1 criap-3440.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3440 OF 2010 The State of Maharashtra Applicant vs Syed Sajid Sk. Liyakat Ali Respondent -- Shri V.G. Shelke, A.P.P. for the Applicant-State. Shri R.V. Gore, Advocate for Respondent-accused. -- Coram : Shrihari P. Davare, J. Date : 13th April, 2011. P. C. 01. Heard learned counsel for the parties. 02. This is an application preferred by the State-(original complainant) seeking leave to file appeal challenging the judgment and order dated 4.5.2010 rendered by learned Addl. Sessions Judge, Parbhani, in Special Case No. 5 of 2008, thereby acquitting present Respondent (original accused) of the offence under Section 3(i) (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Attrocities) Act, 1989, and also of the offences under Sections 354, 448 and 506 of Indian Penal Code. 2 criap-3440.10 03. Briefly stated, the facts of the case are that the respondent herein (original accused) is the Police Constable, as well as the complainant's husband, namely, Sanjay Shinde (PW-6) is also a Police Constable. It is alleged that on 20.5.2007, in the morning, the accused went to the house of the complainant Pushpa Shinde (PW-4) in Police Quarters at Parbhani and pressed the door bail and thereupon the complainant Pushpa opened the door. It is also alleged that the accused gave indecent look towards the complainant and also asked for a glass of water, and the complainant served him glass of water and accused went away. In the night of 20.5.2007 itself, at about 9.00 p.m. the accused again came to complainant's house and asked her where was her husband, and she told him that her husband had gone to give attendance. He asked for a glass of water, which the complainant served him and at that time the accused caught hold of her hand and pulled her towards him, and blinked his eye. However, complainant rescued her hand and went inside the kitchen. It is also alleged that complainant's son Sagar (PW-5) and niece Manisha (PW-1) were present in the house 3 criap-3440.10 and she narrated the incident to them and they came out of the house to see whether the accused was present, but he had already left the spot. Complainant's husband Sanjay Shinde (PW-5) came home at about 9.30 p.m. on the same day and the she narrated the aforesaid incident to him. On the next day i.e. 21.5.2007, the complainant's husband told the aforesaid incident to RPI Officer, and went to attend his duty, and thereafter on the next day i.e. 22.5.2007, complainant Pushpa and her husband Sanjay went to the police station and lodged the FIR and CR No.77/2007 was registered against the accused for offences under Sections 354, 448 and 506 of IPC. 04. To substantiate its case, the prosecution has examined inasmuch as seven witnesses, as mentioned below. PW-1 Manisha Shinde Niece of complainant. PW-2 Harischandra Chate Police Head Constable. PW-3 Shrirang Ambhore PSI, who drew the spot panchanama. PW-4 Pushpa Shinde Complainant. 4 criap-3440.10 PW-5 Sagar Shinde Son of the complainant. PW-6 Sanjay Shinde Husband of complainant. PW-7 Dattatraya M.Walke Dy. S.P. and Investigating Officer. 05. I have perused the impugned judgment and order dated 04.05.2010, and also the record and proceedings, as well as heard the submissions advanced by learned counsel for the parties, anxiously. 06. At the outset, it may be noted that although the aforesaid incidents occurred in the morning and night of 20.5.2007, FIR (Exh.18) came to be lodged in the afternoon, on 22.5.2007. In the said context, the prosecution tried to give explanation through testimonies of PW-4 complainant Pushpa Shinde and her husband PW-6 Sanjay Shinde, that Sanjay came home on 20.5.2007 in the night and the complainant disclosed him the incident and then both of them went to the RPI office, but it was closed, then they went towards Nanal Peth Police Station and at the gate of the said Police Station, they saw Police Inspector Mr. Shingade, who was in a car. 5 criap-3440.10 PW-6 Sanjay stopped the car and narrated the incident to PI Mr. Shingade. PI Shingade stated that it was night time, and therefore, they should come to Police Station, in the next day morning, and on the next day i.e. 21.5.2007, PW-6 Sanjay Shinde went to give his attendance at Gangakhed Police Station, where he was posted for duty, and therefore, complainant Pushpa, her son Sagar and niece Manisha, went to Nanal Peth Police Station and met Police Inspector Shingade and narrated him the incident, but PI Mr. Shingade asked the complainant to come along with her husband, but thereafter, on next day morning i.e. on 22.5.2007, the husband of the complainant was posted on duty at Balvidya Mandir School and after he came back from the duty, the complainant, along with her husband, went to Police Station and lodged the report (Exh.18). 07. However, pertinently, the prosecution has not examined PI Mr. Shingade in respect of the said explanation given by the complainant for delay in lodging FIR, and the learned trial court has rightly observed that the said explanation is not 6 criap-3440.10 digestible, and accordingly, the said substantial delay of two days hampers the case of the prosecution, and the possibility of concoction of false case against the accused during the said period, cannot be ruled out. 08. Moreover, from the statement of PW-1 Manisha, recorded before the learned J.M.F.C., under Section 164 of the Code of Criminal Procedure, it appears that her statement was not voluntary, but since she was residing with PW-4 Pushpa and PW-6 Sanjay, they pressurized her to give the said statement. Further, the learned trial judge has observed that in the statement recorded by the learned Magistrate, there is version that at the time of the incident occurred on 20.5.2007, the complainant had given call to the said witness Manisha, who was in gallery and was watching T.V., but the complainant nowhere stated in her complaint that Manisha was in gallery and was watching T.V., but she made a vague statement that her son Sagar and niece Manisha were present inside the house, and she stated nothing about Manisha being present in the gallery and watching T.V., and therefore, the learned trial 7 criap-3440.10 judge further observed that from the version of the complainant, it is doubtful whether Manisha was present at the time of the alleged incident and actually saw the same, and apparently; there is no flaw in the said observations. 09. It has come on record that PW-6 Sanjay Shinde gave an application dated 21.5.2007 to Police Inspector of RPI office, Parbhani, which is produced at Exh.22 and it appears from the contents of the said application that the accused had gone to the house of the complainant on 20.5.2007 twice, i.e. in the morning at about 9.00 a.m. and in the night at the same time. However, there is variance in the FIR (Exh.18) and application (Exh.22), inasmuch as, in the FIR, it is stated on 20.5.2007, the accused had come to the house of the complainant and asked her where was her husband and also asked for a glass of water to her and she served the same, whereas the application (Exh.22) speaks that on 20.5.2007 in the morning, when the accused visited the house of the complainant, her son Sagar opened the door and the accused asked him for a glass of water and after water was served to him, he asked Manisha where 8 criap-3440.10 was the complainant, and when in the night accused again came to complainant's house, he asked where was the complainant. 10. Besides, there appears variance in the testimonies of complainant Pushpa (PW-4), her niece Manisha (PW-1) and son Sagar (PW-5), as well as PW-6 Sanjay ( complainant's husband), and the said testimonies do not corroborate with each other, and more particularly the testimonies of PW-1 Pushpa, PW-4 Manisha and PW-5 Sagar are not consistent with each other, in respect of occurrence of the alleged incident. 11. In the circumstances, after scrutinizing and analyzing the evidence on record, the view taken by the learned trial court, while acquitting the accused, is a possible view to be taken, and the reasoning given therefor cannot be faulted with and the said view does not appear to be perverse, and hence, no interference therein is called for, in the appellate jurisdiction and the present application, therefore, deserves to be rejected. 9 criap-3440.10 12. In the result, present application stands dismissed, and leave to file appeal stands refused. Record and Proceedings be sent back to the concerned court. pnd/criap-3040.10 (Shrihari P. Davare, J.)