- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4535 OF 2008 (for leave to Appeal) IN CRIMINAL APPEAL NO. OF 2008 The State of Maharashtra ... Applicant vs Mahesh Shashikant Halwai ... Respondent (Orig.Accused No.1) Dr.F.R.Shaikh A.P.P.for State-Applicant ... CORAM: B.H.MARLAPALLE & MRS.MRIDULA BHATKAR,JJ DATE: 22nd M arch, 2010 P.C. 1. We have heard Dr.Shaikh the learned A.P.P. in Sessions Case No.24 of 2006. The present respondent came to be acquitted of the charge punishable under sections 376 (g) 109 and 506 read with section 34 of the Indian Penal Code and hence this application seeking leave to appeal under section 378 (3) of the Code of Criminal Procedure. 2. The prosecution examined 8 witnesses. 3. PW 1 the prosecutrix was born on 29th July, 1991 as per the certificate issued by the Head Master of New - 2 - English School, Erandoli, Taluka Miraj District Sangli (Exhibit 55). As per the prosecution case on 18th September, 2005 when she was grazing the cattle the present respondent and accused no.1 who was also present there and grazing his cattle at around 12 noon, raped her. Accused no.2 who saw the incident also raped her and at that time accused no.1 had held her hands. While the trial had come to the stage of final arguments, accused no. 2 died and therefore appeal stood abated against him. 4. The medical certificate at Exhibit 44 was silent in respect of any sign of sexual violence on PW 1. The doctor was not examined by the prosecution. There was no indication whether any other injuries were seen on the body of the prosecutrix more so when it was alleged that she was gangraped in the agriculture land. Immediately after the incident the prosecutrix returned to the village and reportedly told about the incident to her sister PW 4 Radhika Jadhav and thus Radhika was not an eye witness. The under garment of the prosecutrix was sent for C.A.report and the said report at Exhibit 78 indicated that on Article 4 the nicker, stains of blood mixed with semen were seen but, there was no further report of identifying the blood group and at the same time even blood group of any of the accused was not detected. The prosecution relied upon the C.A.report at - 3 - Exhibit 79 showing that pieces of soil collected from the clothes of the prosecutrix tallied with the pieces of soil which had stained clothes of accused no.1. As per the learned trial Judge, this was not sufficient to connect the accused with the alleged crime and thus the prosecution case failed as there was no other evidence in support of its case. The prosecution chose not to examine the Medical Officer. 5. We have considered the arguments of Dr.Shaikh learned A.P.P. and the reasonings set out in the order of acquittal passed in Sessions Case No.24 of 2006 on 8th August 2008 and we are satisfied that there is no case made out for grant of leave to appeal under section 378 (3) of the Code of Criminal Procedure. 6. Hence, this Application fails and leave to appeal is hereby refused. B.H.MARLAPALLE, J MRS.MRIDULA BHATKAR, J - 4 -