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The State Of Mah. Thru The P.S.O vs Namit Alias S/O Chima Maitra on 1 March, 2018

1 jg.apeal.164.07.odt



The State of Maharashtra,
through the P.S.O., Bhadravati,
District Chandrapur. … Appellant


Namit alias Chimu s/o Asit Maitra,
Aged about 25 years,
Resident of Quarter No. 59, Sector 5,
Type 2, Ordnance Factory, Chanda,
Tahsil Bhadravati, District-Chandrapur. … Respondent
Shri K. R. Lule, Additional Public Prosecutor for the appellant
Shri P. R. Agrawal, Advocate for the respondent


Date of reserving the judgment : 21/02/2018.
Date of pronouncing the judgment : 01/03/2018.

Judgment (Per : M.G. Giratkar, J)

The State has filed the present appeal against the judgment

of acquittal of respondent by the learned Sessions Judge, Chandrapur in

Sessions Case No. 19/2005.

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2. It is the case of prosecution against the respondent that

respondent committed rape on the victim. Evidence of victim was

corroborated by the Medical Officer, P.W. 2. Victim has stated about the

incident before the Court. Learned trial Court wrongly not considered

her evidence and wrongly acquitted the respondent, hence it is prayed

to allow the appeal.

3. Perused the evidence of material witnesses. P.W. 1 Jaya

was sister of prosecutrix. She has stated in her evidence that on

2-8-2005 in the afternoon at about 12.00 to 1.00 p.m., her sister/victim

had gone out of the house stating that she was going to the house of her

friend. She returned at about 1.00 p.m. Clothes of victim were dirty.

She found dust on her clothes, therefore, asked her as to how her

clothes became dirty, but victim not stated anything to her. At about

4.00 p.m., victim/her sister told her that Accused Chimu took her on

the terrace of adjacent building having Quarter No. 58 and he did bad

thing with her. Thereafter P.W. 1 called her father and brother and

thereafter lodged the report.

4. P.W. 3 victim has stated in her evidence that on the day of

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incident at about 3.00 p.m., she started to go to house of her friend

Shitty De. Accused was coming from front side. He met her in front of

her house. He caught her hand. He dragged her up to staircase. He

lifted her and took her on terrace. He removed her clothes and did

sexual intercourse with her. She informed her sister at about 4.00 p.m.

about the incident. Her father came from duty and thereafter report

was lodged. Crime was registered against the accused. Victim was sent

for medical examination.

5. P.W. 2 Dr. Mayura Avatade examined the victim and opined

that age of victim was in between 15 to 18 years. There was intercourse

with her. There was no any sexual intercourse before the incident. She

noticed that penis got entry in her genital. Some discharge of fluid was

occurred. It was sent to laboratory. Accordingly, she issued medical

certificate, Exhibit 44.

6. Accused was also examined by the Medical Officer. His

M.L.C. admitted by the defence. As per M.L.C., accused was able to do

sexual intercourse.

7. Evidence of P.W. 1, P.W. 2 and P.W. 3 is material. Learned

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trial Court recorded its finding that evidence of P.W. 3 is not reliable.

From the evidence of P.W. 3 victim, it is clear that she was not forcibly

taken by the accused/ respondent. The incident took place just adjacent

to the quarter of victim. As per the evidence of P.W. 1 Jaya, she was

present. They were residing in Quarter No. 59-B. As per the evidence,

incident took place on the terrace of Quarter No. 58. Both the quarters

were having G+1 quarters.

8. Cross-examination of P.W. 1 and P.W. 3 clearly show that in

between 1.00 to 2.00 p.m., they used to wash clothes and used to keep

it for drying on terrace. The spot of incident was also visible. As per the

evidence of P.W. 3, she tried to cry, but it is not reliable because as per

her evidence, accused met her in front of her house and taken her. If it

was any forcible intercourse, then she would have cried and her sister

P.W. 1 would have noticed it.

9. It appears from the evidence of P.W. 1 that sexual

intercourse was with her consent. It is corroborated by evidence of

P.W. 2 Medical Officer Dr. Avatade. Learned trial Court recorded its

finding that evidence of P.W. 3 victim is not reliable. Cross-examination

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of P.W. 3 shows that her evidence is not reliable. Even if it is held that

there was sexual intercourse with the victim, then also, it appears that it

was with her consent.

10. Date of birth of victim is not properly proved. As per the

evidence of her father, P.W. 4 Gorayya Medballi, date of birth of victim

was registered in Gram Panchayat, Manora. Her date of birth is

18-6-1990. But from the evidence of P.W. 4, it is clear that victim was

born at Piparbodi and he has stated that intimation regarding her date

of birth was given to Gram Panchayat, Manora. Whereas certificate,

Exhibit 53 shows that it was issued by Gram Panchayat, Checkbaraj.

Therefore, Exhibit 53 is not reliable. From the oral evidence of P.W. 1

Jaya, it is clear that she was born in the year 1980. Her brother

Shriniwas is younger to her by two years and elder to prosecutrix.

Prosecutrix P.W. 3 has stated in her evidence that her brother Shriniwas

was older than 2-3 years. As per the evidence of P.W. 1, Shriniwas born

in the year 1982. Therefore, it appears that P.W. 3 born in the year

1985. Incident took place on 2-8-2005. Therefore, she was aged near

about 20 years. Even if, there was sexual intercourse, it was with her


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11. From the cross-examination of P.W. 3, it is clear that

material omissions are brought on record. She has made much more

improvements. Her evidence not rightly relied by the trial Court.

Incident as stated by P.W. 3 taken as it is, then also, it is clear from her

evidence that she was consenting for the sexual intercourse. She was

major, aged about 20 years at the time of incident i.e. on 2-8-2005.

Therefore, prosecution has failed to prove the offence punishable under

Section 376 of the Indian Penal Code. Learned trial Court rightly

acquitted the respondent. Hence, we do not find any merit in the

appeal, hence, we proceed to pass the following order.


(i) The appeal is dismissed with no order as to costs.

(ii) R P be sent back to the trial Court.

(iii) Bail bond of accused/respondent stands cancelled.



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