1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3346 OF 2008 The State of Maharashtra ...Applicant Versus Sunil Baba Khomane & Ors. ... Respondents. Mr. P.S. Hingorani, Additional Public Prosecutor, for the Applicant. CORAM: B ILAL NAZKI and ANOOP V. MOHTA, JJ. DATE: JANUARY 16, 2009 P.C.:- This is an application for leave to file an appeal against the order of the learned Sessions Judge acquitting the accused persons in Sessions Case No. 77 of 2007. 2. The accused were charged under Sections 366, 342, 504, 506 read with Section 34 of the Indian Penal Code. 3. We have heard the learned Additional Public Prosecutor and gone through the statements of the witnesses and also the judgment. 2 4. The case of the prosecution was that the prosecutrix (P.W.1) was taken forcibly, kept in a lodge and an offence of rape was committed on her. By her own statement, P.W. 1 was living with her parents and brother. She had been married in year 2000, had disputes with her husband, and left him almost immediately after marriage. She went with accused No. 1 along with her uncle and cousin, but alleged that she was, in fact, forcibly taken. The trial Court noted that the prosecutrix had gone out of her free will and had even married one of the accused. It also noted that accused No. 2 was uncle of the complainant / prosecutrix. 5. In paragraphs 22 and 23 of the judgment, the learned Judge noted as follows:- “22] The evidence of the prosecutrix further shows that at Shani Shinganapur the accused No. 1 booked Shani Mahatmya Lodge room No. 11 for stay for 2 days. Then they took her to Rahata. Then again they came to Shirdi. Then on 3.10.04 they went to Gevrai. Then again they had come to Shirdi and stayed in one room and one lady was kept with the prosecutrix. Then on 5.10.04 the accused No. 3 Bharat had come along with garlands and took the prosecutrix to Nandurgi in Shree Krishna Temple. Accused No. 4 Prakash came with photographer. However, the prosecutrix refused to take photographs.(sic) However, the accused No.1 threatened. Therefore she consented for the photographs. Then the 3 evidence of P.W. 7 at Exh. 45 shows that he took about 12 to 13 photographs of prosecutrix at Shree Krishna Temple. 23] Perused the photographs filed on record. They are admitted by the accused. Out of said photographs, 12 photographs are of accused No.1 and the prosecutrix. Each photograph of the prosecutrix is taken with smiling gesture and it reflects from the photographs that the prosecutrix is in happy mood. Therefore, the evidence of the prosecutrix that she refused to take her photographs is not acceptable. If that would have been the fact under such circumstances naturally her photographs should have been reflected with strained face. But that is not happened in the photographs. On the other hand she appears to be pleased in those photographs.” On the basis of the appreciation of the evidence, the learned Sessions Judge came to the conclusion that even if there was any sexual relationship established between one of the accused and the prosecutrix, it was with the consent of the prosecutrix and out of her free will, and they were accompanied by her uncle and cousin. 6. Therefore, we do not find any reason to interfere in the matter. Leave is refused. The application is dismissed. BILAL NAZKI, J. ANOOP V. MOHTA, J.