1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2983 OF 2010 [FOR LEAVE TO FILE APPEAL] IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra .. Applicant Vs Vinod Ganpat Tule & Another .. Respondents Mrs. P.H. Kantharia, APP for the State CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 29th JUNE, 2010 P.C.: [PER SMT. V.K. TAHILRAMANI, J] 1. The applicant - State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 25.08.2009 passed by the learned Sessions Judge, Raigad-Alibag in Sessions Case No. 33 of 2006. By the said judgment and order, the respondents i.e original accused nos. 1 and 2 came to be acquitted of the offences under sections 376, 302 r/w 34 of I.P.C. In addition, respondent no. 1 was also acquitted of the offence under section 506 of I.P.C. 2. The prosecution case briefly stated is that PW1 Shantaram Pawar was resident of Chochichi Wadi, Tal. Karjat. appln2983-10 2 He was residing in the said village along with his family members i.e his wife Janabai, sons PW3 Jayesh and PW4 Avinash and two daughters Archana (deceased) and Vijaya. 3. On 27.05.2007 at about 7.00 p.m., the complainant Shantaram was informed by his wife that their daughter Archana had gone in the afternoon to the forest to bring Jambhul but she did not return. On 28.05.2007 during the search for Archana, dead body of Archana was found at about 10.00 a.m. in a place locally known as "Madhala Adhav". Injuries were found on the head and cheek of Archana. Due to these injuries, the complainant realized that somebody had committed murder of his daughter Archana, hence, he lodged F.I.R. The said crime came to be registered only for offence under section 302 of I.P.C. After registration of F.I.R., Police recorded statement of witnesses including PW3 Jayesh and PW4 Avinash who are the brothers of Archana. Body of Archana was sent for postmortem. PW5 Dr. Satish Parmar conducted the postmortem on dead body of Archana. He found six incised wounds on the body of Archana. According to Dr. Parmar all these injuries were ante mortem and sufficient in ordinary course of nature to cause death. In the opinion of Dr. Parmar, cause of death was due to cardio-respiratory failure, due to shock, due to severe hemorrhage following multiple deep incised stab wound on head. However, during appln2983-10 3 the postmortem, PW5 Dr. Parmar found that deceased Archana was about 16 weeks to 18 weeks pregnant at the time of postmortem which disclosed that Archana had close physical relationship with somebody. Hence, section 376 came to be added. 4. 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 A.P.P. 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. 5. As far as offence under section 376 of IPC is concerned, on perusal of the entire oral as well as documentary evidence on record, we find that there is absolutely no evidence against respondent nos. 1 and 2 - i.e original accused nos. 1 and 2 to show that any of them had sexual relations with deceased Archana at any time. None of the witnesses have stated about such relations existing between Archana and accused before the death of Archana. The fact that during the course of postmortem, PW5 Dr.Parmar found that Archana was about 16 to 18 weeks pregnant which appln2983-10 4 indicates that Archana had close physical relationship with somebody is not sufficient to infer that it was accused no. 1, who was responsible for the same. There is no evidence at all to show that deceased Archana got pregnant due to the sexual relations with the accused and such sexual relations were without the consent of Archana. Thus, in absence of any such evidence, the Trial Court was right in reaching the conclusion that it cannot be said that the charge of rape has been proved. 6. The fact that the death of Archana was a homicidal death is not seriously challenged by the defence. However, question remains as to who caused the death of Archana? The prosecution is relying on evidence of PW4 Avinash who according to the prosecution is the star witness and he is stated to be an eye witness to the incident. Learned APP has pointed out that Avinash has stated that on 27.05.2007 Archana went to the house of accused no. 1 to see a movie. Thereafter, this witness went to the house of accused no. 1 and asked Archana to go to the home for lunch. She told him to go home for lunch and she stayed back. After lunch, this witness again went back to house of accused no. 1 and he found that his sister was not there. On perusal of the evidence of this witness, it is seen that there is no material to show that either accused no. 1 or accused no. 2 appln2983-10 5 were present in the house when Archana went to the house of accused no. 1 to watch a movie. Thereafter, Avinash has stated that he returned home. After some time, he saw his sister Archana was moving her hand over paddy rice hence, he went to the place known as "Madhala Adav". After 5-10 minutes, he heard voice "Melo ga Melo", therefore, he went ahead. At that time, he saw accused no. 1 was assaulting Archana by sickle and accused no. 2 Deepak was holding legs of Archana. No doubt, this witness has stated so. However, question remains as to whether the witness is trustworthy and his evidence can be relied upon ? 7. The distance from the house of witness Avinash and the spot i.e "Madhala Adav" is not brought on record so as to know whether Avinash was in a position to see "Madhala Adav" from his house. However, it can be safely presumed that the place "Madhala Adav" was not visible from the house of this witness because the body of Archana was found on 28.05.2007 at "Madhala Adav". If from 27.05.2007 when the complainant i.e the father of Archana and other people were searching for Archana and if this place "Madhala Adav" was visible from the house of PW4 Avinash, the dead body would have been seen from the house itself. This fact makes the evidence of PW4 Avinash totally unbelievable and not worthy of reliance. appln2983-10 6 8. On 27.05.2007, Archana was found to be missing. Her body was found in "Madhala Adav" on 28.05.2007. However, for the first time, PW4 Avinash who is brother of Archana has stated before the police about the fact that he saw accused no.1 assaulting Archana by sickle and accused no. 2 Deepak was holding legs of Archana etc, in his supplementary statement dated 03.06.2007. This witness has admitted this fact and explained the delay by stating that on 27.05.2007, accused no.1 noticed him and threatened to kill him if he discloses the names of the accused. Hence, due to fear, he did not disclose about this fact to any one. However, in his cross-examination, PW4 Avinash has admitted that he got over his fear on 29.05.2007 and he informed his parents as well as the police on 29.05.2007 about the accused causing death of Archana. It is noticed that statement of PW4 Avinash was recorded by the Police on 29.05.2007. However, in the said statement, there is no mention that accused no. 1 was assaulting Archana by sickle and accused no. 2 Deepak was holding legs of Archana. In fact in statement dated 29.05.2007, there is no reference at all to any assault by the accused. PW4 Avinash could not assign any reason as to why Police did not record so in his statement dated 29.05.2007. Hence, it is clear that for the first time, Avinash stated so before the police in his supplementary statement dated 03.06.2007. In the cross-examination of this appln2983-10 7 witness, it is also revealed that the Police were suspecting him to be the culprit as his sister was pregnant and initially investigation was going on in that direction but subsequently, on the basis of statement made by this witness dated 03.06.2007, accused nos. 1 and 2 came to be arrested. 9. It is also pertinent to note that on 28.05.2007, accused nos. 1 and 2 had come to the house of the complainant and PW4 Avinash. On perusal of the evidence of complainant PW1 Shantaram, it is seen that after the incident, accused nos. 1 and 2 were sitting in his house. This fact shows that there were cordial relations between the complainant and his family members and that of the accused persons. Moreover, if at all, accused nos. 1 and 2 were involved in the murder of Archana which fact had been witnessed by the brother of the deceased PW4 Avinash as claimed by Avinash, they would not come and sit in the house of the complainant Shantaram soon after the incident. Thus, in view of the above facts, we are not inclined to place any reliance on the evidence of PW4 Avinash who is brother of the deceased. There is no other reliable and credible evidence on record which can connect the respondent in the crime. 10. The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to appln2983-10 8 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. 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 are of the opinion 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. In view of the above, application is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] appln2983-10 9 appln2983-10