointed through legal aid.
2. This is an Application under Section 439 of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking Bail in connection with C.R. No.309 of 2022 registered with Koparkhairane Police Station for offences punishable under Sections 376 (3) of the Indian Penal Code, 1860 (for short ‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’).
3. The First Informant is the mother of victim. The date of First Information Report (for short ‘FIR’) is 03.07.2022. The tenure of the incident alleged in the FIR is from 26.01.2022 to 02.02.2022. In the FIR, First Informant has stated that on 26.01.2022 her daughter namely prosecutrix who was living in village – Abhipuri, Taluka – Bhor, District – Pune was visiting her maternal aunt's residence at Mankhurd, Mumbai for two – three days, when Applicant who is cousin brother of prosecutrix from her paternal side arrived there and invited her to visit his house at Koparkhairane, Navi Mumbai and prosecutrix obliged him by going with him.
4. Applicant was staying in Koparkhairane alongwith his wife, his sister (21 years). At that time his niece (12 years) was visiting his house and she was also staying there. When Applicant took prosecutrix to his home, i.e. on 26.01.2022 his wife was not present as she was visiting her parents but his younger sister and niece were both present. It is stated that on the night of 26.01.2022, Applicant, his sister, niece and prosecutrix all had dinner together and went to sleep in Applicant’s house. Spot panchanama of Applicant’s house shows that it is 12' X 10' room with a kitchen. It is stated that Applicant slept on the sofa in one corner whereas the three women slept on the ground in the room. It is alleged that sometime in the night, Applicant came and slept next to prosecutrix and against her wish forcibly outraged her modesty and assaulted her. It is stated in the FIR that prosecutrix did not disclose the incident to anyone since Applicant was related to her.
5. Thereafter it is alleged that on the following day i.e. 27.01.2022, after Applicant’s sister left for work in the morning, sometime in the afternoon, Applicant asked his 12 year old niece to go out and fetch something from outside and after she left, Applicant once again forced himself on prosecutrix and assaulted her. It is stated that prosecutrix did not disclose this incident either to any person since Applicant was her cousin brother and related to her.
6. Thereafter it is stated that sometime in the first week of July, prosecutrix experienced pain in her stomach pursuant to which she got herself checked and was pregnant. Statement of prosecutrix was recorded in Sassoon Hospital, Pune at the time of her health checkup on 02.07.2022. Hence FIR came to be lodged on 03.07.2022.
7. Ms. Shaikh would fairly inform the Court that pursuant to abortion of foetus sample of femur bone of foetus was sent for Deoxyribonucleic Acid (for short ‘DNA’) analysis alongwith samples of prosecutrix and Applicant on 09.07.2022. She would place on record DNA Report dated 05.01.2023. The DNA Report when prima facie perused opines that Applicant and prosecutrix are concluded to be biological parents of the femur bone of foetus of prosecutrix.
7.1. Ms. Shaikh has made one pivotal submission for consideration at the bail stage. She would submit that DNA Report is in the nature of opinion and it would be fatal for Court to rely upon the DNA report at inception stage without Applicant given a chance to contest and challenge the same. She would submit that if the same is accepted by Court at inception stage without the DNA Report being proved in accordance with law it would amount to pre-trial judgment and punishment meted out to Applicant. She would persuade the Court to
The court ruled that a DNA report, while significant, must be proved in court before it can be relied upon in a bail application, emphasizing the presumption of innocence.
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