Chintaman v. //The State of Maharashtra

3/46apeal-274-24 .odtconsultation at a hospital in Washim. Upon returning, the informant wasinformed that the victim was indeed pregnant. After this, the informantalong with the victim returned to their village. Upon further inquiry withthe victim, the victim consistently held that, in her parents absence, theaccused would come to the house and do sexual intercourse with her andresultantly she had become pregnant. On 11.10.2012, a meeting was heldin the village wherein sarpanch, police-patil, tanta-mukti president, victimwith her family and the accused were present amongst other villagers. Inthis meeting, the victim reiterated that the accused had done sexualintercourse with her and the accused admitted to it. 3. Based on this report, police registered crime no. 72/2012 forthe offence punishable under Section 376 of the IPC and undertookfurther investigation. The FIR is placed on record at exhibit 47.

Theinvestigating officer then visited the spot and drew up a spot panchnamawhich is brought on record at exhibit 92. He then referred the accusedand the victim for medical examination and collected the medical reports(Exhibits 69 and 70) and samples. He then proceeded to record witnessstatements. The officer made an attempt to record the victim’s statement, but could not do so due to her mental inability. Post investigation, theinvestigating officer submitted chargesheet to the Court of J.M.F.CSknair 4/46apeal-274-24 .odtManora who in turn committed the case to Additional Sessions Judge, Mangrulpir. Charge has been framed against accused vide Exh. 04 towhich accused pleaded not guilty and claimed to be tried. His defence isof total denial. It is his specific defence that he is foisted in a false case toextract money from him. 4. During the trial, the prosecution examined 13 witnesses. LataDigambar Sawant (PW-1) – informant (Exhibit 45); Digambar KadnujiSawant (PW-2) – victim's father (Exhibit 48); Bharat Kisan Rathod (PW-3) – panch witness during spot panchnama (Exhibit 54); Dr.

VirendraMarkande (PW-4) – medical officer (Exhibit 67); Bebitai Ashok Pande(PW-5) – Asha Swayam Sevika (Exhibit 73); Sadhna Ashok Chavhan(PW-6) – retired teacher (Exhibit 78); Dr. Kailas Mahadeorao Ramteke(PW-7) – medical practitioner (Exhibit 81); Bebitai Bandusingh Chavhan(PW-8) – police patil (Exhibit 83); Dr. Vivek Manohar Karale (PW-9) –medical practitioner (Exhibit 85); Dr. Vivek Kishor Lohakare (PW-10) –doctor in private practice (Exhibit 89); Sanjay Seshrao Adhau (PW-11) –police inspector (Exhibit 91); Dr. Ketki Vidhale (PW-12) – psychologist(Exhibit 102); Pravin Uttamrao Shinde (PW-13) – police inspector(Exhibit 106)Sknair 5/46apeal-274-24 .odt5. Upon closure of prosecution’s evidence, the accused wasexamined under Section 313 of the Code of Criminal Procedure, whichhas been brought on record by Exhibit 108, wherein he denied all theincriminating evidence against him and stated that he had been falselyimplicated in the present case.6.

The learned Additional Sessions Judge, upon acomprehensive appreciation of the evidence on record, was persuaded tohold the appellant guilty of the offence charged. It was observed that theprosecution had successfully established the foundational facts of the caseand had proved its case beyond reasonable doubt on multiple counts. Thelearned trial court noted that it is not uncommon to hold a villagemeeting about any incident and failure to inform police cannot be aground to disbelieve prosecution’s case or evidence. Furthermore, thecourt considered that attempts were made by the investigating officer torecord the victim’s statement through a psychologist and an interpreter, but they could not record the statement. The court did not believe thatthe family of the victim would risk their reputation and her future to file afalse case against the accused only to extract money from him, especiallysince he was engaged in labour work.

The court also did not consider thatthe accused was not seen entering or leaving the victim's house by Sknair 6/46apeal-274-24 .odtanybody, because an act like rape is always committed by ensuring that itis not witnessed by anybody. Additionally, even if there are other housesnear the victim’s and women from those houses stay at home, this doesnot automatically mean they will keep a constant and vigilant watch onthe victim's house.7. Significantly, the learned trial court noted that from evidenceon record, it stood proved beyond any doubt that accused did sexualintercourse with the victim and made her pregnant. Additionally, theaccused or his counsel have not denied that the victim is not mentallyretarded. Since the prosecution has duly proved that the victim isretarded, therefore she is incapable of giving consent for sexual relations. Hence, the offence of rape was duly proved against the accused.

The trialcourt refused to grant a lighter sentence to the accused on thecircumstances that he was the sole-breadwinner of his family or that he isa poor person and rightly imposed a sentence of rigorous imprisonmentfor fifteen years and fine. Being aggrieved by the aforesaid judgment and order ofconviction and sentence, the appellant has preferred the present appeal. Sknair 7/46apeal-274-24 .odt8. Heard Sagar Y. Rawate, learned counsel for the appellant andMs. Sonia N. Thakur, learned Additional Public Prosecutor for therespondent/ State.9. The learned counsel for the appellant assailed the judgmentof the learned trial Court on the grounds of both legal and factualinfirmities. The learned advocate submitted that evidence of theinformant and the victim is not reliable and trustworthy. It was contendedthat the prosecution’s case lacks direct evidence and rests entirely oncircumstantial and hearsay evidence.

The counsel asserts that not only wasthe chain of evidence incomplete in the present matter but also there isnothing on record which directly links the accused with the allegedoffence. Reliance was placed on the Supreme Court’s decision in the caseof State of Haryana v. Jasbir Singh (1996 Cri. LJ 2545)10. It was further submitted that the prosecution heavily relied onthe medical evidence that the victim was pregnant and the foetus was latermedically terminated. However, despite availability of scientific methods,a DNA test was not conducted which could have conclusively proved thepaternity of the foetus. The benefit of the doubt created by this gap inevidence, must favour the accused. The counsel also submitted thatabsence of the DNA test was fatal to prosecution’s case. To this extent, Sknair 8/46apeal-274-24 .odtreliance was placed on the following judgments – Krishnan Kumar Malikv. State of Haryana (AIR 2011 SC 2877); Rajendra Pralhadrao Wasnik v.State of Maharashtra (AIR 2019 SC 1) and Dilesh Nishad v.

State of Chhattisgarh (CRA No. 1266/19).11. The learned counsel has also advanced the submission thatthe statement of the mentally retarded victim under Section 161 of theCrPC was not recorded during investigation in 2012. Instead, theinvestigating officer recorded the statement of the interpreter, which perthe learned counsel could not substitute victim’s statement. Theprosecution also failed to record the victim’s statement before themagistrate under Section 164 of the CrPC. The counsel further submitsthat the trial Court erroneously allowed prosecution’s application under Section 311 of the CrPC to record the victim’s statement after eleven longyears. Since the victim is mentally retarded, it is improbable that she couldcorrectly recall and narrate the alleged incident correctly after passage ofsuch long time. The learned counsel further submits that competency ofvictim as witness was not established and thereby the mandate of Sections118 and 119 of the Indian Evidence Act was not followed.

To this extent, reliance was placed on paragraphs 17, 19, 20 and 21 of Suresh KarbhariWadge v. State of Maharashtra (Cri. Appeal 413/2015). The learnedSknair 9/46apeal-274-24 .odtcounsel also submits that statements of the interpreter (PW-6) (vide Exhibit 78) and the psychologist (PW-12) at Exhibit 102, hold noevidentiary value since the victim’s statement is absent from evidence onrecord.12. The learned counsel has emphasized that the accused’sacceptance of responsibility for victim’s pregnancy and his readiness tomaintain her at the village meeting constitutes an extra-judicial confessionand the same is weak, inconsistent and unreliable. The counsel submitsthat while the meeting was allegedly attended by 200-400 people, onlyone prosecution witness, Bebitai Pande (PW-5) has deposed regarding theconfession vide Exhibit 73. Victims parents completely omitted even themention of this confession by the accused in their depositions.

Thelearned counsel also submits that this court should not see this statementof the accused in the village meeting as a confession since it was notvoluntary and free from threat or inducement. To assert this submission, the learned counsel has placed reliance on the following case laws –Pakala Narayan Swami v. Emperor (AIR 1939 PC 47); State of Rajasthanv. Rajaram (2003 Cri. LJ 3901); State of Haryana v. Rajinder Singh (1996 Cri LJ 1875); Director General, Border Security Force v. VijenderSknair 10/46apeal-274-24 .odtPrakash Gautam ((2001) 3 MPLJ 111) and Mst. Bhagan v. State of Pepsu(1955 Cri. LJ 537).13. Finally, the learned counsel submits that there was anunexplained delay in lodging a report with the police after the informant(PW-1) came to know about the incident. He also states that parents ofthe victim, PW-1 and PW-2, are unreliable witnesses, that there areseveral contradictions in their statements regarding how many peoplewere in the village meeting, when exactly they got to know about thevictim’s pregnancy and when the police report was lodged.

As such, theirtestimony should be discarded and placed no reliance on. Whileemphasizing that however great the suspicion against the accused, hecannot be convicted for the offence of rape unless the same is establishedbeyond a reasonable doubt, the learned counsel placed reliance onparagraph 13 of Jogi Dan & Ors. v. State of Rajasthan (2004 Cri. LJ1726).14. Per contra, the learned Additional Public Prosecutor appearedin support of the impugned judgment and order passed by the learnedAdditional Sessions Judge and submitted that the accused’s convictionwas based on a thorough and careful appreciation of the oral and Sknair 11/46apeal-274-24 .odtdocumentary evidence on record. She argued that the findings of the trialCourt are well-reasoned, legally sound and do not warrant interference.15. The learned APP submits that no suggestions were made bythe counsel for the accused to disprove that the victim was not mentallyretarded.

Nor is it their case that the accused had taken the victim’sconsent before doing sexual intercourse with her. The evidence on recordclearly proves that the sexual intercourse had indeed taken place and thereis enough evidence to hold the accused responsible for it. Therefore, inthe ambit of Section 376 of the IPC, since the victim was incapable ofgiving consent due to her mental retardation, the accused’s act of doingsexual intercourse with her constitutes the offence of rape.16. As evidenced in the deposition of PW-2, the accused wasknown to the victim’s family and both the victim and her brother wouldcall him “mama”. This trust and proximity was taken advantage of by theaccused when he exploited it to access the victim in her home whennobody was present. The trial court has rightly held the accused not beingseen entering or leaving the victim’s house is of little material importancesince the accused would have ensured that an act like rape is notwitnessed by anybody.

Sknair 12/46apeal-274-24 .odt17. The learned APP further submitted that accused’s contentionthat he has been falsely implicated in a fabricated case because the victim’sfamily want to extort money from him does not hold any ground sincethe accused is self-admittedly a poor person with his family memberscounting on him to provide for them. Further, the accused works as alabourer, earning a meagre sum. Therefore, as the trial Court has rightlyheld, the parents of the victim would not risk her reputation or future toextract money from an already poor person.18. Finally, the APP submits that taking into consideration thevictim’s retardation, the police employed an interpreter, Sadhna AshokChavhan (PW-6) who was a teacher at a special school for deaf and dumbchildren. Both her and psychologist Ketki Vidhale (PW-12) form enoughbasis to fill any lacunae. 19. Let us now deal with the testimonies of the prosecutionwitnesses.

P.W.1, the mother of the victim Madhuri, deposed vide Exhibit45, that her daughter has been mentally challenged since birth. Theaccused resides behind her house. This incident occurred five years priorto her present deposition, i.e., in 2012. She got her daughter checked at amedical camp in the anganwadi school where the doctors informed herthat her daughter was pregnant. Upon inquiry, her daughter told her that Sknair 13/46apeal-274-24 .odtwhenever they (her parents) left for work, Chintaman Lohale mama usedto give her chocolate and had sexual intercourse with her. Thereafter,P.W.1 took her daughter to her sister Gokula's house in Washim, who inturn took her to a private hospital where her pregnancy was confirmedagain. Post this, the victim and P.W.1 returned to their village. Apanchayat meeting was called about this incident where the Sarpanch, theaccused and other villagers were present. Madhuri, the victim, pointed atthe accused and stated that he was responsible for her pregnancy.

Thereafter, P.W.1 along with five others went to the Manora police stationto lodge a report (Exhibit 46). A lady police constable took Madhuri to Akola hospital for medical examination and P.W.1 went along with her. The doctors there advised abortion which was done on the same day asevidenced by OPD paper marked as Exhibit 86, and both the victim andP.W.1 returned home the same day. Police recorded the mother’sstatement wherein she stated that Madhuri, her daughter, can tell namesof persons and identify persons. In her cross-examination, she deniedasking money from the accused. She stated that his house was 5-6 housesin the back of hers. She admitted that no document was issued for themedical examination done at the anganwadi medical camp. She furtherstated that they had not seen the accused enter or leave their house. SheSknair 14/46apeal-274-24 .odtconfirmed that Madhuri was educated up to 1st grade and can talk andshout.20.

P.W.2, victim's father deposed, vide Exhibit 48, that Madhuriis his daughter and is mentally retarded. He knows the accused who usedto come by his house and whom his children called "mama". Pandemadam (PW-5, Asha Swayam Sevika) resides near their home and whogoes to school, told them that his daughter had become pregnant. Theaccused used to come by his house, and his daughter told him that heused to give her chocolate. The accused came by at 12:00 and abused thevictim. The learned APP sought permission to ask leading questions atthis stage. He further stated that a panchayat meeting was conductedbefore the temple wherein it was asked to the victim who committed theill act and she told that the accused used to give her chocolate and sleepwith her. In cross-examination, a contradiction was pointed out regardingthe panchayat meeting that was, according to PW-2, conducted on02.12.2012. He stated that five persons were present; however, it ismentioned in his statement that 200-400 people were present.

Headmitted that health camps are conducted in the village each monthwhere they used to examine their daughter each month, but was unable tostate in which month his daughter was found to be pregnant. He statedSknair 15/46apeal-274-24 .odtthat after he went to work, his son used to stay with his daughter. Thepolice report was lodged one month after the panchayat meeting. Heaccepted that it is true to say that all villagers in his village are hisrelatives, except the accused. He denied that he was deposing falsely. Heaccepted the omission that he did not state before the police that theaccused used to sleep with her on the bed.21. P.W.3, who was a panch witness during the spot panchnama(Exhibit 92), turned hostile. He denied that police conducted spotpanchnama before him. He stated that he does not know what they didinside and that they only took his signature. He denied that he is refusingcooperation to support the accused.

His deposition is brought on recordvide Exhibit 54. 22. P.W.4, Dr. Virendra Markande who medically examined theaccused deposed, vide Exhibit 67, that he was attached to the ruralhospital in Manora as medical officer. On 11.10.2012, the accused wasbrought for medical examination. In the medical examination, he foundthat the accused is capable of performing sexual intercourse but semencould not be collected at the time; therefore, he asked that the accused bebrought the next morning for semen collection. He examined the privateparts of the accused including penis, scrotum and inguinal region, anusSknair 16/46apeal-274-24 .odtand buttocks and found no evidence of injury. He collected 5 ml bloodand pubic hair, sealed them and handed them over to LPC bearingnumber 821. He gave a report marked as Exhibit 69 and another report as Exhibit 70. Both reports are the same. The accused can experienceerection but not ejaculation, which can be due to many factors such asstress and non-privacy.

In cross-examination, it was pointed out that onboth reports there is no signature or thumb impression of the accused.23. P.W.5, Babytai Pande, one of the village’s Asha SwayamSevika, deposed, vide Exhibit 73, that she has been serving at villageMaholi since 2009. As part of her job, she has to survey if any woman inthe village is pregnant and provide aid if she is. On 05.10.2012, she andher colleague were doing a leprosy survey in the village. At the victim'shouse, they asked if she had any leprosy symptoms and were told she doesnot. Her mother informed them that she has acidity and is vomiting andhas missed her period for four months. There was a rumour in the villagethat the victim was pregnant. They suspected that the victim might bepregnant; therefore, they went to the village police patil and informed her. The village police patil accompanied them to the victim's house. The nextday there was a vaccination camp at anganwadi where the victim wasadministered a pregnancy test which was positive.

On 11.10.2012, the Sknair 17/46apeal-274-24 .odtpolice patil called a meeting in the village where everyone was present. When the police patil asked the victim who has made her pregnant, shepointed to the accused. The police patil, sarpanch and others asked theaccused if this was true. He denied the allegations initially but later onaccepted that he went to the victim's house to watch "english movies" andthat she is pregnant from him. He showed readiness to maintain thevictim. In cross-examination, she stated that they had heard the rumour ofthe victim's pregnancy 4-5 days before visiting her house for the leprosysurvey. The victim vomited in their presence and at the police patil'ssuggestion that she might be pregnant, the victim's mother raised aquarrel with her. The police patil called the meeting where 200-400people were present. She denied that she is deposing falsely to save herjob.24. P.W.6, Sadhna Ashok Chavan, a retired teacher from ShriGajanan Maharaj Matimand Niwasi Vidyalaya, Karanja-Lad, deposed, vide Exhibit 78, that in 2012 she was serving as a teacher in a deaf-dumbschool in Karanja when the headmaster of her school deputised her as aninterpreter to the police station.

She went to the police station where thevictim, her uncle and aunt, the accused and two other persons werepresent. Police asked her to interpret what the victim was saying. TheSknair 18/46apeal-274-24 .odtvictim said that the accused is her maternal uncle who bought herchocolates. He comes to her house and slips in when her parents go forwork.25. P.W.7, Dr. Kailas Ramteke who conducted sonography of thevictim deposed, vide Exhibit 81, that on 13.10.2012 the victim wasreferred to him for sonography regarding her pregnancy. It was found thatshe is pregnant and that there was a single foetus. Fetal age wasascertained to be 18 weeks and 5 days plus minus 10 days; therefore, hegave his opinion marked as Exhibit 82 that the foetus is 18 weeks and 5days. In cross-examination, he stated that he cannot say whether thevictim has been examined by any other doctor regarding her pregnancy.26. P.W.8, Bebitai Chavhan who was Police Patil of the village, deposed, vide Exhibit 83, that she has been a police patil since the year2021.

She knows the family of the victim and that the victim is mentallyweak. When asha workers were conducting a leprosy survey in the village, they came to her and reported that the victim's mother has quarrelledwith them and asked her to come to the victim's house. Upon reachingher house, they found that the victim was vomiting and on asking hermother, she told them that the victim has acidity. The police patil told the Sknair 19/46apeal-274-24 .odtmother that there was a medical camp in the village the next day. She doesnot know if the victim was taken to the camp or not. The next day, duringthe meeting, many villagers had gathered. In the meeting, when thevictim was asked about the pregnancy, she pointed to the accused and saidthat he visited her house for watching films and bought her chocolates. The accused showed readiness to maintain the victim. The next day of themeeting, the victim's parents lodged a complaint in the police station.

Incross-examination, she stated that she has been a police patil from 1996 to2016. The medical camp in the anganwadi was a day earlier than themeeting which she had not attended. She stated that she does not knowwho called the village meeting, which is a contradiction from thedeposition given by the asha worker.27. P.W.9, Dr. Vivek Karale who examined the victim at GMCAkola, deposed, vide Exhibit 85, that on 12.10.2012, he examined thevictim and found her to be pregnant from 18-20 weeks. He advisedsonography for confirmation of age and referred back to the CMO. HisOPD case paper with his findings is at Exhibit 86. Sknair 20/46apeal-274-24 .odt28. P.W.10, Dr. Vikrant Lohakare, Medical Officer, GMC Akola, deposed, vide Exhibit 89, that on 12.10.2012, he referred the victim tothe gynecological department. The victim was positive for urinepregnancy test which was personally conducted by him and Dr. Karaleand his team examined her.

He recorded the history as was given by themother and relatives of the victim – repeated sexual assault four monthsago, missing periods since four months, no major illness. His findingswere – the victim was physically well developed for sexual intercourse; considering her pregnancy, her history is positive for suggestive sexualassault on her; foetus age was 18-20 weeks, which were recorded in hisopinion paper, marked as Exhibit 90. 29. P.W.11, Sanjay Sheshrao Adhau, API, Manora Police Station, deposed, vide Exhibit 91, that on 11.10.2012, the victim's mother lodgedan oral report and stated that the victim was 14 years of age and mentallyweak. Asha workers revealed to her that her daughter is pregnant andupon asking the victim, she told that the accused has had sexual relationswith her. He reduced the report into writing at Exhibit 46. Thereafter, Crime No. 72/2012 under Section 376 of the IPC was registered withFIR at Exhibit 47.

Regarding the spot of incident, he stated that the houseSknair 21/46apeal-274-24 .odtwas facing north, with a hall measuring 12 x 18 sq. ft., and the kitchen inthe hall itself. There was a wooden cot adjacent to the kitchen where theparents of the victim said that the accused did sexual intercourse with her. Accordingly, he prepared the spot panchnama marked as Exhibit 92. Herecorded the statement of the interpreter who asked questions to thevictim. The victim told her that she is pregnant from the accused. TheAPI arrested the accused and referred both the victim and the accused formedical examination. He collected their samples and medical reports. Heseized these samples in the presence of the panchas and prepared seizurepanchnamas marked as Exhibits 95 and 96 accordingly. He recorded thestatements of the witnesses. In cross-examination, he stated that he didnot make any investigation about the exact date of the incident.

He didnot mention the year in the statement of the informant. He did not makeany investigation about the age of the victim. He did not give writtenrequisition to the panchas. He denied deposing falsely or that a falsecharge-sheet is filed against the accused or that proper investigation hasnot been done.30. P.W.12, Ketki Alkeshrao Vidhale (Psychologist), deposed, videexh. 102, that she has been working in Shri Gajanan Maharaj MatimandSknair 22/46apeal-274-24 .odtNiwasi Vidyalaya, Karanja-Lad as a psychologist since 2012. On07.12.2023, police gave her summons for recording the statement of thevictim marked as Exhibit 103. On 08.12.2023 she went to Manora policestation with special teacher Pranjali Deshmukh. Police then took her tothe victim's house in Mahuli. The victim was sitting in a temple. Thepsychologist tried talking to her but the victim was not ready to talk. Aftersome time, when the psychologist asked her again, she told her name.

When the psychologist asked her the names of her parents, she told hermother's name only. When asked if she knows the accused, or anythingelse about him, she replied nothing. The psychologist collected threephotographs of three persons from her parents and showed those to thevictim one by one. She did not react to the first two photographs butwhen she saw the photograph of the accused, her facial expressionschanged. She was scared and she bowed her head. When asked repeatedlyif she knows the person in the photograph, after some time she only said,"Bandhi Buva". When asked by the psychologist what Bandhi Buva doeswith her, she replied that he gives "thums up". The psychologistrepeatedly asked what he does after giving thums up. The victim, after along pause, looks at her, then at the wooden cot kept there and hermother and goes silent. Despite repeatedly asking her, she repliedSknair 23/46apeal-274-24 .odtnothing, nor raised her head.

In cross-examination, she stated that shehad stated before the police that the victim was scared. She admitted theomission that three photographs were showed to the victim and that shewas scared on seeing the photograph of the accused in her policestatement. She stated that she cannot assign any reasons as to why this wasomitted.31. P.W.13, Pravin Uttamrao Shinde, P.I. Manora Station, deposed, vide Exhibit 106, that he is attached to Manora Station from10.09.2023. On 04.12.2023, he received a court order to record thevictim's statement in this case. When he found out that the victim wasmentally retarded, he requested Shri Gajanan Maharaj Matimand NiwasiVidyalaya, Karanja-Lad to make available a psychologist for recording thestatement. The school sent over Ketki ma'am. Both he and Ketki ma'amwent to the village of the victim where he found the victim sitting in atemple adjacent to her house. They brought the witness to her housewhere the psychologist asked her questions.

He was standing in thecourtyard and could hear the psychologist and the victim clearly. Hecorroborated that when three photographs were shown to the victim, shedid not react to the first two but when the accused's photograph was Sknair 24/46apeal-274-24 .odtshown to her, she was scared and her expressions suddenly changed. Thevictim said that the person in the photo which scared her is Bandhi Buva. When the psychologist asked what did Bandhi Buva do to her or if hegave chocolates or biscuits, the victim replied nothing. But when thepsychologist asked if he gave her "thums up", the victim nodded in theaffirmative. When the psychologist asked what the accused did with her, she said nothing, simply looked at her mother and a wooden cot lyingthere and bowed her head down. In cross-examination, he stated that thepsychologist had not asked the victim if she knows what a "thums up" is, nor what a "bandhi buva" is.

He further stated that the psychologist in herstatement to the P.I. had not stated that she had shown three photographsto the victim or that the victim was scared.32. This Court has undertaken a comprehensive evaluation of theoral and documentary evidence placed on record. This Court thenproceeds to analyse the evidentiary value of the same in the context of thecharges alleged against the accused.33. At the outset, it is pertinent to note that the victim in thepresent case is a mentally challenged individual who was approximately14 years of age at the time of the incident. This fact stands undisputed on Sknair 25/46apeal-274-24 .odtrecord. The accused himself, through his counsel, has not challenged thevictim's mental condition. The prosecution witnesses, particularly PW-1(the victim's mother), PW-2 (the victim's father), PW-5 (Asha worker),and PW-8 (Police Patil) have consistently deposed that the victim hasbeen mentally retarded since birth.

This is a foundational fact.34. Under the Indian Penal Code, a mentally challenged person isincapable of giving valid consent to sexual intercourse. The lawrecognizes that such individuals lack the mental capacity to understandthe nature and consequences of the act. Therefore, any sexual intercoursewith a mentally challenged person, regardless of whether there wasapparent acquiescence, constitutes rape under Section 376 of the IPC.This legal principle is well-established and forms the bedrock of theprosecution's case.35. While the learned counsel for the appellant has sought tohighlight minor contradictions in the testimonies of prosecution witnessesregarding peripheral details such as the exact number of persons presentat the village meeting (whether five persons or 200-400 persons), this Court notes that the core allegations remain consistent throughout. Thevictim consistently identified the accused as the perpetrator - first to herSknair 26/46apeal-274-24 .odtmother (PW-1) when questioned about her pregnancy, then during thevillage panchayat meeting, subsequently to the interpreter (PW-6) at thepolice station, and finally, albeit in limited manner, to the psychologist(PW-12) eleven years later when she identified the accused's photographand showed visible fear and distress.36.

The fundamental narrative - that the accused would visit thevictim's house during her parents' absence, give her chocolates or "thumsup", and commit sexual acts with her - remains unshaken. Thisconsistency is particularly significant given the victim's mental condition. Minor variations in peripheral details by different witnesses regardingcircumstances cannot be deemed sufficient to discredit the entireprosecution case, especially when the crux of the allegations standscorroborated by multiple independent sources.37. The medical evidence in this case establishes beyond doubtthat the victim was pregnant at the relevant time. PW-5 (Asha worker)first suspected the pregnancy during a routine survey. This suspicion wassubsequently confirmed through a pregnancy test at the anganwadimedical camp. PW-7 (Dr. Kailas Ramteke) conducted sonography on13.10.2012 and ascertained that the victim was carrying a single foetus of Sknair 27/46apeal-274-24 .odt18 weeks and 5 days (plus minus 10 days).

PW-9 (Dr. Vivek Karale)independently examined the victim on 12.10.2012 and found her to be18-20 weeks pregnant. PW-10 (Dr. Vikrant Lohakare) corroborated thisfinding and recorded a history of repeated sexual assault four monthsprior. The pregnancy itself is, therefore, an established and irrefutable fact.38. A significant piece of evidence in this case is the allegedadmission made by the accused during the village panchayat meeting. According to PW-5 (Asha worker Bebitai Pande), when confronted in themeeting and asked whether the victim's allegations were true, the accusedinitially denied but subsequently admitted that he went to the victim'shouse to watch "english movies" and that the victim is pregnant fromhim. He showed readiness to maintain the victim.39. While the learned counsel for the appellant has sought tocharacterize this as a weak extra-judicial confession lacking corroborationand voluntariness, this Court finds this submission unpersuasive forseveral reasons.

First, the admission was made in a public gatheringattended by numerous villagers, the Sarpanch, and the Police Patil. Thevery public nature of the admission lends credibility to it. Second, PW-5'stestimony regarding this admission is clear and categorical. Third, whileSknair 28/46apeal-274-24 .odtPW-1 and PW-2 may not have explicitly mentioned this confession intheir depositions, this omission can be explained by the fact that they mayhave focused on narrating the victim's identification of the accused ratherthan his subsequent admission. The absence of mention is not the same ascontradiction. Fourth, PW-8 (Police Patil) has corroborated that theaccused showed readiness to maintain the victim during the meeting, which is consistent with an acknowledgment of responsibility. It is a well-established principle of evidence law that to exclude the admissibility of aconfession made before a person, he must be a police officer.

The samewas held by the Supreme Court in the case of Sivakumar. Vs State (2006 1SCC 714). The paragraph 41 of the case reads as under:

41. A Village Administrative Officer does not answer thedescription. While carrying out his duty to inform the police orthe Magistrate in terms of Section 40 of the Code, the VillageHeadman does not act as a public servant removable only by orwith the sanction of the local government, nor does he act in hiscapacity as Magistrate. It is pertinent to acknowledge that theextra-judicial confession by the accused before the VillageAdministrative Officer was not inadmissible and, thus, could berelied upon

The argument that this confession was not voluntary or was obtainedunder threat or inducement finds no support in the evidence. There isnothing on record to suggest that the accused was coerced or threatenedduring the panchayat meeting. The meeting was convened to ascertainSknair 29/46apeal-274-24 .odtthe truth, and the accused's statement appears to have been a response tothe victim's direct identification of him in front of the entire village.

Theaccused was not in police custody at that time, nor is there any evidenceof any inducement being offered to him.40. The learned counsel for the appellant has placed considerableemphasis on the absence of DNA evidence to establish paternity of thefoetus. While this Court acknowledges that DNA evidence would havebeen conclusive, its absence cannot be deemed fatal to the prosecution'scase, particularly in the circumstances of this case. First, the incident occurred in 2012 in a rural setting. DNA testing, while available, was not as routinely conducted in such cases as it may betoday, particularly in cases involving mentally challenged victims fromeconomically disadvantaged backgrounds. Second, and more importantly, the foetus was medically terminatedon the same day the victim was brought to the hospital (12.10.2012), asevidenced by the OPD paper at Exhibit 86. The termination wasnecessary given the victim's age, mental condition, and the advancedstage of pregnancy.

In such emergent circumstances, preserving fetaltissue for DNA testing may not have been the foremost consideration. Sknair 30/46apeal-274-24 .odtThird, the absence of DNA evidence must be viewed in the contextof the totality of the evidence available. The victim has consistentlyidentified the accused. The accused himself allegedly admitted to hisresponsibility during the village meeting. The medical evidenceestablishes that the victim was repeatedly sexually assaulted over a periodof time, resulting in pregnancy. The investigating officer recorded thestatement of an interpreter who had conversed with the victim, and thevictim named the accused. In such circumstances, the absence of DNAevidence creates, at best, a gap in the evidence, but not a gap so wide as tocreate reasonable doubt about the accused's guilt.41. The learned counsel for the appellant has criticized theprosecution for not recording the victim's statement under Section 161CrPC during the initial investigation in 2012, and for subsequentlyseeking to record her statement through a psychologist in 2023 under Section 311 CrPC. While this Court notes these procedural irregularities, they must be placed in proper perspective.

The victim in this case is severely mentally challenged. Theinvestigating officer (PW-11) has clearly deposed that he attempted torecord the victim's statement but could not do so due to her mentalSknair 31/46apeal-274-24 .odtinability. In such circumstances, he did the next best thing available - herecorded the statement of an interpreter (PW-6) who had conversed withthe victim. The interpreter's testimony clearly establishes what the victimcommunicated about the accused. The subsequent attempt in 2023 to record the victim's statementthrough a trained psychologist was a bona fide effort to strengthen theprosecution's case and give the victim an opportunity to depose. The factthat this was done after eleven years does not automatically vitiate theevidence. The psychologist's testimony (PW-12) and the PoliceInspector's corroboration (PW-13) provide valuable insight into thevictim's continued recognition of and fear of the accused, even after thepassage of considerable time.42.

The learned counsel has sought to make much of the allegeddelay in lodging the FIR. According to the prosecution witnesses, thevictim's pregnancy was discovered around 05.10.2012 during a leprosysurvey by Asha workers. The panchayat meeting was held around11.10.2012, and the FIR was lodged on 11.10.2012 (as per PW-11'stestimony). However, PW-2 has stated that the police report was lodgedSknair 32/46apeal-274-24 .odtone month after the panchayat meeting, which would be in November2012.Even assuming there was some delay, such delay is entirelyexplicable in the facts and circumstances of this case. The victim's familylived in a rural village. The victim was mentally challenged. Upondiscovering the pregnancy, the natural first response of the parents wasshock and the need to confirm the pregnancy through proper medicalexamination. The mother took the victim to her sister's place and then toa hospital in Washim.

After confirmation, they returned to the village. Apanchayat meeting was then convened - which is entirely consistent withrural practices where community elders are first approached to resolvematters before police involvement. Only after the panchayat meeting, where the accused allegedly admitted his responsibility but no satisfactoryresolution was reached, did the family approach the police. This sequence of events demonstrates not suspicious delay, butrather the natural progression of a rural family's response to a traumaticsituation involving their mentally challenged daughter. There is noevidence to suggest that the delay was used to fabricate evidence orconcoct a false case. Sknair 33/46apeal-274-24 .odt43. The learned counsel has sought to discredit the testimonies ofPW-1 and PW-2 (the victim's parents) by pointing to contradictionsregarding the number of persons present at the panchayat meeting andthe exact timeline of events.

While minor contradictions exist, theypertain to peripheral details and not to the core of the allegations. It iswell-settled in law that minor inconsistencies in testimonies are naturaland do not render the entire testimony unworthy of credence. Indeed, testimonies that are perfectly consistent in every minute detail oftenarouse suspicion of being tutored or fabricated.44. What remains consistent throughout is that: (i) the victim wasfound to be pregnant; (ii) upon inquiry, she identified the accused asresponsible; (iii) a panchayat meeting was held where she again identifiedthe accused; (iv) the accused allegedly admitted to his responsibilityduring the meeting; and (v) an FIR was subsequently lodged. These corefacts find corroboration from multiple independent witnesses includingthe Asha worker (PW-5), the Police Patil (PW-8), and the interpreter(PW-6).45. Upon a holistic appreciation of the evidence, this Court findsthat the prosecution has established a cogent and credible case against the Sknair 34/46apeal-274-24 .odtaccused.

The victim, though mentally challenged, has consistentlyidentified the accused. The medical evidence irrefutably establishes thatshe was sexually assaulted and made pregnant. The accused's ownconduct, including his alleged admission during the village panchayatmeeting and his offer to maintain the victim, points to his guilt. Theabsence of DNA evidence, while regrettable, is not fatal given thestrength of the other evidence. The procedural irregularities in recordingthe victim's statement are understandable given her mental condition anddo not vitiate the prosecution's case.46. The learned counsel for the appellant has placed reliance oneleven case laws and submitted a compendium highlighting relevantparagraphs. This Court has carefully examined each of these authoritiesand finds that none of them support the appellant's contentions in thefacts and circumstances of the present case.47. The learned counsel for the appellant contends that theprosecution's case depends solely on oral hearsay and circumstantialevidence, and that in such cases, the prosecution must establish acomplete and unbroken chain of circumstances.

To support thiscontention, reliance has been placed on the decision of the Hon'bleSknair 35/46apeal-274-24 .odtSupreme Court in State of Haryana v. Jasbir Singh (1996 Cri. LJ 2545).This reliance is wholly misplaced. The present case is not built solely on circumstantial evidence oruncorroborated oral testimony. The prosecution has adduced directmedical evidence from multiple independent doctors who confirmedpregnancy at approximately 18 weeks with sonographic corroboration offoetal age, which aligns with the timeline of events narrated by theprosecution witnesses. PW-7 (Dr. Kailas Ramteke) conducted sonographyand ascertained the foetal age to be 18 weeks and 5 days. PW-9 (Dr.Vivek Karale) independently examined the victim and found her to bepregnant from 18 weeks. PW-10 (Dr. Vikrant Lohakare) corroboratedthese findings and recorded a history of repeated sexual assault fourmonths prior. This medical evidence is not circumstantial – it is direct, objective, and clinically established.

This medical evidence is further supplemented by substantialdocumentary materials including the spot panchnama (Exhibit 92) andseizure documents (Exhibits 95 and 96). The victim's identification ofthe accused at the village panchayat meeting attended by numerousvillagers including the Sarpanch and Police Patil, and the accused's ownadmission during that meeting of having visited the victim's house alongSknair 36/46apeal-274-24 .odtwith his stated readiness to maintain her, constitute direct evidencepointing to his guilt. Crucially, given the victim's mental vulnerability, specializedprocedures were employed to ensure the reliability of her statements. Apsychologist (PW-12) was engaged to facilitate communication with thevictim, and photographic identification was conducted, which wascorroborated by the police officer (PW-13). The victim's fearful reactionupon seeing the accused's photograph, her identification of him as"Bandhi Buva", and her non-verbal communication by looking at thewooden cot where the offence was committed, all constitute directevidence of recognition and trauma.

Unlike cases where conviction rests on a broken chain of purelycircumstantial evidence, the present matter is fortified by a robustevidentiary matrix combining direct medical testimony, documentaryrecords, physical evidence, testimonial evidence from multipleindependent witnesses, and expert-facilitated validation of a vulnerablewitness's account. The ratio in Jasbir Singh pertains to cases where theprosecution relies entirely on circumstantial evidence without directproof. That is manifestly not the situation in the present case. Sknair 37/46apeal-274-24 .odtAccordingly, this authority is distinguishable on facts and does not assistthe appellant.48. The learned counsel for the appellant has cited three cases tocontend that the foetus, before being medically terminated, should havebeen subjected to DNA testing to prove that it was the accused's child, and that the absence of such DNA evidence must favour the accused.

These cases are: (i) Krishnan Kumar Malik v. State of Haryana (AIR 2011SC 2877) (paragraphs 45-47); (ii) Rajendra Pralhadrao Wasnik v. State of Maharashtra (AIR 2019 SC 1) (paragraphs 54-79); and (iii) DileshNishad v. State of Chhattisgarh (CRA No. 1266/19) (paragraphs 19, 20,22). The ratio decidendi in Malik pertains to the establishment ofpaternity through DNA-based biological testing derived from semensamples recovered during investigation. The Court in Malik wasconcerned with evidentiary standards where paternity was disputed andrequired scientific confirmation through DNA analysis of biologicalsamples that were available and could have been tested but were not. In the present case, the factual matrix is entirely different. There isno dispute regarding the fact that the victim was pregnant as a result ofsexual assault. The pregnancy of the victim has been medically establishedSknair 38/46apeal-274-24 .odtthrough clinical examination and sonography.

The victim's testimony, though limited due to her mental condition, has been communicatedthrough an interpreter (PW-6) and a psychologist (PW-12), and iscorroborated by the medical evidence and the testimony of multipleindependent witnesses including her parents (PW-1 and PW-2), Ashaworker (PW-5), Police Patil (PW-8), medical personnel (PW-7, PW-9, andPW-10), and the investigating officers (PW-11 and PW-13). Thesewitnesses sufficiently establish the fact of pregnancy and thecircumstances leading to the commission of the offence. More importantly, the foetus was medically terminated on12.10.2012 itself, as evidenced by the OPD paper at Exhibit 86. Thetermination was necessitated by the victim's age, her mental condition, and the advanced stage of pregnancy (18 weeks). In the emergentcircumstances prevailing at that time, preserving foetal tissue for DNAtesting may not have been practically feasible or even contemplated bythe medical personnel or the investigating officer.

The evidentiary matrix in the present case does not rest uponDNA-based paternity determination alone, but rather uponcontemporaneous medical records, direct testimony of the victimcommunicated through qualified intermediaries, consistent identificationSknair 39/46apeal-274-24 .odtof the accused by the victim on multiple occasions, and substantialcorroboration from independent sources. The ratio in Malik cannot beinterpreted to mandate DNA testing in every case involving raperesulting in pregnancy, particularly where there exists cogent testimonialand medical evidence establishing the pregnancy and the identity of theperpetrator. The Hon'ble Supreme Court has never held that in theabsence of DNA evidence, no conviction can be recorded even whenother credible evidence is available. This Court is therefore of the considered view that KrishnanKumar Malik v. State of Haryana (supra) is distinguishable on facts anddoes not govern the present case.49.

Rajendra Pralhadrao Wasnik v. State of Maharashtra (AIR 2019 SC 1) dealt with significant evidentiary gaps where DNA testingwas feasible but not conducted. Here, as aforementioned the victim'saccount is corroborated by family members, village functionaries, panchayat witnesses, and medical personnel who examined hercontemporaneously. The documentary evidence forms a consistent chain. Unlike Wasnik, this case does not involve evidentiary lacunae butpresents substantial testimonial and documentary evidence establishingSknair 40/46apeal-274-24 .odtpregnancy and identifying the perpetrator through multiple independentsources.50. Dilesh Nishad v. State of Chhattisgarh (CRA No. 1266/19) addresses vulnerable victim testimony requiring corroboration. In thepresent case, the mentally challenged minor victim is supported byextensive corroborative evidence from her parents (PW-1, PW-2), medicalwitnesses (PW-7, PW-9, PW-10), police officers (PW-11, PW-13),psychologist (PW-12), Asha worker (PW-5), and Police Patil (PW-8).

Themedical evidence establishes pregnancy through clinical examination andsonography. The victim's consistent account across different time periodswith convergence of independent testimonial and documentary evidenceprovides robust corroboration that distinguishes this case from Nishad'sevidentiary posture.51. The reliance on paragraphs 17, 19, 20 and 21 of SureshKarbhari Wadge v. State of Maharashtra (Cri. Appeal 413/2015) tocontend that PW-6 (interpreter) and PW-12 (psychologist) testimonieshold no evidentiary value is misplaced. Those paragraphs prescribecaution and corroboration precisely what the prosecution has providednot wholesale rejection. Section 118 of the Evidence Act provides that allSknair 41/46apeal-274-24 .odtpersons are competent unless prevented from understanding questions orgiving rational answers. Mental challenge does not automaticallydisqualify a witness. The investigating officer engaged PW-6, a trained teacher deputizedby her headmaster, who clearly testified what the victim communicated:the accused bought chocolates and came to her house when parents wereaway.

Subsequently, PW-12, a qualified psychologist, facilitated thevictim's identification of the accused through photographs. The victimshowed marked fear and changed expressions upon seeing the accused'sphotograph, identified him as "Bandhi Buva", and after persistentquestioning, looked at the wooden cot where the offence occurredeloquent non-verbal testimony of trauma and recognition. These testimonies form part of a comprehensive evidentiary mosaicincluding independent medical testimony, documentary evidence, andcorroborative statements from the victim's parents, Asha worker, and Police Patil. The interpreter's and psychologist's testimonies illuminatethe victim's communication within this broader framework, subjected tocross-examination and consistent with other evidence. Suresh KarbhariWadge supports this corroboration-driven assessment. Sknair 42/46apeal-274-24 .odt52. The learned counsel cites five cases - Pakala Narayan Swamiv.

Emperor (AIR 1939 PC 47); State of Rajasthan v. Rajaram (2003 Cri.LJ 3901); State of Haryana v. Rajinder Singh (1996 Cri LJ 1875);Director General, Border Security Force v. Vijender Prakash Gautam((2001) 3 MPLJ 111) and Mst. Bhagan v. State of Pepsu (1955 Cri. LJ537) - to characterize the accused's village meeting admission as weak andunreliable. These authorities mandate careful scrutiny and corroboration ofextra-judicial confessions. They do not render them per se inadmissible. Unlike cases where uncorroborated confession forms the sole basis forconviction, here the accused's admission at the public panchayat meetingis corroborated by: (i) medical testimony establishing pregnancy in aminor with gestational age compatible with the timeline; (ii) the victim'sconsistent identification of the accused across multiple occasions; (iii)documentary evidence; (iv) independent witnesses present at themeeting; and (v) expert psychological testimony regarding the victim'sfearful reaction and non-verbal trauma indicators.

Nothing suggests coercion or inducement. The meeting was acommunity inquiry before the Sarpanch, Police Patil, and villagers. TheSknair 43/46apeal-274-24 .odtaccused was not in custody. PW-5 testified he initially denied but lateradmitted visiting the victim's house to watch "english movies" and thatshe is pregnant from him, showing readiness to maintain her. Thissequence suggests voluntary statement, not duress. PW-8 corroborated hisreadiness to maintain the victim. The alignment of this admission withobjective medical findings and consistent testimonial evidence, coupledwith absence of demonstrated coercion, provides the necessarycorroboration these authorities mandate.53. The reliance on paragraph 13 of Jogi Dan & Ors. v. State of Rajasthan (2004 Cri. LJ 1726) is also misconceived. That judgmentemphasizes that delay must be satisfactorily explained and does not vitiateprosecution if evidence is credible and corroborated which supports theprosecution here.

Any delay is adequately explained by social context: the victim is amentally challenged minor; parents first sought medical confirmation atsister's place in Washim and private hospital; upon return, a panchayatmeeting was convened consistent with rural practices; the FIR was lodgedon 11.10.2012 per PW-11. Even assuming confusion in PW-2's testimonyabout exact timeline, such minor inconsistency on peripheral details doesSknair 44/46apeal-274-24 .odtnot affect the core case. In sexual assault cases involving mentallychallenged minors, some delay due to stigma and family reluctance is notuncommon. In the case of Srivalla Srinivasa Rao And Others vs. State of Andhra Pradesh (2011) 8 SCC 113 the honourable Supreme Court heldnon-recording/delay of statement, however, cannot be a ground to discardcogent and convincing evidence on record. The paragraph 9 of thejudgment reads as under :“9. It is true that there appears to be some delay in lodging the FIR but incases of rape and that too in a gangrape, some delay is inevitable.” Critically, the prosecution is independently corroborated by:medical testimony establishing pregnancy and gestational age; independent witnesses; investigative documentation; and experttestimony.

PW-1 and PW-2's credibility rests not on familial relationshipalone but on consistency in material particulars daughter's mentalcondition, pregnancy discovery, victim's identification of accused, panchayat meeting, and FIR all reinforced by this comprehensiveevidentiary matrix. Minor contradictions about peripheral details likeexact number of attendees are natural and do not discredit witnesses; perfect consistency often suggests fabrication. The principle in Jogi Dan& Ors. v. State of Rajasthan (supra) that suspicion cannot substitute proofSknair 45/46apeal-274-24 .odtactually supports the prosecution, which has proved its case beyondreasonable doubt through credible, cogent, and corroborated evidence.54. Upon a holistic appreciation of the entire evidence - oral, documentary, medical, and expert testimony - this Court is satisfied thatthe prosecution has proved its case beyond all reasonable doubt.