1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1723 OF 2010 The State of Maharashtra Through P.I. Police Station Yusuf Wadgaon, Tq.Kaij, Dist. Beed APPLICANT VERSUS Mahadeo alias Prashant S/o.Digambar Karpe, Age-28 years, Occu-Agriculturist, R/o.Jawalban, Tq.Kaij, Dist. Beed RESPONDENT Mr.B.V.Wagh, learned A.P.P. for State. Mr.S.J.Salgare h/f. Mrs.S.S.Jadhav, learned counsel for respondent. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 23/08/2010 ORAL ORDER : (Per A.V.POTDAR, J.) 1. By the present application, the State has approached this Court for leave to appeal u/s. 378(1)(b) of The Cr.P.C. to challenge the judgment and order dated 04/01/2010, passed by the Additional Sessions Judge, Ambejogai, Dist. Beed in Sessions Case No.23/2009, by which the respondent was acquitted for the alleged offence punishable u/s. 376, 323, 506 of The IPC. 2. We have heard learned APP for State and learned counsel for 2 respondent. We also perused the judgment of the Lower court and record and proceedings. 3. It appears that on the complaint of one Jyotirling, the brother of the prosecutrix, an offence was registered in Yusuf Wadgaon police Station vide CR No.13/2009 on 24/02/2009 about the alleged incident took place on 21/02/2009, against the present respondent. It is stated in the said complaint when the prosecutrix was returning from her examination of 12th standard, around 1.30 noon, or so, and when she was passing from village Sawaleshwar, respondent followed her on his motor bike, offered her lift, which she initially denied, but later on accepted. Respondent stopped his motor bike on his way, and by saying her that since last 18 months, he is behind her as he likes her, he forcibly took the prosecutrix in the nearby cattle shed, where against her wish, he established physical contacts with her. Thereafter, the prosecutrix was dropped near her house by the respondent. Due to fear, she did not disclose the incident to her mother, but as she was suffering from pain, a day thereafter, she has narrated the incident to her mother. Thereafter, as his brother Jyotirling was out of station because of death of his grandfather, on 24/02/2009, after his return, the complaint came to be lodged. During the investigation, statement of the prosecutrix was recorded as well as clothes on her person at the time of alleged incident were seized under panchnama. Spot panchnama was also prepared during the investigation. Then the prosecutrix was referred for medical examination. After arrest of respondent accused, he was 3 also referred for the medical examination. After completion of investigation, charge sheet was filed in the Court of J.M.F.C. Kaij. Then the case was committed to the Court of Sessions as the offence was exclusively triable by the Court of Sessions. After framing of charge, the prosecution has examined in all 10 witnesses including the prosecutrix, the medical officer, panch witnesses. Like oral evidence, prosecution has also tendered documentary evidence such as medical certificate about the examination of the prosecutrix, CA report about the seized articles including the clothes on the person of the victim, the spot panchnama. Defence of the respondent/accused during the trial was of total denial as well as defence of act by consent and his false implication was also taken. 4. It appears that vide judgment and order dated 04/01/2010, learned Additional Sessions Judge, Ambejogai, Dist. Beed, pleased to acquit the respondent from all the charges lavelled against him. 5. With the assistance of learned APP as well as learned counsel for the respondent, we have perused the judgment impugned as well as the record and proceedings. 6. For the reasons recorded in para no.16, 17 and 18, the learned Lower Court has discussed about the delay in lodging the complaint, non disclosure of the alleged incident to her close relatives and the act of the prosecutrix that she accompanied the respondent on his motor bike evev after the alleged act of sexual ravishment, and come 4 to the conclusion that this is the the act by consent of the prosecutrix. While considering the factual aspects, apart from causing delay in lodging the complaint, as well as non disclosure of the incident to the close relatives at the hands of prosecutrix, it is also observed by the learned Trial Court that the students were returning groupwise after their examination was over at about 1.30 p.m. Prosecutrix was not accompanied by anybody. It is also concluded that if it is the forcible act, then at that time, the prosecutrix has a chance to run away from the spot, because the place where the alleged incident took place is by the side of the road, but no hue and cry was made by the prosecutrix for help which suggests that she is a consenting party to the alleged incident. It is also observed by the Trial Court that even after the alleged act was over, the prosecutrix accompanied the respondent from the scene of incident to her village where she was dropped near her house by the respondent. 7. During the course of submissions across the bar, it is argued on behalf of the State that the medical evidence shows marks of violence on the person of the prosecutrix, when she was examined. It is to be noted that the place where the alleged incident occurred, is a rough surface, then these marks are ought to present on the person of the prosecutrix. At the same time, considering the overall effect of the material placed before the Trial Court, discussed and marshelled by the Trial Court, we do not find any perversity in the judgment passed the Trial Court while acquitting the respondent 5 accused from the said offence. In the result, this criminal applications fails, and is dismissed accordingly. Leave refused. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/AUGUST 2010/cri.appl.1723-10