The State Of Maharashtra vs Raju Anton Adhav And Anr
2023 Latest Caselaw 5423 Bom

                                      -1-                        ALS-261-2018

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

APPLICATION FOR LEAVE TO APPEAL BY STATE NO.261 OF 2018


       The State of Maharashtra,
       Through
       Shrirampur City Police Station,
       District Ahmednagar                           . . . Applicant
                                                          (Orig. Informant)
       Versus

1.     Raju Anton Adhav,
       Age : 45 years, Occu. : Agri.,
       R/o. Kendal Kd.,
       Tq. Rahuri, Dist. Ahmednagar

2.     Ashok Namdev Gadve,
       Age : 38 years, Occu. : Agri.,
       R/o. Haregaon, Tq. Shrirampur,
       Dist. Ahmednagar.                             . . . Respondents
                                                          (Orig. Accused)

                                   ...
             Smt. V. S. Choudhari, APP for Applicant - State.
                                   ...

                                CORAM : SMT. VIBHA KANKANWADI AND
                                        ABHAY S. WAGHWASE, JJ.
                                DATED : 12th JUNE, 2023


ORDER (PER ABHAY S. WAGHWASE, J.) :

1. As State intends to impugn judgment and order passed

by learned Sessions Judge, Shrirampur in Sessions Case No.16 of

2017 dated 24.09.2018, leave is hereby sought by way of instant

application.

                                     -2-                          ALS-261-2018



                                FACTUAL MATRIX

2. Shrirampur police station entertained FIR lodged by

victim, wherein she narrated that on 28.12.2016, in the afternoon,

while she was proceeding to Saint Luce's Hospital, Shrirampur to

meet and see her father-in-law, she was intercepted by two persons

on a motorcycle bearing no. MH-17/7775. One of them by named

Raju got down from the motorcycle, outraged her modesty and

even inserted fnger in her private part, thereby committing sexual

assault. On her such report, Shrirampur police registered crime

bearing no. 313 of 2016 and after investigation accused persons

were charge-sheeted for commission of offence under sections 341,

376, 354 read with section 34 of Indian Penal Code (IPC).

3. After its committal, learned Additional Sessions Judge

which was a special court, conducted trial during which

prosecution examined 4 witnesses including victim and relied on

documentary evidence. After section 313 of Cr.P.C., both sides

were heard and on appreciating the available evidence, learned

Judge reached to a fnding that prosecution failed to establish that

victim was wrongfully restrained, she was sexually assaulted and

her modesty was outraged and thereby acquitted both accused vide

judgment and order dated 24.09.2019.

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Feeling aggrieved by the above, prosecution has fled

instant proceeding, thereby seeking leave to fle appeal against the

same.

4. Learned APP would submit that judgment and order

under challenge is against settled principles of law and also

contrary to the evidence on record. He would submit that

informant/victim herself approached police. That, she had

narrated about being restrained while she was proceeding.

Initially her modesty was outraged by one of the accused by named

Raju and even there was sexual assault on her by fngering her

private part. Her testimony to that extent was intact, but the same

not been appreciated properly. It is next submitted that, her

statement under section 164 of Cr.P.C. was also recorded.

Therefore her testimony was reliable and natural. Medical

evidence is also on record. Therefore, there was corroboration.

Thus, it is submitted that, necessary ingredients for attracting the

offences was very much available on record, however

unfortunately, learned trial Judge failed to appreciate the same in

its proper perspective and legal requirements and settled law has

been lost sight of and hence the above prayers.

5.              After      hearing   learned     APP,        we      have       carefully





                                 -4-                         ALS-261-2018

examined the evidence as well as the impugned judgment under

challenge. It is emerging that including victim prosecution has

examined in all three more witnesses, i.e. PW-2 Raju a passerby,

PW-3 Mohan Police Offcer/P.S.O. and Investigating Offcer, PW-4

Dr. Priyanka Mankar, Medical expert.

6. It seems that alleged occurrence had taken place at

1.45 p.m. while victim was proceeding over road leading to

hospital. The sequence of events that surfaced are that she was

intercepted by two persons on motorcycle. They are not known to

her. Her evidence shows that, pillion rider got down and asked her

to accompany them to hotel. He caught hold of her hand and

thereafter she claims that her modesty were outraged and after

lifting her Saree said person allegedly inserted his fnger in her

private part. Alleged incident seems to have taken place on a public

road in the broad day light i.e. afternoon hours. When victim

herself speaks of people gathering hearing her shouts, inference

that can be drawn is that there were people around on the road.

However, it seems that only PW-2 Raju has been examined.

Para 5 of the cross of victim shows that accused

persons were not known to her and she had never seen them nor

there was any dispute between them. She even answered that she

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was not sure whether those accused knew her also since

previously. Answers given by her in cross demonstrates that, the

place where incident took place is a busy locality and the market

place. Considering such spot, it is diffcult to believe that a person

could lift a Saree of a full grown lady and thereafter insert his

fnger right into a private part.

7. If we go through the testimony of PW-2 Raju, it is

emerging that at the relevant time, she was proceeding with his

wife. According to him, he saw two persons on motorcycle talking

to a lady and asking her to accompany them for tea. He stated that

the lady refused and therefore that person started outraging her

modesty and he fondled her breast, made her fall down and then

put a fnger in a private part. People gathered and there was

commotion and the persons ran away.

8. Above version of PW-2 Raju is contrary to the

testimony of the victim to the extent that she does not state that

she was frst made to fall and thereafter there was sexual assault.

Wife of PW-2 Raju in spite of being present there has not been

examined by prosecution. Para 2 of the cross of PW-2 shows that

there is previous enmity between PW-2 Raju and accused Ashok as

wife of this witness had lodged report against accused Ashok and

-6- ALS-261-2018

the matter is sub judiced. Further, his statement was not recorded

on the same day, rather it was recorded on the next date. It is

pertinent to note that in his statement he has not stated that

accused persons asked the lady to have tea with them and

thereafter made her fall down and inserted fnger in her private

part. Therefore, there is materiel omission. It is also worth noting

that, victim does not mark his presence in her FIR or her oral

testimony.

9. PW-4 Dr. Priyanka is the Medical Offcer, who had

occasion to physical examine the victim. According to this witness

history was reported about a drunken person outraging her

modesty, however, such version is not reported in FIR nor stated

by victim in witness box. Medical experts speaks of coming across

three abrasions. She claims that, she issued medical certifcate

(Exh.43). However, in cross she has admitted that, age of

abrasions is not noted in the certifcate and she conceded that such

abrasions are possible during foreplay or can be self inficted one.

She admitted that it is not noted that abrasions are fresh one.

Examination seems to have been done on her at 6.30 p.m.

10. We have gone through the Exh.34, which is a

statement of victim recorded under section 164 of Cr.P.C. However,

-7- ALS-261-2018

on conjoint reading of her testimony, it is seen that there is no

consistency. Before learned Magistrate it is narrated that by

catching both her hands, she was dragged, her blouse got torn.

Therefore, self contradictory versions are given in testimony and

in statement before the learned Magistrate.

11. Record shows that, occurrence is of 28.12.2016, but

scene of occurrence panchanama is drawn on the next day.

However, victim admits that she visited police station only on

28.12.2016 and not thereafter. Therefore on whose showing scene

of occurrence panchanama was drawn is a question mark.

12. To sum up here version of victim fails to inspire

confdence, for the reasons stated in aforesaid paras. We have also

carefully gone through the judgment under challenge. It seems

that there is proper appreciation of testimony of victim, medical

expert and so called eye witness. Reasonable doubt about veracity

of version of victim has cropped up and the same has been spelt out

in the judgment. Therefore, reasons are assigned for not believing

the case of prosecution. Consequently, there is no reason to take a

different view, so as to allow State to prefer an appeal. No case on

merits being made out for grant of leave, we pass following order :-

                                   -8-                           ALS-261-2018


                                   ORDER

(i) Application for leave to appeal by State stands rejected.

(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)

Tandale