(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 4827 of 2010 The State of Maharashtra, Through Vaishali Bapu Shinde, Age : 22 years, Occupation : Labour, R/o. Jawala [Kh.], .. Applicant Taluka : Kallam, (Original District : Osmanabad. complainant) versus Ashok alias Bhaiyya Bhausaheb Ghogare, [Patil], Age : 21 years, Occupation : Agriculture, R/o. Jawala [Kh.], Taluka : Kallam, .. Respondent District : Osmanabad. (Original accused) ....................... Mr. B.V. Wagh, Additional Public Prosecutor, for the applicant. Mr. P.B. Rakhunde, Advocate, for the respondent. ........................ (2) CORAM : SHRIHARI P. DAVARE, J. DATE : 20TH JUNE 2011 COURT'S ORDER : 1. Heard learned Counsel for the parties. 2. This is an application preferred by the applicant / State seeking leave to file appeal challenging the judgment and order dated 25-8-2010, rendered by the learned Special Judge, Osmanabad, in Special Case No. 20/2009, thereby acquitting the respondent (original accused) for the offence punishable under Section 3(1)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and under Section 323 of Indian Penal Code. 3. Parties are hereinafter referred to as per their original status i.e. complainant and accused. 4. I have perused the impugned judgment and order dated 25-8-2010, and Record and proceedings with the assistance of learned Counsel for the parties. 5. The prosecution case, in brief, is as follows : (3) The complainant Vaishali Bapu Shinde and her two sons were residing along with her parents, as her husband died six years back, and she used to do labour work. It is alleged that on 15-4-2009 at about 10.00 a.m., she proceeded towards river for grazing she-goats, and returned towards her house with said she- goats at about 04.00 p.m., and she was grazing grass which was brought by her mother to she-goats. However, at that time, said she-goats proceeded towards the boundary of the land of Ashok Ghogare (original accused), who is by caste Maratha. After noticing that she-goats had been towards boundary of the land of accused, he rushed towards complainant and started abusing her and told her that why she grazed her she-goats on the boundary of his land, and thereafter accused gave slaps on her cheek. It is alleged that thereafter he pushed her on the ground and torn her blouse with bad intention and pressed her breasts and tried to outrage her modesty. At that time, the complainant shouted and thereupon her mother Ranjana and one Malanbai, Bainabai and Ashok Sabale rushed to the spot and separated the complainant from the clutches of the accused. It is also alleged that two glass bangles from her right hand and three glass bangles from her left hand were broken, and she sustained swelling injuries. Thereafter she approached the Police Station and lodged the complaint. Accordingly, offence punishable under Sections 354, 323, 504 of (4) IPC and under Section 3(1)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, was registered against the accused vide Crime No. 37/2009. 6. To substantiate the charges levelled against the accused, prosecution examined as many as seven witnesses, as mentioned below : (1) Vaishali (PW 1) - Victim / complainant. (2) Ranjana (PW 2) - Mother of Vaishali. (3) Bainabai (PW 3) - Neighbourer (Turned hostile). (4) Pratap (PW 4) - Spot Panch (Turned hostile) (5) Shivaji (PW 5) - Spot Panch in respect of seizure of bangles. (6) Gunwant (PW 6) - Panch regarding seizure of blouse (Turned hostile). (7) Yellappa Choudhari - Dy.S.P. / Investigating (PW 7) Officer. 7. Apparently, prosecution case solely revolves around testimony of victim Vaishali (PW 1) and deposition of her mother, namelyl Ranjana (PW 2). After assessing the evidence of (5) Vaishali (PW 1), learned trial court has observed in the impugned judgment that the version of said witness that she told accused, "brother not to abuse her", is an omission amounting to contradiction in her complaint. Moreover, her version that accused had given slaps on her breasts, is an omission amounting to contradiction in her complaint. So also, further version of this witness, that accused had caught her hand, is an omission amounting to contradiction in her complaint. Moreover, her further version that her father Bajrang and uncle Mohan rushed towards spot, is an omission amounting to contradiction in her complaint. In the said context, learned trial court has also observed, that it is pertinent to note that if really her father and uncle rushed to the spot and tried to intervene, then this material fact would have been reflected in her complaint, but the same did not happen. Moreover, if really accused had caught her hand and accused gave slaps on her breasts, then this material fact would have been reflected in her complaint, but the same did not happen. Hence, in the absence of material facts in the complaint, learned trial court observed, that it appears that in order to take revenge against accused as he and his family members had assaulted her brother, she might have prepared imaginary episode and filed complaint which appears afterthought and her evidence is also not corroborated by the evidence of any independent witness and Panch witnesses, and therefore, learned trial court (6) further observed, that the evidence of this witness is not cogent, reliable and trustworthy and cannot be accepted, and the said observations and the reasoning given therefor, by the learned trial court, apparently, cannot be faulted with. 8. As regards the testimony of Ranjana (PW 2), mother of Vaishali, learned trial court has observed, that the version of the said witness, that she heard the shouts of Vaishali and rushed to the spot, is an omission amounting to contradiction in her statement. Moreover, further version of the said witness, that accused had beaten Vaishali on her breasts and accused had given slaps to Vaishali in her presence, are omissions amounting to contradiction in her statement. The said witness has admitted that after incident, she herself, her husband and Vaishali had discussed to file a case against accused. It is further observed by the learned trial court, that the evidence of this witness is contradictory to the evidence of Vaishali (PW 1) because Vaishali (PW 1) has stated that her uncle and father rushed to the spot, but this witness has stated that she alone rushed to the spot. It is further observed, that this witness is mother of Vaishali, and therefore, naturally interested in prosecution. Moreover, material contradictions appeared in the evidence of this witness, so also, the said witness has admitted in her cross examination, that her son had been to the house of accused and made enquiry, that time (7) accused and his family members had assaulted him and thereafter she along with her husband and Vaishali had discussed to file a case against accused. Learned trial court has further observed that from these admissions, it can be safely inferred that there might have been quarrel taken place between Vaishali and accused in morning on the count that she-goats of Vaishali had been to the boundary of the land of accused, but taking disadvantage of the situation, it appears that Vaishali and her mother and their family members had prepared imaginary episode by making serious allegations against accused and lodged complaint, which is afterthought. 9. As regards independent witness Bainabai (PW 3), learned trial court has observed that she has denied the entire incident allegedly taken place in her presence, and therefore, the said independent witness has not supported the prosecution case. 10. Hence, there are vital lacunae in the prosecution case and the testimony of Vaishali (PW 1) and Ranjana (PW 2) are hit by the vital omissions amounting to contradictions, and Bainabai (PW 3), independent witness, has denied occurrence of the incident in her presence, and therefore, after scrutinizing and appreciating the evidence, learned trial court has observed that the prosecution has failed to prove charges levelled against the (8) accused by adducing cogent and consistent evidence on record, and therefore, in the absence of reliable evidence, accused is entitled for acquittal, and there is no flaw in the said observations and reasoning given by the learned trial court in that respect. 11. In the circumstances, after analyzing and appreciating evidence on record, the view adopted by the learned trial court, while acquitting the accused, is a possible view and the same does not appear to be perverse, and the reasoning given therefor also cannot be faulted with, and the present application being devoid of merits, deserves to be rejected. 12. In the result, present Criminal Application which is sans merits, stands dismissed, and leave to file appeal is refused. 13. Record and proceedings be sent back to concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka4827