Bombay High Court
Original Informant (Victim) vs The State Of Maharashtra And Anr on 31 January, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
910-apeal-1231-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.1231 OF 2019
ORIGINAL INFORMANT (VICTIM)
VERSUS
THE STATE OF MAHARASHTRA AND ANR
...
Advocate for Appellant : Mr. Ghatge Mahesh V.
APP for Respondent No.1 - State : Mr. A. M. Phule
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE : JANUARY 31, 2023.
ORDER :-
. Present appeal has been filed under Section 372 of the Code of
Criminal Procedure by the original informant. Respondent No.2
faced the trial in Sessions Case No.48 of 2016 and he was acquitted by
learned Sessions Judge, Nanded by judgment and order dated
09.08.2019 from the offence punishable under Sections 376, 328, 506
of Indian Penal Code.
2. Heard learned Advocate Mr. M. V. Ghatge for the appellant and
learned APP Mr. A. M. Phule for respondent No.1 - State. It is not
even necessary that respondent No.2 should be heard while
admitting the appeal and, therefore, for the purpose of admission,
910-apeal-1231-2019.odt
the submissions have been heard.
3. The glaring fact that has been pointed out is that though the
informant states that respondent No.2 had sexual intercourse with
her without her consent, yet the learned Sessions Judge had arrived
at such a conclusion. Another fact is that no defence about
consensual relationship was taken by the accused before the learned
Trial Judge. With the help of learned Advocate for the appellant and
learned APP, we have gone through depositions and other
documents. The learned Sessions Judge refused to believe solitary
version of the prosecutrix, but made further observations and
according to the appellant, those observations are without any
background led by the accused in the cross-examination or his own
statement under Section 313 of the Code of Criminal Procedure.
4. We take help of the observations in Ganga Singh Vs. State of
Madhya Pradesh, [2013 Cri. L. J. 3966], wherein after considering
the evidence, the Hon'ble Supreme Court was of the opinion that
when the appellant - accused had not taken defence in his statement
under Section 313 of the Code of Criminal Procedure that the sexual
intercourse was with the consent of the prosecutrix and rather
denied to have had sexual intercourse with the prosecutrix and he
has been falsely implicated, then the Trial Court erred in drawing
910-apeal-1231-2019.odt
such inference that the sexual intercourse was with the consent of
the informant. Definitely, the evidence that has been led in the
matter deserves to be re-appreciated and, therefore, the appeal
deserves to be admitted. Accordingly, it is admitted.
5. Issue notice to the respondents. Learned APP waives notice for
respondent No.1 - State. Notice of respondent No.2 is made
returnable on 10.03.2023.
6. Call record and proceedings with paper-book.
[ ABHAY S. WAGHWASE ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
