State Of Maharashtra vs Dashrath S/O Bhajanrao Pathade
2017 Latest Caselaw 1866 Bom

                                                                        apeal26.03 2

                                         1

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.

================================================================
          Shri A.S. Fulzele, Addll.P.P. for the appellant/State.
          Shri Shrikant Dharaskar, Counsel for the respondent.
================================================================


                                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/-

apeal26.03 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/-

apeal26.03 2

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/-

apeal26.03 2

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/-

apeal26.03 2

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/-

apeal26.03 2

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  !!




                                                                                   ...../-