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THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 164 OF 2007
The State of Maharashtra,
through the P.S.O., Bhadravati,
District Chandrapur. … Appellant
VERSUS
Namit alias Chimu s/o Asit Maitra,
Aged about 25 years,
Occupation-Labour,
Resident of Quarter No. 59, Sector 5,
Type 2, Ordnance Factory, Chanda,
Tahsil Bhadravati, District-Chandrapur. … Respondent
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Shri K. R. Lule, Additional Public Prosecutor for the appellant
Shri P. R. Agrawal, Advocate for the respondent
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CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.
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
consent.
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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.
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.
JUDGE JUDGE
wasnik
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