Bombay High Court
The State Of Maharashtra vs Mahendra S/O. Bhagwan Pawle And ... on 18 October, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:22591-DB
ALS-111-2019
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 111 OF 2019
The State of Maharashtra,
Through : P.S.O. Police Station,
Nanded (Rural) ... Applicant
Versus
1. Mahendra s/o Bhagwan Pawle,
Aged about 30 years, Occ. Education,
R/o Wasarni, Tah. & District - Nanded.
2. Pravesh s/o Bhagwan Pawle,
Aged about 29 years, Occ. Labour,
R/o. Wasarni, Tah. & District - Nanded.
3. Janabai w/o Bhagwan Pawle,
Aged about 59 years, Occ. Labour,
R/o. Wasarni, Tah. & District - Nanded.
4. Samrat s/o Bhagwan Pawle,
Aged about 33 years, Occ. Service,
R/o. Wasarni, Tah. & District - Nanded.
.....
Mr. S. D. Ghayal, APP for the Applicant-State
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATED : 18.10.2023
ORDER [ABHAY S. WAGHWASE, J.] :
1. Getting dissatisfied by the judgment and order of acquittal
passed by learned Special Judge, Nanded in Special (POCSO) Case
ALS-111-2019
No. 21 of 2017, thereby acquitting respondents herein from charges
under Sections 376(2)(n), 323, 504 and 506 r/w 34 of the Indian
Penal Code [IPC] and Sections 3 and 4 of the Protection of Children
from Sexual Offences Act, 2012 [POCSO Act], the State is seeking
leave to prefer appeal.
2. Learned APP would point out that offence was serious.
Investigation revealed involvement of accused. Accused no.1
Mahendra had ravished minor. The minor had reported the
occurrence to her mother. Both have deposed in the court. Medical
expert was also examined. It is pointed out that allegations were
levelled that on promise of marriage and threat, victim was sexually
abused. That, she being minor, charges as levelled are clearly
attracted and made out. Therefore, charges ought to have been held
as proved but unfortunately learned trial Judge has held that
prosecution failed to establish minority of the victim. Medical
evidence has also been disbelieved. There is total non-application of
mind and non-appreciation of evidence as well as law on rape.
Therefore, the acquittal was unjustified and so, as State is keen in
challenging the judgment of acquittal, learned APP seeks leave to do
so.
ALS-111-2019
3. On hearing above submissions, it is seen that respondents were
charged for commission of offence punishable under Sections 376(2)
(n), 323, 504 and 506 r/w 34 of IPC and Sections 3 and 4 of the
Protection of Children from Sexual Offences Act, 2012. It seems that
accused no.1 and victim were neighbours. Victim in her evidence at
Exhibit 18 testified that accused once entered her house and finding
her alone, he closed the door and he forced himself on her by issuing
threat. According to her, because of threat, she did not inform
anyone. In para 3 of her examination-in-chief, she has stated that
after her family had shifted to Chophala, he had followed her there
and forcibly had sexual intercourse with her. She gave her date of
birth as 25.09.1999. However, in trial court, prosecution had
examined PW7 Subhash, a staff from school where she allegedly took
education. This witness in his evidence at Exhibit 53 deposed that as
per school record which he was carrying, i.e. transfer certificate, date
of admission is shown as 22.06.2013. Therefore, what prosecution
has done in trial court is, it has relied on leaving certificate and not
birth certificate. PW7 Subhash in cross has admitted that he was not
carrying application form tendered at the time of admission. He has
also admitted that in Exhibit 54 there is overwriting. He admitted that
he has no personal knowledge about date of birth and whatever he
has deposed is on the basis of record.
ALS-111-2019
4. Evidence of PW2 mother is conspicuously silent about date of
birth of her daughter. She has alleged that accused used to visit her
house and the incident had happened in 2017. She has not given
exact particulars as to when accused visited, ravished her daughter
and when her daughter informed her. Name of victim's sister is
emerging in her testimony but learned APP has admitted that said
sister has not been examined who was allegedly present when victim
was alone.
5. Therefore, here, crucial evidence is missing. Evidence of doctor
shows that history was reported to the doctor about regular visits of
accused since January 2017 and even after she reported the
occurrence to the mother, relations were continued.
6. Therefore, with such quality of evidence on record, no fault can
be found in the appreciation and conclusion reached at by learned
trial court. In our considered opinion, with such quality of evidence,
no fruitful purpose would be served by granting leave as sought by
the State. Finding no merits, the application for leave to file appeal is
hereby rejected.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
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