1 crap-2559-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2559 OF 2010 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2010 The State of Maharashtra ..Applicant [Ori. Complainant] Vs. Anil Shamrao Bornak & Ors. ..Respondents [Ori. Accused Nos. 1 to 5] .... Mr.V.B.Konde-Deshmukh APP for the Applicant-State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : AUGUST 17, 2010 ORAL ORDER [PER SMT.V.K.TAHILRAMANI,J.]: 1 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 14.12.2009 passed by the learned Sessions Judge-3, Kolhapur in Sessions Case No. 1 of 2008. By the said judgment and order, the respondents i.e. original accused nos.1 to 5 came to be acquitted of the offences punishable under Section 363, 366-A, 376, 506, 114 r.w. 34 of IPC and under Sections 4 and 5 of the Child Marriage Restraint Act, 1929. 2 crap-2559-10 2 The prosecution case briefly stated is that the complainant Rangnath had two sons and one daughter i.e. prosecutrix Sarswati alias Saya. His sons were residing at Gargoti and the complainant was residing with his wife and prosecutrix at some other place. As his daughter in law was pregnant, he, his wife and daughter i.e. prosecutrix had come to Gargoti. They stayed there for about eight days and thereafter he and his wife returned back. However, they kept their daughter at Gargoti. On 11.11.2006 at about 3 p.m. he received telephone message from his son that his daughter i.e. prosecutrix was missing from the house since 2 p.m. Hence, he came to Gargoti and lodged missing complaint. On 15.11.2006 they were called at the Police Station by the police who told them that they had found their daughter. They went to the police station. At the police station, his daughter was asked whether she was ready to accompany her parents, however, she refused to go along with them. The girl being minor, she was produced before the Court and the Court directed that the prosecutrix be sent to Mahila Sudhar Griha, Kolhapur. Accordingly, she was sent to Mahila Sudhar Griha, Kolhapur. On 18.11.2006 the complainant and his son went to Mahila Sudhar Griha, Kolhapur and met the prosecutrix. She expressed her desire to come home. Hence, they brought her home. After coming home, she told them that on 11.11.2006 at about 2 p.m. 3 crap-2559-10 respondent no.1 Anil, his brother, respondent no.2 Vijay and respondent no.3 Ravindra came there. Vijay gagged her with a cloth and dragged her. All the three lifted her, took her to one rickshaw and she was taken in the said rickshaw to Aadampur. The said rickshaw was driven by respondent no.2 Vijay and she was made to sit on the rear seat between respondent no.1 Anil and respondent no.3 Ravindra. On reaching Aadmapur, respondent no.4 Pravin brought one Tata Sumo vehicle in which she was made to sit. Tata Sumo was driven by respondent no.5 Dattatraya. Then respondent nos.1 to 4 took her to their friends ’ house. On the next day morning at about 9 a.m. respondent no.1 Anil and his friends brought articles for marriage and they performed her marriage with respondent no.1 Anil. Thereafter, she was taken to another place where she stayed with some relatives. In the afternoon, Anil had forcible physical relationship with her against her will. Thereafter, she was taken to various unknown places. There also Anil had forcible sexual intercourse with her. She further stated that she was compelled to write on some paper that she had accompanied Anil of her own accord. After learning about these facts from the prosecutrix, her complaint came to be lodged on 24.11.2006 at Budhergad Police Station vide C.R.No. 25 of 2006. Thereafter, investigation commenced. 4 crap-2559-10 3 Charge under Sections 363, 366-A, 376, 506, 114 r.w. 34 of the IPC came to be framed against the respondents-accused. Accused pleaded not guilty to the said charge and claimed to be tried. Their defence is of total denial and false implication. 4 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 5 It is the case of the prosecutrix that on 11.1.2006 when she was alone at home, accused nos.1 to 3 came to her house and physically picked up her and put her in a rickshaw. The prosecutrix has admitted that the rickshaw as parked at a distance of 100 to 150 feet away from her house. The house of the prosecutrix is not in a secluded place but it is surrounded by other houses. In such case, it is very difficult to believe that three boys would physically carry the prosecutrix on a busy road and put her in a rickshaw and drive away. The incident 5 crap-2559-10 had occurred in a residential locality. It is also not in dispute that at the relevant time, the mother and sister in law of the prosecutrix were present in the house, so also their landlord was residing with his family members in the same house. The prosecutrix has stated that she had put up resistance while she was taken away from her house to rickshaw. However, it is surprising to note that no one noticed the prosecutrix being forcibly lifted and carried and put in a rickshaw. At one place, the prosecutrix has stated that she was lifted by all accused, put in a rickshaw forcibly and taken away and at the other, she has stated that she was dragged from her house and put in a rickshaw. She has further stated that it takes 20 to 30 minutes to go by rickshaw from Gargoti to Aadmapur. She has further admitted there was traffic on the road from Gargoti to Aadmapur. Thereafter also the prosecutrix was taken to various places. She was taken by busy roads having considerable traffic. There is no evidence to show that at any point of time, she made any attempt to escape or she tried to cry out for help or she sought help from anyone. 6 It is the prosecution case that prosecutrix was a minor at the time of the incident. However, no documentary proof has been produced in respect of her date of birth. Thus, except the bare 6 crap-2559-10 statement of the prosecutrix in the witness box that her date of birth is 19.3.1989, there is no other material. No medical tests were undertaken by the Investigating Agency in order to determine the age of the prosecutrix. The case of the prosecutrix is that she was forcibly taken away by all accused and thereafter she was made to marry accused no. 1 forcibly. However, it is pertinent to note that after the police brought the prosecutrix to the police station on 15.11.2008 and when the police made inquiry with her at the police station, the prosecutrix refused to go back to her family and due to this, she was sent to the Mahila Sudhar Griha. PW 3 Vishnu, brother of the prosecutrix has also stated that when they were informed by the police that his sister had been brought to the police station, they reached police station. Police asked his sister whether she wanted to accompany her family members, at that time, his sister refused to accompany her family members and therefore, they came home and his sister was sent to Mahila Sudhar Griha, Kolhapur. If at all, the events were not as per the wishes of the prosecutrix, she would have definitely gone home with her parents. The evidence of the prosecutrix as well as the complainant PW 4 who is her father, is also on the same lines as that of brother of the prosecutrix. If at all the prosecutrix was threatened, in the presence of police and her parents in the police station, she would definitely regain her confidence 7 crap-2559-10 to disclose the truth before her parents and the police, because at the police station, in the presence of parents and police there was nothing for her to fear and to give any false statement. In view of these facts, we find much merit in the defence taken by the accused that the prosecutrix succumbed to the pressure of her family members and gave a false complaint against them at a later stage. 7 As far as rape is concerned, the prosecutrix was examined by Dr. Shelmokar after a considerable gap of time. Therefore, Doctor opined that it is not possible for him to give any opinion about any sexual intercourse taking place. In his cross-examination, the Doctor has admitted that he did not observe any fresh injuries to the private part of the prosecutrix. Thus, the medical evidence also does not support the prosecution. Assuming that sexual intercourse did take place, from the evidence on record it appears to be with the consent of the prosecutrix. 8 Looking to the evidence on record, we find that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, we are not inclined to interfere in the judgment and order of acquittal. 8 crap-2559-10 9 In view of the above, leave to file appeal, is refused. Consequently, appeal is dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]