High Court High Court allowed State application for leave to appeal against trial court's acquittal on rape charges, dismissing enhancement plea at threshold but admitting matters for fresh consideration due to evidence gaps.
Leave to file criminal appeal allowed; criminal appeal admitted and case returned for further consideration.
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.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
9 APPLN. FOR LEAVE TO APPEAL BY STATE NO.55 OF 2018 WITH CRIMINAL APPLICATION NO.757 OF 2018 IN
CRIMINAL APPEAL STAMP NO.211 OF 2018
THE STATE OF MAHARASHTRA VERSUS
OMKAR BABASAHEB RODE
APP for Appellant : Mr. A.V. Deshmukh Advocate for Respondent: Mr. M.B. Kolpe h/f V. B. Deshmukh
CORAM : SMT. VIBHA KANKANWADI & S. G. CHAPALGAONKAR, JJ. Dated: June 26, 2023
PER COURT :-
appeal by the State, Criminal application no.757 of 2018 in Criminal appeal stamp no.211 of 2018 has been filed by the prosecution for condoning the delay of 40 days caused in filing the criminal appeal for enhancement. Notice was served on the respondent/original accused, however, he remained absent. As such, the reasons for the delay are not contested and, therefore, delay stands condoned. Criminal application no.757 of 2018 stands disposed of.
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at the conclusion that as evidence suggest that accused committed act of physical contact and advanced an explicitly clear words with the victim on the day of incident. Offence under section 354(A)(i) of Indian Penal Code has been made out. In fact, it is not the prosecution case at all that the offence under section 354(A)(i) of the Indian Penal Code was committed. It is clear case of the prosecution that the offence has been made out under section 375 of the Indian Penal Code punishable under section 376 of the Indian Penal Code and, therefore, taking into consideration the evidence on record, we do not find that any case is made out for admitting the Criminal Appeal Stamp No.211 of 2018 under section 377 of Cr.P.C. for enhancement in the sentence.
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incident is stated to have taken place around 8 pm on 20.3.2016 when the victim had gone for answering nature’s call around a Tamarind Tree in the village. She was returning from the call of nature and then, the accused went from the backside and by expressing that he loves her and want to marry her dragged her and had sexual intercourse. Cousin brother i.e. PW 3, who was going for the nature’s call heard her noise and then rescued her. The incident was told by her to her parents and in clear terms both of them are accepting a fact that they have gone to the house of the accused for calling meeting of the respectable persons and those respectable persons had put a proposal that accused should marry PW-1. On the next day, when they again went to the house of the accused, the accused as well as his family members refused the proposal and, thereafter, she went to the police station Tamalwadi and lodged the FIR. Thus, it is noted that reason was given for lodging the FIR belatedly. What we could find from the cross-examination that suggestion was given that there was love affair and refused the proposal of marriage as accused was of tender age, false FIR has been lodged. Whether said explanation for the delay was acceptable or not has not
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been properly discussed but result of that delay appears to be at least in medical examination and as there was no resistance marks. The learned Trial Judge has rather held that the story is unacceptable. This point of view is required to be reappreciated, because if it was a natural conduct on the part of the prosecutirx and her family members to wait for the proposal after the incident was told to the family members of the accused and in that process, if the struggle marks have vanished, then, whether the prosecutirx can be held responsible for the same is also a question that has to be pondered upon. At this stage, medical evidence rather supports the prosecution story. No doubt, girl is now married, but that should not be a point to show sympathy to the accused. Definitely case is made out for re-appreciating the evidence and, therefore, the criminal application no.55 of 2018 seeking leave to file appeal deserves to be allowed. Hence, the following order.
O R D E R
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viii. Place the matter for further consideration alongwith Record and Proceeding, paper book and compliance on 11.8.2023.
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3 issues framed by the court
Whether leave to file criminal appeal for enhancement of sentence should be allowed given discrepancies in the acquittal?
Whether evidence regarding delay in lodging FIR and absence of physical resistance requires re-appreciation?
Whether the prosecution case for rape should replace the conviction for offence under section 354(A)(i) of IPC in this appeal?
3 provisions across 1 enactments
The State of Maharashtra
Omkar Babasaheb Rode
Vibha Kankanwadi
S. G. Chapalgaonkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
