1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO. 632 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra (Through Malegaon Taluka Police Station, District Nashik) .. Applicant Vs. Bapu Abhiman Sonawane & Ors. .. Respondents (Org. Accd.Nos.1 to 7) Smt. V.R. Bhosale, APP for State. CORAM: B.H.MARLAPALLE & R.Y. GANOO, JJ. November 24, 2009. P.C. 1. Heard Smt. Bhosale, the learned APP, for applicant-State. 2. This is an application filed under Section 378 (3) of Cr.P.C. seeking leave to appeal against the order of acquittal dated 18/10/2008 passed by the learned Ad-hoc Additional Sessions Judge at Malegaon in Sessions Case No. 71 of 2001. All the respondents were put on trial in the said case for the offences punishable under Sections 376(g), 323, 427, 506 read with 2 Section 34 of IPC. 3. The prosecution examined in all eight witnesses, including the prosecutrix – PW 1. As per the prosecution case, on 19/8/2001 the prosecutrix along with her minor daughter – Archana was working in her agricultural land, where she has her house, as well and at about 2.30 p.m. when she was picking up wooden fuel, she was surrounded by the accused persons and when they started misbehaving with her, Archana got scared and went to call her uncle PW 6 – Yogesh, who was present at a distance of about 500 ft. In the meanwhile, some of the accused caught hold of the saree of the prosecutrix, some other accused unbuttoned her blouse and she was totally undressed. One of the accused made her fall on the soil and accused Bapu raped her. When Yogesh – PW 6 came close to the spot of the incident, he saw two of the accused committing rape on the prosecutrix and when he started shouting, some of the accused pelted stones on him and they scared him to run away. Yogesh contacted the nearest police station and police van came to the spot. The prosecutrix along with Yogesh was taken to the nearby Primary Health Center where she was medically examined and the accused were arrested. The clothes of the prosecutrix as well as the accused were seized and sent for chemical analysis. 3 4. In addition to the oral depositions of the prosecutrix recorded incamera, we have gone through the evidence, considered by the trial court, of PW 3 – Jaywant, the husband of the prosecutrix, PW 6 – Yogesh, the brother of Jaywant, PW 7 – Dr. Bapu Baviskar and PW 8 – Ravindra Patil, the IO. The cross-examination of PW 1 and PW 6 established material contradictions in the complaint filed by the prosecutrix and her oral depositions before the court in examination-in-chief. Same was the case in respect of the oral evidence of PW 6 – Yogesh. Be that as it may, the C.A. reports received at Exhs.77 and 78 did not indicate any presence of semens of the blood group belonging to any of the accused. The prosecution at one point of time had contended that it was Bapu who had committed rape on the prosecutrix and none of the C.A. reports supported this contention. The pubic hairs collected from the prosecutrix also did not indicate any stains of semen and even the undergarment of Bapu, which was sent for chemical analysis, also did not indicate any stains of semen. As per the evidence of PW 7 – Dr. Baviskar, the prosecutrix was a married woman of about 31 years of age and he had examined her, during which he found no injury over vaginal walls as well as perineum region 4 and there was no seminal or blood stains over thighs and clothes of the prosecutrix. The doctor issued the medical certificate at Exh. 52. The defence, while pleading not guilty, had taken a clear stand that they were framed on account of the enmity between the parties. Sufficient evidence was placed on record to point out that there were criminal cases pending against each other and also on account of property disputes. The incident was claimed to have taken place at about 2.30 p.m. i.e. in broad day light and around the place of the incident, there were at least 25 families staying. None of the members of these families was examined as a witness. It was under these circumstances that the trial court acquitted the accused. 5. Having assessed the reasoning set out by the trial court and on the basis of the evidence of the main witnesses i.e. PW 1, PW 6, PW 7 and PW 8, the trial court rightly acquitted the accused. No case has been made out, calling for reconsideration of the reasons set out by the trial court. 6. Hence, leave to appeal is hereby refused and the application is rejected. (R.Y. GANOO,J.) (B.H.MARLAPALLE,J.)