((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2359 OF 2007 The State of Maharashtra Applicant versus Vasant Mahadeo Powar & others Respondents Mr.J.P.Yagnik, APP for the State. Mr.Shekhar A. Ingawale for respondents 1 to 6. CORAM : A.S.OKA, J. DATE : 16th January 2009 PC : 1. The submissions of the counsel for the parties were heard yesterday. The first to sixth respondents are original accused 2 to 7. the said respondents along with accused no.1 were prosecuted for the offences punishable under sections 376(2)(c), 354 and 376(2)(c) read with section 109 as well as section 506 (Part-I) of the Indian Penal Code. 2. The case of the prosecution is that the prosecutrix was an inmate of Tejaswini Mahila Vasatigrah, Kolhapur (hereinafter referred to as "the said Vasatigrah"). The first accused was, at the relevant time, junior caretaker of ((-2-)) the said Vasatigrah. The allegation of the prosecutrix is that on the relevant day she was sleeping in a room along with other inmates, after mid-night the first accused knocked the door and gave a call to her. The prosecutrix opened the door and thereafter the accused no.1 asked her to fetch water in a bucket from the tank on the ground floor and to keep it in the bathroom of the first floor. While she was keeping the bucket, the accused no.1 entered the bath room and offered her a biscuit and cash amount. The allegation is that thereafter the accused no.1 committed forcible intercourse with her. Though the prosecutrix made hue and cry, nobody intervened. The allegation is that the accused no.1 threatened the prosecutrix that if the incident was disclosed by her to anyone, he would kill her. The case of the prosecutrix is that in the morning she disclosed the incident to the third accused. Her allegation is that she disclosed the incident to 6th and 7th accused but they did not pay any heed. The allegation is that thereafter she disclosed the incident to the accused no.4 who was the caretaker. The allegation is that the accused no.4 told the prosecutrix to develop illicit relations with ((-3-)) the accused no.1. 3. The case of the prosecutrix is that on the next day when a medical officer visited the hostel, the prosecutrix disclosed the incident to the lady medical officer, however, at that time the third accused came there and told the medical officer not to listen to the prosecutrix. The case of the prosecutrix is that thereafter she narrated the incident to the second accused. Not only that the second accused did not pay any heed but he outraged her modesty by inserting his hands in her blouse. 4. The case of the prosecution is that on 14th March 2006 the accused no.1 committed an offence in the same manner. The case of the prosecutrix is that in the morning hours she narrated the incident to the accused no.4 who was on night duty but she did not pay any heed to that. Thereafter, she disclosed the incident to two other inmates Harjit Kaur and Shubhangi and both of them disclosed that such incident had taken place even in their case and she should not disclose the incident to anyone. On the next day the said Shubhangi brought one ((-4-)) Mutakekar Madam in the hostel and in her presence a complaint of the prosecutrix was reduced into writing by a Police Sub Inspector. 5. By the impugned order the learned Judge convicted the accused no.1 for the offence punishable under section 376(2)(c) of the Indian Penal Code. The accused no.1 was sentenced to suffer rigorous imprisonment for a period of ten years and was directed to pay a fine of Rs.15,000/-. The other accused have been acquitted of the offences alleged against them. 6. The learned APP appearing for the State has taken to me through the impugned judgement and order and pointed out that there was material against the original accused nos.2 to 7. The submission is that the order of the learned Judge to the extent to which the said accused have been acquitted is perverse. 7. I have perused the judgement. The learned Judge has observed that so far as the act of outraging the modesty of the prosecutrix at the instance of accused no.1 is concerned, the FIR lodged by the State is silent and she has not ((-5-)) uttered a single word about the outraging of modesty at the hands of accused no.1. As far as accused no.2 is concerned, the learned Judge has considered the evidence against him relating to the acts committed by the accused no.2 in relation to one Vandana Gavai. The learned Judge observed that the said Vandana Gavai did not lodge any complaint in respect of outraging her modesty at the hands of second accused. The learned Judge found that there was no corroboration of the incident by the alleged victim Vandana. Therefore, the learned Judge held that the offence under section 354 has not been proved against the first and second accused. 8. The allegations against accused nos.2 to 7 are also of abetting the offence committed by the first accused. After considering the evidence on record the learned Judge held that assuming that the said accused did not pay any attention to the disclosure of the incident, the same does not amount to intentional aiding or intentional illegal omission qua the offence alleged against the first accused. The learned Judge found that the allegations against the said accused were of mere inactiveness on their ((-6-)) part which did not amount to illegal omission or intentional aiding and that is why the learned Judge has passed an order of acquittal. As far as acquittal of the first accused for offence under section 354 of the Indian Penal Code is concerned, there is no appeal preferred by the State as name of the first accused has been deleted. As far as allegation against accused no.2 is concerned, the finding is that the aggrieved party has neither filed any complaint nor has corroborated the incident. The finding of the learned Judge that the allegations of abetment of the offence against accused nos.2 to 7 have not been established is certainly a possible conclusion which could have been recorded on the basis of the evidence on record. In the circumstances, no case is made out for grant of leave. The application is rejected. (A.S.OKA, J.) ((-7-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.680 OF 2007 The State of Maharashtra Applicant versus Vasant Mahadeo Powar & others Respondents Mr.J.P.Yagnik, APP for the State. Mr.Shekhar A. Ingawale for respondents 1 to 6. CORAM : A.S.OKA, J. DATE : 16th January 2009 PC : 1. Admit. To be heard along with Criminal Application No.638 of 2007. (A.S.OKA, J.)