1 5.apeal715&apln2959-10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.715 OF 2010 Sou.Mansura Begum Sikandar Shaikh. ..Appellant. Versus Wasimali Avdhootali Shaikh & 2 Ors. ..Respondents. .... Mr.Niranjan Mundargi, Advocate for the Appellant. Mr.Wahab Khan, Advocate for the Respondent Nos.1 & 2. Mr.S.S. Pednekar, A.P.P., for the Respondent No.3 – State. .... ALONG WITH CRIMINAL APPLICATION NO.2959 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 The State of Maharashtra. ..Applicant. Versus Wasimali Avdhootali Shaikh and another. ..Respondents. .... Mr.S.S. Pednekar, A.P.P., for the applicant – State. Mr.Wahab Khan, Advocate for the Respondent Nos.1 & 2. .... CORAM : D. D SINHA & A. P. BHANGALE, JJ. DATED : 07th OCTOBER, 2010 P.C. 1. Heard learned Counsel for the appellant in Criminal Appeal No.715 of 2010, learned Additional Public Prosecutor for the State in Criminal Application No.2959 of 2010 and learned Counsel for the PPD 2 5.apeal715&apln2959-10 respondent Nos.1 & 2 (original accused). 2. Criminal Appeal No.715 of 2010 is filed by the original complainant against acquittal of the respondent Nos.1 & 2 and Criminal Application No.2959 of 2010 is filed by the State seeking leave to file appeal against the acquittal of said accused Nos.1 & 2. 3. As both these appeals are filed against the impugned order dated 24.2.2010 passed by the Ad-hoc Additional Sessions Judge, Greater Bombay in Sessions Case No.346 of 2009 whereby the respondents/accused came to be acquitted for the offences punishable under Sections 365, 366, 342, 376, 420, 506(ii) of Indian Penal Code, therefore, both the appeals are heard together and disposed of by this common order. 4. Considered the contentions canvassed by the respective counsel. In the instant case, it is not in dispute that the First Information Report, for the first time, was lodged by prosecutrix after a period of 21 months. It is also not in dispute that the prosecutrix, for the first time, disclosed the incident of kidnapping and rape to her husband after about 19 months. The husband was an important witness. However, the prosecution chose not to examine him for the reasons best known to the prosecution. The Investigating Officer has not given satisfactory explanation why the prosecution failed to produce the extract of the register of missing complaint which was 3 5.apeal715&apln2959-10 alleged to have been lodged by the husband of the prosecutrix. It is claimed by the prosecution that before lodging FIR, the Advocate for the prosecutrix has submitted an application to the police station. However, this document is also not produced by the prosecution. Taking into consideration, the nature of evidence adduced by the prosecution, the trial Court in para-9 of the judgment has observed thus : “9. In the present case the prosecutrix has lodged her F.I.R. (Exhibit-15) after a period of 21 months. It appears that before lodging F.I.R., her Advocate Shri.Pursalani has given application to the Police Station. The prosecution has not produced the said application which was given on behalf of this prosecutrix. It further appears that she has disclosed about this alleged incident for first time to her husband. Her husband is an important witness and he is available in Mumbai. The prosecution has not examined him. The Investigating Officer PW.6 Shri.Rane has not given satisfy explanation, why he has not produced extract of the register of the missing complaint which was lodged by the husband of prosecutrix and application filed by the Advocate Shri.Pursalani on behalf of prosecutrix which was given four months prior to registration of F.I.R. They have not assigned any reason for the same. In absence of corroboration to the testimony of the PW.1 prosecutrix, I am no inclined to accept the same as it is. The observation made by the Hon’ble Their Lordship cannot 4 5.apeal715&apln2959-10 be made applicable to the facts of present case. Hence, I hold that prosecution has failed to establish beyond reasonable doubt that accused No.1 Wasimali had kidnapped the prosecutrix, confined her at Mumbra and committed rape on her beyond the reasonable doubt and the accused No.1 Wasimali and no.2 Yusuf Shaikh are entitled for benefit of doubts and liable to be acquitted. Hence, I answer Point nos.1 to 8 in the negative and proceed to pass the following order.” 5. Considering the totality of the nature of evidence adduced by the prosecution, we are of the view that the finding of acquittal recorded by the trial Court is just and proper. In the result, both the appeals are dismissed. (D. D. SINHA, J.) (A. P. BHANGALE, J.)