1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1456 OF 2010 The State of Maharashtra ...Applicant Versus Sardarsingh Narayansingh Chavan ...Respondent ..... Mr. V.D. Godbharle, A.P.P. for the applicant Mr. N.K. Kakade, advocate for respondent. ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATED: 28TH JULY, 2010 PER COURT:- 1 We heard learned A.P.P. Mr. Godhalre, for the applicant and advocate Mr. N.K. Kakade for the respondent sole. 2 It is not in dispute that the Sessions Case No.27 of 2008, has been decided by the learned Adhoc Additional Sessions Judge, Kopargaon, by judgment and order dated 13.7.2009. The respondent- original accused has been acquitted by this judgment and order passed by the learned Adhoc Additional Sessions Judge, Kopargaon for the offences punishable under Sections 376, 323 and 506 of I.P.C. 2 3 The gravamen of the victim (since it is a case of under Section 376, we are not recording the name of victim and henceforth she shall be referred to as the “victim” alone), is of rape by none else than her father-in-law. We have seen the evidence of P.W.1 victim. She testified that she was married to Surajsingh Sardarsingh Chavan from village Daregaon on 21.2.2006. Her parents stayed at village Kharadi, Tq. Sangamner, District Ahmednagar. Somewhere in the month of May, 2008, she was brought at her parents place by her mother and maternal aunt. It appears that her parents were doing labour work in agriculture field of one Mr. Ananda Nana Sabale, who is examined by the prosecution as P.W.4 Exh.21. According to the victim, on 11.6.2008, respondent-original accused had been to the parents place of victim at village Kharadi to take her at Daregaon. He had been there with four wheeler (Maruti car). Respondent stayed at the parents house of the victim overnight on 11.6.2008 and on the next date i.e. on 12.6.2008, after taking lunch, victim left alongwith respondent in Maruti Car to Daregaon. On the way, the respondent suggested to offer prayers to Sai Baba (Shirdi Shrine). The victim, according to her contention, was taken to a lodge by the respondent. After entry in the room by both of them, victim claims that the respondent closed the door from inside and committed rape on her. Her allegation is that she was being raped at 2/3 times at Shirdi in the room of that lodge. At the time of commission of offence of rape, she tried to resist, however, she was gagged by the respondent. They check out. The respondent took 3 her through said Maruti car to Aurangabad and stayed at Hotel Sai Samarth. After some time, he took her from Hotel Sai Samarth on a motor bike to the house of one lady. There, they waited for half an hour and returned back to Hotel Sai Samarth on the said motor bike. Respondent kept the motor bike at Hotel Sai Samarth. Further the respondent alongwith victim travelled with Maruti car towards Jalna. The victim alleged that she was being threatened with life right from Shirdi i.e. at the time of commission of rape and also on the way to Aurangabad and onwards also. Threats of life were given to the victim. He also threatened her that he would bring the car itself below the truck and that is why she did not disclose about the incident to anybody. The report is lodged by the victim. We have seen the manner in which she disclosed the incident to Madansingh Chavan i.e. her uncle and Mr. Madansingh Chavan passed on the information to her father. 4 Learned Judge while recording acquittal in favour of the respondent has considered the material brought on record. The prosecution claims that victim was being examined by two medical Officers i.e. one Dr. Khan and Dr. Ghadge. Dr. Ghadge put saline to her. Indisputably, Dr. Ghadge is examined. According to the learned Judge, the prosecution has not examined Dr. Khan. The circumstance weighed with the learned Judge is considered by us. At the end of para 26, the learned Judge has observed that, “It has remained 4 unexplained as to how complainant could be staying in the matrimonial home at the material time for the father-in-law to take her back in the Car. This is one aspect of the matter.” 5 With the assistance of learned advocate Mr. Kakade, we have seen the evidence regarding place of residents of respondent, parents of victim, uncle of the victim and the claim of the victim that her father and mother had shifted to village Kharadi in search of labour work and ultimately at the time of occurrence they were residing at the field of one Ananda Nana Sable, P.W.4. 6 Advocate Mr. Kakade took us to the evidence of P.W.4 Ananda Sable. He submitted that this witness did not claim that he had seen respondent-accused in the night of 11.6.2008 or on 12.6.2008. We have considered this submission. It is true that P.W.4 Mr. Ananda Sable does not claim that he had seen respondent/accused on 11.6.2008 or on 12.6.2008 at the agricultural land owned by him and/or in the house of parents of victim. In our view, nothing turns of this circumstance. It is not necessary for the owner or master of the field to keep or have knowledge of guests, who are visiting his labourers. In case of some special occasion, interactions amongst the masters and some guest may be possible. However, in the case on hand, it has not been suggested on behalf of the respondent that there was any occasion for interaction with P.W.4 Ananda Sabale and 5 respondent. 7 We have considered another aspect of the matter, which is argued by Mr. Kakade. He submitted that no witness from lodge at Shirdi or Hotel at Aurangabad is examined. Learned Judge has also considered the aspect that no witness from lodge is examined. We have noticed from the judgment of the learned Judge in para 31 that he was aware, that there were two witnesses interrogated by the police during the course of investigation and statements were recorded under Section 162. Learned Judge has observed that the Investigating Officer has reported that one of the witnesses has dead and another is not traceable from the lodge. In this fact situation, one does not understand how the victim is to be blamed or the prosecution. Learned Judge ought to have considered the material which is brought on record. 8 Doctor Mr. Ghadge, has been examined. In so far as Mr. Khan is concerned, learned Judge in the same paragraphs has observed that he is not examined. We cannot forget that the allegation of rape is made by the victim, a married woman. So far as the delay is concerned, the learned Judge has observed that delay is about 14 days. One has to take into account the mental trauma suffered by the victim, who claimed that she was raped by her own father-in-law. Non- disclosure by such victim of the incident cannot be a ground to 6 disbelieve the version of such victim. Mr. Kakade, learned counsel points out one more circumstance that two cases were filed by the victim one for maintenance under Section 125 of Cr.P.C., probably against husband and another is according to him, was under Section 498-A of I.P.C. against all family members. Even if pendency of these two cases is concerned, it is difficult to stomach that victim may make allegations of rape against father-in-law. 9 We have seen the age of victim, claimed by her in her evidence before the Court, as 18 years. Prima facie, we are inclined to grant leave and also consider the prayer made by the applicant State to treat the present application as Criminal appeal. 10 Criminal application is partly allowed. Leave to file appeal under Section 378(1) (b) of Cr.P.C. is granted in favour of the applicant-State. 11 This application to be treated as appeal and be registered accordingly. Action under Section 390 of Cr.P.C. is directed against the respondent. 12 Mr. Kakade, learned counsel submits that the respondent is resident of village Daregaon, Tq. and District Jalna. Same is address given by the applicant-State in this criminal application. From the 7 record, it appears that the victim allegedly was raped at Shirdi within the revenue limit of Ahmednagar District and within the jurisdiction of Additonal Sessions Judge, Kopargaon. Sessions Case No. 27 of 2008 was tried by that Court. Mr. Kakade learned counsel submitted that arrest of the respondent furnishing P.R. bond and further action under Section 390 of Cr.P.C. can be ordered at Jalna. 13 We therefore, direct action under Section 390 of Cr.P.C. to be initiated against respondent. He shall be arrested and released on P.R. bond of Rs.15,000/- with one surety in the like amount by Additional Sessions Court, Jalna. The Additonal Sessions Judge, Jalna, to secure the presence of the respondent once in a quarter. Such quarter shall commence from 1.8.2010. ( S. S. SHINDE. J.) (S.B. DESHMUKH, J.) rlj/