Bombay High Court
Nagpur Bench At Nagpur vs State Of Maharashtra on 22 December, 2025
2025:BHC-NAG:14707
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL No. 654/2023
Duragsay @ Motu s/o Jiyalal Chaudhari, : APPELLANT
Aged about 32 years,
Occupation - Labour, R/o Satona,
Tah. and District Gondia.
Vs.
State of Maharashtra, : RESPONDENT
Through Police Station Officer,
Police Station Rawanwadi,
Tah. and District Gondia.
Mr. S.S. Tambulkar, Advocate for Appellant
Mrs. S.N. Thakur, Adll.P.P. for Respondent.
CORAM : NIVEDITA P. MEHTA, J.
Date of reserving the judgment : 18.12.2025
Date of pronouncing the judgment : 22.12.2025
JUDGMENT :
The present appeal has been preferred by the appellant challenging the judgment and order dated 19.07.2023 passed by the learned Sessions Judge, Gondia, in Sessions Case No. 149 of 2021, whereby the appellant was convicted for the offence punishable under Section 376(2)(j) of the Indian Penal Code (In short "IPC") and sentenced to suffer rigorous imprisonment for fourteen years and to pay a fine of Rs.15,000/-, in default, to undergo rigorous imprisonment for six months.
2 apeal-654-2023.odt No separate punishment was imposed for the offence punishable under Section 376(2)(l) of the IPC as the punishment is same.
2. The prosecution case, in brief, is that the mother of the victim lodged a report alleging that the victim girl is a slow learner and physically handicapped. Owing to her weak physical condition, she did have regular menstrual period. Her last menstrual cycle was in the month of May 2021, and thereafter she did not menstruate. Subsequently, her abdomen started swelling, which prompted the complainant to suspect some medical issue. Accordingly, on 09.10.2021, the victim was taken to Sahyog Hospital, whereupon medical examination revealed that she was pregnant. The complainant was advised to take the victim to Bai Gangabai Stree Rugnalaya, Gondia. From there she was referred to the Government Medical College and Hospital, Nagpur.
3. After returning home, the victim was questioned as to how she had become pregnant; however, owing to intellectual disability, she was unable to respond. On 11.10.2021, the victim was taken to the Government Medical Hospital, Nagpur and was admitted on 12.10.2021. The complainant thereafter lodged a report stating that some unknown person, to satisfy his lust, had sexually assaulted her daughter, as a result of which she had become five months pregnant. The doctors advised termination of pregnancy, and consequently, the report came to be lodged.
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4. Initially, the report was lodged at Police Station Ajni, Nagpur, on 13.10.2021 against an unknown person, on the basis of which FIR No. 606 of 2021 under Section 376(2)(l) of the IPC was registered. Since the offence had occurred within the jurisdiction of Police Station Rawanwadi, the offence was re-registered as Crime No. 438 of 2021 under Section 376(2)(j)(l) of the IPC.
5. With the consent of the parents, on 19-10-2021 the pregnancy was medically terminated. The blood samples and fetus were preserved for DNA analysis. After the discharge of the victim, her statement was again recorded through a special teacher. During investigation, the statement of the victim was recorded, wherein she disclosed the name of accused as "Motu". The accused was arrested on 27.10.2021 and has remained in custody since then. Samples such as blood, nail clippings, pubic hair, vaginal swabs, and clothes of both the victim and the accused were collected and forwarded for chemical analysis. The spot panchanama was drawn and video graphed. Upon completion of investigation, a charge-sheet was filed.
6. Charges were framed against the accused vide Exh.9 under Section 376(2)(j) and (i) of the IPC. The accused pleaded not guilty (Exh.10) and claimed to be tried.
7. The prosecution examined twelve witnesses, The witnesses examined by the prosecution including PW 1 mother of the victim at Exh. P-15; PW 2 victim 4 apeal-654-2023.odt at Exh. P-20; PW 3 Sharda Ghoshiram Girhepunje, Special Teacher at Exh. P-22; PW 4 Deepakkumar s/o Radheshyam Raut, panch witness at Exh. P-23; PW 5 Khemraj s/o Tekchand Udapure, panch witness at Exh. P-30; PW 6 Dayawanti w/o Tejram Shahare, hearsay witness, at Exh. P-34; PW 7 Khemraj s/o Dulichand Bisen, spot panch witness at Exh. P-35; PW 8 Dr. Bhupendra Surajmal Ujjayankar, Medical Officer at Exh. P-37; PW 9 Vasanta s/o Pandurang Sahare, ASI, who carried the DNA Samples to C.A. Office, Nagpur, at Exh. P-42; PW 10 Dr. Pooja Jagdish Kothari, Medical Officer at Exh. P-47; PW 11 Babasaheb Ramhari Sarwade, API - Investigating Officer at Exh. P-54; and PW 12 Dr. Sneha Manu Sharma, Medical Officer at Exh. P-72. The statement of the accused under Section 313 of the Code of Criminal Procedure was recorded at Exh.75, wherein he denied the allegations and claimed false implication on account of a land dispute; however, no evidence was adduced in support of such defence.
8. Upon appreciation of the oral and documentary evidence, the trial Court held that the prosecution had proved beyond reasonable doubt that the appellant had committed rape upon a woman suffering from mental and physical disability, who was incapable of giving consent. The learned Sessions Judge observed that the offence was grave, not only against the victim but against society at large. Considering the statutory minimum punishment under Section 376(2)(j) & (l) of the IPC, the age of the accused, and the absence of 5 apeal-654-2023.odt criminal antecedents, the learned trial Court sentenced the appellant to rigorous imprisonment for fourteen years with fine, as stated above.
9. Learned Counsel for the appellant, Mr. S.S. Tambulkar, assailed the judgment on the grounds that, (i) the initial report was against an unknown person and the appellant was falsely implicated subsequently; (ii) there was an unexplained delay in recording the statement of the victim; (iii) the spot panchanama was not proved as the panch witnesses turned hostile; (iv) the victim was wrongly projected as intellectually disabled; and (v) the DNA report was unreliable due to alleged failure in establishing the chain of custody.
10. Learned Counsel for the appellant submitted that the conviction of the appellant is unsustainable in law and on facts, as the prosecution case suffers from serious infirmities. It was contended that the initial report dated 13.10.2021 was lodged against an unknown person and for several days thereafter no material was brought on record to connect the appellant with the alleged offence, which creates grave doubt about the subsequent implication of the appellant. The statement of the victim was recorded belatedly, without any plausible explanation, thereby affecting its credibility. It was further argued that the spot panchanama has not been duly proved, as the panch witnesses did not support the prosecution case and one of them was declared hostile, rendering the alleged place of occurrence doubtful. Learned Counsel also disputed the prosecution claim that the victim was intellectually disabled, contending that 6 apeal-654-2023.odt she was wrongly projected as a slow learner without cogent and reliable evidence. It was further submitted that the DNA report cannot be relied upon, as the prosecution failed to establish an unbroken chain of custody regarding the collection, preservation, and forwarding of samples for DNA analysis. According to the appellant, these lapses strike at the root of the prosecution case and, therefore, the conviction deserves to be set aside.
11. Per contra, Mrs. Sonia Thakur, learned Additional Public Prosecutor for the State supported the impugned judgment and order of conviction and submitted that the learned Sessions Judge has rightly appreciated the oral and documentary evidence on record. It was contended that the victim is a woman suffering from severe intellectual disability and physical impairment, and the medical evidence, particularly the testimony of PW-12, conclusively establishes that the victim was having 75% intellectual disability and was incapable of understanding the nature and consequences of the sexual act or of giving valid consent. The learned Addl.P.P. submitted that the delay in recording the statement of the victim stands duly explained in view of her medical condition, mental trauma, and prolonged hospitalization, and the same does not, in any manner, affect the credibility of her testimony. It was further argued that the victim has consistently and unequivocally identified the appellant as the perpetrator by referring to him as "Motu", and her testimony stands fully corroborated by the evidence of PW-1, PW-3, and other prosecution witnesses, leaving no scope for doubt. The learned Addl.P.P. submitted that merely because 7 apeal-654-2023.odt the spot panch witnesses turned hostile, the prosecution case cannot be disbelieved, particularly when the spot panchanama stands proved through the evidence of the Investigating Officer. It was further contended that the DNA report is a clinching piece of evidence which clearly establishes that the appellant is the biological father of the fetus, and the prosecution has duly proved the collection, sealing, and forwarding of samples, thereby ruling out any possibility of tampering. According to the learned Addl.P.P., there is no evidence on record to suggest any motive for false implication of the appellant, and the defence of land dispute is wholly bald and unsubstantiated. It was, therefore, submitted that the offence being grave and against the societal conscience, no interference is warranted in the well-reasoned judgment of conviction and sentence passed by the trial Court.
Appreciation of Prosecution Evidence:
12. The prosecution has examined twelve witnesses to bring home the charge against the appellant. PW-1, the mother of the victim and the informant, has deposed in clear terms about the victim's physical and intellectual disability, stoppage of menstruation, discovery of pregnancy, and subsequent medical treatment culminating in termination of pregnancy at Government Medical College and Hospital, Nagpur. Her testimony establishes the foundational facts regarding the victim's condition, pregnancy, and the lodging of the report.
Though PW-1 admitted in cross-examination that initially the victim did not disclose the name of the accused, such conduct is natural considering the 8 apeal-654-2023.odt victim's severe intellectual disability, mental trauma, and hospitalization. PW-1 has consistently stated that subsequently the victim disclosed the name of "Motu" as the perpetrator. Nothing material has been elicited to discredit her testimony or to suggest false implication.
13. PW-2, the victim herself, has categorically deposed that the accused Motu came to her house in the absence of family members, dragged her to his house, removed her clothes, and committed sexual intercourse with her on more than one occasion. During her examination-in-chief, she specifically identified the accused in Court. The Court also noted her conduct of muttering to herself and difficulty in responding during cross-examination, which corroborates the medical evidence regarding her intellectual disability. The contradictions brought on record in her cross-examination, including her occasional denial or non-response, are not of such nature as to discard her testimony in entirety. The law is well-settled that the evidence of a mentally challenged victim must be appreciated with sensitivity and realism, and minor inconsistencies cannot be equated with falsehood.
14. PW-3, the Special Teacher, is an independent and competent witness with specialized training and long experience in dealing with slow learner persons. She has deposed that the statement of the victim was recorded by taking her into confidence, and that the victim narrated the incident clearly, naming the 9 apeal-654-2023.odt accused Motu as the person who took her to his house, removed her clothes, and slept on her person. The statement was video graphed and reduced into writing. Nothing substantial has been brought on record to doubt the credibility of this witness or to show that the statement was tutored or dictated by police.
15. PW-4, PW-5, and PW-7, the panch witnesses, have supported the prosecution to the extent of seizure of memory cards containing the video- recorded statements and preparation of the spot panchanama Even though PW- 5 made certain admissions regarding procedural aspects, he has ultimately admitted that the spot shown was correct and that the contents of the spot panchanama were true. It is well settled that minor inconsistencies or partial hostility of panch witnesses do not demolish the prosecution case when substantive evidence otherwise inspires confidence.
16. PW-6, an independent witness acquainted with the family, has corroborated the fact that the victim was pregnant and that she was taking the name of "Motubhaiya". Though she admitted that the victim did not disclose the name in her presence, such admission rather fortifies the prosecution case that the disclosure was gradual and consistent with the victim's mental condition.
17. The medical and forensic evidence forms a strong corroborative chain. PW-8, the Medical Officer, has proved the collection of DNA samples of the accused and his potency test, opining that the accused was capable of 10 apeal-654-2023.odt performing sexual intercourse. PW-9 has conclusively established the safe custody and forwarding of sealed DNA samples of both the victim and the accused to the forensic laboratory, thereby proving the chain of custody beyond doubt.
18. PW-10, the Gynaecologist from Government Medical College, Nagpur, has deposed regarding the termination of pregnancy, preservation of the abortus, placenta, cord blood, and maternal blood samples, and handing over the same to police in sealed condition. Her testimony clearly establishes compliance with medical and forensic protocol.
19. PW-11, the Investigating Officer, has meticulously detailed the course of investigation, including recording of statements through Special Teachers, collection of medical records, seizure of electronic evidence, arrest of the accused, and forwarding of samples for DNA analysis. Despite extensive cross- examination, no material contradiction or illegality has been demonstrated to vitiate the investigation.
20. Most crucially, PW-12, the Psychiatrist, has proved the disability certificate showing that the victim suffers from 75% severe intellectual disability. He has opined that despite such disability, the victim was capable of recollecting and narrating events. This evidence conclusively establishes that the victim was 11 apeal-654-2023.odt incapable of giving valid consent and brings the case squarely within the ambit of Section 376(2)(j) and (l) of the IPC.
Analysis and Findings
21. This Court has carefully considered the rival submissions advanced by learned Counsel for the appellant and learned Additional Public Prosecutor for the State and has meticulously scrutinized the entire evidence on record. In an appeal against conviction, the duty of the appellate Court is to re-appreciate the evidence to ascertain whether the findings recorded by the trial Court are perverse, contrary to the material on record, or vitiated by misapplication of legal principles.
22. At the outset, the foundational facts, namely the victim's pregnancy, her severe intellectual disability, termination of pregnancy, and preservation of biological samples, stand firmly established through unimpeached medical evidence. The testimony of PW-1, the mother of the victim, inspires confidence and establishes the sequence of events leading to discovery of the offence. Merely because the initial report was lodged against an unknown person does not render the prosecution case doubtful. It is well settled that in cases involving victims with intellectual disability, delayed disclosure or initial inability to name the assailant is a natural human conduct and cannot be construed as a circumstance fatal to the prosecution.
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23. The principal contention of the defence regarding delayed recording of the victim's statement has been considered in light of the peculiar facts of the case. The record reveals that the victim was under continuous medical care at Nagpur, was suffering from severe intellectual disability, and was in a mentally disturbed state. The Investigating Officer, therefore, acted with due caution by recording the statement through Special Teachers. Such delay, being adequately explained, cannot be termed as deliberate or suspicious. On the contrary, it reflects procedural sensitivity.
24. The testimony of the victim (PW-2), though subjected to searching cross- examination, remains materially intact. The Court is conscious that the victim exhibited hesitation, muttering, and occasional inconsistency. However, these features cannot be read in isolation or treated as contradictions in the strict sense. The law mandates that the testimony of a witness suffering from mental disability must be assessed with empathy and practical wisdom rather than with pedantic rigidity. Her categorical assertion during examination-in-chief, coupled with dock identification, constitutes substantive evidence. The occasional denial or silence during cross-examination is consistent with her established mental condition and does not discredit her version.
25. Significant corroboration to the victim's testimony is provided by PW-3, the Special Teacher, whose evidence is independent, professional, and reliable. The defence suggestion that the statement was recorded at the instance of 13 apeal-654-2023.odt police has been categorically denied and remains unsubstantiated. The video graphed statement further strengthens the credibility of this evidence.
26. The argument that the spot panchanama is vitiated due to alleged hostility or procedural lapses is equally devoid of merit. It is settled law that the evidence of the Investigating Officer can be relied upon to prove a panchanama when panch witnesses partly resile, provided the evidence otherwise inspires confidence. In the present case, PW-5 and PW-7 have admitted the correctness of the spot and contents of the panchanama, and there is no material contradiction to discard the same.
27. The medical and forensic evidence forms an unbroken chain pointing unerringly towards the guilt of the appellant. The evidence of PW-8, PW-9, and PW-10 establishes beyond doubt that the biological samples of the victim, fetus, and appellant were properly collected, sealed, preserved, and forwarded for DNA analysis. The defence has failed to demonstrate any actual break in the chain of custody or any possibility of tampering. Merely pointing out minor omissions regarding documentation of sealing methods or quantity of samples does not render the DNA report unreliable, particularly when the defence has not suggested any prejudice caused thereby.
28. The DNA report assumes paramount importance in the present case. It conclusively establishes that the appellant is the biological father of the fetus 14 apeal-654-2023.odt aborted from the victim. DNA evidence is regarded as the most accurate scientific evidence available and, in the absence of any cogent challenge, constitutes clinching proof of sexual intercourse between the appellant and the victim. This evidence alone decisively connects the appellant with the crime.
29. The psychiatric evidence of PW-12 further seals the issue. The disability certificate, issued much prior to the incident, conclusively proves that the victim was suffering from 75% severe intellectual disability. The expert opinion that such a person is incapable of giving informed consent brings the case squarely within the aggravated form of rape under Section 376(2)(j)(l) of the IPC. The contention that the certificate does not mention exact IQ level is of no consequence, as the statutory requirement is the existence of intellectual disability, not numerical precision.
30. The defence theory of false implication due to alleged land dispute has been rightly rejected by the learned trial Court. No documentary or oral evidence has been adduced to establish such animosity. In the absence of any motive, it is wholly improbable that the family of the victim would falsely implicate the appellant in a grave offence involving social stigma and personal trauma.
15 apeal-654-2023.odt Reliance on Judicial Precedents:
31. The principles applied by this Court are well supported by settled law.
The Hon'ble Supreme Court in Chaman Lal v. State of H.P., (2020) 17 SCC 69 , while considering a case of rape committed upon woman suffering from intellectual disability, affirmed the conviction of the accused under Section 376 and 506 of the IPC. Para 19 of the said judgment reads thus :
"19. Even as per clause fifthly of Section 375 IPC, "a man is said to commit rape", if with her consent when, at the time of giving such consent, by reason of unsoundness of mind, is unable to understand the nature and consequences of that to which she gives consent. As observed hereinabove, even it is not the case on behalf of the accused that it was a case of consent. On evidence, it has been established and proved that the victim was mentally retarded and her IQ was 62 and she was not in a position to understand the good and bad aspect of sexual assault. The accused has taken disadvantage of the mental sickness and low IQ of the victim."
32. As regards forensic evidence, the Hon'ble Supreme Court in Mukesh and another v. State (NCT of Delhi), (2017) 6 SCC 1, has held that DNA evidence is a scientifically accurate and reliable piece of evidence and, when properly collected and proved, is sufficient to conclusively establish the guilt of the accused. The relevant paragraphs 216 to 228 is reproduced below:
"216. DNA technology as a part of Forensic Science and scientific discipline not only provides guidance to investigation but also supplies the court accrued information about the tending features of identification of criminals. The recent advancement in modern biological research has regularised Forensic Science resulting in radical help in the administration of justice. In our country also like several other developed and developing countries, DNA evidence is being increasingly relied upon by courts. After the amendment in the Criminal Procedure Code by the insertion of Section 53-A by Act 25 of 2005, DNA profiling has now become a part of 16 apeal-654-2023.odt the statutory scheme. Section 53-A relates to the examination of a person accused of rape by a medical practitioner.
217. Similarly, under Section 164-A inserted by Act 25 of 2005, for medical examination of the victim of rape, the description of material taken from the person of the woman for DNA profiling is a must. Section 53-A sub-section (2) as well as Section 164-A sub-section (2) are to the following effect:
"53-A. Examination of person accused of rape by medical practitioner(1)*** (2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely-
(i) the name and address of the accused and of the person by whom he was brought,
(ii)the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail. 164-A. Medical examination of the victim of rape-(1)*** (2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely-
(i) the name and address of the woman and of the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail."
218. This Court had the occasion to consider various aspects of DNA profiling and DNA reports. K.T. Thomas, J. in Kamti Devi v. Poshi Ram (SCC p.316 para 10) "10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. ..."
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219. In Pantangi Balarama Venkata Ganesh v. State of A.P., a two-Judge Bench had explained as to what is DNA in the following manner : (SCC pp. 617-18, paras 41-42) "41. Submission of Mr Sachar that the report of DNA should not be relied upon, cannot be accepted. What is DNA? It means:
'Deoxyribonucleic acid, which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting, identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred per cent precise, experts opine.' There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high molecular weight DNA, complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See article of Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA profiling and its applications.) But in this case there is nothing to show that such precautions were not taken.
42. Indisputably, the evidence of the experts is admissible in evidence in terms of Section 45 of the Evidence Act, 1872. In cross- examination, PW 46 had stated as under:
'If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population.' "
220. In Santosh Kumar Singh v. State, which was a case of a young girl who was raped and murdered, the DNA reports were relied upon by the High Court which were approved by this Court and it was held thus : (Santosh Kumar case, SCC p. 772, para 71) "71. We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out against the two experts who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Devi v. Poshi Ram. In arriving at its conclusions the trial court was also influenced by the fact that the semen swabs and slides and the blood samples of the appellant had not been kept in proper custody and had been tampered with, as already indicated above. We are of the opinion that the trial court was in error on this score. We, accordingly, endorse the conclusions of the High Court on Circumstance 9."
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221. In Inspector of Police v. John David, a young boy studying in MBBS course was brutally murdered by his senior. The torso and head were recovered from different places which were identified by the father of the deceased. For confirming the said facts, the blood samples of the father and mother of the deceased were taken which were subjected to DNA test. From the DNA, the identification of the deceased was proved. Para 60 of the decision is reproduced below : (SCC p. 528) "60. ... The said fact was also proved from the DNA test conducted by PW 77. PW 77 had compared the tissues taken from the severed head, torso and limbs and on scientific analysis he has found that the same gene found in the blood of PW 1 and Baby Ponnusamy was found in the recovered parts of the body and that therefore they should belong to the only missing son of PW 1."
222. In Krishan Kumar Malik v. State of Haryana, in a gang rape case when the prosecution did not conduct DNA test or analysis and matching of semen of the appellant-accused with that found on the undergarments of the prosecutrix, this Court held that after the incorporation of Section 53-A in CrPC, it has become necessary for the prosecution to go in for DNA test in such type of cases. The relevant paragraph is reproduced below : (SCC p. 140, para 44) "44. Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f 23-6-2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in CrPC the prosecution could have still restored to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences."
223. In Surendra Koli v. State of U.P. , the appellant, a serial killer, was awarded death sentence which was confirmed by the High Court. While confirming the death sentence, this Court relied on the result of the DNA test conducted on the part of the body of the deceased girl. Para 12 is reproduced below : (Surendra Koli case SCC p. 84) "12. The DNA test of Rimpa by CDFD, a pioneer institute in Hyderabad matched with that of blood of her parents and brother. The doctors at Aiims have put the parts of the deceased girls which have been recovered by the doctors of Aiims together. These bodies have been recovered in the presence of the doctors of Aiims at the 19 apeal-654-2023.odt pointing out by the accused Surendra Koli. Thus, recovery is admissible under Section 27 of the Evidence Act."
224. In Mohd. Ajmal Amir Kasab v. State of Maharashtra, the accused was awarded death sentence on charges of killing large number of innocent persons on 26-11-2008 at Bombay. The accused with others had come from Pakistan using a boat "Kuber" and several articles were recovered from "Kuber". The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA test and the DNA test matched with several accused. The Court observed : (SCC p. 125, para
333) "333. It is seen above that among the articles recovered from Kuber were a number of blankets, shawls and many other items of clothing. The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA profiling and, excepting Imran Babar (deceased Accused 2), Abdul Rahman Bada (deceased Accused
5), Fahadullah (deceased Accused 7) and Shoaib (deceased Accused
9), the rest of six accused were connected with various articles found and recovered from Kuber. The appellant's DNA matched the DNA profile from a sweat stain detected on one of the jackets. A chart showing the matching of the DNA of the different accused with DNA profiles from stains on different articles found and recovered from the Kuber is annexed at the end of the judgment as Schedule III."
225. In Sandeep v. State of U.P. , the facts related to the murder of pregnant paramour/girlfriend and unborn child of the accused. The DNA report confirmed that the appellant was the father of the unborn child. The Court, relying on the DNA report, stated as follows : (SCC p. 133, para 67) "67. In the light of the said expert evidence of the Junior Scientific Officer it is too late in the day for the appellant Sandeep to contend that improper preservation of the foetus would have resulted in a wrong report to the effect that the accused Sandeep was found to be the biological father of the foetus received from the deceased Jyoti. As the said submission is not supported by any relevant material on record and as the appellant was not able to substantiate the said argument with any other supporting material, we do not find any substance in the said submission. The circumstance, namely, the report of DNA in having concluded that accused Sandeep was the biological father of the recovered foetus of Jyoti was one other relevant circumstance to prove the guilt of the said accused."
226. In Rajkumar v. State of M.P., the Court was dealing with a case of rape and murder of a 14-year-old girl. The DNA report established the presence of semen of the appellant in the vaginal swab of the prosecutrix.
20 apeal-654-2023.odt The conviction was recorded relying on the DNA report. In the said context, the following was stated : (SCC pp. 357-58, para 8) "8. The deceased was 14 years of age and a student in VIth standard which was proved from the school register and the statement of her father Iknis Jojo (PW1). Her age has also been mentioned in the FIR as 14 years. So far as medical evidence is concerned, it was mentioned that the deceased prosecutrix was about 16 years of age. So far as the analysis report of the material sent and the DNA report is concerned, it revealed that semen of the appellant was found on the vaginal swab of the deceased. The clothes of the deceased were also found having the appellant's semen spots. The hair which were found near the place of occurrence were found to be that of the appellant."
227. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, the appellant, father of the child born to his wife, questioned the paternity of the child on the ground that she did not stay with him for the last two years. The Court directed for DNA test. The DNA result opined that the appellant was not the biological father of the child. The Court also had the occasion to consider Section 112 of the Evidence Act which raises a presumption that birth during marriage is conclusive proof of legitimacy. The Court relied on the DNA test holding the DNA test to be scientifically accurate. The pertinent observations are extracted below : (SCC pp. 586-87, paras 19-20) "19. The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardised as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice.
20. As regards the authority of this Court in Kamti Devi, this Court on appreciation of evidence came to the conclusion that the husband had no opportunity whatsoever to have liaison with the wife. There was no DNA test held in the case. In the said background i.e. non-access of the husband to the wife, this Court held that the result of DNA test "is not enough to escape from the conclusiveness of Section 112 of the Act". The judgment has to be understood in the factual scenario of the said case. The said judgment has not held that DNA test is to be ignored. In fact, this Court has taken note of the fact that DNA test is scientifically accurate. We hasten to add that in none of the cases referred to above, this Court confronted with a situation in which a DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of legitimacy of the child 21 apeal-654-2023.odt under Section 112 of the Evidence Act. In view of what we have observed above, these judgments in no way advance the case of the respondents."
228. From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non- acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted."
33. It is further held in Mukesh and another (supra) that the testimony of a prosecutrix stands on a higher pedestrian than that of an injured witness and does not require corroboration if it inspires confidence. It was reiterated that minor inconsistencies or contradictions which do not go to the root of the matter cannot be a ground to discard the testimony of the prosecutrix. Paras 383 to 390 read thus:
"383. At the same time while dealing with cases of rape, the Court must act with utmost sensitivity and appreciate the evidence of the prosecutrix in view of settled legal principles. Courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and it should not be swayed by minor contradictions and discrepancies in appreciation of evidence of the witnesses which are not of a substantial character. It is now well settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstantial evidence such as the report of chemical examination, scientific examination, etc. if the same is found natural and trustworthy.
384. Persisting notion that the testimony of the victim has to be corroborated by other evidence must be removed. To equate a rape victim to an accomplice is to add insult to womanhood. Ours is a conservative society and not a permissive society. Ordinarily a woman, more so, a young woman will not stake her reputation by levelling a false charge, concerning her chastity. In State of Karnataka v. Krishnappa, it was held as under :
(SCC pp. 82-83, paras 15-16) 22 apeal-654-2023.odt "15. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity -- it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. ...
16. A socially sensitised Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos."
(emphasis supplied)
385. There is no legal compulsion to look for corroboration of the prosecutrix's testimony unless the evidence of the victim suffers from serious infirmities, thereby seeking corroboration. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, it was held as under : (SCC pp. 224-26, paras 9-11) "9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyse the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. ...
10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that 23 apeal-654-2023.odt too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) ...
11. ... On principle the evidence of a victim of sexual assault stands on a par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eyewitness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence." (emphasis supplied) It was further held in Bharwada Bhoginbhai Hirjibhai that if the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, there is no reason to insist on corroboration except corroboration by the medical evidence. The same view was taken in Krishan Lal v. State of Haryana.
386. It is well settled that conviction can be based on the sole testimony of the prosecutrix if it is implicitly reliable and there is a ring of truth in it. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not requirement of law but a guidance of prudence under given circumstances. In Rajinder v. State of H.P., it was held as under :
(SCC pp. 78-79, para 19) "19. In the context of Indian culture, a woman--victim of sexual aggression--would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent."
24 apeal-654-2023.odt
387. In Raju v. State of M.P., it was held as under : (SCC p. 141, paras 10-
11) "10. ... that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. ...
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
388. In State of H.P. v. Asha Ram, this Court highlighted the importance of, and the weight to be attached to, the testimony of the prosecutrix. In para 5, it was held as under : (SCC p. 770) "5. ... It is now a well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."
389. As held in State of Punjab v. Ramdev Singh, there is no rule of law that the testimony of the prosecutrix cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. The above judgment in Ramdev Singh has been approvingly quoted in State of U.P. v. Munshi.
25 apeal-654-2023.odt
390. In a catena of decisions, this Court has held that conviction can be based on the sole testimony of the prosecutrix, provided it is natural, trustworthy and worth being relied upon vide State of H.P. v. Gian Chand, State of Rajasthan v. N.K., State of H.P. v. Lekh Raj, Wahid Khan v. State of M.P., Dinesh Jaiswal v. State of M.P. and Om Prakash v. State of Haryana." Final Conclusion:
34. On cumulative evaluation of the oral, documentary, medical, and forensic evidence, this Court finds that the prosecution has established, beyond reasonable doubt, that the appellant committed repeated sexual assault upon a woman suffering from severe intellectual disability, who was incapable of understanding the nature of the act or of giving valid consent, resulting in pregnancy. The findings recorded by the learned Sessions Judge are well-
reasoned, based on proper appreciation of evidence, and in consonance with settled principles of law.
35. This Court, therefore, finds no perversity, illegality, or infirmity in the impugned judgment of conviction warranting interference in appellate jurisdiction. In the light of the above discussion, this Court is satisfied that the prosecution has succeeded in proving its case beyond reasonable doubt. The testimony of the victim, corroborated by the evidence of the special teacher, medical experts, forensic evidence, and the DNA report, forms a complete and unbroken chain pointing only towards the guilt of the appellant. The defence has failed to create any dent in the prosecution case. The learned Sessions 26 apeal-654-2023.odt Judge has correctly appreciated the evidence and has applied the law in its proper perspective.
36. The offence committed by the appellant is heinous in nature, not only violating the bodily integrity of a woman suffering from severe intellectual disability but also striking at the conscience of society. The sentence imposed is within the statutory framework and cannot be said to be excessive or disproportionate. Hence, I proceed to pass the following order.
ORDER
(i) Criminal Appeal stands dismissed.
(ii) The judgment and order dated 19.07.2023 passed by the learned
Sessions Judge, Gondia, in Sessions Case No. 149 of 2021, convicting the appellant for the offence punishable under Section 376(2)(j)(l) of the IPC and sentencing him to suffer rigorous imprisonment for fourteen years with fine, is hereby confirmed.
(iii) The appellant shall continue to undergo the sentence imposed upon him.
(iv) The muddemal property, if any, shall be dealt with in accordance with law after the appeal period.
(v) Record and proceedings be sent back to the trial Court forthwith.
(NIVEDITA P. MEHTA, J.) MP Deshpande Signed by: Mr. M.P. Deshpande Designation: PA To Honourable Judge Date: 22/12/2025 16:18:34