Bombay High Court
The State Of Maharashtra vs Narendra Ramdas Chaudhari on 10 April, 2023
Bench: V. V. Kankanwadi, Y. G. Khobragade
als-86.18
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
8 APPLICATION FOR LEAVE TO APPEAL BY STATE
NO.86 OF 2018
THE STATE OF MAHARASHTRA
VERSUS
NARENDRA RAMDAS CHAUDHARI
...
Mr. A.V. Deshmukh, A.P.P. for Applicant.
...
CORAM: SMT. VIBHA KANKANWADI AND
Y.G. KHOBRAGADE, JJ.
DATE : 10th APRIL, 2023
ORDER :
1. Present Application has been filed seeking leave under
Section 378(1)(b) of the Code of Criminal Procedure by the
prosecution to file criminal appeal challenging the Judgment and
order dated 27th December 2017 passed by the learned
Additional Sessions Judge, Nandurbar in Sessions Case No.10 of
2014. By the said Judgment and order the learned Additional
Sessions Judge has acquitted the present respondent / original
accused of the offence punishable under Sections 363, 366, 342
and 376 of the Indian Penal Code and Section 4 of the Protection
of Children from Sexual Offences Act.
als-86.18
2. Heard learned APP Mr. Deshmukh and with his able
assistance, we have gone through the record which was before
the learned trial Judge.
3. The prosecution story is that the accused has committed
rape on the victim, aged 17 years, in the intervening night of 8 th
December 2013 and 9th December 2013 in the room of his
house. Prosecutrix was acquainted with the accused prior to the
incident and it is her contention that accused used to call her
from his Mobile. She has stated that in the said night she was
forced to come out of her house but she had refused, but then
when she came out for attending nature's call, the accused had
forcibly dragged her towards his house and then committed
rape. Thereafter she has even attempted to commit suicide but a
lady prevented her from jumping into the well and then in
frightened condition and unstable mind, prosecutrix had gone to
the temple of Gajanan Maharaj and stayed there upto 4.00 p.m.
of 19th December 2013 and thereafter she returned to her house.
She narrated the incident to her family members and then family
members had tried to resolve the problem and had put proposal
als-86.18
of marriage between the girl and the boy, however, the accused
refused and then she has lodge the report.
4. Apparently the prosecutrix has supported the prosecution
story and withstood to the ordeal of the cross-examination. Her
testimony is consistent with her First Information Report and the
statement under Section 164 of the Code of Criminal Procedure.
The prosecution has also examined the lady who had stopped
the prosecutrix from jumping into the well, PW-4 Kalubai.
Thereafter the prosecution has also examined PW-6 Pravin
Chaudhari, who had taken part in the meeting to settle marriage
between the prosecutrix and the accused and he has specifically
stated that in the said meeting the accused had refused to marry
the prosecutrix. Thereafter there is evidence in the form of
testimony of the father, medical officer who examined the
prosecutrix and then there is evidence of the panch witnesses.
5. It appears that the learned trial Judge has more stressed
on the fact that the investigating officer has not collected the
CDR and the fact that evidence regarding telephonic
conversation has not been brought. The investigating officer in
his cross-examination, based on the Mobile number that was
als-86.18
given and CDR of that Mobile number which is stated to be of the
accused, has stated that there was no call from the said number
to the prosecutrix. It is therefore, required to be seen as to
whether the CDR of only one Mobile number could have been so
collected and produced, and whether the said statement in the
cross-examination of the investigating officer can be taken as a
gospel truth. What appears from the cross-examination of the
prosecutrix is that there is no serious dispute as regards her age
on the day of incident, which is stated to be as 17 years.
Accused has also not come with the defence of love affair, then
the question arises, as to why the prosecutrix would have
implicated the accused.
6. Under such circumstance, there is definitely necessity to
re-appreciate the evidence by granting leave to appeal under
Section 378(1)(b) of the Code of Criminal procedure. Hence the
following order:-
ORDER
(I) Application stands allowed.
(II) Leave is granted to the prosecution to file Appeal.
als-86.18
(III) Registry to verify and register the Appeal.
(IV) Appeal stands Admitted.
(V) Call Record and Proceedings with Paper-Book.
(VI) In Appeal, issue notice to the respondent, to be made
returnable on 23rd June 2023.
(VII) Action under Section 390 of the Code of Criminal
Procedure be taken against respondent to the satisfaction of the
learned trial Court.
[Y.G. KHOBRAGADE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/APR23
