-:1:- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.1597 OF 2008 APPLICATION NO.1597 OF 2008 APPLICATION NO.1597 OF 2008 The State of Maharashtra. ... Applicant. V/s. Vishal Bhupendra Shah. ... Respondent. Mrs. V.R. Bhosale, A.P.P.for the State. None for the Respondents. CORAM CORAM CORAM : F.I. REBELLO & : F.I. REBELLO & : F.I. REBELLO & K.U. K.U. K.U. CHANDIWAL,JJ. CHANDIWAL,JJ. CHANDIWAL,JJ. DATE DATE DATE : 20TH JUNE, 2008. : 20TH JUNE, 2008. : 20TH JUNE, 2008. P.C. P.C. P.C. : : : . The State is in Appeal against the order of the learned Ad-hoc Additional Sessions Judge - II, Pune in Sessions Case No.34 of 2006 dated 13th November 2007 whereby the learned Judge, acquitted the Respondent for the offences charged which were punishable under Sections 363, 366 and 376 of the Indian Penal Code. 2. On consideration of the evidence on record, the learned Judge has recorded the finding that though the prosecutrix was a minor Respondent had not taken her by force and on the contrary it is the prosecutrix who herself voluntarily went with the Respondent. Considering this evidence which has been kept by the learned Judge, the acquittal in so far as the charge -:2:- of kidnapping cannot be said to be perverse or the view taken by the Judge cannot be said to be a view which was incapable of being taken. 3. In so for as the charge under Section 376 is concerned, the medical evidence on record is not clear. Exhibit 34 is the Medical Certificate and the Doctor has opined from the history and clinical examination as under :- "the evidence of penetrative sexua intercourse cannot be ruled out". In other words, the medical evidence is not clear whether there was penetrative sexual intercourse or not. In so far the evidence of the prosecutix is concerned, in her first statement to the Police she did not disclose about sexual intercourse. It is only in the subsequent statement that she spoke about the sexual intercourse. Considering the medical evidence and the evidence of the Prosecutrix, the learned Judge was pleased to grant the benefit of doubt in favour of the Respondent. 4. In our opinion, considering the evidence, the view taken by the learned Judge cannot be faulted. -:3:- 5. In the light of the above and considering failure by the prosecution to make out a case for leave to appeal, this will not be a fit case for granting leave. Hence, the application is rejected. (F.I. (F.I. (F.I. REBELLO, J.) REBELLO, J.) REBELLO, J.) (K.U. (K.U. (K.U. CHANDIWAL,J.) CHANDIWAL,J.) CHANDIWAL,J.)