Bombay High Court
The State Of Maharashtra vs Shivaji Isamsing Biganiya on 16 January, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:929-DB
ALS No.12/2024
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO.12 OF 2024
The State of Maharashtra ... APPLICANT
VERSUS
Shivaji Isamsing Biganiya ... RESPONDENT
.......
Mrs. V.S. Choudhari, Addl. P.P. for applicant
Mr. S.N. Patil, Advocate for informant
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
DATE : 16th JANUARY, 2024
ORDER:
Heard learned Addl. P.P. for the State and learned
Advocate who is appointed to represent the victim.
2. This is an application for leave to appeal against the
judgment and order dated 2/5/2019, passed by learned Additional
Sessions Judge, Nanded in Special (POCSO) Case No.13/2018.
3. Perused the papers available on record. C.R.
No.123/2017 was registered at the instance of the father of the
victim that the accused had kidnapped his daughter and committed
rape. It was the prosecution case that, at the time of offence, the
victim was a child. After the investigation, the concerned Police
Station charge-sheeted the respondent - accused. During the
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investigation, the investigating officer added Section of rape. The
matter was tried by the learned Additional Sessions Judge. On
completion of trial, the learned Additional Sessions Judge passed
the impugned judgment and acquitted the respondent - accused of
all the charges.
4. Perusal of the impugned judgment show that the
prosecution was unable to prove that the victim was a child at the
time of the offence. It is seen that the school authorities of the
Primary School where the victim had taken her primary education
was not examined, and who was examined to prove the age was
the Head Master of the High School. The learned Trial Court has
discarded the said evidence regarding age, since the Birth
Certificate issued by the Municipal Council was not brought on
record. It is seen that, no ossification test was conducted to
determine the age of the victim.
5. In respect of eloping and committing rape, the learned
Trial Court has considered the substantive evidence of the victim
and her statement recorded by the learned Magistrate under
Section 164 of the Code of Criminal Procedure. It is seen that,
there were glaring inconsistency in the statement of the victim
before the learned Magistrate and her substantive evidence before
the Sessions Court. It is further seen that, the accused and the
victim had traveled to another place on motorcycle. Though the
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victim had sufficient opportunity to raise alarm, nothing was done.
It is seen that, the victim stayed with the accused at Hyderabad.
The accused appears to be aged 24 years. From the observations
made by the learned Trial Court, it appears that, there were intimate
relations between the victim girl and the respondent - accused and
she accompanied the accused.
6. On going through the impugned judgment and order, it
becomes clear that the learned Trial Court has properly appreciated
the evidence available on record and acquitted the accused. In
these facts and circumstances, we do not find any merit in the
application for leave to appeal and hence, the following order :
ORDER
(i) The application stands dismissed.
(ii) Fees of learned counsel Mr. S.N. Patil, appointed for the
victim is quantified at Rs.10,000/- (Rupees ten thousand).
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
