1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION NO.2028 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 (State of Maharashtra vs. Sheikh Rafique Sheikh Ismail) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : D.D. SINHA AND P.B. VARALE, JJ. DATED : AUGUST 29 , 2009 Heard Shri Jichkar, learned Additional Public Prosecutor for the applicant State. The criminal application is filed by the applicant State against the judgment dated 20.12.2008 passed by the Ad hoc Additional Sessions Judge whereby respondent/accused came to be acquitted of the offences punishable under Sections 376, 363 and 417 of Indian Penal Code. Shri Jichkar, learned Additional Public 2 Prosecutor states that testimony of the prosecutrix ought not to have been discarded by the trial Court merely because she failed to disclose the incident of rape to others and did not raise shouts at the time of commission of offence. We have considered the contentions of the learned Additional Public Prosecutor and perused the impugned judgment passed by the trial Court. Perusal of the impugned judgment shows that at the time of commission of offence, even as per testimony of PW 2 father of the complainant, the prosecutrix was above the age of 16 years and on two occasions she had sexual intercourse with the respondent. The observations of the trial Court in para (9) of the impugned judgment show that at the time of commission of sexual intercourse, she neither resisted nor raised shouts nor disclosed the same to anybody. In such circumstances, the trial Court came to the conclusion that the prosecutrix was a consenting party and since at the relevant time she was above the age of 16 years, the prosecution failed to bring home the guilt of the accused. In the 3 circumstances, no case is made out for showing indulgence. Leave to file appeal is refused. The criminal application is dismissed. JUDGE JUDGE khj