1 crapeal-517.97.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.517 0F 1997 The State of Maharashtra ... Appellant Versus Salim Mohmed Hanif Bagwan and anr ... Respondents ----- Mr. Y.S.Shinde, APP for the Appellant – State. Mr. V.V.Purwant for the Respondent no.2. ----- CORAM : A.S.OKA, J. DATE : 3rd April 2009. ORAL JUDGMENT: 1. By this appeal, the Appellant – State of Maharashtra has taken an exception to the judgment and order dated 22nd January 1997 passed by the Additional Sessions Judge, Solapur. The Respondents were charged with the offences punishable under sections 366, 376 (g), 392, 506 (2) read with section 34 of the Indian Penal Code. By the impugned Judgment and Order, the Respondents were acquitted of all the charges framed against them. 2. The case of the prosecution is that the Prosecutrix was 20 years old at the time of the commission of alleged offence. She was married for a year 2 crapeal-517.97.sxw and was residing at village Mulgaon. The incident occurred on 8th May 1996. On that day, along with her husband she came to Solapur for purchasing iron sheets. At about 2 PM, as per the instructions of her husband, she was waiting near a water tank and her husband had proceeded to inquire about the iron sheets in a shop. At that time, one auto rickshaw came there. There are two person sitting therein on the rear seat. One of them alighted, caught hold of both the hands of the prosecutrix and dragged her inside the auto rickshaw. The said two persons were the Respondents – Accused. Though the prosecutrix tried to raise hue and cry, her mouth was gagged by using handkerchief by the Respondents. It Is alleged by the prosecution that the first Respondent took out liquor bottle and poured liquor in the mouth of the prosecutrix and she became semi-conscience. When she became conscious, she found herself at Sahyadri Lodge at Tuljapur.Before that she was taken to Hotel Trupti at Smachar Chowk at Solapur where she was given meal. After she regained consciousness in the Lodge at Tuljapur, the Respondents gagged her, removed saree on her person and both of them committed sexual intercourse without her consent on two occasions in the night. On the next day, in the morning at 9 AM, the Respondents took her by an auto rickshaw. While they were proceeding via Sawargaon, Wadgaon, near Mardi , the prosecutrix jumped out of the auto rickshaw. The police patil and one Kashinath along with other villagers were there. The prosecutrix narrated the incident to them. Though both the Respondents tried to run away, they were caught by the villagers. Meanwhile a telephonic message was conveyed to the Taluka police 3 crapeal-517.97.sxw station. After the arrival of the Police, the Prosecutrix and the respondents along with others were taken to the police station where the offence was registered. Thereafter, as the initial offence of the abduction had taken place within the jurisdiction of the Jail Road Police Station, the Complaint of the Prosecutrix was transferred to the said Police Station.Thereafter, the investigation was carried out. The medical examination of the Prosecutrix and the Respondents was made. As the Investigation Officer found that the Prosecutrix was psychologically weak, she was kept under observation of a Psychiatrist from 10th of May 1996 to 13 th May May 1996. The Psychiatrist found that she suffered from a borderline mental retardation. On 20 th May 1996, the Prosecutrix attempted to commit suicide. The statements of various witnesses were recorded and a charge sheet was filed. Thereafter, the case was committed to the Court of Sessions. 3. The prosecution examined as many as 15 witnesses including the Prosecutrix herself. Apart from her, PW-7 Anil, the owner of the Trupti Lunch Home, and PW-7 Satish, the owner of the Sayhadri Lodge were the important witnesses examined by the prosecution. As stated earlier, the learned Additional Sessions Judge, passed the impugned judgment in order of acquittal. 4. The learned APP has taken the court through the notes of evidence and the documentary evidence on record. He submitted that the learned Judge 4 crapeal-517.97.sxw ought to have accepted the testimony of the Prosecutrix who was a married woman. He submitted that the PW-6, was the owner of the Hotel where the Respondents had taken the Prosecutrix deposed that she was not in a position to walk properly and she may be under the influence of liquor. He submitted that apart from the fact that the Prosecutrix was found to be in the custody of the Respondents, both of them tried to run away and were caught by the villagers. He pointed out that the relevant witnesses identified both the Respondents. He submitted that the identity of the Respondents was established even in the evidence of the PW-6 and 7.He submitted that considering the fact that the Prosecutrix was under enormous trauma and was suffering from mild mental retardation, some contradictions and inconsistencies are bound to be there in her evidence, but the same were not sufficient to disbelieve her version. He submitted that the impugned judgment and Order is perverse. The learned counsel appearing for the second respondent supported the impugned judgment and order. He submitted that in any event, the conclusion drawn by the learned Sessions Judge is certainly a possible conclusion and hence, no interference is called for in this appeal from an order of acquittal. 5. I have perused the record of the case and I have carefully considered the submissions. It will be necessary to make a reference to the evidence of the prosecutrix. She stated that on the date of incident, she had accompanied her husband to a bazaar held on every Tuesday at Solapur for 5 crapeal-517.97.sxw purchasing tin sheets. Her husband had instructed her to wait near a water tank. When she was waiting near the water tank, at about 2 PM, an auto rickshaw came there. One of the two persons sitting on the rear seat of the auto rickshaw alighted from the auto rickshaw. The said person along with another person in the auto rickshaw forcibly took her inside the auto rickshaw. She identified in the said persons as the accused present in the court. She stated that the first accused took out a liquor bottle and poured liquor in her mouth. He put handkerchief in her mouth. She stated that she could not understand what transpired thereafter. She stated that in the night, she regained consciousness when she found that she was in a lodge at Tuljapur. She stated that she found herself on a bed and both the accused were sitting next to her. She stated that when both of them started removing saree on her person, she raised cries. She stated that the first accused pressed her mouth and both of them threatened to kill her. She stated that both the accused had sexual intercourse with her on two occasions. She stated that in the morning at 9 AM, both the accused took her by an auto rickshaw. When the auto rickshaw reached village Mardi, she saw her acquaintance by the name Kashinath. Therefore, she jumped out of the auto rickshaw. She narrated the incident to the said person Kashinath and to the police patil of the village. The first accused started running away and the second accused fled by the auto rickshaw. The villagers caught hold of both the accused . She stated that one villager gave information to the police and thereafter the police arrived. She stated that she along with the accused persons were taken by the police to the Police Station. At the police 6 crapeal-517.97.sxw station, her complaint was registered. She stated that 15 days after the incident, she tried to set herself on fire as villagers were discussing many things about her. She stated that she was taken to civil Hospital for treating the burns. She stated that petticoat on her person was seized by the police which she identified the same in the court. In her cross-examination, omissions as regards following statements made by her in her examination-in-chief were brought on record: a) when she regained consciousness, she found that she was in a lodge. b) that the accused were sitting on the bed. c) the first accused pressed her mouth and gave her a threat. She admitted in the cross-examination that when she raised shouts in the lodge, no other person came there. She stated that in the morning while she was taken by the accused from the lodge , she did not complain to anybody. She stated that though she resisted sexual assault, she did not receive any injury. She stated that she did not raise shouts in the night to save her. She stated that there were no stains on her sari. She stated that there were stains on the sheet on the bed. She pleaded ignorance as to whether the police Patil recorded her statement. She admitted that near the water tank where she was waiting, there are residential houses and a Masjid is located in front of the water 7 crapeal-517.97.sxw tank. 6. It must be noted here that the police did not record the panchanama of the spot from where the prosecutrix was allegedly picked up by the accused. One of the findings recorded by the learned Session Judge is that there were opportunities available to the prosecutrix to raise hue and cry, but she did not protest. Moreover, the prosecution did not examine the husband of the prosecutrix to prove that he had instructed the prosecutrix to wait near the water tank. There is no evidence produced by the prosecution to show that after the disappearance of the prosecutrix, her husband made any enquiries about her whereabouts. Moreover, the prosecution did not examine Kashinath who was acquainted with the prosecutrix. The case of the prosecutrix is that after noticing his presence, she jumped out of the auto rickshaw and narrated the incident to him. 7. As found by the learned judge, the investigation officer did not promptly ensure that the examination of the prosecutrix is made to ascertain whether she had consumed liquor. The prosecution examined PW-6 who claimed to be the owner of the restaurant where the accused and the prosecutrix took meal in the afternoon after she was picked up from the place near the water tank. The identification by the said witness of the accused and the prosecutrix in the court has been rightly disbelieved as the witness did not know the prosecutrix and accused before they came to his restaurant and that the police did not hold any 8 crapeal-517.97.sxw test identification parade. The prosecution also examined PW-7 who was the owner of the lodge where the proscutrix was taken by the accussed and where the offence of rape was allegedly committed. In the cross-examination, the witness admitted that he had not seen the accused and the prosecutrix before they came to his hotel. He admitted that he never remembers the faces of his customers. Again it must be noted that the test identification parade was not held. 8. I have noted that there is no evidence of the prosecutrix sustaining any injury. The learned Session Judge has observed that the prosecutrix appears to be a feeble lady and the accused had robust physique.It is true that this is not the only ground to disbelieve the Prosecutrix. In the report of the chemical analyzer, it is stated that no semen was detected in the vaginal swab or on the pubic hair of the prosecutrix. As far as the evidence of blood and semen stains on the petticoat is concerned, the same has been disbelieved as there was evidence on record to show that the petticoat was not properly sealed after its seizure. It must be noted that the police Patil who was examined as a witness stated that he did not record the information received from the prosecutrix in his diary. He admitted that while producing the accused and the prosecutrix before the police, he did not lodge in a report. Moreover his statement was not recorded by the police at that time and his statement was recorded on the next day. 9 crapeal-517.97.sxw 9. Considering the aforesaid circumstances, the learned Session Judge found it difficult to believe the version of the prosecutrix. The learned judge has recorded elaborate reasons for doing so. After having taken comprehensive view of the oral and documented evidence on record, I find that the view taken by the learned Session Judge is certainly a possible view which could have been certainly taken on the basis of the evidence on record. Even assuming that another view is possible to be taken, it is no ground to interfere in an appeal against acquittal. Hence, there is no merit in the appeal and accordingly I pass the following order:- The appeal is accordingly dismissed. [ A.S.OKA, J ]