Bombay High Court
The State Of Maharashtra vs Harish Raosaheb Narwade on 5 March, 2024
Author: R.G.Avachat
Bench: R.G.Avachat
6-ALS.9.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO.9 OF 2020
The State of Maharashtra .. Applicant
vs.
Harish Raosaheb Narwade ..Respondent
----
Ms.U.S.Bhosale, APP for applicant
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
DATE : MARCH 05, 2024
ORDER :
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Mr.R.V.Gaikwad, learned counsel for Mr.G.J.Pahilwan,
learned counsel for the respondent - sole, states that there are no
instructions from his client. He, therefore, seeks discharge of his
appearance.
2. In view of the above, appearance of Mr.G.J.Pahilwan,
learned counsel, is discharged.
3. Heard learned APP for the applicant - State. Perused the
papers on record.
4. This is an application for leave to file appeal by the State
against the judgment and order dated 29.04.2017, passed by learned
Addl. Sessions Judge, Aurangabad, in Sessions Case No.372 of 2021 for
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the offences punishable under Sections 363, 366(a), 376 and 506 of
Indian Penal Code.
5. The prosecution case, in nutshell, is that the respondent-
sole, allegedly, kidnapped the informant's minor daughter on
23.04.2011. Since the respondent was residing in the same locality
and was behind his minor daughter, the informant suspected that
the respondent - sole kidnapped his daughter. He, therefore, lodged
the report. On completion of investigation, the respondent came to
be charge-sheeted.
6. Perusal of the impugned judgment shows that the trial
court found the victim-girl unreliable. Relevant observations from
the impugned judgment are reproduced below:-
"25. All those questions put up to the victim during her
cross-examination. But she replied that it did not happen.
She denied that she has stated such contents before the
police. However, the Investigating Officer has admitted all
those things. She has admitted that victim had stated all
those contents. Those contents are marked at portion Mark
"A" to "D" which are exhibited at Exh.62 to 65. The victim
has specifically stated before the police that there was no
sexual intercourse between them during the above period.
26. PW 1 Ratan say victim was referred for medical
examination. Police came to know that there was sexual
intercourse with the victim. The police told him about it. It
means, informant PW 1 Ratan came to know about the
sexual intercourse from the police and not from the victim.
Medical Officer says that there was intercourse with the
victim.
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27. The victim is totally silent about their stay at the
house of Abhijit at Jadhavwadi, Aurangabad, while making
statement to the police She is very much silent about their
stay at Kannad and Chalisgaon while deposing before the
court. The victim is making two different statements in
respect of the same incident. Once she is saying that she
never had a sexual intercourse by accused. At the same
time, she says that accused had sexual intercourse with her
on 23.04.2011 and 24.04.2011. When a victim put up two
different statements then it is very difficult to accept one
and discard another. It is very difficult to know whether
victim is deposing false before the Court or she had stated
false before the police. But, one thing is clear that the
victim is not a trustworthy witness. Because a person
making different statements about the same incident, she
cannot be a trustworthy. There may be difference in the
statement in certain contingencies, but unless, those
contingencies are explained, it is very difficult to accept it.
The victim has not at all explained it. She had shown her
inability to explain how there is difference in her two
statements. Out of two, one may be false and one may be
correct. Out of two statements, both may be false but both
may not be correct at any costs. Therefore, the evidence of
victim cannot be relied on. It is not a trustworthy evidence.
28. As per medical evidence the prosecutrix was
accustomed with sexual intercourse. Therefore, it is very
difficult to say that the accused had intercourse with her.
Samples were sent to the C.A. The C.A. report is at Exh.49.
But it is not supporting to the prosecution case. Because as
per the C.A. report, neither blood nor tissue matter is
detected, no semen is detected in the sample.
29. If we consider the situation as it is under which the
victim has left her house, then it is clear that there was no
criminal force used by the accused for moving her from her
house. What she says, accused came to her and asked that
we will marry within one day and she eloped with him. If
the victim was not willing, if she was taken away against
her will, then, naturally, she will have raise hue and cry.
She had ample opportunity to defend the accused. She had
ample opportunity to ran away and rescue from the
clutches of the accused. But it is not so happened. The
victim very skillfully left her house, accompanied with
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accused at Aurangabad. She moved with him for 2/3 days
without any complaint, without any objection. They moved
in a public place and travelled by public conveyance. It
indicates that the victim was consenting party.
30. The prosecutrix has stated before the police that
she was acquainted with the accused since last one year.
They were meeting each other isolately. She was making
phone call on the cell phone of the accused from the public
booth. All these things clearly indicates that the prosecutrix
was taking initiative all the time. She was meeting the
accused at isolated place. She used to call accused from
the public phone booth and this fact was noticed by her
parents. Accused and victim were residing in same locality.
They were acquainted with each other. They were of teen
age group. In such circumstances, naturally they were
attracted with each other. But parents of victim was not
agree for the same. Thinking of parent may be different
than thinking of child. The parents of victim were not
agree, because, accused was from different caste and there
were obstacle of the caste system and social system, which
resulted in such elopement of the victim.
7. In view of the above, we do not see merit in the present
application for leave to file appeal. Hence, the the application is
rejected.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
