{1} Cri. Application No.2279/2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2279 OF 2011 The State of Maharashtra APPLICANT VERSUS Nagnath Namdeo Pawar RESPONDENT ....... Mrs.S.D.Shelke, APP for applicant State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 28 th JULY 2011 ORAL ORDER (PER A.V.POTDAR, J.) : 1. By the present application, u/s 378 (1) (b) of the Criminal Procedure Code, the applicant-State seeks leave to file appeal challenging the judgment dated 01.03.2011 passed by Special Judge, Latur, in Special Case No.06/2010 to the extent it acquits the respondent of the offence punishable u/s 376 and 307 of the Indian Penal Code r/w section 3 (1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. {2} Cri. Application No.2279/2011 2. By the said judgment, though the respondent-accused is acquitted of the offence punishable u/s 376 and 307 of the Indian Penal Code, yet he is sentenced for an offence punishable u/s 325 of the Indian penal Code and sentenced to suffer RI for one year and to pay a fine of Rs.3000/- in default to suffer SI for one month. The respondent-accused has not challenged his conviction u/s 325 of the Indian Penal Code. 3. It appears that the prosecution has alleged that respondent-accused has committed rape on victim Nilubai, who belongs to Scheduled Caste, in a forest and also assaulted the victim and attempted to commit her murder. After completion of investigation charge sheet was filed and accordingly case was committed to the Special Judge and numbered as Special Case No. 6/2010. 4. Though the prosecution has examined in all 14 witnesses, yet there is no direct evidence on record in respect of charge of rape except the solitary testimony of the prosecutorix. PW-1 Balbhim, the first informant, has admitted in his cross examination that he had not disclosed in the complaint about the rape, and states that the prosecutorix had informed him only about the assault by the accused. Evidence of PW-7 victim Nilubai discloses that at the relevant time her husband was working with the accused and on 12.01.2010, the accused had came to her for giving money but on some pretext he went away without giving the {3} Cri. Application No.2279/2011 money. She further states that the accused called her on next day at Ausa where she went and waited till 1.30 p.m. from where the accused called her at Nilanga road, where she met him. Thereafter accused asked her to accompany him to Latur and she also accompanied him and went to Latur in his vehicle. The accused did not allow her to alight from the vehicle till 12.00 midnight and thereafter taken her towards forest area and committed rape on her. In her cross examination she admits that she is an educated lady and possesses a mobile phone. She further admits that she was not acquainted with the accused. 5. The trial court, after considering the vital admissions given by the victim herself, came to the conclusion that the story narrated by the victim appears to be improbable as though she was not acquainted with the accused she accompanied him in his vehicle that too at odd hours. The trial court also found that though the victim had mobile phone yet she did not use the same and did not seek help from anyone. The trial court found the evidence of the victim inconsistent. Moreover, the trial court found that the medical evidence, on the point of rape, is not sufficient to infer that the victim was subjected to rape. The trial court further found that the CA report does not indicate any semen on the undergarments of the victim. Though semen were found on the undergarments of the accused, yet the same are of no avail to the prosecution, as the same are absent on the undergarments of the victim. {4} Cri. Application No.2279/2011 6. Considering the unnatural conduct of the victim so also the medical evidence in respect of absence of any signs of rape or violence on the private parts of the victim coupled with the CA report which does not indicate any semen on the undergarments of the victim, the trial court came to the conclusion that the prosecution has utterly failed to prove the charge of rape against the accused. 7 Trial court further found that, considering the injuries found on the person of the victim, which were not on the vital parts of the body, and in view of scanty evidence regarding serious injuries, the charge of offence punishable u/s 307 of the Indian Penal Code also has not been established by the prosecution. 8. We have heard learned APP for applicant State. We have also perused the impugned judgment so also the record and proceedings received from the trial court. Upon such perusal, according to us, the view taken by the trial court is a possible view to be taken on the basis of evidence on record. We do not find any fault, much less perversity in the findings arrived at by the trial court while acquitting the respondent-accused of the charge of offence punishable u/s 376 and 307 of the Indian Penal Code. The prosecution has failed to establish the charge of rape and attempt to commit murder against the respondent-accused. {5} Cri. Application No.2279/2011 5. On careful consideration of the evidence on record, according to us, this application is devoid of any merit. Consequently, the present application, being sans merits, stands dismissed. Leave refused. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapln2279-11