1 Cri.A.2743.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2743 OF 2010 The State of Maharashtra Through Bembli Police Station, Osmanabad. ...APPLICANT. VERSUS Sham S/0 Bhagwat Taur, Age : 25 Years,Occup.Agril., R/o Takli, Tq. And District Osmanabad. ...RESPONDENT. ... Shri.V.G.Shelke,APP for Applicant. Shri.Sanjay B.Bhosale,Advocate for Respondent ... CORAM: SHRIHARI P.DAVARE, J. DATE : 07TH MARCH, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the 2 Cri.A.2743.10 applicant-appellant-State, seeking leave to file Appeal, challenging the Judgment and order dated 12th March 2010, passed by the learned Ad-hoc Special Judge Osmanabad, in Special (Atro) Case No. 15 of 2009, thereby acquitting respondent- original accused for the offence punishable under section 3(1)(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, and under sections 354 and 504 of the Indian Penal Code. Applicant is original complainant in the aforesaid case, whereas respondent is original accused therein. BRIEFLY STATED CASE OF THE PROSECUTION IS AS FOLLOWS: 3. The original complainant-Soniya Rajendra Waghamare was residing at her parental house along with her parents at Takali, as there were differences between her and her husband, and therefore, she was residing separately from him. She used to do labour work. It is alleged that accused-Sham used to follow her and threaten her 3 Cri.A.2743.10 that if she disclosed the said fact to her parents, brother or maternal uncle, then he would tell 10 boys of “Wadar” community to assault her. 4. According to complainant, on 05.01.2009, in the evening, after taking dinner, she had slept in her house along with her mother and brother. However, at about 11.00 to 11.30 p.m., she came out of the house for passing urine, at this juncture, accused came near her and caught her both hands, pulled her and told her that he would purchase her, and pressed her mouth and tried to remove her Saree from her person, and also told her that he would employ her to sweep and abused her on Caste like, ”rq Egkjkph vkgslÞß He also tried to outrage her modesty by touching his hands to her private part. It is also alleged that, accused further told her that he would transfer his bungalow in her name and she should permit him to commit sexual intercourse with her. It is alleged that she started shouting, and therefore, her brother, mother and maternal uncle came out of 4 Cri.A.2743.10 the house, and therefore, accused ran away. Thereafter, complaint was lodged by the complainant on the next day at Police Station Bembli. Offences punishable under sections 354, 504 and 506 of the Indian Penal Code, and Under Section 3(1) xi) of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, were registered against accused vide Crime No. 04 of 2009. 5. Accordingly, investigation was carried out, spot panchnama was prepared, accused came to be arrested and after completion of investigation charge sheet was filed against the accused before Judicial Magistrate First Class, Osmanabad, and since the charge under section 3(1)(xi) of scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was exclusively triable by the Court of Sessions, the case was committed to Court of Sessions. 6. Accordingly, the learned Ad-hoc Special 5 Cri.A.2743.10 Judge, Osmanabad, framed charge against the accused under the aforesaid sections and accused pleaded not guilty to the charges levelled against him. Defence of the accused is that of total denial and he contended that he was having love affairs with complainant-Soniya and she has written number of letters to him and afterwards he married with the girl from his caste. There were differences between the complainant and her husband, and therefore, she had been to her parental house and as accused did not keep relations with her she lodged false complaint against him. 7. To substantiate the charges levelled against accused, prosecution examined, in as much as three witnesses i.e. P.W.1 Soniya Rajendra Waghmare, complainant herself, P.W.2 Dayanand, brother of complainant and P.W.3 Madhav Karbhari, Investigating Officer. In the context of the charges levelled against accused, P.W.1 Soniya original complainant is material witness and she 6 Cri.A.2743.10 admitted in her cross examination that there were differences between her and her husband and her husband filed Divorce Petition, in Solapur Court and had taken contention that her behaviour is not proper and collected the documents from Osmanabad Court and filed Divorce Petition. She also admitted that there was darkness at the time of occurrence of the incident. She further stated that accused allegedly manhandled her for 10 to 20 minutes. But, the evidence of P.W.2 Dayanand does not substantiate the said aspect, since version of P.W.2 Dayanand is that he came out of the house and he had seen that accused was manhandling his sister, which is an omission amounting to contradiction in his statement. Moreover, it is also pertinent to note that, love letters, allegedly written by complainant-Soniya are produced on record and marked as “Articles A to H” and the paper bearing hand writting of complainant-Soniya was also produced on record. Learned trial Court compared hand writting of the said love letters “Articles A to H” and letter 7 Cri.A.2743.10 containing handwriting of the complainant-Soniya. Both handwritings appeared to be similar. Accordingly, trial Court inferred that said love letters were written by the complainant-Soniya by mentioning the name of respondent i.e. Sham, and observed that her evidence is not cogent, reliable and consistent and not supported by any independent witness, and said reasoning can not be faulted with. 8. Evidence of P.W.2 Dayanand does not support the case of his sister complainant-Soniya and he has not supported her version that the incident of manhandling was continued for about 10 to 20 minutes. In fact, allegation of P.W.1-Soniya that, contention of incident of manhandling by accused to original complainant-Soniya for about 10 to 20 minutes apparently is not digestible. However, P.W.2 is interested witness, who is brother of original complainant Soniya. The trial Court observed that his evidence does not appear to be reliable, cogent and consistent and there 8 Cri.A.2743.10 is no flow in the reasoning adopted by the trial Court in that respect. 9. Besides, although the alleged incident took place at about 11.00 to 11.30 p.m on 05.01.2009, but the complaint came to be lodged on 06.01.2009 at 15.30 hours, when Police Station Bembli is hardly at a distance of 10 to 15 K.M. away from village Takli, and no explanation has been given for the said delay, and therefore, the said delay is fatal to the prosecution. 10. Having the comprehensive view of the matter, it is apparent that, view adopted by the learned trial Court after assessing and analyzing the evidence on record, is a probable view and same does not appear to be perverse, and hence, no interference therein, is warranted in the appellate jurisdiction. Accordingly, present application, seeking leave to file appeal bears no substance, and hence, same deserves to be dismissed. 9 Cri.A.2743.10 11. In the result, present application which is sans merits, stands dismissed and leave to file appeal stands refused. 12. Record and Proceedings sent back to the concerned Court. Sd/- [SHRIHARI P.DAVARE, J.] MTK