CRI.APPLN/5256/2011 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 5256 OF 2011 The State of Maharashtra through Police Station, Shivajingar, Nanded ..Applicant VERSUS Ishwarchand Ramkishan Agrawal, Age 45 years, R/o Pundlikwadi, Nanded ..Respondent ... APP for Applicant : Shri V.D.Godbharale ... CORAM : S. B. DESHMUKH & A.M. THIPSAY, JJ. Dated: December 21, 2011 ORAL JUDGMENT : (Per DESHMUKH,J.):- 1. Heard learned APP for the applicant. 2. This is an application of the State, seeking leave to file an appeal, against the judgment and order of acquittal of the accused. 3. Learned APP makes available copy of the deposition of prosecutrix. It is taken on record and marked Exhibit "X" for identification. 4. Respondent - accused was charged for the offences punishable under Sections 452, 376, 342, 354, 506 and 201 of Indian Penal Code ("IPC") in Sessions Case No.106 of 2009. The learned Assistant CRI.APPLN/5256/2011 2 Sessions Judge-II, Nanded, after recording the evidence, reached a conclusion that there is no material against the accused for the offences with which he was charged and tried and accordingly, acquitted the accused by her judgment and order dated 30.7.011. Said order of acquittal has been questioned by the State in this appeal under Section 378 of the Code of Criminal Procedure. 5. The prosecution case, in nut shell, is as under :- On 31.7.2008, oral report was lodged by prosecutrix (in view of Section 228-A of the Indian Penal Code, we are not recording her name). According to her, she was aged 38 years on the date of report. She was married in the year 1987. Accused was friend of her husband. Accused used to visit her house, even in the absence of her husband and especially when she was alone at the home. The accused used to lock the house of the prosecutrix from inside and used to commit forcibly intercourse with her and used to rape her. Such incidents have taken place, according to her, for 15 to 20 times. She was threatened by the accused to death, if she discloses the act to anybody including her husband. According to her, therefore, she could not disclose the incidents to her husband or any other person. The prosecutrix has further alleged that she was taken by the accused to his flat situated at Anand Nagar, Nanded and there he committed rape on her in the month of January 2008. According to her, the accused brought a bottle of poison and handed it over to her and asked her to administer the said poison to her CRI.APPLN/5256/2011 3 husband and to kill him. The accused also compelled her to take divorce from her husband on a bond paper. 6. Oral report of the prosecutrix was reduced in the writing and offences under Sections 452, 376, 342, 354, 506 and 201 were applied. Accordingly, Crime No.128 of 2008 was registered registered against the accused. Based on the same, investigation was carried out, accused was arrested, spot panchanamas were prepared, seizure panchanamas of incriminating articles were recorded, both - accused and prosecutrix were referred for medical examination, statements of witnesses were recorded and incriminating articles were forwarded to the Forensic Laboratory at Aurangabad. After completion of the investigation, charge sheet was submitted in the court of learned Judicial Magistrate (First Class), who in turn, committed the case to the learned Sessions Judge. 7. On committal, the learned Sessions Judge framed charge (Exhibit 6) against the accused for the offences punishable under Sections 452, 376, 342, 354, 506 and 201 of IPC. Charge was read over and explained to accused. He pleaded not guilty and claimed to be tried. Defence of the accused seems to be of consensual sex. 8. On behalf of the prosecution, six witnesses have been examined. The accused did not adduce any oral evidence in his defence. CRI.APPLN/5256/2011 4 9. Since, it is a case under Section 376 of the IPC, oral evidence of prosecutrix herself is significant and important. If the evidence regarding rape, on oath, adduced by the prosecutrix herself is truthful, cogent and reliable, it can be accepted by the Court and is sufficient for conducting and sentencing the accused for the offence under Section 376 of the IPC. From this point of view, we have requested the learned APP to place on record notes of evidence in relation to the prosecutrix herself. As said earlier, learned APP has made available the same. 10. From the judgment of the trial Court, learned APP points out paragraph No.21, wherein observations have been recorded by the learned trial Judge, which read as under:- " The victim has admitted in her cross examination that once her son Abhishek has seen the accused and herself in compromising position. She further admitted that once there was a fight between herself and her husband and at that time accused interfered and got her husband slept in another room. At that time accused and victim herself had sexual intercourse in another room. These facts shows that the victim was a consenting party an that she was enjoying the company of accused. If the act would have been forceful and when her own son Abhishek and her husband were present in the flat, they would have definitely come to rescue her from the clutches of the accused. But the conduct of the prosecutrix is doubtful and show that she was a consenting party and CRI.APPLN/5256/2011 5 hence she did not make any hue and cry, nor resisted the act of accused...." 11. The learned trial Judge, with these observations, has further observed in paragraph No.23 that the prosecutrix is aged about 38 years and she is married woman having two grown up children, the prosecutrix is of sufficient maturity and can give valid consent and that she has also admitted about physical relationship for about 20 times with the accused. 12. Regarding the contention of the prosecutrix that the accused compelled her to obtain a divorce from her husband on a bond paper also has been considered by the trial Court. In paragraph No.25 of the judgment, the trial Court has observed that such contention is un- believable. It is further observed that the alleged bond paper of divorce was not purchased by the accused but it was purchased by the husband of prosecutrix and the witnesses on the alleged divorce deed are the near one's and relatives of the prosecutrix. Therefore, this piece of evidence has been held unreliable and not material to decide the offence charged against the accused, by the trial Court. 13. Regarding the medical evidence brought on record by the prosecution, in paragraph No.26, the learned trial Judge has observed that there is a long delay of about eight months in lodging the report. The medical examination of the prosecutrix took place after about six months of the last incident of rape. Hence, there is absolutely no possibility of CRI.APPLN/5256/2011 6 finding any evidence of semen etc. on the person of the victim. This fact is also admitted by Dr. Dipti (PW 5). It is further observed that when the victim had taken bath number of times and changed her clothes, Chemical Analyser's report is bound to be in negative. Chemical Analyser's reports at Exhibits 37, 38 and 39 are in negative. Hence, according to the learned trial Judge there is no substantial medical evidence to corroborate the version of the prosecutrix. 14. In paragraph No.27, it has been observed by the learned trial Judge that the prosecutrix has admitted that the accused stood as a guarantor of the loan taken by her from "Vijaya Bank in the year 2005. Some of the admissions regarding bank loan in 2007 and 2008 so also refund thereof have also been noticed by the learned trial Judge. 15. We ourselves, with the assistance of learned APP, have seen the examination-in-chief and cross examination of the prosecutrix. From the notes of evidence, in our considered opinion, the conclusions are reached by the trial Court that no offence under Sections 452, 376, 342, 354, 506 and 201 of IPC has been committed by the accused seems to be justifiable. 16. The view taken by the trial Court, based on material, cannot be faulted with. The judgment and order of acquittal cannot be said to be perverse. It cannot be said that the judgment and order of acquittal is CRI.APPLN/5256/2011 7 based on inadmissible evidence and admissible evidence has been left out of consideration. All in all, this appeal carries no substance and leave to file appeal needs to be refused. 17. In the result, leave to file appeal is refused. Application stands rejected. ( A.M. THIPSAY, J. ) ( S. B. DESHMUKH, J. ) ... akl