STATE OF MAHARASHTRA Vs. OMKAR BABASAHEB RODE

JUDGEMENT

(1.) Criminal application no.55 of 2018 seeking leave to file 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.

(2.) We would like to consider the criminal appeal under Sec. 377 (1) of the Criminal Procedure Code filed by the state for admission. The respondent stood prosecuted before the learned Additional Sessions Judge, Osmanabad in Sessions Case no.64 of 2016 for the offence punishable under Sec. 376 of the Indian Penal Code. After hearing both sides and perusing the evidence on record, the learned Judge of the Trial Court has acquitted the accused of the offence punishable under Sec. 376 of the Indian Penal Code. However, convicted him for the offence punishable under Sec. 354 (A) (i) of the Indian Penal Code and has directed him to undergo R.I. for 15 days and to pay fine of Rs.500.00 (Rs. Five Hundred), in default to undergo S.I. for one week. It will not be out of place to mention here that the prosecution has challenged the acquittal of the respondent-accused under Sec. 376 of the Indian Penal Code by filing an application for leave to file appeal under Sec. 378 (1)(b) of the Criminal Procedure Code . However, by this appeal as aforesaid, the prosecution is seeking enhancement in the sentence. At the outset, after going through the impugned judgment, we are of the opinion that it is as cryptic as it is. The learned Trial Judge has arrived 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 Sec. 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 Sec. 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 Sec. 375 of the Indian Penal Code punishable under Sec. 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 Sec. 377 of Cr.P.C. for enhancement in the sentence.

(3.) Heard Mr. Kolpe h/f Mr. Deshmukh, for respondent.