1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPLICATION NO. 1332 OF 2007 IN CRIMINAL APPEAL NO. 1149 OF 2006 SHAMIM ANWAR KHAN .. APPLICANT Vs. THE STATE OF MAHARASHTRA .. RESPONDENT Mr. Sandeep Karnik for applicant Mrs. M. M. Deshmukh, APP CORAM:SMT.RANJANA DESAI & DR. D.Y. CHANDRACHUD,JJ. DATED:15/9/2008 P.C. . The applicant was tried for offence punishable under Sections 376 and 506(2) of I.P.C. on a complaint lodged by Farah Naim Sayyad at Mumbra Police Station. The applicant is the step father of Farah. 2. According to the prosecution Farah and her mother Fatima were residing with the applicant at Charnipada for about 4 to 5 years. About one and 2 half year prior to the lodging of the complaint, at about 10 a.m. Farah’s mother had gone to the market. Farah was alone at home. The accused forcibly raped her and threatened her that if she tells her mother about the incident he would kill both of them. Farah was frightened and, therefore, she did not tell anyone about the rape. According to Farah thereafter whenever her mother used to go out the appellant used to come home and rape her. About 4 to 5 months back Farah started getting pain in her stomach. She told her mother about the pain. Her mother took her to the doctor who confirmed that Farah was pregnant. Faraha was admitted to the hospital where she delivered a male child. At the hospital Farah revealed to her mother what the applicant had done. According to Farah she and her mother felt that their reputation will be spoiled and, therefore, they did not give any complaint to the police station. However, the applicant continued to threaten them and therefore, Farah lodged a complaint at the police station. On the basis of her complaint offence was registered and the applicant was arrested. The appeal filed by the applicant has been admitted. This is an application for bail. 3 3. We have heard Mr. Karnik, learned counsel appearing for the applicant. Mr. Karnik submitted that there is about one and half years’ delay in filing the F.I.R.; delay has not been properly explained and, therefore, this delay makes the prosecution case suspect. Learned counsel then urged that the sample for DNA test has not been properly drawn. He submitted that the investigating officer has admitted that the sample was drawn in a plastic bag. He drew our attention to a book by name "DNA Tests in Criminal Investigation, Trial and Paternity Disputes" by Yashpal Singh and Mohd. Hasan Zaidi. He drew our attention to paragraph 22 at page 439 which states that while drawing samples for DNA test samples must be packed and sealed in clean paper bags and envelopes and not in plastic bags or containers. Mr. Karnik submitted that inasmuch as in this case the sample is drawn in a plastic bag, the report of DNA test is suspect. It cannot be said that the male child is that of the applicant. 4. Learned counsel then submitted that there are several omissions and contradictions in the evidence of the prosecutrix. The prosecutrix is not a reliable witness. He submitted that there 4 was enmity between the applicant and the brother-in-law of Farah. The present complaint is the outcome of enmity. Learned counsel then urged that the prosecution did not examine the applicant to find out whether he was potent. For all these reasons, submitted learned counsel, the prosecution has failed to prove its case beyond reasonable doubt and hence the applicant be released on bail. Learned APP strenuously opposed the application for bail. 5. We are not impressed by any of the submissions of learned counsel, Mr. Karnik. It is well settled that in a case of rape the conviction can be based on the sole testimony of the prosecutrix. Her evidence is in the nature of evidence of an injured witness. Her testimony can be accepted by the court if found reliable even without corroboration. Corroboration can merely lend assurance to the prosecutrix’s case. We are prima facie of the opinion, that in this case evidence of the prosecutrix can be safely relied upon. She has no reason to falsely involve her stepfather in such a ghastly crime at the risk of ruining her reputation. 5 6. The applicant is the step father of the prosecutrix. According to the prosecutrix he used to rape her whenever her mother used to go out. According to the prosecutrix he used to threaten her and, therefore, she could not disclose this fact to anyone. It appears to us that trapped in such circumstances, the applicant did not report the matter to the police. It is only when she conceived and delivered a child that she was forced to inform her mother. It appears that the prosecutrix and her mother did not want their reputation to be spoiled and hence they did not report the matter to the police but the applicant continued to threaten them and, therefore, ultimately they lodged a complaint. In the circumstances prima facie, we are of the opinion that delay in lodging the F.I.R. cannot be taken against the prosecutrix. 7. The circumstance which prima facie clinches the case against the applicant is the DNA report which indicates that the child delivered by the prosecutrix is that of the applicant. The submission of learned counsel that DNA report cannot be relied upon because the sample was not properly drawn can be considered at the time of 6 final hearing of the appeal. At this stage in our opinion there is enough prima facie material against the applicant. 8. No case is made out for bail. Application is dismissed. 9. Appeal is expedited. JUDGE JUDGE