1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Revision Application No. 187/2008 Ku. Panchafulla Mahadeo Chapekar ..vs.. State of Maharashtra thr. PSO Arni & 3 ors. --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Mr. D. N. Kukday, Advocate for applicant. Mr. D. B. Yengal, A.P.P. for non applicant no.1. Mr. M. M. Motghare, Advocate for non applicant nos. 2 to 4. CORAM:- R. Y. GANOO, J. DATED:- 8 th SEPTEMBER, 2009 1. Non applicant nos. 2 to 4 had to face Sessions Trial No. 300/2004 in the Court of learned Additional Sessions Judge, Darwha (hereinafter referred to as ‘Additional Sessions Judge) for charge under Section 363, 366, 376, 506 read with Section 34 of the Indian Penal Code. The learned Additional Sessions Judge acquitted non applicant nos. 2 to 4 by judgment dated 02.07.2007. The victim girl by name Panchafula has filed the present revision being aggrieved by judgment and order dated 02.07.2007. I have heard learned Advocates for both the sides. A perusal of the prosecution case goes to indicate that according to the prosecution, non applicant no.1 took away the said Panchafula and committed sexual 2 intercourse against her wishes when the said applicant was less than 16 years of age. Prosecution examined father of the applicant, applicant herself and other witnesses. In the course of cross-examination of father of the applicant by name Mahadeo, conceded that the date of birth recorded in the progress card of applicant is 13.03.1988. Keeping this date as base, on the date of incident that is on 09.04.2004, the applicant will have to be termed as more than 16 years of age. Though, the applicant was medically examined, Ossification test was not conducted and that is how the prosecution did not bring on record appropriate evidence. 2. Evidence given by applicant in examination-in- chief that non applicant nos. 3 and 4 asked her to go to spot where non applicant no. 2 was standing and that is how non applicant nos 2 and 3 abetted overt act of taking away the applicant came to be committed by them. The applicant admits that she had not stated this to police. This amounts to improvement. The evidence of applicant in the cross-examination clearly goes to show that she was in love with non applicant no.2 and non applicant no. 2 had not taken her away but it is she, who has joined non 3 applicant no. 2. So far as charge under Section 376 of the Indian Penal Code is concerned once it is fixed that the age of the applicant was more than 16 years, the question would be whether non applicant no. 2 had sexual intercourse with consent of applicant. In that case, one may have to test conduct of the applicant. Having considered the evidence of the applicant, it is apparent that applicant had consented for sexual intercourse. Evidence of the applicant stated in the examination-in-chief is required to be disbelieved on account of that. 4. The learned trial Judge has in paragraph 14 tried to indicate as to why the First Information Report came to be filed against non applicant nos. 2, 3 and 4. The reasons mentioned in the said paragraph 14 clearly indicate that Vijay Gawande and Subhash Chavan happen to be friend of complainant and on enmical terms with non applicant no. 2 and that was noted by father of applicant and that is how the First Information Report came to be filed against non applicant nos. 2 to 4. 5. The learned Additional Sessions Judge has considered the evidence and has clearly arrived at 4 conclusion that no case for conviction is made out. 6. I do not wish to differ from the said finding which clearly indicate that the applicant was a party to the whole affair and there is no question of any offence being committed by non applicant nos. 2 to 4 for which they came to be prosecuted. It is, in these circumstances, I am inclined to observe that the application is required to be dismissed at the stage of admission. Hence, the order. The revision is dismissed at the stage of admission. JUDGE kahale