1 cr­apln­5855­10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPLN.NO. 5855 OF 2010 The State of Maharashtra ..Applicant Vs. Mahaveer Pandurang Kashid ..Respondent .... Mrs. M.M.Deshmukh A.P.P. for applicant .... CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. DATE : JANUARY 27, 2011 P.C.: 1 We have heard Mrs. M.M. Deshmukh, the learned A.P.P. This is an application filed by the State of Maharashtra under Section 378(3) of Cr.P.C. seeking leave to appeal against the order of the acquittal passed by the learned Additional Sessions Judge, Satara on 25.8.2010 in Sessions Case No. 84 of 2009. The present respondent came to be tried for the offences punishable under Sections 376 and 506 of I.P.C. and he 2 cr­apln­5855­10 was acquitted of both the offences. 2 As per the prosecution, the prosecutrix P.W.3 was raped by the accused on 1.2.2009 at about 3 p.m. in the temple of Vithoba in Raidhan area. She complained of the same on 4.2.2009 and accused was taken in custody. 3 The prosecution examined in all six witnesses including the Investigating Officer. 4 P.W.1 Rajendra was the nephew (sister ’s son) of the prosecutrix, P.W. 2 Mrs. Parvati Patil was doing agricultural work with the prosecutrix, P.W.4 Manjula is resident of Jamb, Tal. Indalpur whereas the prosecutrix is from village Dharmapuri. P.W.5 Sharad Namade and P.W. 6 Pandurang Waghmode are the police officers. 5 Mrs. Deshmukh, the learned A.P.P. circulated copies of oral depositions and also placed before us the copies of the C.A. reports at Exh. 30, Exh. 31 and Exh. 47. She has also placed before us a copy of the injury certificate of accused at Exh. 46. The incident had allegedly taken place on 1.2.2009 and the prosecutrix was in the witness box on 23.7.2010 and on that day, she has disclosed her age as 70 years. She 3 cr­apln­5855­10 claimed that she had gone to the land of Mohan for work as a labourer at about 10 a.m. on the date of the incident and she was there till 2 p.m. As per her, accused went to her and invited her to examine the child in the nearby Pawar Vasti. It was generally believed that the prosecutrix had some magic power to cure people and therefore, she was called to see the ailing child. She further stated that both of them went near the temple of God Vithoba, accused consumed liquor. Both of them sat under a tamarind tree and the accused forcibly caught her hand and laid her down and raped her. She was frightened and therefore, she did not tell the incident to anyone. On 4.2.2009 she met Manjula as well as Parvati. Parvati is claimed to be the sister of prosecutrix and Manjula P.W.4 is the resident of village Jamb. She took her to the police station where P.W. 5 recorded the complaint. 6 The trial Court considered the oral as well as documentary evidence and discarded the prosecution case as unreliable. 7 We have given our anxious considerations and gone through the record produced before us. The C.A. reports as well as the Injury Certificate do not indicate any circumstance of sexual assault on the prosecutrix aged 70 years. The accused was 40 years of age with a family. The complaint came to be filed almost after four days. P.W.1 – 4 cr­apln­5855­10 Ravindra stated before the Court that the prosecutrix was staying with him and was not residing in her matrimonial home. He admitted in his cross- examination that on 1.2.2009, 2.9.2009 and 3.2.2009 he and the prosecutrix were at home and at no point of time, the prosecutrix disclosed to him that she was sexually assaulted by the accused on 1.2.2009. As per him, for the first time, on 4.2.2009 she disclosed the same incident to him and then he had taken her to P.W. 4 Manjulabai. It has come in the cross-examination of this witness that there were village Panchayat elections and there were rival groups of two political parties. Accused was the leader of B.J.P., and Mr. Tanaji Patole was the leader from the N.C.P. The accused had put up three candidates from ward no. 1 and all of them lost and the election was over just before the complaint was filed with the police station. The trial Court also noted that in the proximity of the place of incident, there were 2 to 3 families staying i.e. Jain family and others and not far away but in a call ’s distance. All the circumstances were examined by the trial Court and the trial Court came to the conclusion that there was no evidence to connect the accused with the alleged crime. The trial Court also noted down that till 7.2.2009, the Investigating Officer did not record the statement of the prosecutrix and it appeared to be a case framed against the accused for some extraneous reasons. 5 cr­apln­5855­10 8 In our opinion, the evidence adduced by the prosecutrix does not require any reconsideration at our hands. Hence, leave to appeal is refused and the application is rejected. [ U.D.SALVI, J.] [ B.H.MARLAPALLE,J.]