(1) Cri. Application No. 3017 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 3017 of 2011 The State of Maharashtra, .. Applicant Through : PSO, Ashti Police Station, (Original Taluka : Ashti, District : Beed. complainant) versus 1. Kiran @ Bablu Abhimanyu Turukmare, Age : 20 years, R/o. Near Samrat Hotel, Shahunagar, Beed. 2. Uttam s/o. Honaji Jadhav, Age : 55 years, R/o. Kumbharwadi, Taluka : Georai, .. Respondents District : Beed. (Original accused) ....................... Mr. S.G. Nandedkar, Additional Public Prosecutor, for the applicant. Mr. A.B. Gaikwad, Advocate, for respondent nos.1 and 2. ........................ (2) Cri. Application No. 3017 of 2011 CORAM : SHRIHARI P. DAVARE, J. DATE : 12TH DECEMBER 2011 COURT'S ORDER : 1. Heard learned respective Counsel for the parties. 2. This is an application preferred by the applicant / State seeking leave to file appeal challenging the judgment and order of acquittal, dated 30th March 2011, rendered by the learned Additional Sessions Judge-II, Beed, in Sessions Case No. 73/2010, thereby acquitting the respondents (original accused nos.1 and 2) for the offences punishable under Sections 328, 376(2)(g) and 379 of Indian Penal Code, and also acquitting respondent no.2 herein i.e. original accused no.2, for the offence punishable under Section 366 of Indian Penal Code. 3. Parties are hereinafter referred to as per their original status i.e. complainant and accused. 4. I have perused the impugned judgment and order dated 30th March 2011, as well as, record and proceedings with the assistance of the learned Counsel for the parties, and at the outset, the respondent nos.1 and 2 herein faced the trial for the (3) Cri. Application No. 3017 of 2011 offences punishable under Sections 366, 328, 376(2)(g) and 379 of Indian Penal Code, for allegedly abducting the prosecutrix Seema on 23-8-2009, with intention to seduce her to illicit intercourse, and allegedly administering her the intoxicant tablets with intention to facilitate the commission of offence / rape, and allegedly committing gang rape upon the prosecutrix against her will, and allegedly, dishonestly taking away the ornaments from the person of prosecutrix, without her consent. 5. To substantiate the charges levelled against the respondent, the prosecution has examined as many as six witnesses as mentioned below : PW 1 - Yada s/o. Namdeo Pawar, Complainant. PW 2 - Raosaheb s/o. Ankushrao Kale, Panch to seizure of clothes of accused - Turned hostile. PW 3 - Dr. Vijay s/o. Ramchandra Gholve, Medical Officer who examined the victim prosecutrix Seema. PW 4 - Kanta s/o. Bhivrao Korde, Panch to seizure of clothes of prosecutrix - Turned hostile. (4) Cri. Application No. 3017 of 2011 PW 5 - Seema w/o. Santosh Jadhav, Victim and prosecutrix. PW 6 - Suresh s/o. Sawalaram Budhwant, Police Inspector - Investigating Officer. Thus, it is apparent that the aforesaid both the Panch witnesses have not supported the prosecution case and have turned hostile, and hence, both the panchanamas, regarding seizure of clothes of the accused and seizure of clothes of the victim, have not been proved. Moreover, it also appears from the theory advanced by the prosecution, that the prosecutrix Seema was accompanied with accused no.2, namely, Uttam. Moreover, the theory of incident advanced by the prosecution, through the testimony of PW 1 Yada Pawar i.e. father of the prosecutrix differs from the deposition of the prosecutrix PW 5 Seema Jadhav. Moreover, there are material variances in the testimony of the complainant PW 1 Yada Pawar and the prosecutrix PW 5 Seema Jadhav. Besides, there are vital omissions in the very testimony PW 5 Seema Jadhav, which go to the root of the matter. Moreover, it is significant to note that the prosecutrix PW 5 Seema Jadhav has admitted in her cross examination that she is residing with her lover presently and not with her husband Santosh, and the said aspect speaks for itself. (5) Cri. Application No. 3017 of 2011 6. As regards the alleged incident, it is curious to note that although the prosecutrix was taken through highway during day time at 9.00 a.m., she did not shout or raise any alarm for aid and assistance and rescue, and neither she made any attempt for escape, which speaks volumes. Moreover, medical evidence of PW 3 Dr. Vijay Gholve, apparently, does not support case of the prosecution. Hence, the observations made by the learned trial court, that 'the probability cannot be ruled out that the prosecutrix ran away with her lover and later on for the reasons stated in the impugned judgment, she and her father made concocted story after thought', are not out of place. 7. Having comprehensive view of the matter, there are infirmities, discrepancies and lacunae in the prosecution case, and hence, after scrutinizing and assessing the evidence on record, the view adopted by the learned trial court, while acquitting the accused, is a possible view, and the same does not appear to be perverse. Moreover, the reasoning given by the learned trial court for the said acquittal, also apparently, cannot be faulted with, and hence, present Application bears no substance and same is devoid of any merits, and no interference in the finding of the learned trial court is called for in the appellate jurisdiction, and present Application deserves to be rejected. (6) Cri. Application No. 3017 of 2011 8. In the result, present Criminal Application, which is sans merits, stands dismissed. Leave to file appeal is refused. 9. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/3017ka