1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (APPA) No. 307/2011. State of Maharashtra, through P.S.O. Police Station, Malegaon. Dist. Washim. VERSUS Ghamrao s/o Kundlikrao Ghuge and six others. Office Notes, Office Memoranda of Coram, appearances, Court's or Judge's orders Court's orders of directions and Registrar's orders Mrs. Jachak, APP for State. CORAM : MRS.V.K. TAHILRAMANI & M.L.TAHALIYANI, JJ. DATE : 22.6. 2011 . Being aggrieved by the judgment and order dated 4th of February, 2011, passed by the Ad-hoc Additional Sessions Judge, Washim in Sessions Trial no.2 of 2007, acquitting the respondents i.e. original accused nos. 1 to 7 of the offence under sections 143, 341, 323, 294 and 376(g) read with Section 149 of Indian Penal Code, the applicant-State of Mahaharashtra has preferred this application for leave to file appeal against the acquittal of the respondent nos. 1 to 7. 2. The prosecution case, in brief, is stated as under :- Accused No. 1 Ghamrao, aged 69 years is the father of accused nos. 2 to 4. Accused nos. 5 to 7 are closely related to accused nos. 2 to 4. They were all residing at village Kurala. The prosecutrix (PW-3) was also residing along with her husband Ananda (PW-6) in village Kurala. On 22.3.2006, the prosecutrix was in her agricultural land located near village Kurala. At about 1 p.m. all the accused persons came there. They abused her. Then accused no. 6 told the other accused to commit rape on her. Hence, the other accused lifted her and took her into the 2 cattle-shed. Then all the accused, one by one, raped her. Meanwhile, her husband Ananda (PW-6) came there. The accused assaulted him. The accused no. 1 told his son accused no.2 to commit rape on the prosecutrix. In presence of Ananda accused no. 2 committed rape on her. Thereafter the accused left the spot. The prosecutrix went to the police and First Information Report came to be registered. Thereafter investigation commenced. The prosecutrix was sent for medical examination at Primary Health Center, Malegaon where she was examined. Then she was referred to the Civil Hospital, Akola where she was again examined. Her clothes came to be seized. After completion of investigation charge sheet came to be filed. 3. Charge came to be framed against the respondents/accused for the offence under Sections 143, 341, 323, 294 and 376(g) read with Section 149 of Indian Penal Code. All the accused pleaded not guilty to the said charge and claimed to be tried. Their defence is that of total denial and false implication. Their further defence is that Ananda is a money lender. Accused no.1 had borrowed money from Ananda. By way of security, accused no. 1 Ghamrao had executed a sale deed in respect of a piece of land in favour of Ananda. Thereafter the entire loan was repaid. However, Ananda refused to re-convey the land to the accused. The accused was pressurizing him to re-convey the land. On account of this, Ananda has falsely implicated all the accused. 4. We have heard the learned APP for the applicant- State. We have perused the judgment and order passed by the learned Additional Ad-hoc Sessions Judge, Washim. We have also perused the record in this case. After carefully considering the matter, for the reasons stated herein below, we are not 3 inclined to grant leave to file appeal. 5. It is the case of the prosecutrix (PW-3) that all the accused committed rape on her. According to her, the accused committed forcible sexual intercourse with her at least 6 to 7 times. However, injury certificate (Exh.120) issued by the Medical Officer, P.H.C., Malegaon shows that the patient had no complaint of pain or discomfort during walking. No scratches were found on the breast or on the private part. Thereafter the prosecutrix was referred to the Civil Hospital, Akola on the very next day. She was examined at about 1 p.m.. The Medical certificate (Exh.58)) issued by the Civil Hospital, Akola does not show any injury mark on the body of the prosecutrix. According to the prosecution, there were some scratches on the thigh, forearm and back of the prosecutrix. However, in the medical certificate (Exh.120) there is no reference to any such injury. It is not possible that such injury would disappear within a span of about 16 to 17 hours. In the medical certificate(Exh.120) there is no mention of any injury to the genitals or anywhere else on the body. It is also pertinent to note that Ananda in his cross- examination has admitted that his wife did not show any injury to him. Even at Malegaon he had not seen any injuries nor did he make any inquiry with his wife about the injuries. This also shows that the prosecutrix, in fact, did not receive any injuries. It is impossible to believe that 6 to 7 persons would commit rape on a lady and she would not sustain any injury on any part of her body in the incident. It is not the case of the prosecutrix that she was shown any weapon or put in any fear so that she should not put up any resistance., in such case, it is expected that some injuries would be found on her person. Absence of injuries in the facts of the present case renders her testimony suspect. 4 6. The prosecutrix was referred for medical examination and samples of blood, pubic hair and vaginal swab were taken. As per the report of the Chemical Analyzer, no semen was detected on any of these samples. The blouse and Sari of the prosecutrix was also seized and sent to Chemical Analyzer. The Chemical Analyzer reports in relation to her clothes also shows that neither semen nor blood was detected thereon. 7. The case of the prosecutrix is that the accused persons carried her and took her into a cattle shed. She was made to lie on the ground. According to her, her bangles were broken during the incident. However, spot panchanama does not show the presence of any broken pieces of bangles at the spot. 8. As stated earlier, the defence of the accused is that Ananda is a money lender. Accused no.1 had borrowed money from Ananda. By way of security accused No.1 Ghamrao had executed a sale deed in respect of a piece of land in favour of Ananda. Thereafter the entire loan was repaid. However, Ananda refused to re-convey the land to the accused. The accused was pressurizing him to re-convey the land. On account of this, Ananda has falsely implicated all the accused. The accused had filed civil litigation against Ananda as the land was not re-conveyed. The specific case of the accused is that Ananda compelled his wife to file a false complaint. Two pieces of land were given to Ananda and after pressurizing him, he re-conveyed one piece of land by executing sale deed in favour of the accused but he did not re-convey the other piece of land. Ananda has admitted that accused no.1 Ghamrao has filed Regular Civil Suit no. 155/08 in the Court of Civil Judge, Senior Division, Washim against him. The suit relates to gat no. 61. In 5 this suit, the prayer is that the sale deeds dated 31.3.1998, 31.3.1999 and 16.5.2000 be declared as nominal and possession of the suit land was sought along with other incidental reliefs. 9. Ananda has admitted that he had purchased one land bearing Gat no. 59 from one Govind Ghuge (accused no.6) through his son. He further admitted that this land is still in possession of Govind Ghuge. If at all he had really purchased the land from accused Govind Ghuge, why it is still in possession of said Ghuge, why Ananda had not taken any action against him for delivery of possession, these questions are not answered by prosecution. Ananda further admitted that accused no.1 Ghamrao has filed complaint (Exh.147) under money lending provisions against Ananda before Sub-Registrar, Malegaon. In this connection accused Ghamrao was issued notice (Exh.146) to adduce evidence. 10. Another very important aspect in this case is that Ananda has executed sale deed of 0.52 HR land of Gat no. 62 in favour of accused no.1 Ghamrao on 23.05.2006 (Index extract Exh. 104). If at all such a brutal incident had taken place with the wife of Ananda on 22.03.2006, how within 2 months he executed sale deed of one piece of land Gat no. 62 in favour of accused Ghamrao, this aspect is worthy of serious consideration. Because, after such a heinous incident the relations of the parties concerned would become strained to such an extent that they may not see each others faces for life. But surprisingly within 2 months from the incident this transaction has taken place. This aspect is rather difficult to understand and raises doubt regarding the veracity of Ananda and his wife (PW-3). 6 11. The learned Ad-hoc Additional Sessions Judge, Washim has considered all the above aspects along with other aspects in this case and thereafter he has acquitted the respondents/accused. Looking to the evidence on record, we find that the view taken by the learned Ad-hoc Additional Sessions Judge is a reasonable and possible view. We may make useful reference to a decision of the Supreme Court in State of Uttar Pradesh Vs. Dinesh (2009) 3 Scale, 345 wherein in a case of appeal against acquittal it was held that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial court. 12. Looking to the evidence on record, we find that the view taken by the learned Ad-hoc Additional Sessions Judge, Washim is a reasonable and possible view. Application for leave to file appeal is rejected, consequently, the appeal is dismissed. JUDGE JUDGE Hirekhan