Y.G. KHOBRAGADE, JJ. DATE : 8 th MARCH, 2023 p l .

ORDER [PER SMT. VIBHA KANKANWADI, J.] :

1. Present Appeal has been filed by the original informant - mother of the victim, challenging the acquittal of respondent

Nos.2 and 3 from the offence punishable under Sections 448,

376(2)(j), (n), (l), 376-D and 506 read with Section 34 of the Indian Penal Code by the learned Additional Sessions Judge-3, Hingoli on 29 th July 2022 in Sessions Case No.47 of 2021.

2. The prosecution case, in short, was that the victim is a mentally disabled and she is unmarried. She was suffering from loose motions and stomach pain and when she asked the informant to massage the stomach, at that time informant found that stomach of the victim has become hard. Informant stated the said fact to husband and thereafter they both had made inquiry with the victim who disclosed that when they both had gone to market and victim was collecting wastage of the tur crop, at that time original accused No.1 went to the field, carried the victim forcibly in the tin shed situated in the field. Accused No.1 told victim that since her family members had not performed her marriage he would do sexual act with her. The victim told him that her brother would beat her. Then accused p l . No.1 put handkerchief in her mouth and thereafter by removing her clothes, had ravished her. Thereafter accused No.1 threatened her with dire consequences if she discloses the said fact to anybody. Victim then also disclosed that accused No.1 was continuously committing rape on her for next two days when parents were not present in the field. Informant has then stated that she disclosed all these facts to her son, who has then brought pregnancy test kit and found that the victim was pregnant and then the informant lodged the report.

3. It appears that during the course of investigation, the spot panchnama was carried out, seizure of clothes of the victim as well as the accused after his arrest has been done, so also the statements of witnesses have been recorded. The medical examination of the victim as well as examination of her mental ability was done, so also the medical examination of the accused was done. It is stated that the pregnancy of the victim was aborted and the DNA samples were collected in respect of the victim, foetus as well as accused. During the course of the investigation role of accused No.2 was revealed and therefore he was arrested because it was also the later on case that accused No.2 had also committed rape on the victim.

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4. After the charge-sheet was committed to the Court of Sessions, both the accused appeared and charge was framed. It appears that nine witnesses were examined to bring home the guilt of the accused and taking into consideration the evidence on record including the DNA report, the accused persons have been acquitted. The informant is challenging the said Judgment and order of acquittal of respondent Nos. 2 and 3 under Section 372 of the Code of Criminal Procedure.

5. Heard learned Advocate Mr. Tungar appearing for the appellant, learned APP Mrs. Choudhari appearing for respondent No.1, learned Advocate Mr. Shinde for respondent No.2 and learned Advocate Mr. Chondhekar for respondent No.3.

6. With the able assistance of the learned Advocates and learned APP, we have gone through the evidence that was before the learned trial Judge.

7. It has been vehemently submitted on behalf of the appellant – original informant that the learned trial Judge has not considered the evidence in proper perspective. It was not p l . considered that the victim was a mentally challenged person and it could have been considered on the basis of her cross- examination also. She was giving answers in the affirmative to every suggestion that was put to her. She was not the comp