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Bombay High Court
Sakharam Sampat Mhaske vs The State Of Maharashtra And Another on 30 March, 2026
2026:BHC-AUG:13342
CriAppeal-821-2025
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 821 OF 2025
Sakharam s/o Sampat Mhaske
Age - 58 Years, Occupation - Agriculture,
R/o. Thergaon,
Taluka and District Jalna. ... Applicant
Versus
1. The State of Maharashtra
Through Police Station Incharge,
Police Station Jalna,
Taluka Jalna, District Jalna.
2. X. Y. Z. ... Respondents
.....
Mr. Sopan G. Bobade, Advocate for the Appellant.
Mr. Kiran D. Jadhav, Advocate for Appellant (appointed through
Legal Aid).
Mr. N. S. Tekale, APP for Respondent No.1-State.
Ms. Anagha Pedgaonkar, Advocate for Respondent No.2 (appointed)
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 25.03.2026
Pronounced on : 30.03.2026
JUDGMENT :
1. The convict for offence under Sections 376(2)(j) and 376(2)(l)
of IPC has preferred instant appeal, thereby challenging the judgment
and order of his conviction dated 03.09.2024 passed by learned
Additional Sessions Judge, Jalna in Sessions Case No. 254 of 2023.
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CASE OF PROSECUTION IN BRIEF
2. In short, case of prosecution is that, victim, a differently abled
lady, was staying with her brother and sister-in-law, having lost her
husband in road traffic accident. She used to visit field and do
agricultural labour work. Son of her brother-informant met with a
mishap and was being treated in a hospital due to which, brother and
his wife were taking his care at the admitted hospital. As such, victim
was left alone in the village. Accused taking disadvantage of her
loneliness and her mental retardation, had developed sexual
relationship with her and thereby he impregnated her. Sister-in-law of
victim realized the same and thereafter brother lodged report with
police resulting into registration of crime, its investigation and
accused faced trial in which he came to be ultimately convicted.
Hence, appeal at his instance.
SUBMISSIONS
On behalf of the Appellant :
3. Learned counsel for the appellant would challenge and criticize
the judgment on the ground that case of prosecution has not been
proved beyond reasonable doubt. According to him, victim was full-
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grown lady and she understood the consequences of her act. That, she
performed her chores and as such she is not mentally retarded or
abnormal as is claimed by prosecution. According to him, there are
material contradictions and omissions in the testimony of prosecution
witnesses. He further submitted that, chain of circumstances is not
proved even when case was based on circumstantial evidence. He
seriously challenges the prosecution story on the point of chain of
custody of forensic sample and evidence. Resultantly, he urges to set
aside the impugned judgment and order of conviction by allowing the
appeal.
On behalf of the State as well as Respondent No.2 :
4. Both, learned APP as well as learned counsel appointed for
victim through legal aid, justify the order of conviction and it to be
legally correct and sustainable. According to them, on meticulous
analysis of evidence, case of prosecution has been accepted. Further
according to them, scientific evidence is overwhelming and more
particularly, DNA connects accused with the offence. For all above
reasons, they canvass in the favour of judgment of conviction.
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BRIEF ACCOUNT OF SUBSTANTIVE EVIDENCE
BEFORE THE TRIAL COURT
5. It seems that, to establish its case, prosecution has examined as
many as nine (9) witnesses. Their role and status and the sum and
substance of their evidence can be summarized as under :
6. PW1 victim has deposed at Exhibit 28 wherein she gave names
of her brother and her sister-in-law with whom she resided. She
testified that she lost her husband in an accident and that, she lived
with brother and work in his field. She claimed to be acquainted with
accused-appellant and other two accused namely, Kisan and Bandu,
and according to her, two years back while she was in the field,
appellant came, touched her body, pressed her chest, made her drink
water and made her fall down. Thereafter on court questions as a
result of witness hesitating, she answered that he raised her clothes,
and to a question 'whether he committed sexual intercourse with
you?', she replied in affirmative and to further question as to whether
she had consented him, she answered in negative. Thereafter she
stated that, Kisan and Bandu also came and they did what Sakharam
did. She further deposed that on the day of incident, her brother and
his wife had been to hospital in another village. That, she remained
pregnant, went to the hospital and her sister-in-law came to know
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that she was pregnant as she had missed her menses. Doctor advised
visiting Jalna and her brother lodged complaint and she narrated the
incident when police made inquiry with her. She also identified the
clothes confronted to her stating that the same belong to her.
While under cross, she had reaffirmed that incident happened
three years back and that her marriage was performed after taking
into account her mental condition and that, she lived happy
matrimonial life. In para 12 also she admitted that she did work both,
in the house and field, and talk with neighbours. She answered that,
her field is away from the village and admitted that people were
working in nearby fields, but she volunteered that they were at long
distance. When question was posed to her whether she shouted while
sexual intercourse was going on, she answered that she shouted but
her mouth was pressed and that, her bangles also broke and her
blouse and saree got torn. She answered that she did not disclose
about the incident to her brother, but again volunteered that she was
afraid. To a question whether 'the bad incident had been caused with
her by Sakharam was consensual?', she denied. Omissions are
brought in statement to police on the count that, accused pressed
breast, made her drink water which she threw, accused removed
clothes and committed sexual intercourse and about telling police
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that brother and his wife had gone to other village and she had
missed her menses which was realized by her sister-in-law.
7. PW2 is the informant/brother of victim and according to him,
victim is his sister, she is uneducated, she was married to Bharat
Katkar, but he died in an accident. His sister's mental condition was
not good. He brought his sister after three months of losing husband
and she was working in his field. As his son was admitted in a
hospital at Jalna, he and his wife stayed with him for one and half
months. Menses of his wife and his sister were almost identical and
his wife realized that his sister had missed her menses and therefore
she was taken to hospital where doctor told that his sister was
pregnant. According to him, his sister was not having husband but
still she had missed the menses and so he was afraid of defamation,
but he lodged complaint. He stated that, pregnancy of his sister was
terminated.
In cross, he answered that victim passed her matrimonial life
properly but volunteered that it was only for three months. He
admitted that, she did agricultural and household work and that she
knew what is good and bad. In cross at the hands of learned counsel
for accused nos. 2 and 3, he answered that his sister did not tell him
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about the incident, but he volunteered that she stated it to his wife
and she knew it.
8. PW3 wife of informant (sister-in-law of victim) also in her
evidence at Exhibit 29 stated about her sister-in-law victim to be
gullible and since last 10 to 11 years residing with them and working
with them in the field. Even she narrated about she and her husband
taking their son to Jalna on account of his admission in the hospital
for one and half month and after return, she realized that her sister-
in-law victim had missed her menses. According to her, victim was
not taking requisite clothes during menses on her own accord as she
was not aware of it. As her clothes were not wet during the menses,
she claims to have realized that she had missed it and then they got
done urine test with the aid of pregnancy kit and found that she was
pregnant. She stated that when she inquired, victim did not disclose
anything and she accordingly told her husband. They went to police,
who inquired with victim where she disclosed the name of accused.
She also deposed that pregnancy of victim was terminated.
While facing cross, PW3 answered that she and victim went to
the field together. To a question whether victim did the field work on
her own, witness has answered that, victim did the work after seeing
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her work and that this witness would show her the manner of the
work and on seeing her work, victim did the work. She is asked, when
there were talks with her daughter on phone, whether victim spoke?,
to which she answered that victim was not able to talk on phone. She
also volunteered that, land of accused Sakharam was adjacent to their
land, but she admitted that victim did not state about missing menses
either to her or to the doctor. She also admitted that after many
inquiries, victim named accused.
9. PW4 is the Psychiatrist, who examined victim on 23.03.2023
upon which, he claims to have found that she had no sleep, appetite
or behavioral disturbances except poor intellectual ability. He
accordingly referred her to PW5 Psychologist for IQ test and claims to
have found her IQ around 65 which, according to him, was below
normal range suggesting mild intellectual disability. He opined victim
to be suffering from mild intellectual disability which amounts to mild
mental retardation. He identified report Exhibit P2/PW4 issued by
him and PW5.
In cross, he admitted that history was reported by brother of
the patient. He admitted that there is difference between mental
illness and mental retardation and again in cross he confirmed that
patient had mild intellectual capacity.
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10. PW5 Psychologist in Civil Hospital, Jalna, who, on 23.03.2023
claims to have examined victim's intellectual capacity in which she
scored 65 which, accordingly to this expert also, means that she is
having mild intellectual disability. Accordingly, he issued the report
Exhibit P2/PW4.
In cross, he denied that intellectual capacity of victim was not
on border line.
11. PW6 is the counselor in whose presence statement of victim
was recorded.
12. PW7 is the Investigating Officer who carried out investigation
and filed charge sheet.
13. PW8 is the Assistant Chemical Analyzer who, at Exhibit 51,
deposed in para 12 that after comparing DNA profile obtained from
femur bone of aborted child with the DNA profiles obtained from
blood of victim as well as from the blood of accused, he came to the
conclusion that victim was the biological mother and accused
Sakharam was the biological father of femur bone of aborted child.
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14. PW9 is the carrier of DNA kit and sample and he is examined at
Exhibit 52.
15. The above is the evidence on behalf of prosecution in the trial
court. For the sake of proper comprehension, above evidence can be
categorized as under :
First set : Testimony of victim, her brother and sister-in-law.
Second set : Medical evidence i.e. psychiatrist and psychologist who
examined victim.
Third set : Investigating Officer, Chemical Analyzer and Carrier.
ANALYSIS AND CONCLUSION
16. Victim has given her age as 40 years. There is no serious
challenge to the prosecution story that victim was married but had
lost her husband in an accident and as such she was brought by PW2
brother to stay with him and his wife PW3.
17. Primary case of prosecution is that, victim was mentally
retarded person and disadvantage of the same had been taken by
accused. Therefore, it becomes incumbent to ascertain whether
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prosecution at all proved that it was so. It is necessary to ascertain the
mental condition of victim also in the light of arguments made before
this Court that, victim was doing her daily chores and therefore was a
person of understanding what is good and what is bad and she had
consented for the relations.
18. Resultantly, evidence of prosecution is tested on above lines.
Immediate family members i.e. brother and sister-in-law in their
evidence have deposed that, 'mental condition of victim was not
good', is what is stated by brother, whereas his wife PW3, who is
sister-in-law of victim, branded her as 'gullible', i.e. a person who is
easily deceived or cheated. Prosecution has taken efforts to get victim
examined through experts in psychology and psychiatry and both
these experts are also examined by prosecution as PW4 at Exhibit 35
and PW5 at Exhibit 36.
19. On appreciation of testimony of PW4, it is emerging that he is a
medical practitioner and a professional psychiatrists. He deposed
about victim being referred by police, examining her, found her able
to give answers to simple questions but she was unable to answer the
general knowledge questions and was unable to answer simple
mathematical questions in spite of her age. He claims to have noted
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the history, i.e. there being no sleep, apatite or behavioral disturbance
except poor intellectual ability, and therefore he claims to have
referred victim to the psychologist for intellectual test. He named the
psychologist placed at Civil Hospital, Jalna and according to him, IQ
test was done by using VSMS test and results were that IQ was noted
to be around 65 which, in medical parlance, is below normal range
and it suggestive of mild intellectual disability. Thus, he claims that
his final impression is that patient was suffering from mild intellectual
disability which amounts to mild mental retardation and he identified
report at Exhibit P2/PW4.
Above witness is subjected to cross by defence wherein he
admitted that both, police and brother of the patient had already
disclosed the history about apatite, sleep and behaviour of the patient.
Witness further answered that patient was conscious, oriented and
had no delusion or hallucinations. According to him, her mood was
euthymic. He answered that it was normal mood and admitted that
there is difference between mental illness and mental retardation. He
also admitted that patient had mild intellectual disability.
20. The another witness is PW5 psychologist, to whom PW4 had
referred the victim for IQ test. This witness, who claim to have
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acquired degree of M.A. in Clinical Psychology, in his testimony,
deposed that he examined intellectual capacity of the victim and the
examination score was 65, which according to him, means that victim
was having mild intellectual disability. He identified the report issued
by him.
While under cross, he denied that intellectual capacity was on
border line. He answered that record of questions put are required to
be maintained and he further deposed that he put questions about her
daily work.
21. On analyzing the above testimonies of both the experts, here, it
is emerging that, family members speak of mental condition of victim
to be not good or she to be gullible. Admittedly, they are rustic
villagers and as such, have not stated about mental deficiency which
is a medical term. However, here, two experts, who had examined the
victim, had opined that victim was diagnosed of having "mild
intellectual disability". Though experts are cross examined, the above
aspect has remained intact. Consequently, it can safely be held that
prosecution has proved that victim was patient of mild intellectual
disability.
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22. Learned counsel for accused would submit that, victim was
regularly doing agricultural work and her daily chores and therefore
she was a normal person who knew what was good and what was
bad. In the considered opinion of this Court, there is no force in such
submission. Mere ability of a person to do daily routine activities or
daily chores itself is not an indicator that person is perfectly mentally
sound.
23. The Hon'ble Apex Court in the recent judgment of Chiman Lal
v. State of Himachal Pradesh [Criminal Appeal No. 1229 of 2017
decided on 03.12.2020], has held that, ability to do some household
chores does not discard evidence about mental disorder of
prosecutrix. The observations of Hon'ble Apex Court in para 11 of the
above referred judgment are borrowed and reproduced here as,
"merely because the victim was in a position to do some household
works cannot discard the medical evidence that victim had mild
mental retardation and she was not in a position to understand the
good and bad aspect of sexual assault ".
24. Here also, there is opinion of two medical experts about mild
intellectual disability of victim. Therefore, facts in the case in hand
and the case before the Hon'ble Apex Court being identical, the said
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ruling squarely applies and can be hence taken recourse to and relied
also. Consequently, this settles the issue about mental deficiency of
victim.
25. Second ground of challenge according to learned counsel for
appellant is that, there is weak evidence on the point of rape and
there is no supportive medical evidence to corroborate the case of
prosecution. That apart, there are material contradictions and
omissions on the point of sexual assault.
26. In the backdrop of above ground, substantive evidence of
complainant, her brother and sister-in-law is visited. It is emerging
from their testimony that, while brother and sister-in-law of victim
were away and out of the village for taking care of their son in a
hospital at Jalna, deceased was staying alone in the village. She was
still attending agricultural field. Sister-in-law in her cross has
volunteered that accused was the immediate neighbour of their field.
Victim has already narrated that while she was in the field, accused
came, touched her body with his hand, pressed her chest as well as
mouth, made her fall down, and after she stated that she might have
killed him if he was present before the court, when learned APP asked
what happened after falling, finding her hesitating to answer the
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question, learned trial court had indulged and put up a question as,
"whether your clothes were removed?", to which victim answered
that he raised her clothes. To the further question, "whether he
committed sexual intercourse", she answered as "yes", and to further
court query, "whether she had consented to him?", she has answered
as "no". It needs to be noted from above answers that victim has
narrated the incidence which took place with her while she was alone
in the field that day. Her answer that, she might have killed accused if
he was present in the court, signifies her annoyance and anguish. The
answers given by her to the court queries are clearly suggesting that
there was sexual intercourse with her by accused.
27. No doubt brother and sister-in-law are having hear-say
information and they both, also in cross, candidly admit that victim
did not inform them immediately. Rather, it is worthy to note that
PW3 sister-in-law of victim has deposed that she had noted that
victim had missed her menses. She very categorically stated prior to it
that her menses and that of victim were almost identical. Victim was
staying in the house with this witness and her brother. Therefore
obviously, PW3 was watchful of the day to day developments and she
has deposed about noticing menses being missed by victim and she
had duly reported it to her husband and thereafter necessary tests
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seem to have been taken. Here, though victim was intellectually
disabled, it was diagnosed to be of mild category and therefore, her
required testimony to the extent of offence can safely be relied. Her
evidence is apparently natural one. Learned trial court has remained
vigilant in putting questions noticing the victim hesitating. Answers
given by the victim reproduced above clearly establish that she is a
victim of sexual assault.
28. Though omissions are there as stated in para 18 of the victim's
cross, the mental state of victim is required to be taken into account
and therefore, much importance need not be given to said omissions.
PW7 Investigating Officer in para 26 has admitted that victim has not
stated before her that accused pressed her breast and stomach, but IO
has volunteered that she told that accused did bad work with her. IO
admitted that, it was not stated before her that accused made victim
to drink water and victim threw the water, or about he raised her
clothes and kept physical relation with her. But, again this witness
volunteered that there was much trouble to this witness while
recording the statement of victim and victim repeatedly said that bad
work was done by accused by taking her clothes up.
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29. Therefore, apparently, no much controversy can be raised when
victim has informed the IO but in slightly different matter, and more
particularly when it is suggestive of sexual act. Above all, it is to be
borne in mind that victim was not like others, i.e. in normal mental
condition, and such aspect cannot be lost sight of and benefit of such
omissions cannot be extended to the accused.
30. The third ground of challenge here is that, case is based on
circumstantial evidence and chain of custody is not proved. Again, if
evidence of IO PW7 is visited at Exhibit 42, it is noticed that, after
entertaining the complaint, there was seizure of clothes of victim
which she has also identified in the court. Victim being pregnant, was
referred to hospital for termination of pregnancy. After seeking
permission from court, DNA samples have been procured of both,
accused and victim. After receiving respective samples from Medical
Officer, IO speaks about dispatching the same to laboratory, including
DNA sample. All communications to that extent are identified by IO in
her chief para 8 to 12, 18 and 23. This court does not come across
anything adverse in the cross of IO on the point of collection and
preservation of samples.
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31. On the contrary, DNA kit was initially procured and suggestion
that it was not received, has been turned down by the IO. On re-
examination, learned APP has got communication for obtaining DNA
kit at Exhibit P33. IO has stated in chief that in Government Hospital
DNA samples were received in sealed condition and the same were
deposited to the CA, and IO has further clarified that if there is
tampering to the seal, CA office does not accept the sample, and here,
CA has accepted the samples. Some issues raised on the name of the
carrier cannot be given undue importance more particularly when the
carrier has deposed in the witness box about carrying the sample and
depositing the same with CA. Resultantly, when it is not
demonstrated as to how and where the chain of custody is getting
snapped so as to render the sampling and its collection doubtful,
above ground has no force.
32. To sum up, here, prosecution has substantiated that victim was
intellectually challenged lady, i.e. in the sense that she was diagnosed
of mild intellectual disability. There is overwhelming evidence in the
form of not only her brother and sister-in-law, but also in the form of
two independent medical experts, i.e. PW4 and PW5, who have
placed reports on record confirming the above mental disability.
Testimony of victim is shown to be natural one, more particularly in
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view of the remarks and notings of the trial court wherein finding the
victim in such state, court has rightly taken initiative of putting up
court questions to elicit required answers which are duly answered by
the victim. DNA report sealed the fate of accused by which he is
confirmed to be the biological father of the fetus, of which femur
bone was put to DNA analysis. Consequently, charges being cogently
proved and there being no merits in the appeal, the following order is
passed :
ORDER
I. The Criminal Appeal is dismissed.
II. Fees of the respective learned counsel appointed to represent the
appellant as well as respondent no.2 be paid by the High Court
Legal Services Sub-Committee, Aurangabad as per Rules.
[ABHAY S. WAGHWASE, J.]
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