The State Of Maharashtra vs Aakash Babasaheb Gadakh
2023 Latest Caselaw 10260 Bom

                                   -1-                 907-ALS.78.2018

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

APPLICATION FOR LEAVE TO APPEAL BY STATE NO.78 OF 2018

The State of Maharashtra,                 }
Through PSO Shirdi Police Station,        }
Tq. Kopargaon, Dist. Ahmednagar           }          ... Applicant
              Versus
Aakash Babasaheb Gadakh,                  }
Age : 20 years, R/o. Paregaon Bk.,        }
Tq. Sangamner, Dist. Ahmednagar.          }          ... Respondent
                                                     (Orig. Accused
                                  ...
              APP for Applicant - State : Mr. A. M. Phule
                                  ...

                         CORAM : SMT. VIBHA KANKANWADI AND
                                 ABHAY S. WAGHWASE, JJ.

DATED : 5th OCTOBER, 2023

PER COURT :

The prosecution has filed the application seeking leave

under section 378(1)(b) of the Code of Criminal Procedure

(Cr.P.C.) to file criminal appeal to challenge the judgment and

order dated 04.01.2018 by the learned 2 nd Additional Sessions

Judge, Kopargaon, District Ahmednagar in Sessions Case No.80 of

2015, thereby acquitting respondent - original accused for the

offence punishable under sections 376, 354-A, 354-B, 354-C, 323

and 504 of Indian Penal Code (IPC).

2. Heard learned APP Mr. A. M. Phule and perused the

material which was before the learned trial Judge while deciding

the matter.

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3. The learned APP has submitted that the learned trial

Judge has not appreciated the evidence properly. The testimony of

the victim supports the prosecution story and also inspires

confidence, yet, it has been disbelieved. Though the medical

evidence in the form of PW7 Dr. Kane, who examined the victim on

09.02.2015, suggests that no external injuries connecting to

sexual assault were found, yet, she had stated that the possibility

of sexual assault cannot be ruled out. Further, the evidence of PW6

PSI Sanjaykumar Sone and PW3 Bharat Salpure were sufficient to

come to the conclusion that the accused had taken the victim/

prosecutrix to the hotel at Shirdi. The prosecutrix was taken by

the accused to Loni also and there in the room that was taken by

the accused, he has committed rape on her. Further, the victim's

evidence is supported by her father PW4 and PW5 uncle of the

victim. Therefore, there was ample evidence to convict the

accused, but the accused has been acquitted, and therefore, it is

necessary to re-appreciate the evidence.

4. Before we proceed, it is to be noted that, the prosecutrix

was aged 19 at the time of incident and the accused is her distant

relative. She has stated that along with the other cousins she and

the accused had gone for three days trip at Lonawala, Alibag,

Murud, Janjira and Shivneri, and thereafter, after about 15 days

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the accused started asking her for friendship, which she refused.

But, still he was talking about sexual relationship with her. She

had told the accused that he should not talk with her in indecent

language otherwise she would inform the fact to her parents.

Thereupon, the accused had given her threats that he has taken

snaps of the prosecutrix while she was taking bath at Murud and

he would make them viral. Thereafter, under the said threats, the

accused had called her to Anjanapur Phata on 24.01.2015, and

thereafter in a four-wheeler he had taken her to a lodge at Shirdi

and had sexual intercourse with her against her wish. When she

asked to deliver her photographs he had taken, then the accused

refused to deliver the same and left her to the same place from

where he had picked her up. He had given her threats for not

disclosing the fact to anybody, but again the same course was

adopted and she was called on 28.01.2015 at the same place, she

was taken to a hotel at Loni and then she says that she was raped

and he again left her at the same place. Thereafter, on 30.01.2015

the prosecutrix told the entire story to her maternal uncle. Even

the accused had come to her maternal uncle on 08.02.2015 and

had beaten her maternal brother. Thereafter, she went to police

station and lodged the report.

5. After the investigation was over, the case was

committed to the Court of Sessions and in order to bring home the

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guilt of the accused, the prosecution has examined in all seven

witnesses.

6. Perusal of the testimony of the prosecutrix would give

an impression that, though she had gone willingly to the trip along

with the cousin brothers and sisters including the accused, when

after they returned, accused expressed love for her, she was not

willing. However, the cross would show that they both were in

contact with each other. Even PW4 the father of the prosecutrix

affirms that he got suspicion about some relationship of the

daughter, when phone call was received on the mobile phone of the

prosecutrix, but it was picked up by her brother. The cross

examination of PW3 Bharat Salpure, the Manager of the hotel at

Shirdi would disclose that the accused had come to his hotel

around 1:40 p.m. along with a girl, they took a room and then

vacated the same at 3:00 p.m. He has categorically stated that,

there was no reason to disbelieve or show some suspicion to the

accused while giving the room to the girl and the accused. The

behavior of the prosecutrix was not suspected by those persons.

7. Further, the prosecutrix has admitted in her cross

examination that, the accused used to send messages on her

mobile phone. He had forwarded about 50 messages to her and she

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has forwarded about 100 messages to the accused. The accused

used to talk to her on mobile phone everyday. The question then

arises that as to why she had not disclosed the behaviour of the

accused to her parents, if she had objection.

8. It appears from the cross examination that, on one day,

when she came late, she was asked by the father about the reason

and she could not give satisfactory answer, and therefore, she

started crying and then the father had sent her to maternal uncle's

place. That, the entire cross of the prosecutrix would show that, it

was the case of love affair. The prosecutrix appears to have

voluntarily accompanied to the accused. She was a major girl and

therefore, her testimony does not inspire confidence.

9. Learned trial Judge has rightly appreciated the

evidence and we do not find any illegality or perversity in the

impugned judgment. No case is made out for re-appreciating the

evidence.

10. The application, therefore, stands rejected.

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

Tandale

Signed by: Manoj Tandale Designation: PA To Honourable Judge Date: 07/10/2023 17:08:05