-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL REVISION APPLICATION NO.128 OF 2007 Miss Swati Prakash Shelar : Applicant V/s. Mr.Vikas Dattatray Sawant & Anr. : Respondents ... Mr.P.V.Sawant for the applicant. Mr.Khandeparkar for respondent no.1. ... CORAM : A.S.OKA, J. DATE : APRIL 27, 2009. P.C. 1. Heard the learned counsel appearing for the revision applicant, who is the prosecutrix. 2. On 17.10.2003, a F.I.R. was registered at the instance of the applicant against the accused, based on an incident of 29.9.2003. The allegation in the F.I.R. is of commission of offences punishable under sections 354, 342 and 506 of the Indian Penal Code. On the basis of the F.I.R., investigation was carried out and charge-sheet was filed for the offences under sections 342, 376, 354 and 506 of the Indian Penal Code. 3. The revision applicant filed a private complaint on -: 2 :- 18.10.2003 making an allegation of commission of offences under sections 376, 511, 504 and 506 (part II) of the Indian Penal Code. In the said private complaint, it was alleged that the police have not properly recorded the First Information Report. On the said private complaint, process was issued by the learned Magistrate for offence under section 511 read with section 376 as well as under section 506 (part II) of the Indian Penal Code. The accused preferred a revision application against the said order. 4. On the basis of the charge-sheet filed by the police, the case was committed to the Court of Sessions. By judgement and order dated 16.12.2005, an order of acquittal was passed by the Sessions Court. The Sessions Court recorded a finding that the complaint made by the revision applicant was false, frivolous and concocted. Therefore, while passing the order of acquittal, the Sessions Court issued show cause notice to the revision applicant and three witnesses examined by the prosecution calling upon them to show cause as to why they should not be prosecuted for giving false evidence. By a separate order passed on the same day, the revision application preferred by the accused against the order of issue of process was allowed and the order of issue of process was quashed and set aside. -: 3 :- 5. The learned counsel appearing for the revision applicant submitted that the police have incorrectly recorded the F.I.R. He submitted that the Revision Application preferred by the accused against the order of issue of process ought to have been decided prior to the decision of the sessions case. He submitted that though the incident was of 15.9.2003, as noted by the learned Sessions Judge in paragraph 3 of the order of acquittal, while framing the points for determination, he has taken the date of commission of offence as 29.9.2003. He submitted that if the F.I.R. could have been corrected, the impugned order of acquittal and the direction to issue show cause notice could not have been passed. He submitted that prejudice has been caused to the revision applicant due to the error committed by the learned Sessions Judge. 6. I have carefully considered the submissions. I have perused the impugned judgement and order of acquittal as well as the deposition of the applicant. A perusal of the judgement shows that the learned Sessions Judge has minutely scrutinised the evidence of the applicant prosecutrix. It will be necessary to refer to some of the findings recorded by the learned Sessions Judge and especially the findings recorded in paragraph 22 of the -: 4 :- judgment, which read thus:- "22. Now coming to the case of actual date of incident. The prosecution is totally uncertain about the date of the incident. Not only that the evidence on record goes to show that the dates have been changed by all the witnesses while launching the prosecution and even while deposing before the Court. The F.I.R. is of happening of the incident on 29.09.2003. The complainant on oath stated that the incident took place on 15.09.2003 and not on 29.09.2003. She in cross-examination has stated that the incident of rape did not happen on 29.09.2003. So according to the complainant herself, there was no incident of rape on 29.09.2003. It means the recitals in the complainant (Exh.18) must be false and incorrect that the incident took place on 29.09.2003." 7. It will also be necessary to refer to what is held by the learned Judge in paragraphs 29 and 30 of the judgement which reads thus:- -: 5 :- "29. The witness (PW 2), in cross-examination, has specifically admitted that since the door of the room of the computer being of a single plank, it cannot be fully closed and it remains open to some extent. It means the door was not in a position to close the room completely. It is impossible to accept that by keeping the door open to some extent, the accused would rape the student in the School that too when he was aware that all the students in the School, members of the staff and other teachers were present in the School at that time. 30. According to the complainant, the buttons of the uniform were removed. She, in cross-examination, has stated that when she came out of the room after wearing other clothes, the buttons of the shirt of the uniform have been removed. He came out of the room with the same blouse which was unbuttoned. ........................." 8. After considering the entire evidence, a finding of fact has been recorded that during the investigation when -: 6 :- the police found that on 29.9.2003, the applicant was absent from the school, this fact was brought to the notice of the Advocate for the applicant by the prosecution witnesses and, thereafter, the applicant was advised to file the private complaint. 9. I have perused the examination-in-chief and the cross-examination of the applicant. In the cross-examination, she has admitted to the recitals in the complaint that she was conscious and that she had voluntarily given the complaint are correct. She admitted that when she went to the Advocate, she became aware that nothing was mentioned regarding the alleged offence mentioned in the complaint. Though the learned counsel appearing for the applicant has not argued on the merits of the order of acquittal, I have perused the deposition of the applicant. Taking the deposition as it is, it is obvious that the testimony of the applicant was not at all reliable. A serious doubt is created about the date of the incident and the nature of incident because of the conduct of the applicant herself. The benefit of all this must go to the accused. 10. In the circumstances, it is difficult to find fault with the impugned orders. As far as the show cause notice is concerned, an opportunity is available to the -: 7 :- applicant to file a reply to the show cause notice and make out a case that the show cause notice should be dropped. Therefore, all contentions of the applicant in that behalf are expressly kept open. 11. Subject to what is observed above, the Revision Application is rejected. If the applicant has not filed any reply to the show cause notice, the learned Sessions Judge will permit the applicant to file reply within a period of four weeks from the date on which the writ of this order is received by the concerned Court. A.S. OKA, J.