( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION No.114 CRIMINAL REVISION APPLICATION No.114 CRIMINAL REVISION APPLICATION No.114 of of of 2003. 2003. 2003. Mrs Sunita Prakash Shinde .. ..Petitioner. Vs. The State of Maharashtra .. ..Respondents. and Anr. Ms S.D. Khot, Advocate for the Petitioner. Mr S. R. Shinde, A.P.P. for Respondent No.1. Mr M. R. Deshpande, Advocate for Respondent No.2. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. DATED : 22.04.2008. DATED : 22.04.2008. DATED : 22.04.2008. P.C.:- P.C.:- P.C.:- 1. Heard the rival parties. 2. Perused petition and the material available on record. THE FACTUAL MATRIX: THE FACTUAL MATRIX: THE FACTUAL MATRIX: ------------------ ------------------ ------------------ 3. The factual matrix available on record indicate that the petitioner was married to one ( 2 ) Prakash Dnyanoba Shinde. The petitioner’s husband started running a grocery shop under the name and style "Rahul Kirana Store" . On 23.3.2001 at about 12:00 p.m. the petitioner’s husband went to Jath for the purchase of grocery articles. At about 12:30 p.m. the petitioner closed down the shop and was in her house. The house and the shop are located in one and the same premises having separate doors made of wooden planks. When the petitioner was sitting in her house, at about 2:00 p.m. the accused (Respondent No.2) knocked the door of the house and demanded cigarettes. When the petitioner was proceeding to bring a cigarette, the accused closed the door of the shop from inside. When the petitioner questioned the accused, he asked her not to shout and made her to lie down on the floor. The accused thereafter committed rape on the petitioner (the prosecutrix). 4. According to the prosecution, the prosecutrix tried to raise shout, however, accused clamped her mouth shut with his one hand. In the mean while, the husband of the prosecutrix, Mr Prakash, arrived at the scene and ( 3 ) started knocking the door and asked his wife to open the door. According to the prosecution, Mr Prakash could hear some commotion behind the closed door. Apprehending some untoward incident, Mr Prakash peeped inside through the gaps in the wooden planks door. He found his wife resisting the accused and was trying to prevent the accused from committing rape. Mr Prakash in order to apprehend the accused, immediately, bolted the latch on the door of the house and ran towards the door of his shop. Simultaneously, the accused opened the door of the shop and started running. At that movement, the prosecutrix’s cousin Mr Piraji Laxman Shinde also arrived. Both of them chased the accused and brought him back to the house, where the prosecutrix narrated the incident partly; to the extent of molestation to her husband, which, ultimately, resulted in registration of police complaint as C.R. No. 56 of 2001 against the accused under Sections 451 and 354 of Indian Penal Code (I.P.C.). 5. It appears that accused anticipating registration of the offence against him, ( 4 ) approached to his uncle - Rajabhau Aklangi who is a political figure and businessman having good influence in the area. At his instance a complaint came to be registered against petitioner’s husband Mr Prakash, Mr Mohan Bapu Shinde, Mr Piraji Laxman Shinde and Mr Baban Dnyanoba Shinde for the alleged assault by Mr Prakash to Respondent No.2. 6. accused was put on trial after framing charge against him since he had denied the particulars of the offence for which he was charged. After full-fledged trial the learned Sessions Judge acquitted Respondent No.2 of the offence punishable under Sections 376, 341, 354 and 506 of the I.P.C. This order is subject-marriage of challenge in the present petition. 7. The learned counsel appearing for the petitioner urged that a grave and irreparable injury has been caused to the prosecutrix by acquitting Respondent No.2. According to her, for the reasons best known to the learned Public Prosecutor, he has failed in his duty to examine ( 5 ) material witnesses which has damaged the case of the prosecution. According to her, the trial Judge erred while observing that the action of the husband Mr Prakash was not natural with respect to the fact of apprehending of the accused. The learned counsel for the petitioner contends that the findings are recorded on the basis of conjunctures and surmises without scanning the evidence available on record. The entire petition is directed making complaint against the prosecutor. 8. The learned counsel for Respondent No.2 tried to support the impugned order. 9. Having heard both parties at length, the learned trial Judge found the following discrepancies in the prosecution case. 1. Medical certificate Exh.14 does not show external injury on the genitals of the complainant. 2. Medical certificate Exh.15 in respect of the accused does not support that the ( 6 ) rape has been committed by him. 3. Reports of Chemical Analysers Exhs. 16 to 18 do not reflect anything about the guilt of the accused. 10. In para 10 of the impugned judgment the learned trial Judge has discussed in detail testimony of the prosecutrix and came to the conclusion that her evidence does not inspire judicial confidence for the reasons recorded. 11. No independent witness was examined by the prosecution despite the fact that they were available. The most crucial witness in the case, according to the Trial Court was the husband of the complainant who had allegedly watched entire incident through the gaps of the wooden planks of the door of the shop of the complainant. Thus, non-examination of the husband of the complainant and her nephew Mr Piraji was held to be fatal to the prosecution by the trial Court. 12. The gaps found in the story sought to be ( 7 ) build up by the prosecutrix leading to absence of complaint of rape on that day and restricting her complaint against the accused to the extent of having pressed her breast behind the closed door creates doubt about her story that she was raped by the accused. The Trial Court has discussed the evidence and the law and, ultimately, came to the conclusion that the prosecution failed to establish its case. 13. With the aforesaid findings, this Court has to consider whether this is a fit case for exercise of revisional jurisdiction. 14. Before considering the aforesaid issue, it is necessary to examine the settled legal position laid down by the Apex Court in the various judgments; the sole testimony of the prosecutrix can be relied upon to convict the accused provided her evidence is cogent and reliable. 1. In Kamalanantha & Ors v. State of T.N. Kamalanantha & Ors v. State of T.N. Kamalanantha & Ors v. State of T.N. (2005) 5 Supreme Court Cases 194 (2005) 5 Supreme Court Cases 194 (2005) 5 Supreme Court Cases 194 the Court held as under: ( 8 ) "The prosecutrix is not an accomplice. The evidence of a victim of sexual assault, if inspires confidence, conviction can be founded on her testimony alone unless there are compelling reasons for seeking corroboration. Her evidence is more reliable than that of an injured witness. In a case of sexual assault corroboration as a condition for judicial reliance is not a requirement of law but a guidance of prudence." 15. Having examined the factual and legal position if one turns to the impugned judgment, no fault can be found with the impugned order. The medical evidence available on record does not support the case of the prosecution. C.A. report does not support the version of the prosecutrix. The absence of examination of the crucial witnesses; namely husband of prosecutrix and nephew of the husband of prosecutrix warrants me to draw an adverse inference to hold that had they been examined, their evidence would not have supported the prosecution. The gaps in the story of the prosecutrix herself leading to absence of the complaint about rape to her husband at the first opportunity and subsequent allegations in that behalf leads me to draw an inference of the improvement in the story of the prosecution; ( 9 ) which was rightly considered by the trial Court while acquitting the accused. This Court not being a Court of appeal is not expected to reappreciate the evidence. At this juncture, it is also necessary to note the length and breadth of the revisional jurisdiction of the Court which is made clear in the judgment of the Apex Court in the case of State of Rajasthan v. State of Rajasthan v. State of Rajasthan v. Gurucharandas Chaddha, AIR 1979 SC 1895. Gurucharandas Chaddha, AIR 1979 SC 1895. Gurucharandas Chaddha, AIR 1979 SC 1895. In the above view of the matter, no fault can be found with the impugned order. 16. In the result, the revision application is dismissed with no order as to costs. JUDGE. JUDGE. JUDGE.