Bombay High CourtThe State Of Mah, Thr The Pso,Nagpur vs Sushant @ Sajju S/O Damodar Ambade on 14 March, 2018Author:M.G. GiratkarBench:B.R. Gavai,M.G. Giratkar1                                                              apeal297.09


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                            NAGPUR BENCH, NAGPUR.

                         CRIMINAL APPEAL (APEAL) NO. 297 OF 2009

The State of Maharashtra,
through the Police Station 
Officer, Police Station, 
Panchpaoli, Nagpur.                                                           ... APPELLANT

                                                        VERSUS

Sushant @ Sajju Damodar Ambade,
aged about 20 years, R/o Lashkari-
bagh Ambedkar Chowk, Near
Samta Maidan, Lashkaribagh,
Nagpur.                                                                       ... RESPONDENT

                                     ....
Shri M.K. Pathan, Additional Public Prosecutor for the appellant/State.
None for the respondent.
                                     ....

                                                                     CORAM :  B.R. GAVAI AND
                                                                                          M.G. GIRATKAR, JJ.
                                                                     DATED  :  14TH MARCH, 2018.


ORAL JUDGMENT : (Per M.G. Giratkar, J.)By way of present appeal, the appellant/State has challenged the 

judgment of acquittal, dated 29th December, 2008 in Sessions Trial No. 121 of 

2008, by which, the respondent/accused came to be acquitted for the offence 

punishable underSections 452,376of the Indian Penal Code.2.                 The case of the prosecution is as under :-The victim was residing with her paternal aunt at Lashkaribagh, 

Nagpur.   She was studying in the school meant for students having mental 

disability.  On 08.02.2008 at about 04:30 p.m., Vithabai (PW-4) was sitting in::: Uploaded on - 16/03/2018                                               ::: Downloaded on - 17/03/2018 02:01:17 :::2                                                              apeal297.09


the courtyard and victim was watching TV inside the house.  She saw accused 

on the road.   She asked him to insert thread in the needle.   Thereafter, she 

was sewing the clothes in the courtyard.  After five minutes, she saw the door 

was closed, therefore, she went there to get it verified who closed the door.The door was closed from inside.3.              Vithabai   (PW-4)   looked   from   the   gap   of   the   door   and   saw   the 

victim and accused inside the room.  She called Hrishi and he knocked the 

door.   Accused ran away through another door.   The victim was in naked 

condition.     She   made   enquiry   with   the   victim.     She   told   that   accused 

removed her clothes, pressed her breast and did sexual intercourse with her. 

She informed the mother of victim.  She came to the house of Vithabai (PW-4).    She  also   enquired   with  the   victim.    Thereafter,   she  lodged  the   report 

(Exh.35).4.              Crime was registered vide FIR (Exh.36).  The Investigating Officer 

completed   investigation   and   filed   charge-sheet   before   the   JMFC,   who,   in 

turn, committed it to the Court of Session.5.              Charge   was   framed   at   Exh.6   and   the   same   was   read   over   and 

explained to the accused to which accused pleaded not guilty and claimed to 

be tried.  The prosecution examined in all 12 witnesses.  At the conclusion of 

trial, learned trial Court acquitted the accused.6.              Vithabai (PW-4) has stated that the victim was mentally retarded.::: Uploaded on - 16/03/2018                                   ::: Downloaded on - 17/03/2018 02:01:17 :::3                                                              apeal297.09


To prove this contention, the prosecution has examined Dr. Warhadkar (PW-2), who has stated that the victim was mentally retarded.  But, in the cross-

examination, he has stated that he did not examine the patient personally. 

Dr. Prashant Barve (PW-3) has stated that the age of victim was in between 15 

and 17 years.   PW-4 has stated in her evidence that she saw victim in the 

room in a naked condition.   She called Hrishi, who knocked the door and 

accused ran away from back side.7.              Hrishi   (PW-5)   has   stated   in   his   evidence   that   the   mental 

condition of victim is proper.  He was called by PW-4 saying that accused was 

committing intercourse with victim.  But, Vithabai (PW-4) has not stated so.8.              Hrishi (PW-5) has stated in his evidence that he knocked the door 

but the door was not opened.  Therefore, he went to back side, that door was 

also   closed.     He   peeped   from   the   gap.     He   saw   accused   committing 

intercourse with the victim.  Accused ran away.  His evidence is not reliable 

because   material   omissions   are   brought   on   record.     He   has   stated   in   his 

cross-examination as under :-"I told police while giving statement that Vithabai and 
         Hirabai were present at home on the day of incident.   I told to  
         police   while   giving   statement   that   Vithabai   gave   me   call   and  
         asked me to come in.  I had told to police while giving statement 
         that in kitchen I saw accused committing intercourse with Heena.  
         I had told to police while giving statement that when I went to the 
         door, I found the front and back side door closed.   I had told to  
         police while giving statement that when I saw through the gap of::: Uploaded on - 16/03/2018                                 ::: Downloaded on - 17/03/2018 02:01:17 :::4                                                              apeal297.09


         the door, accused was committing intercourse with Heena.  I had 
         told   to   police   while   giving   statement   that   when   I   gave   call   to  
         Heena, the accused pressed her mouth and ran away.   I cannot  
         assign any reason why the above facts are not mentioned in my 
         statement before police."9.              Pramila   Meshram   (PW-6)  has  stated   that she   was informed   by 

Vithabai (PW-4).   She came to the house of Vithabai and enquired with the 

victim.     Then,   she   told   that   the   accused   committed   intercourse   with   her. 

Therefore,   she   lodged   report   (Exh.35).     Material   omission   is   brought   on 

record in her cross-examination.10.             As   per   the   evidence   of   Dr.   Prashant   Barve   (PW-3),   the   age   of 

victim was between 15 to 17 years.  The victim was more than 16 years.  It is 

tried   by   the   prosecution   to   bring   on   record   that   the   victim   was   mentally 

retarded.   But, the evidence of Hrishi (PW-5), who was her cousin, clearly 

shows that the mental condition of victim was proper.



11              From   the   perusal   of   evidence   of   PW   Nos.4   and   5,   there   are 

material   omissions   in   their   evidence.     The   victim   was   examined   by   the 

prosecution.  Victim (PW-7) has stated in her evidence that she was sleeping 

in the house.  Accused entered the house and taken her in kitchen.  He kissed 

her, removed her clothes and committed sexual intercourse.  Vithabai (PW-4) 

gave call and accused ran away.  She has admitted in her cross-examination 

that entry to the house is from front side of the house.  Vithabai could see if 

anybody enteres the house.   Hrishi was present in the house at the time of::: Uploaded on - 16/03/2018                                    ::: Downloaded on - 17/03/2018 02:01:17 :::5                                                              apeal297.09


incident.    Hrishi  and  Vithabai  did  not  see  the  accused  while  entering  the 

house.  The door and window of the said room were open.  Vithabai did not 

come  inside  the room in spite  of her raising  alarm.    Accused  entered  the 

house from the front door where Vithabai was sitting.12.             Admission   of   victim   in   cross-examination   clearly   falsifies   the 

evidence of PW Nos.4 and 5.  The victim was aged about 17 years at the time 

of incident.   Even the prosecution case in respect of sexual intercourse is 

taken as it is then also it is clear that the victim had consented for sexual 

intercourse.     Medical   Certificate   (Exh.55)   shows   that   the   victim   was 

habituated to sexual intercourse.   There was no evidence of forcible sexual 

intercourse.  No injury over private part.  No other injury marks over body. 

Old tear over hymen.  .13.             Medical Certificate (Exh.55) shows that the victim was habituated 

to sexual intercourse.   She was more than 16 years at the time of incident. 

She was mentally fit as per the evidence of Hrishi (PW-5).  Mental condition 

of   victim   was   proper.     Victim   was   examined   by   the   Court.     No   any 

abnormality was found.  Her evidence shows that she did not make any hue 

and cry.  Even the evidence of victim if taken as it is, then also it appears that 

she was consenting party.   The age of victim stated by Dr. Prashant Barve 

(PW-3) was in between 15 to 17 years.14.             In view of the aforesaid facts, the prosecution failed to establish 

the   offence   charged   against   the   accused.     The   learned   trial   Court   rightly::: Uploaded on - 16/03/2018                                 ::: Downloaded on - 17/03/2018 02:01:17 :::6                                                              apeal297.09


recorded its findings.  The judgment is well reasoned.  Hence, we proceed to 

pass the following order."The appeal is dismissed.R and P be sent back."JUDGE                                                             JUDGE 
      
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