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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.26 OF 2003
The State of Maharashtra,
through Police Station, Karanja,
Tahsil, Karanja, District Wardha. ..... Appellant.
:: VERSUS ::
Dashrath s/o Bhajanrao Pathade
Aged about 24 years, Occupation
Agriculture, R/o Parsodi, Tahsil
Karanja, District Wardha. ..... Respondent.
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Shri A.S. Fulzele, Addll.P.P. for the appellant/State.
Shri Shrikant Dharaskar, Counsel for the respondent.
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CORAM : B.P. DHARMADHIKARI &
V.M. DESHPANDE, JJ.
DATE : APRIL 20, 2017.
ORAL JUDGMENT (Per : V.M. Deshpande, J.)
1. The State, being aggrieved by judgment and order of acquittal passed by learned Sessions Judge, Wardha, in Sessions Trial No.23 of 2000, by which the Court below acquitted the respondent for the offences .....2/-
::: Uploaded on - 21/04/2017 ::: Downloaded on - 22/04/2017 00:57:33 ::: apeal26.03 2 2 punishable under Sections 376 and 417 of the Indian Penal Code, is before this Court.
2. We have heard learned Additional Public Prosecutor Shri A.S. Fulzele for the appellant/State and learned counsel Shri Shrikant Dharaskar for the respondent. With their able assistance, we have gone through the record and proceedings.
3. The respondent was charged by learned Sessions Judge for committing an offence punishable under Section 376 of the Indian Penal Code since according to the charge, he has committed sexual intercourse with prosecutrix, aged about 16 years, against her will and without her consent.
The respondent was also charged that on giving a promise to marry, he has established sexual .....3/-
::: Uploaded on - 21/04/2017 ::: Downloaded on - 22/04/2017 00:57:33 ::: apeal26.03 2 3 relationship with prosecutrix and thereby committed an offence punishable under Section 417 of the Indian Penal Code.
4. In order to bring home the guilt of the respondent, the prosecution has examined in all four witnesses. The prosecutrix was examined as prosecution witness No.1. Though in opening paragraph of her deposition she gave her date of birth as 3.4.1984, she was required to admit in her cross examination that while giving her report Exhibit 19, she did not mention the said date. The said fact is confirmed by investigating officer PW4 Purushottam Ingole, who has also stated that even then her subsequent statement was recorded and she failed to disclose her date of birth as 3.4.1984. Further, her father PW2 Marotrao Raut is examined. This witness could have been the best witness to depose about date of .....4/-
::: Uploaded on - 21/04/2017 ::: Downloaded on - 22/04/2017 00:57:33 ::: apeal26.03 2 4 birth. Reading of his deposition shows that he is conspicuously silent on disclosing date of birth. The other witness, which is examined by the prosecution to prove the date of brith, is Pundlikrao Bagade, who is the headmaster of the Gram Vikas Vidyalaya Kadkada. It is to be noted that the prosecutrix was admitted in school to which this prosecution witness was the headmaster on 17.6.1997. He admitted that prior to admitting prosecutrix in his school, prosecutrix was taking education for a period of three years in a Zilla Parishad School. The said document from Zilla Parishad School is not brought on record nor Shri Bagde states that he verified the date of birth from Zilla Parishad School. He has also disclosed his inability from the witness box that on the basis of which document the date of birth of the prosecutrix was recorded when prosecutrix was admitted in Ist Std.. The prosecution has not examined any person .....5/-
::: Uploaded on - 21/04/2017 ::: Downloaded on - 22/04/2017 00:57:33 ::: apeal26.03 2 5 who gave information regarding date of birth in school. In our view, all these aspects were correctly appreciated by learned Trial Judge while reaching to the conclusion that the prosecution has utterly failed to prove the date of birth of the prosecutrix.
5. Insofar as offence punishable under Section 417 of the Indian Penal Code is concerned, learned Judge of the Court below has considered correctly the scope of Section 90 of the Indian Penal Code. Learned Trial Judge, on the basis of evidence available on record, has reached correctly that he has not given any promise, at least same is not established on record beyond reasonable doubt.
6. By now, the law is well settled when the Appellate Court should interfere with the order of .....6/-
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apeal26.03 2 6 acquittal. From perusal of judgment, it is crystally clear that the impugned judgment cannot be branded as a perverse one or it cannot be said that learned Trial Judge has not considered available evidence on record, merely because another view is a possible that cannot be a reason to upset the view taken by learned Trial Judge.
7. In that view of the matter, we see no reason to upset the well reasoned judgment by learned Sessions Judge, Wardha. Consequently, appeal fails and is dismissed.
JUDGE JUDGE
!! BRW !!
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