The judgment establishes the admissibility and conclusiveness of D.N.A. evidence in proving paternity and the incapacity of a mentally challenged individual to consent to sexual intercourse.

JUDGMENT

R.G. Avachat, J. - This appeal is directed against the judgment and order dated 14/6/2018, passed by Additional Sessions Judge, Ahmednagar in Special Case No. 137/2017, convicting the appellant for the offence punishable under Section 376(2)(1) of the Indian Penal Code and sentencing him to rigorous imprisonment for a period of ten years and to pay a fine of Rs. 60,000/-. In default of payment of fine, the appellant is directed to undergo simple imprisonment for a period of one year.

2. The facts giving rise to the present appeal are as follows:-

P.W.1 'X' informant has a 23 year old daughter, by name 'Y' (prosecutrix). She is deaf, dumb and mentally challenged as well. Both the informant and her husband used to be away from home for work during day time. The prosecutrix used to be alone at home. Sister-in-law of the informant would reside in the neighbourhood. Co-sister of the informant noticed some physical change with the prosecutrix. The informant, therefore, took the prosecutrix to a Primary Health Centre, Deogaon for medical screening. The prosecutrix was found to be pregnant of five and half months. The informant, therefore, realised that someone took advantage of the mental condition of the prosecutrix and committed rape of her. The informant, therefore, lodged First Information Report (F.I.R. - Exh.11) against an unknown person. A crime vide C.R. No. 222/2016, therefore, came to be registered with Nagar Taluka Police Station. The informant thereafter gave a supplementary statement, suspecting the appellant to be responsible to the pregnancy of the prosecutrix. The Police Station Officer, therefore, summoned the appellant. The appellant, in turn, suspected involvement of the father of the prosecutrix and her cousin as well. The Police Station Officer, therefore, decided to go for D.N.A. test. He produced the appellant and both the other suspects before the Medical Officer Dr. Ashwini Sonawane (P.W.8). Their blood samples were obtained. Meanwhile, the prosecutrix delivered a baby girl. Blood samples of both the baby and prosecutrix were also obtained for D.N.A. test. The blood samples were delivered to an expert at Forensic Science Laboratory, Kalina, Mumbai. The D.N.A. report concluded the appellant to be the biological father of the baby of the prosecutrix. The appellant was, therefore, arrested. He gave a disclosure statement, pointing out a place whereat he had sexual intercourse with the prosecutrix. Statements of persons acquainted with the facts and circumstances of the case were recorded. On completion of the investigation, the appellant was proceeded against by filing the charge sheet.

3. Since the prosecutrix was found to have belonged to a Scheduled Caste, relevant provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Atrocities Act) were also invoked. Learned Additional Sessions Judge framed the charge (Exh.3). The appellant pleaded not guilty. His defence is of false implication on account of having made complaint against the father of the prosecutrix.

4. To establish the charge, prosecution examined 11 witnesses and produced in evidence various documents. The trial Court, on appreciation of the evidence, convicted the appellant and sentenced to suffer imprisonment as stated hereinabove. The appellant, was, however, acquitted of the charge under Section 3(2)(v) of the Atrocities Act and Section 7(1)(d) of Protection of Civil Rights Act. The State has not preferred appeal against the said acquittal.

5. Heard. Learned counsel for the appellant would submit that, there is an inordinate delay in lodging of the F.I.R. The informant is an interested witness. The prosecutrix is an adult lady. She was not examined as a witness. There is no evidence to indicate the prosecutrix to have been mentally retarded to such an extent to be unable to give oral evidence. The panch witness to the disclosure statement did not stand by the prosecution. The medical officer who certified t