1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPLICATION NO. 5286 OF 2009 IN APPEAL NO. OF 2009 The State of Maharashtra (Through D.B.Marg Police St. CR No. 53 of 2006] ..Applicant Vs. Ganganarayan @ Arvind Shambudayal Dube & Ors. ..Respondents [Ori.accused 1 to 4] .... Mr.V.B.Konde-Deshmukh APP for State Mr.P.R.Dave Adv. for Respondent Nos. 1 to 4 .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : 8th APRIL, 2010 P.C. [PER SMT.V.K.TAHILRAMANI,J.]: 1 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 14.11.2008 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No.589 of 2006. By the said judgment and order, the respondents i.e. original accused nos.1 to 4 came to be acquitted of the offences under Sections 363, 342, 366A, 373, 376 r.w. 34 of the IPC and 2 under Sections 4, 5, 6 and 7 of PITA Act. 2 The prosecution case briefly stated is that the prosecutrix ran away from the brothel run by accused nos.1 and 2 which was conducted in room Nos.17-D and F-2 situated at 3rd floor of Simplex Building, Bombay-400 004. These premises were occupied by accused nos. 3 and 4. They also enjoyed sexual intercourse with the prosecutrix in the said premises. After running away, she contacted a social worker who took her to the police station and thus, FIR came to be lodged. After completion of investigation, the charge sheet came to be filed against the respondents-accused. 3 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 4 For an offence of kidnapping from lawful guardianship as 3 provided under Section 361 of the IPC, the minor girl should be under 18 years of age. Section 366A of IPC speaks about punishment of procurement of minor girls for illicit relations. Thus, a girl should be below 18 years for constituting an offence under these Sections. So far as the offence punishable under Section 373 of IPC is concerned, it speaks about buying a minor for the purpose of prostitution. Here, also the minor girl should be below 18 years for the said offence to be made out. However, in the present case, there is no material to show that the prosecutrix was below 18 years of age. Even as per the ossification test, the age of the prosecutrix was determined to be 19 to 20 years. 5 So far as the offence punishable under Section 376 of IPC is concerned, it is the prosecution case that this case falls under part vi of of Section 375 of IPC. For a case to fall under Section 375(vi), rape should have been committed on the prosecutrix when she was below 16 years of age. As stated earlier, the prosecution has preferred to bring the case in sub-clause vi of section 375 which cannot be said to be made out as there is no material to show that she was below 16 years of age. On the other hand, the evidence shows that the age of the prosecutrix was 19 to 20 years at the time of the incident. 6 From the evidence on record, it is seen that prosecutrix has 4 not made any grievance to the police in respect of any of the accused. This coupled with the evidence relating to her age would show that just having sexual intercourse with her would not by itself constitute rape. It may also be stated that the prosecutrix was referred for medical examination. No injuries were found on her person or her private part at the time of medical examination. Moreover, no semen was found in the sample of vaginal smear. 7 Though it is the prosecution case that the prosecutrix was procured from Bangladesh and brought to India for the purpose of prostitution, from the evidence on record, it is revealed that the prosecutrix of her free will and consent had come to Bombay from Bangladesh surreptitiously by committing breaches of provisions of law and in order to get deported from India to Bangladesh at State expense the plot came to be hatched by her with the help of the social worker. 8 Further it is seen that there is non-compliance of Section 13(2) of PITA Act. P.Ws. 7 and 8 have not placed on record any notification about them being appointed as special police officer to investigate crime under the PITA Act. Thus, it is clear that they did not have any authority to investigate any crime under the PITA Act. In Delhi 5 Administration Vs. Ram Singh, AIR 1962 SC 63, it has been held that an offence under the PITA Act can be investigated by the special police officers only in accordance with the Special Law, and not by any police officer under the provisions of Code of Criminal Procedure and that the Magistrate can decline to take cognizance of a report submitted under Section 173(1) Cr.P.C. by a police officer other than a Special Police Officer. Thus, there being breach of section 13(1)(2), the investigation carried by P.Ws. 7 and 8 in respect of offences punishable under Sections 4 to 7 of PITA Act, 1956 would have to be held to be illegal and hence, their evidence cannot be looked into for any purpose. Looking to the evidence on record we are of the opinion that the view taken by the learned Judge is a reasonable and possible view. 9 The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different possible view may arise on the evidence. It has been so observed by the Supreme Court in K.Ramakrishnan Unnithan Vs. State of Kerala, AIR 1999 SC 1428. 6 10 So also, the Supreme Court in the case of C.Anthony Vs. K.G.Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, we are not inclined to interfere in the judgment and order of acquittal. 11 In view of the above, application for leave to file appeal, is rejected. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]