1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1747 OF 2010 The State of Maharashtra ...Applicant VERSUS Suresh Sukhdev Munde ...Respondent ..... Shri S.D.Kaldate, A.P.P. for the applicant Shri B.R.Jaybhay, advocate for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 11 th August, 2010 PER COURT : 1 Heard Shri S.D.Kaldate, learned A.P.P. for the applicant and Shri B.R.Jaybhay, learned counsel for the respondent. 2 This is an application preferred by the applicant/State seeking leave to file appeal against the judgment and order of acquittal, dated 22.1.2010, passed by learned Adhoc Special Judge, 2 Osmanabad, in Special (Atro) Case No. 18 of 2010, acquitting the respondent (original accused) for the offence under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and also acquitting him under Section 452 and 354 of the Indian Penal Code. 3 The prosecution case, in nut shell, is that, the complainant Rani Kalidas Kale, who is resident of Govindpur, Taluka Kallam, District Osmanabad, was taking education in 7 th standard in Zilla Parishad School, Govindpur. On 29.12.2007 at about 10.00 a.m. she and her grand mother, namely Kashibai were present in the house. At about 12.00 noon on the said date, she was cooking food on fire oven in front of her house and entered into her house for fetching salt; whereas her grand mother Kashibai was sitting near said fire oven. The respondent/original accused Suresh came there and caught hold of her from back side and embraced her and thereby accused broke opened the buttons of her blouse and thereupon she got frightened and started shouting. Hence, her grand mother Kashibai asked her as to what had happened and mean while, accused ran away. Complainant disclosed the incident to her grand mother Kashibai. Her mother came back at 5.00 p.m. from agricultural field and thereafter she and Kashibai disclosed the 3 incident to her mother. At 6.00 p.m. her father returned from Kallam and her mother disclosed the incident to her father. Thereafter they went to the police station and lodged the complaint on 30.12.2007. 4 To substantiate the charges levelled against the respondent, the prosecution examined in as much as four witnesses; i.e. PW1 Rani Kalidas Kale-complainant; PW2 Sakhubai Kale–aunt of PW1; PW3 Kashibai Kale–grand mother of PW1; and PW4 Dy. S.P.Yellappa Choudhari-investigating officer. 5 The defence of the accused is of total denial. 6 After scrutinizing and appreciating the evidence, trial court arrived at the conclusion that the accused is not guilty in respect of the charges levelled against him and acquitted him by way of judgment and order dated 22.1.2010. 7 Being aggrieved and dissatisfied by the judgment and order of acquittal, the applicant has preferred the present application seeking leave to file appeal 8 I have heard the learned counsel for the parties, as well as perused the impugned judgment and order and also perused the 4 depositions which were made available by learned A.P.P. for the purpose of perusal. 9 At the out set, although allegedly the incident occurred on 29.12.2007 at 12.00 noon, the complaint was filed by the complainant on the next day i.e. on 30.12.2007, that too, at about 4.40 p.m., and therefore, it is apparent that there was delay of more than one day i.e. to be precise of about 28 hours and the said delay has not been explained by the prosecution, and the said unexplained delay diminishes the credibility of the prosecution case. 10 PW1 complainant Rani admitted in her cross-examination that her blouse, which was worn by her at the time of incident, was seized after three months of occurrence of the incident, and the said inaction on the part of the prosecution for the period of three months also creates suspicion in respect of prosecution case. She also admitted in her cross-examination that the accused had lodged complaint against her father that her father used to sell illicit liquor, and therefore, possibility of filing the complaint by the accused against the complainant as counter blast cannot be ruled out. Moreover, learned trial Judge has observed in the judgment that PW1 complainant Rani was not certain regarding the place where the incident took place and the said aspect also goes to the root of 5 the matter. Moreover, there is no whisper in the deposition of PW1 Rani that she belonged to S.C./S.T., and hence, there is no question of attracting the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 11 PW2 Sakhubai Kale stated in her deposition that she heard commotion of Rani from the house of aunt of Rani and she saw accused coming out from the house of aunt of Rani, but omission has been elicited in the cross-examination in respect of the said aspect amounting to material improvement in her testimony. Besides that, the testimony of PW3 Kashibai discloses that PW1 complainant Rani disclosed her about the occurrence of the incident and although PW3 Kashibai was present, but apparently she has no personal knowledge about the occurrence of the incident. 12 Apart from that, learned trial Judge has observed in the impugned judgment that prosecution has adduced the evidence of interested witnesses, who are close relatives of the complainant Rani and no evidence of independent witness has been adduced to establish the guilt against the accused, and therefore, came to the conclusion that the prosecution failed to prove the charges levelled against the accused beyond reasonable doubt, and consequently, acquitted him. 6 13 After analyzing the evidence on record, the view adopted by the learned trial Judge is a possible view to be adopted and no perversity is found therein and the reasoning given therefor cannot be faulted with, and hence, present application deserves to be rejected. 14 In the result, present application being sans merits stands dismissed and leave to file appeal stands refused. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1747.10