State sought leave to appeal under Section 404 CrPC against Sessions Court's acquittal in a rape case. High Court held the trial court's finding based on evidence was not perverse. Appeal dismissed with leave refused.
Leave to file appeal refused and Criminal Application dismissed.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION NO. 404/2012 IN CRIMINAL APPEAL NO. OF 2012 The State of Maharashtra .vs. Balaji s/o Konduji Rakhade
Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders.
Mr. R.S. Nayak, A.P.P. for applicant/appellant.
CORAM : P.V. HARDAS & M.L. TAHALIYANI, JJ.
DATED : AUGUST 14, 2012.
1] The appellant State by this application seeks leave to file appeal against the judgment of the Additional Sessions Judge, Chandrapur in Sessions Case No. 22/11 dated 21.2.2012, acquitting the respondent for offence punishable under Sections 342 & 376(2)(f) read with Section 511 of the Indian Penal Code.
2] It appears that the victim (whose name is withheld) was a minor aged about 9 years at the time of the incident. According to the victim, on the day of the incident, she had gone to the house of the accused accompanied by her other friends for watching a programme on television. The accused
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sent her companion for bringing Kharra (combination of betel nut and tobacco) and the accused then lifted the victim, removed her slacks and made her sit on his lap. The accused thereafter inserted his penis in the private part of the victim. The victim informed her mother on the next day of the incident and accordingly, a report was lodged with the police. The Medical Officer PW.4 Dr. Dipti Shrirame examined the victim after three days of the incident. The evidence indicates that the victim had sustained small bruises, two in number on the posterior commissure. The hymen of the victim was intact. In cross-examination, the Medical Officer has admitted that the bruises found on the private part of the victim were fresh and may be due to scratching, rubbing or due to attempt of rape. The Medical Officer has further admitted that fresh injury would mean within 4 to 6 hours or latest within 24 hours. The trial Court, therefore, concluded that the finding of the injuries on the private part of the victim had no correlation with the incident which is alleged to have occurred three days prior to her examination. The evidence of the companion of the victim, namely, PW.5 Monali that she had witnessed the incident through the gap in the door was elicited as an omission in cross-examination. In the face of this evidence, therefore, the trial Court came to the conclusion that implicit reliance could not be placed on the testimony of PW.3 victim and the medical
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evidence did not in the least corroborate the version of PW.3 victim. The trial Court, therefore, extended the benefit of doubt to the accused and acquitted him.
3] We have heard the learned A.P.P. on behalf of the applicant and we have perused the findings of the trial Court as well as the evidence of the witnesses. Upon such perusal, according to us, the view taken by the trial Court is a possible view to be taken on the basis of evidence on record. We do not notice any perversity in the reasoning of the trial Court to warrant any interference in this appeal against acquittal. Consequently, this application fails and is dismissed. Leave refused.
Judge J.
Judge
2 issues framed by the court
Whether the trial court erred in acquitting the accused by extending benefit of doubt despite medical evidence of fresh injuries.
Whether the criminal appeal under Section 404 CrPC succeeds in reversing the acquittal of the respondent.
The State of Maharashtra
Balaji s/o Konduji Rakhade
P.V. Hardas
M.L. Tahaliyani
As recorded by the court registry
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