State sought leave to appeal against acquittal of Sunil Saidu Whatkar for rape. High Court rejected application, holding impossibility of proving victim's age without birth certificate and critiquing delay in complaint and lack of physical injuries.
Application for leave to prefer appeal is rejected; judgment furthering lower court order stands.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
als11.doc
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ssp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.11 OF 2019
The State of Maharashtra
vs.
Sunil Saidu Whatkar
...Applicant
...Respondent
Mr.V.V.Gangurde, APP for the applicant
CORAM : A.S.OKA, &
SANDEEP K. SHINDE, JJ.
DATE : JANUARY 9, 2019
P.C.:
1Heard the learned APP in support of the
application. The applicant-State is seeking leave
of the Court to prefer an appeal against the
Judgment and Order dated 23rd June 2014 passed by the
learned Additional Sessions, Thane. By the said
Judgment and Order, the respondent-accused was
acquitted for the offences punishable under sections
363, 366 and 376 of the Indian Penal Code.
2The case of the prosecution is that the age of
the prosecutrix at the relevant time was 15 years.
On 12th March 2012, the prosecutrix was attending the
computer classes. However, when the PW1 the father
of the prosecutrix came to the computer classes
around 5.45 p.m., it was revealed that the
prosecutrix has left the class. The case of the
prosecution is that on 4thApril 2012, the
prosecutrix called up P.W.No.1 from PCO and informed
him about the location of the premises where she
2 als11.doc
was. P.W.No.1 visited the premises and found that
her daughter was there. He brought back the
prosecutrix to her house. It was disclosed by the
prosecutrix that around 6.00 p.m when she came out
of the computer class, the respondent-accused came
in his auto rickshaw. She was forced to seat in the
auto rickshaw. After that after she consumed water
supplied by the respondent, she lost consciousness.
The allegation is that the respondent had sexual
intercourse with the applicant.
3The learned APP submitted that the prosecutrix
(P.W.No.2) has fully supported the prosecution and
she has denied all the material suggestions given in
the cross examination. He submitted that there was
no reason for discarding her testimony and
therefore, an order of conviction ought to have been
passed.
4We have considered the submissions. We have
perused the notes of evidence. The PW1, the father
of the prosecutrix, admitted that he has not
provided birth certificate of his daughter to the
police. He claimed that that he has furnished
school leaving certificate of his daughter to the
police. However, no such certificate has been
produced on record by the prosecution. Though the
P.W.No.2 prosecutrix claimed that her date of birth
is 18th December 1996, no documentary evidence was
produced by the prosecution to prove the date of
birth of the prosecutrix. The medical certificate
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was produced by the prosecution recording that the
age of the prosecutrix was 15 years. However, the
Medical Officer who gave opinion was not examined as
a witness.
5As per the prosecution case, P.W.No.1 on 4th
April 2012 brought back the prosecutrix to his home.
On 5th April 2012 the prosecutrix was medically
examined when no injuries over her private part were
noticed. It is pertinent to note that the complaint
was lodged by the PW1 on 10th April 2012. Moreover,
the P.W.No.2 in the cross examination accepted that
she stayed with the accused for 20 to 22 days.
6Thus, this is a case where no evidence was
adduced to establish the age of the prosecutrix.
Moreover, there is delay of six days in lodging the
complaint. The complaint was lodged after five days
after the prosecutrix was medically examined. In the
medical examination, it was found that there were no
injuries on her private part. There is no
explanation for delay. Therefore, the view taken by
the Sessions Court that the guilt of the respondent
is not established is certainly a possible view
which could have been taken on the basis of material
on record. Hence, no case is made out for grant of
leave. Application is rejected.
(SANDEEP K. SHINDE,J.)
3 issues framed by the court
Whether leave to prefer an appeal against the acquittal of an accused for rape should be granted given lack of evidence regarding the victim's age.
Whether the delay in lodging the complaint and injury marks undermine the prosecution case.
If the Sessions Court's view that guilt was not established represents a possible view on the basis of the record.
The State of Maharashtra
Sunil Saidu Whatkar
A.S.Oka
Sandeep K. Shinde
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court