1 Criminal Appeal No.441 of 2010 with Criminal application no.4855 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.441 OF 2010 Sharda Sahebrao Kharat, Age-35 years, Occu-Household, R/o.Sheela Vihar, Shriram Chowk, Gulmohar Road, Ahmednagar APPELLANT VERSUS 1. The State of Maharashtra, 2. Yogesh Vitthal More, Age-28 years, Occu-Driver, R/o.Athawad, Tq.Nagar, Dist. Ahmednagar 3. Deepak @ Bhanya Balasaheb Rangdal, Age-23 years, Occu-Driver, R/o.Savedi, Nagar, Dist. Ahmednagar RESPONDENTS WITH CRIMINAL APPLICATION NO.4855 OF 2010 State of Maharashtra APPLICANT VERSUS 1. Yogesh Vitthal More, Age-28 years, Occu-Driver, R/o.Athawad, Tq.Nagar, Dist. Ahmednagar 2 Criminal Appeal No.441 of 2010 with Criminal application no.4855 of 2010 2. Deepak @ Bhanya Balasaheb Rangdal, Age-23 years, Occu-Driver, R/o.Savedi, Nagar, Dist. Ahmednagar RESPONDENTS Mr.N.C.Garud, learned counsel for the appellant in appeal and for respondent no.1 and 2 in the application. Mr.K.G.Patil, learned A.P.P. for State in both proceedings. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 17/01/2011 PER COURT : 1. Criminal Appeal No.441/2010 has been filed by the original complainant/first informant questioning the acquittal recorded by the Assistant Sessions Judge, Ahmednagar, by judgment dated 18/08/2010, in Sessions Case No.36/2009, while Criminal Application No.4855/2010 has been filed by the applicant State also questioning the acquittal of the respondents for offences punishable u/s. 376(g) and 306 of The IPC. 2. It appears that the victim, who was a school going girl, who had resided at her uncle’s house on the previous night on account of heavy rains, was found un-conscious, having consumed some poisonous substance. She, accordingly, was admitted in the hospital on 08/10/2008. The mother of the victim, i.e. the original complainant then alleged that on 13/10/2008, the victim who was 3 Criminal Appeal No.441 of 2010 with Criminal application no.4855 of 2010 critically ill and was on ventilator, regain consciousness and had informed her that it was the respondents accused who had committed forcible sexual intercourse with her which had led the victim to consume the poison. The victim thereafter again became critically ill and ultimately succumbed on 28/01/2009. Meanwhile, FIR came to be lodged on 22/10/2008 with the recitals that the victim had made the aforesaid disclosure. 3. The Trial Court, while acquitting the accused found that the mother of the victim had stated in her substantive evidence that the aforesaid disclosure had been made by the victim in the presence of her brother Dnyaneshwar, who has been examined as a witness and in the presence of Dr.Pawar. In the cross examination of Dnyaneshwar, omission has been duly proved that he had not stated in his previous statement recorded during investigation that he was present and in his presence the victim had made the above disclosure. Dr.Pawar, who has also been examined as a witness, had also stated that the disclosure was not made in his presence, but the disclosure was communicated to him by the mother of the victim. Dr.Pawar had further admitted that names of the accused had not been disclosed to him. He was also unable to point out from the medical papers any endorsement relating to the victim regaining consciousness. The Trial Court in that background therefore came to the conclusion that the prosecution had miserably failed in 4 Criminal Appeal No.441 of 2010 with Criminal application no.4855 of 2010 establishing that the victim accordingly had regained consciousness and had made the aforesaid disclosure. The Trial Court further found that the medical evidence i.e. the evidence of the post mortem examination completely belied forcible sexual intercourse as no injuries were noticed on the person of deceased victim. The Trial Court then repelled the evidence of the friend of the victim, who had been examined and who claimed to have heard the conversion between the accused and the victim girl and therefore the prosecution arrived at the inference that it was the accused, who was present alongwith the victim. The Trial Court found that the said friend of the victim was not acquainted with the accused and consequently the evidence of the conversion, who she is alleged to have heard on the mobile, did not in any manner establish the presence of the accused. The Trial Court also disbelieved the prosecution on the point of delayed lodging of FIR. According to the prosecution, the alleged disclosure was made on 13/10/2008 while the FIR came to be lodged on 22/10/2008. The Trial Court repelled the explanation for the delay given by the first informant that as the operation of the victim was scheduled on 20/10/2008, the FIR had not been lodged earlier. 4. With the assistance of learned counsel for the appellant Shri.N.C.Garud, and the learned A.P.P., we have perused the evidence recorded by the Trial Court. Upon such perusal, we do not 5 Criminal Appeal No.441 of 2010 with Criminal application no.4855 of 2010 notice any perversity in the reasoning of the Trial Court to warrant the admission of this appeal. The view taken by the Trial Court is a possible view to be taken on the basis of evidence on record. In that light of the matter therefore, we do not find any merit in the appeal and accordingly Criminal Appeal No.441/2010 and Criminal Application No.4855/2010 are summarily dismissed. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JAN. 2011/cri.appeal 441-10