cra1717.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1717 OF 2010 The State of Maharashtra, Through: Police Station, Osmanabad (City). ...APPLICANT. VERSUS 1) Nikhil Pravin Bansode, Age-19 years, 2) Balu Angul Bansode, Age-20 years, Both R/o- Bhimnagar, Osmanabad. ...RESPONDENT. ... Shri.B.V. Wagh, A.P.P. for Applicant. Shri.Sanjay A. Wakure Advocate for Respondents. ... CORAM: SHRIHARI P. DAVARE, J. DATE : 14TH JUNE, 2011. PER COURT : 1. Heard learned counsel for the parties. cra1717.10 2 2. This is an Application preferred by the Applicant- State seeking leave to file Appeal challenging the Judgment and Order of acquittal, dated 2nd January 2010, rendered by the Additional Sessions Judge, Osmanabad in Sessions Case No.32 of 2008, thereby acquitting the Respondents (original accused) for the offences punishable under Sections 363, 366 read with Section 34 of the Indian Penal Code. 3. I have perused the impugned Judgment and Order dated 2nd February, 2010 and the Record and Proceedings, with the assistance of the learned counsel for the parties. 4. It appears that one Geetanjali Malale, a minor girl, was allegedly kidnapped by the accused persons on 29th March, 2007 and was being carried by Auto Rickshaw, but she jumped from said running Auto Rickshaw and got rescued herself, but she cra1717.10 3 sustained injuries and became unconscious. She found herself admitted in the hospital of Dr. Karanjkar, when she recollected from unconsciousness. 5. The prosecution examined in as much as seven witnesses, to substantiate the charges levelled against the accused persons, as follows: 1) PW-1 Mahadeo Tukaram Garad, Police Constable, who wrote the compliant, 2) PW-2 Abhimannu Tukaram Khose, Head Constable, who produced the injury certificate, Exhibit 46. 3) PW-3 Bhagyashri Dayanand Malale, mother of victim Geetanjali, 4) PW-4 Geetanjali Dayanand Malale, the victim, cra1717.10 4 5) PW-5 Dayanand Girjappa Malale, father of victim, 6) PW-6 Savan Prakash Malale, spot Panch (turned hostile), 7) PW-7 Tanaji Rangnath Fartade, Police Head Constable, Investigating Officer. 6. Apparently, the incident occurred on 29th March, 2007 at about 1.30 p.m., but the F.I.R. came to be lodged on 2nd April 2007, at about 11.15 a.m., and the prosecution tried to give explanation in respect of the said delay that victim Geetanjali was afraid and her mental condition was not proper. But, still it is apparent that Geetanjali narrated the said incident to her parents on 31st March, 2007, but, thereafter also the F.I.R. came to be lodged on 2nd April, 2007 at 11.15 a.m., and even the said delay from 31st March, 2007 till 2nd April, 2007 has not been explained by the prosecution cra1717.10 5 convincingly and learned trial Court has rightly observed that the said delay is fatal to the case of the prosecution. 7. Moreover, as regards the injury certificate Exhibit 46, the learned trial Court has observed that Dr. Karanjkar has submitted at Exhibit 43 that after service of witness summons, he searched out the entire record of O.P.D. and I.P.D. from his hospital, which is known as "Sushrut Hospital", dated 29th March 2007, but there is absolutely no entry of any girl as such appeared in the register in respect of any treatment given to such patient in his hospital. The learned trial Court has further observed that the Investigating Officer has not produced any document or injury certificate of the girl from that hospital or the Investigating Officer did not record the statement of doctor in-charge and therefore it appears that the complainant groundlessly stated in F.I.R. that she was brought cra1717.10 6 to that hospital in unconscious condition or that she recollected the consciousness after treatment in said hospital. Therefore, that part of the story, is absolutely meaningless and not proved by the prosecution to the satisfaction of the Court. Apparently, the said observations of the learned trial Court, cannot be faulted with. 8. The learned trial Court further observed that on perusal of injury certificate produced by the prosecution at Exhibit 46, from General Hospital, Osmanabad, there is no description of any injury of laceration on her right elbow. There was simple injury of contusion on occipital by hard and blunt object. Therefore, it does not support the sense of probability of receiving no laceration injury on any part of the body by a girl upon jumping down through a running Auto Rickshaw, on the road. Hence, the said circumstantial evidence is not supporting the allegations, and on perusal of the said injury cra1717.10 7 certificate Exhibit 46, it appears that the said observations of the learned trial Court, are not out of place. 9. Besides, it is also apparent that the complainant has changed the place of incident in the deposition, from the place of incident, which was stated by her in the F.I.R., and the said very aspect diminishes the credibility of the prosecution case. Moreover, it is admitted that there are number of shops beside the road and considerable traffic on the road at the relevant time, and the said aspect also creates suspicion in respect of the theory advanced by the prosecution. It is also observed by the learned trial Court that there was Zilla Parishad Girls High School in front of Police Station and if the incident had happened in front of the Zilla Parishad Girls School itself, that ought to have been noticed by police and/or the public. The learned trial Court further observed that the cra1717.10 8 suppression of the incident by the complainant and her mother for abnormal period, creates serious doubt as to it's truthfulness and about the credibility of the witnesses, and change of place of incident gives a fatal blow to the genuineness and truthfulness of the theory of the prosecution, and the said observations of the learned trial Court, apparently, cannot be faulted with. 10. Moreover, the learned trial Court also observed that there are glaring omissions in the evidence of PW-3 Bhagyashri Malale, as well as there are improvements in the testimony of PW-5 Dayanand Malale, and no explanation has been given therefor. So also, there are contradictions in the very testimony of the complainant Geetanjali, and as mentioned herein above, she has changed the place of incident, and no explanation has been given by the prosecution in that respect, which also hampers the case of prosecution. cra1717.10 9 11. In the circumstances, after scrutinizing and analyzing the evidence on record, the view adopted by the trial Court, while acquitting the accused, is a possible view to be adopted, and same does not appear to be perverse and the reasoning given therefor also can not be faulted with, and hence, no interference therein is called for in the appellate jurisdiction and the present Application deserves to be dismissed. 12. In the result, present Criminal Application which is sans merits, stands dismissed and leave to file Appeal is refused. 13. Record and Proceedings be sent back to the concerned Court. [SHRIHARI P. DAVARE, J.] asb/JUNE11/cra1717.10