1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No. 344/2011 in Criminal Appeal No. /-------/2011 State of Maharashtra through Police Station Officer, P.S. Hiwarkhed, Distt. Buldhana. vs. Bhimrao Kisan Chandne. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. Mrs. S.S.Jachak, APP for appellant. CORAM : MRS. V.K.TAHILRAMANI & M.L.TAHALIYANI, JJ DATE : 13.06.2011 Heard the learned APP for the appellant. 2. The appellant- State of Maharashtra has preferred this application for leave to file appeal against the Judgment and order dated 8th February, 2011 passed by the Ad hoc Additional Sessions Judge, Khamgaon in Sessions Case No. 44/2009. By the said Judgment and order, the learned Ad hoc Additional Sessions Judge, Khamgaon acquitted the respondent of the charge under section 376 of the Indian Penal Code. 3. The prosecution case, briefly stated, is as under: The complainant P.W.3 is the victim in the present case. She is a married lady. She had one son about 4 2` years old at the time of the incident. On 7.3.2009 she lodged a report in the Police Station, Hiwarkhed stating therein that at about 1.30 p.m. she went for latrine near Nimkhedi canal and while she was returning back the accused came and caught hold of her. He then committed rape on her and ran away from the spot. After completion of investigation, charge sheet came to be filed. 4. Charge came to be framed against the respondent under section 376 of the Indian Penal Code. Respondent pleaded not guilty to the said charge and claimed to be tried. The defense of the respondent is of total denial. After going through the evidence adduced by the prosecution, the learned Ad hoc Additional Sessions Judge acquitted the respondent- accused as stated above. Hence, this appeal. 5. We have heard the learned APP for the appellant State. We have perused the evidence in the present case as well as the Judgment and order passed by the learned Sessions Judge. After giving our anxious consideration to the matter, we are of the opinion, that the Judgment and order of the trial court deserves to be upheld for the reasons stated hereinafter. 6. The prosecution case is entirely dependent on the evidence of the prosecutrix (P.W.3). She has stated 3` that she lodged her first information report on the very same day at about 6.00 p.m.. She was referred for medical examination. Her saree, petticoat and blouse were seized during the investigation and sent to C.A. No semen was found on the clothes of the prosecutrix. The C.A. report in relation to the vaginal swab also shows that no semen was detected in the swab. 7. According to the prosecution case, at about 1.30 p.m. when the prosecutrix was returning after answering call of nature, accused committed rape on her. The spot was an open place near a field. As the prosecutrix was a married lady having small child, it may not be possible that injuries would be found on her private part but looking to the fact that the incident occurred in an open space on a hard uneven surface, it is expected that some injuries would be found on her person. Obviously, if sexual intercourse had taken place against the will of the prosecutrix, the prosecutrix would have put up some resistance. As the spot was an open ground, some scratches or at least some abrasions would have been found on the back of the prosecutrix or on some other parts of her body. However, the medical evidence shows that not a single injury was found on the body of the prosecutrix. This raises serious doubt in the mind. Moreover, P.W.4 Doctor Punam, who has examined the prosecutrix, has stated that exact opinion about rape can not be given. 4` 8. The learned Sessions Judge has considered all above aspects as well as the other aspects and thereafter acquitted the respondent accused. This is an appeal against acquittal. Different considerations are applicable in an appeal against conviction and in a case of appeal against acquittal. 9. We may make useful reference to the decision of the Supreme Court in State of Uttar Pradesh vs. Dinesh (2009) 3 Scale, 345, wherein in a case of appeal against acquittal it was held that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. The Supreme Court in C. Anthony vs. K.G. Raghavan Nair reported in (2003) 1 SCC 1 has observed that when two views are possible and when the view taken by the trial Court is a reasonable and possible view, the High Court can not in an appeal substitute its findings merely because another contrary opinion was possible on the basis of the material on record. It is further observed that if two reasonable conclusions can be reached on the basis of the evidence on record, appellate court should not disturb the findings of the trial court. Looking to the evidence on record, we are of the opinion that the view taken by the learned Sessions Judge is a reasonable and possible view, hence no case is made out for interference. 5` 10. For the aforesaid reasons, the application for leave to file appeal preferred by the appellant State is rejected. Consequently, the appeal is dismissed. JUDGE JUDGE patle