Bombay High Court
Original Informant (Victim) vs The State Of Maharashtra And Anr on 31 January, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
910-apeal-1231-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.1231 OF 2019
ORIGINAL INFORMANT (VICTIM)
VERSUS
THE STATE OF MAHARASHTRA AND ANR
...
Advocate for Appellant : Mr. Ghatge Mahesh V.
APP for Respondent No.1 - State : Mr. A. M. Phule
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE : JANUARY 31, 2023.
ORDER :-
. Present appeal has been filed under Section 372 of the Code of Criminal Procedure by the original informant. Respondent No.2 faced the trial in Sessions Case No.48 of 2016 and he was acquitted by learned Sessions Judge, Nanded by judgment and order dated 09.08.2019 from the offence punishable under Sections 376, 328, 506 of Indian Penal Code.
2. Heard learned Advocate Mr. M. V. Ghatge for the appellant and learned APP Mr. A. M. Phule for respondent No.1 - State. It is not even necessary that respondent No.2 should be heard while admitting the appeal and, therefore, for the purpose of admission, -1- ::: Uploaded on - 02/02/2023 ::: Downloaded on - 03/02/2023 10:12:36 ::: 910-apeal-1231-2019.odt the submissions have been heard.
3. The glaring fact that has been pointed out is that though the informant states that respondent No.2 had sexual intercourse with her without her consent, yet the learned Sessions Judge had arrived at such a conclusion. Another fact is that no defence about consensual relationship was taken by the accused before the learned Trial Judge. With the help of learned Advocate for the appellant and learned APP, we have gone through depositions and other documents. The learned Sessions Judge refused to believe solitary version of the prosecutrix, but made further observations and according to the appellant, those observations are without any background led by the accused in the cross-examination or his own statement under Section 313 of the Code of Criminal Procedure.
4. We take help of the observations in Ganga Singh Vs. State of Madhya Pradesh, [2013 Cri. L. J. 3966], wherein after considering the evidence, the Hon'ble Supreme Court was of the opinion that when the appellant - accused had not taken defence in his statement under Section 313 of the Code of Criminal Procedure that the sexual intercourse was with the consent of the prosecutrix and rather denied to have had sexual intercourse with the prosecutrix and he has been falsely implicated, then the Trial Court erred in drawing -2- ::: Uploaded on - 02/02/2023 ::: Downloaded on - 03/02/2023 10:12:36 ::: 910-apeal-1231-2019.odt such inference that the sexual intercourse was with the consent of the informant. Definitely, the evidence that has been led in the matter deserves to be re-appreciated and, therefore, the appeal deserves to be admitted. Accordingly, it is admitted.
5. Issue notice to the respondents. Learned APP waives notice for respondent No.1 - State. Notice of respondent No.2 is made returnable on 10.03.2023.
6. Call record and proceedings with paper-book.
[ ABHAY S. WAGHWASE ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
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