Bombay High Court
Ashok S/O. Shankar Meshram vs State Of Mah. Thr. Pso, Ps Desaiganj, ... on 9 January, 2026
2026:BHC-NAG:249
1 CRI.APEAL 343-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 343 OF 2023
Ashok s/o Shankar Meshram,
Aged about 57 years, Occ. Labour,
R/o. Tulshi, Tah. Desaiganj,
District : Gadchiroli. ... Appellant
.. Versus ..
1) State of Maharashtra,
through Police Station Officer,
Police Station Desaiganj,
District : Gadchiroli.
2) XYZ Victim (In Crime No. 63/21),
through P.S.O. Desaiganj,
District : Gadchiroli. ...Respondents
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Shri D.A.Sonwane, Advocate (Appointed) for appellant.
Ms. Sneha Dhote, APP for respondent no. 1/State.
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CORAM : NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT : 07/01/2026
DATE OF PRONOUNCING THE JUDGMENT: 09/01/2026
JUDGMENT
This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') is directed against 2 CRI.APEAL 343-2023.odt the judgment and order dated 21/11/2022 passed by the learned Sessions Judge, Gadchiroli in Sessions Case No. 60/2021 convicting the appellant for the offence punishable under Section 376(2)(j)(l) of the Indian Penal Code (short short, 'IPC') and sentencing him to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 20,000/-, in default to suffer rigorous imprisonment for six months.
2. The prosecution's case as revealed from the police report is as under:-
2.1 The informant was residing with his parents and siblings. His elder sister (hereinafter referred to as 'the victim') was suffering from mental disability. She was studying in a school meant for such pupils. However, from last 5 to 7 years from the F.I.R., she was at home. After having meals, the victim used to roam in the village. The Asha Worker from the village informed the informant that the victim was pregnant. The victim was examined by the Doctor and she was found pregnant. The victim, therefore, was brought to the Government Hospital at Nagpur. Thereafter, the victim's brother lodged the report with the Desaiganj Police Station, Gadchiroli against the unknown 3 CRI.APEAL 343-2023.odt person and Crime bearing No. 0063/2021 came to be registered for the offence punishable under Section 376(2)(j)(l) of IPC. 2.2 During the investigation, the statement of victim came to be recorded. The samples of foetus and that of the victim were drawn. By following due procedure, the pregnancy was terminated. The appellant came to be arrested and samples of the appellant came to be drawn. The statement of the witnesses came to be recorded. The seized articles were referred to the Chemical Laboratory. The necessary documents were collected.
On completion of investigation, the appellant came to be charge-sheeted.
2.3 On committal, the learned Trial Court framed the Charge against the appellant vide Exh. 06 for the offence punishable under Section 376(2)(j)(l) of IPC. The appellant pleaded not-guilty and came to be tried. To prove the charge, the prosecution examined the victim's brother who lodged the First Information Report (for short, 'FIR') as PW-1, Panch Witness for the Spot Panchanamas was examined as PW-2, the Asha Worker was examined as PW-3, the Victim was examined as PW-4, the Doctor who examined the Victim for her pregnancy was 4 CRI.APEAL 343-2023.odt examined as PW-5, the woman police constable who sent a communication for Hash Value was examined as PW-6, the woman police constable who received and issued a communication in respect of DNA samples was examined as PW-7, the medical officer who took the samples of the appellant for DNA was examined as PW-8, the medical officer who examined the victim was examined as PW-9, the police officer who registered and investigated the crime was examined as PW-10.
2.4 The relevant documents were brought on record in the evidence of the above witnesses.
2.5 After the prosecution filed the evidence closure pursis, the learned Trial Court recorded the statement of the appellant under Section 313(1)(b) of the Cr.P.C. The appellant stated that, he was falsely implicated. On appreciating the evidence available on record, the learned Trial Court passed the impugned order.
3. Heard learned Advocate for the appellant and the learned APP for the State. Scrutinized the evidence on record.
5 CRI.APEAL 343-2023.odt 3.1 It is submitted by the learned Advocate for the appellant that the prosecution failed to establish that the victim was suffering from mental illness at the relevant time. The disability certificate brought on record by the prosecution shows that the said disability certificate was for a certain period. The victim was 20 years of age at the relevant time. The statement of the victim was not recorded. Since there is no evidence to establish that the victim was suffering from mental disability at the relevant time, it is clear that there was the consent of the victim for the act. The DNA report does not show that the appellant is a biological father of the fetus. The evidence on record does not prove the charge against the appellant and the conviction & sentence is liable to be set aside. 3.2 It is submitted by the learned APP that there was no defence before the learned Trial Court that the victim was consenting party and the same is raised in the appeal for the first time. On noticing the pregnancy, the victim's brother lodged the report. The victim identified the appellant before the learned Trial Court. The appellant admitted in his statement under Section 313(1)(b) of Cr.P.C. that the victim was mentally challenged.
6 CRI.APEAL 343-2023.odt Nothing has come in the cross-examination to disbelieve the testimony of the witnesses examined by the prosecution. The evidence on record was sufficient to prove the charge. The learned Trial Court has rightly convicted & sentenced the appellant and no interference was called for in the same.
4. There is no dispute that the victim was major by age when she was found pregnant. The prosecution came up with the story that the victim was suffering from mental illness and placed reliance on the certificate below Exh. 14 titled as "Certificate of Mental Retardation for Government Benefits". The said certificate is dated 21/10/2015 and shows that the disability of the victim was Mild Mental Retardation and was a 50% disability. It is further mentioned in the said certificate that the said condition was temporary, non-progressive and likely to improve. It is further stated that the re-assessment of disability was recommended after three years and therefore, the certificate was valid till 13/10/2018. From this evidence on record, it is clear that the mental illness of the victim was mild in nature, temporary, non-progressive and likely to improve in future. There is no other material on record to show that the said mental illness 7 CRI.APEAL 343-2023.odt of the victim continued or persisted after the expiry of the validity of the said certificate.
5. Though PW-5/Doctor to whom the victim was taken by the informant and the relatives on 28/01/2021, deposed that the victim was mentally challenged, there is no supporting medical paper in that regard. The evidence of this Doctor nowhere shows that he examined the victim to test her mental disability. Therefore, his evidence will not be sufficient to prove that the victim was suffering from mental illness at the relevant time. Further, the evidence of the medical officer who examined the victim after she was admitted to the Government Hospital on 01/02/2021 shows that the victim was conscious, vitals were stable. This indicates that the victim was normal.
6. The acceptance by the appellant in his statement under Section 313(1)(b) of Cr.P.C. that he knew that the victim was mentally challenged, by itself will not be sufficient to maintain the conviction as it is primarily duty of prosecution to prove that the victim was suffering from the mental illness after expiry of said disability certificate.
7. Thus, the evidence of the informant that the victim 8 CRI.APEAL 343-2023.odt was mentally challenged, is not sufficient to establish that at the time of her pregnancy or at the relevant time, the victim was suffering from the said illness. The prosecution failed to establish that the Victim's mental retardation continued throughout.
8. Undisputedly, the crime was registered against the unknown person. The evidence of the Investigating Officer shows that during investigation, one another person Shamrao Rajaram Bansod was taken into custody as one of the suspects and his DNA samples were obtained. The evidence of I.O. further shows that the said person was not arrested and made the accused in the case. Though the DNA report at Exh. 48 is brought on record by the prosecution, it records the opinion that the appellant was excluded to be the biological father of the abortus. Therefore, it is clear that the DNA report is not incriminating in nature as against the appellant. In the case of Sunil V/s. State of Madhya Pradesh reported in (2017) 4 SCC 393 relied by the learned APP, it is observed that though the DNA report goes in favour of the accused, the other material evidence on record will have to be considered.
9. The victim in her deposition deposed about the sexual intercourse by the appellant with her. Her testimony was 9 CRI.APEAL 343-2023.odt recorded in question and answer form. She deposed that she did not shout as the accused closed her mouth with cloth. It is clear from her evidence that her parents did not take her to the Doctor for her illness and she was residing with her parents and brother. There can be no dispute on the settled legal position under the law that the victim's testimony can form the basis to record the conviction, provided it is natural, concrete and free from doubt. The evidence of the victim does not give sufficient details as to the act of sexual intercourse by the appellant with her. In her evidence, the victim answered the following Question Nos. 27 and 28 put to her in the affirmative, the same are reproduced below:-
"(27) You had deposed before the police as was asked by your father, mother and brother, is it correct?
Ans- Yes.
(28) Did your father, mother and brother tell you to name the accused ?
Ans- Yes."
10. The above evidence of the victim indicates that she was tutored and she named the appellant at the instance of her family members. The evidence of the victim and her brother clearly shows that, due to the prior dispute with the appellant, 10 CRI.APEAL 343-2023.odt they were not on talking terms. This indicates that the relation between the informant and the appellant were not cordial. Under such circumstances, the possibility of false implication of the appellant cannot be ruled out. The suggestion is given in the cross-examination of the victim's brother that due to previous dispute, the appellant was involved in the case. The evidence of PW-9/Medical Officer who examined the victim shows that the history given was of sexual assault by the unknown person.
11. The medical evidence of PW-9 shows that on examination of the victim, she found no evidence of external injuries and there were multiple old injuries in the hymen. As discussed above, one another person was also the suspect in the crime.
12. The re-appreciation of the evidence on record shows that the prosecution failed to prove the charge against the appellant. At the cost of repetition, the evidence on record shows that the crime was registered against the unknown person, the history given to the medical officer was sexual assault by the unknown person, one more person was taken into custody as the 11 CRI.APEAL 343-2023.odt suspect, DNA report excludes the appellant as the biological father of the abortus, no evidence that the mental retardation of the victim continued after the date mentioned in the disability certificate, the victim was tutored by her family members and the enmity between the victim's brother and the appellant. With the evidence available on record, it is not possible to maintain the conviction and sentence awarded by the learned Trial Court to the appellant. The appeal succeeds. Hence, the following order:-
ORDER I) The Criminal Appeal is allowed.
II) The conviction and sentence recorded by the learned Trial against the appellant for the offence punishable under Section 376(2)(j)(l) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 10 years and to pay fine of Rs.
20,000/-, in default to suffer rigorous imprisonment for six months, is hereby quashed and set aside.
III) The appellant is acquitted for the offence punishable under Section 376(2)(j)(l) of the Indian Penal Code. IV) The appellant is behind the bar. He be released forthwith, if not required in any other offence.
12 CRI.APEAL 343-2023.odt V) The fine amount, if paid by the appellant, be refund to him. VI) The muddemal articles be dealt with as per the operative order of the impugned judgment.
VII) The fees of the learned Advocate Mr. D.A.Sonwane appointed for the appellant is quantified at Rs.15,000/- [Rupees Fifteen Thousand Only], which shall be paid by the High Court Legal Services Sub-Committee, Nagpur.
VIII) Record and Proceedings be sent back to the learned Trial Court.
(IX) The Criminal Appeal stands disposed of accordingly.
[NEERAJ P. DHOTE, J.] B.T.K. Signed by: Mr. B.T. Khapekar Designation: PA To Honourable Judge Date: 09/01/2026 14:22:00