Mukesh vs The State Of Maharashtra

Appellant/original convict hereby takes exception to the judgment and order dated 11.04.2025 passed by learned Additional Sessions Judge, Latur in Sessions Case No.08 of 2024 recording conviction for offence under Section 376, 376(1)(1), 354, 323, 506 of Indian Penal Code [IPC].

Prosecution story in trial Court is that, victim, a differently abled girl, was all alone in the house. Accused, who happens to be her cousin brother, gained entry in the house, dragged her to another room, undressed her and forcibly raped her. She reported the incident to her grandmother and, thereafter, to her mother after she returned from the field. Thereafter, the police were approached, resulting in the registration of Crime No. 301 of 2023 for the offences punishable under Sections 376, 354, 323 and 506 of the IPC.

. P.W.11, who conducted the investigation, charge-sheeted the accused, who was tried in the aforesaid Sessions Case by the learned Additional Sessions Judge, Latur. The learned Additional Sessions Judge accepted the prosecution case, held the charges to be proved, and convicted the accused for the aforesaid offences.

. Feeling aggrieved by the same, convict has approached this Court by filing instant appeal.

Learned Counsel for the appellant would plead innocence and false implication. According to him, there is no convincing, cogent or reliable evidence in support of the charges. He would submit that the learned Trial Court has convicted the accused on the sole testimony of the victim. There is no corroboration from any independent corner or from the medical expert. At the outset, he pointed out that the victim is unable to state the day on which the incident took place. He submitted that an offence like rape cannot be committed in the presence of other family members in the house, and pointed out that, in the present case, the grandmother of the victim was very much present in the house, which clearly emerges from the testimony of the victim. Further, the said grandmother has also not been examined by the prosecution, for the reasons best known to it.

Learned Counsel took this Court through the examination-in-chief as well as the cross-examination of the victim P.W.7 and invited the attention of this Court to the answer given by the victim in paragraph No.6, wherein she stated that she was unable to give the day and month of the first or second incident. Inviting the attention of the Court to paragraph No.7 of the cross-examination, he submitted that there are variances between her deposition and the statement given before the learned Magistrate under Section 164 of the Code of Criminal Procedure.

Inviting the attention of this Court to the testimony of mother P.W.8, it is submitted that she has hearsay information. Moreover, there are material omissions in paragraph No.5 of her cross-examination on the point of accused entering the house by using staircase or accused dragging the victim and as such, it is his submission that evidence of mother is unworthy of credence.

Pointing to the evidence of P.W.6, it is submitted that she is the cousin of the victim, but apparently, her testimony is a tutored one. He questioned as to how, when this witness was supposed to be at school and travelled by bus, could have been a witness to the alleged entry of the accused into the house of the victim. Moreover, he submitted that her evidence is also full of material omissions.

Lastly, he submitted that neither medical evidence, nor forensic evidence support prosecution. He pointed out that there is no resistance injury and even there is old hymen tear and, therefore, there is no corroboration to the testimony of victim.

Lastly, he criticize the judgment of the learned Trial Court for incorrect appreciation of available evidence and that learned Trial Court readily accepting the victim’s testimony without corroboration. In support of his submissions, he seeks reliance on the judgment of Hon’ble Apex Court in the case of Raju and others Vs. State of Madhya Pradesh, (2008) 15 SCC 133, Rai Sandeep Vs. State (NCT of Delhi), (2012) 8 SCC 21 and Nirmal Premkumar and another Vs. State represented by Inspector of Police, (2024) 20 SCC 293 i.e. on the point that testimony of victim cannot be said to be gospel truth taking her towards backside of the hall and closing the door. She claims to have informed grandmother and when she, her friend and grandmother went towards the victim, they found victim crying and she too narrated the incident to grandmother. She also deposed that her statement was recorded by police.

. This witness is also subjected to cross-examination. In paragraph No.4 of her cross-examination, omissions are brought to the extent of accused going towards the tin-roof by using Katta of Durgadevi Temple. In paragraph No.5 of her cross-examination, she also stated that grandmother of the victim was sitting in the courtyard, but she is unable to hear properly. In paragraph No.6 of the cross-examination, she answered that she came along with mother to the Court. The father of victim also come to Court, but she added that father did not come with them. She further answered that after giving call, they did not hear any sound from inside and she also answered that when they saw through the window, victim did not reply. She flatly denied being instructed after coming to the Court to give deposition. Rest is all denial.

The above is the account of child witness. This witness has deposed about seeing the accused passing by her while talking on phone and proceeding towards the house of victim by using staircase. She has stated about the presence of accused in the house of victim and has also stated that she saw through the window, the accused dragging victim by pulling her leg into another room and closing the door. Thereafter, she heard the victim narrating the incident to her grandmother. Nothing damaging has been brought in her cross-examination. Couple of omissions are there but they are not material omissions.

P.W.8 mother has deposed at Exhibit-54 that her daughter aged 21 years was differently abled. That, on 02.11.2023 she went to field while her daughter and mother-in-law in the house and husband went to attend duty. She deposed that around 5.00 p.m., she came and thereafter learnt from her daughter about forcible rape on her coupled with threats.

. In cross-examination, omissions are brought to the extent of hearing from daughter that accused entered the house by use of staircase and accused dragging her daughter. She has denied that her mother-in-law is able to hear. Rest of the cross-examination is not material, because questions are asked whether she had personally witnessed the incident. All suggestions on the point of rape are denied by her to be false.

. Thus, even P.W.8 mother has deposed in the similar manner like victim on the point of forcible rape by accused.

The prosecution, before the learned Trial Court, examined medical expert P.W.12, who, after stating that the victim was differently abled, narrated, in paragraph No.3 of her examination-in-chief, the history given by the victim on both occasions, i.e. on 28.10.2023 and the last episode, which took place on yesterday afternoon i.e. on 02.11.2023 at 3.00 p.m. In paragraph No.4 of his examination-in-chief, detailed findings are narrated including abrasion on knee, tenderness on right temporal area of scull and on examination of genitals coming across inflammation with redness over vaginal wall. He deposed that there was evidence of old hymenal heal tag, which he clarified to be possible due to 2-3 episodes of sexual intercourse. In paragraph No.8 of his examination-in-chief, he deposed that abrasions are possible due to dragging. Tenderness to the breast is possible due to forceful pressing and abrasion to the scapula is possible due to lying down on the back.

. This witness has admitted that abrasions on the knee and toe are possible due to fall on hard surface, but in cross-examination he denied that other injuries to be possible due to fall on hard surface. He admitted that tenderness to the breast could be possible by self beating and tenderness to the scapula could be possible on account of fall, but this witness has flatly denied that hymenal heal tag is possible due to illness. After deposing that other than sexual intercourse old hymenial heal tag to be possible due to stretching exercise like cycling gymnastic etc., this witness volunteered that victim is physically handicapped and, therefore, such activities are not possible. Witness admitted that her opinion is provisional. Though he admitted that abrasions are possible in scuffle, but he answered that injuries to the genitals are not possible in scuffle and rather they are possible by penetration and that it was his provisional opinion. Rest is all denial.

From above discussed medical evidence, medical expert here, who has examined the victim, has recorded clear findings about coming across injuries on left lateral knee and there to be penetration in the genital area by penis. Doctor has noticed inflammation over urethral meatus, redness and inflammation over vaginal wall, which are attributed to old hymenal heal tag, which according to expert is possible due to 2-3 episodes of sexual intercourse. Though attempt is made to discredit the witness on above count, testimony of expert has remained intact. Though suggestions are given that injuries noticed by him are possible due to activities like gymnastics and cycling, doctor has very categorically stated that victim was differently abled and unable to perform such activities. Thus, here, there is corroboration to the testimony of victim from medical expert.

Here, father, mother including victim and her cousin are all unanimous about victim to be differently abled. Disability certificate is placed on record, which is at Exhibit-57.

To sum up, there is clinching overwhelming evidence on the point of victim to be differently abled. Precisely, disadvantage of her disability is taken by accused/appellant, who is none other than her cousin. Fortunately, there is evidence of the child witness, P.W.6, who claims to have seen the accused entering the house of the victim and was also present when the victim narrated the act of the accused to her grandmother. Nothing damaging has been brought in the testimony of said child witness or her parents. Mere failure of prosecution to examine grandmother is of no significance. More particularly, when the testimony of victim is noticed to be of sterling quality and inspiring confidence and as such, her sole testimony deserves acceptance without corroboration.

Learned Counsel for the appellant has relied upon the aforesaid rulings. The same lay down the settled legal position, with which there is no dispute. However, the facts of those cases are clearly distinguishable from the facts of the present case, as the testimony of the victim herein inspires confidence. Therefore, those rulings cannot come to the aid of the appellant.

Perused the judgment under challenge. Learned Trial Court has correctly appreciated the prosecution evidence. Settled law has been taken into account. No perversity or illegality is brought to the notice of this Court so as to interfere. Accordingly, the following order is passed :-

. The Criminal Appeal is dismissed.