MUKESH NATHURAM RATHODversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:38123


                                                                      CriAppeal-345-2025
                                                      -1-

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                  CRIMINAL APPEAL NO.345 OF 2025

                 Mukesh s/o Nathuram Rathod
                 Age: 28 years, Occu.: Labour,
                 R/o. Gadhvewadi Tanda,
                 Tq. Ausa, Dist. Latur.                             .. Appellant
                       Versus
                 The State of Maharashtra
                 Through Officer, in charge of,
                 Police Station, Killari, Tq. Ausa,
                 Dist. Latur.                                       .. Respondent
                                                    …
                 Mr. N. D. Kendre, Advocate for the appellant.
                 Mrs. A. S. Mantri, APP for the respondent/State.
                                                    ...

                                                  CORAM :   ABHAY S. WAGHWASE, J.
                                         RESERVED ON :      21.08.2026
                                      PRONOUNCED ON :       24.08.2026

                 JUDGMENT :-

                 1.       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 BRIEF

                 2.    Prosecution story in trial Court is that, victim, a differently

                 abled girl, was all alone in the house. Accused, who happens to be her
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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.


     SUM AND SUBSTANCE OF THE ARGUMENTS OF THE PARTIES


On behalf of appellant/original accused :-

3.     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
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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.


4.    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.


5.    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
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submission that evidence of mother is unworthy of credence.


6.    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.


7.    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.


8.    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
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and there to be possibility of exaggeration or embellishment or false

implication; that sole testimony of victim cannot be accepted unless it

is of stirling quality; unreliability of testimony which is full of

conflicting version.


On behalf of respondent/State :-


9.    In answer to above, learned APP justifies the judgment and

order of conviction by submitting that learned Trial Court had rightly

appreciated the evidence of victim, who was differently abled. That,

her testimony has remained unshaken. That, therefore sole testimony

was rightly relied by learned Trial Court and moreover, according to

her, there is corroboration from witnesses like P.W.6 and P.W.8.

                              ANALYSIS


10.   Re-appreciated the evidence of victim, who is examined as

P.W.7 at Exhibit-52. That, she resides with her mother, grandmother

and father. She deposed that accused is her cousin brother. That, he

committed rape on her twice i.e. in the house at Gadhvewadi Tanda.

During the said offence she elaborated that on the day while she was

sitting in the hall accused came from backside staircase, caught her

both legs and dragged her in the middle room. He closed the door

and committed rape on her after removing her clothes as well as his
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own clothes. He also threatened her. She claims that as he pressed

her mouth, she could not shout and he ran away from the staircase.

According to her, due to dragging, she sustained injuries to the legs.

That time her grandmother was outside the house. Her mother had

been to the field. When her grandmother came inside the house, she

first narrated her grandmother and thereafter to her mother when she

returned from the field and thereafter, narrated the incident to police

as well as gave statement under Section 164 of the Code of Criminal

Procedure. In paragraph No.4 of the examination-in-chief, she has

stated that she is unable to walk and stand up, as she is physically

handicapped by both legs and left hand since birth.


.     Victim is subjected to extensive cross-examination and only

relevant portion of the cross-examination is dealt with herein. She

denied that her parents do not reside at Gadhvewadi and that only

grandmother reside there. In paragraph No.6 of her cross-

examination, she is asked when first time accused committed the act

whether she had narrated the act to anybody and she answered that

she narrated it to her mother. She is unable to give date, day and

month of the first and second incident. In paragraph No.7 of her

cross-examination, omission is brought to the extent of she sustaining

injury to the leg; and her grandmother to be outside the house.
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Omissions are brought in her statement under Section 164 of the

Code of Criminal Procedure to the extent that accused entered the

house    from   the   staircase;   about   narrating   incident   to   the

grandmother; about accused committing rape on her twice. Again

omission is brought in her statement to the police on the ground that

accused entered from backside and dragged her by catching hold of

her legs. She further answered that there are neighbours in their

neighbourhood, but she volunteered that neighbours had been to

field. She denied her parents, aunt tutoring her to depose before the

police and the Court. Suggestions about the occurrence are flatly

denied by her. She is unable to state what was written by the police

and she denied that she was sitting outside the police station and

merely her parents and aunt went inside the police station. She

admitted that parents and aunt also narrated the incident to police.

She denied suggestion that she is able to walk and stand. She

admitted Saurabh Rathod to be her cousin, but denied knowing

whether wife of accused had lodged complaint against Saurabh. Rest

all suggestions are denied.


11.     From above evidence of victim, it is emerging that she is a

diffently abled person. In chief itslef she has stated that she is unable

to stand and walk and that her disability is since birth. The manner of
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cross examination particularly para 6 clearly shows that there is no

serious challenge to the occurrence. In para 7 omissions are brought

but in the considered opinion of this Court they are not material

omissions so as to cast doubt over her entire testimony. In fact, this

Court is more than convinced that her evidence is of stirling quality

and needs no corroboration. She has withstood the cross on material

ground of rape by accused her own cousin.


12.   Prosecution has adduced evidence of her mother and a cousin-

cum-friend i.e. P.W.6 and P.W.8 respectively. This witness P.W.6, who

is a child witness, after stating that victim is disabled by birth,

deposed that she knew accused and she specifically narrated that on

02.11.2023, after she returned from shool at 3.00 p.m., while she

along with her friend were providing fodder to the calf, she saw

accused coming while talking on phone and from Durgadevi Katta, he

going towards the roof and using staircase of the house of victim. She

claims that she saw accused going towards the backside of the hall

and he also gave her angry look. She claims that after she returned

with sugarcane from the field and returned to the house of victim, she

noticed house door to be closed and in spite of attempt to open it, the

door could not be opened and she claims to have peeped through the

window and had seen accused pulling right leg of the victim and
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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.


13.   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.
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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.


14.   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
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like victim on the point of forcible rape by accused.


15.   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
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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.


16.   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
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and unable to perform such activities. Thus, here, there is

corroboration to the testimony of victim from medical expert.


17.   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.


18.   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.


19.   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
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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.

                            CONCLUSION

20.   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 :-

                                ORDER


.           The Criminal Appeal is dismissed.




                                           [ABHAY S. WAGHWASE, J.]



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