Sau. Rabu Ismail Pathan vs Raju Jaysingh Bhise And The State ...
2003 Latest Caselaw 824 Bom

JUDGMENT

J.G. Chitre, J.

1. The petitioner absent. None present for her. Respondent No. 1 absent. None present for him. Shri Shringarpure, Additional Public Prosecutor, present for the State of Maharashtra, who happens to be protecting the interest of the prosecution.

2. The present petitioner assails the correctness, propriety and legality of the judgment and order passed by the trial Court in the matter of Sessions Case No. 65 of 1995 wherein the learned Additional Sessions Judge, Baramati acquitted the respondent No. 1 of the charges levelled against him for commission of the offences punishable under Sections 363, 366 and 376 of IPC.

3. In view of the provisions of Section 403, it is not necessary for the revisional Court to hear the parties in person or through their lawyers unless it is necessary to do so in the ends of justice. In this case, it is not necessary to wait for the petitioner or her lawyer. Firstly because the petition is pertaining to the year 1997 and secondly, keeping in view the merit of her revision petition qua the judgment and order passed by the trial Court which has been assailed by this revision petition.

4. The prosecution case is that on 2.4.1995, it has been alleged that respondent No. 1 kidnapped the prosecutrix from the lawful custody of her guardian when she was a minor. It is also alleged by the prosecution that she was taken to a place at a distance of about two kilo meters from the house of her mother where she was temporarily residing on the day of the incident. Respondent No. 1 was charged for compelling the prosecutrix for immoral purpose and thereafter committing rape on her.

5. Shri Shringarpure submitted that the judgment and order of the trial Court is well reasoned.

6. The trial Court held that the prosecution did not prove that on 2.4.1995 the prosecutrix was below 18 years of age. He pointed out in the judgment that the evidence of the medical officer who examined her on 12-4-1995 showed that she might be more than 18 years of age on 2.4.1995 itself. The learned Judge pointed out that though the prosecutrix was telling that she was below 18 years of age on 2.4.1995, the evidence which was produced by the prosecution in support of her ge was not satisfactory. He concluded that the place of birth quoted by the prosecutrix was something different than the place of birth which was quoted by her mother as Rashin. The learned Judge pointed out that the evidence on that point was also not satisfactory.

7. The learned Judge thereafter pointed out that the prosecutrix herself admitted in her cross-examination that she was picked up by the respondent No. 1 from the spot where she was answering the call of nature and the way in which she was picked up was that the respondent No. 1 held her by one hand and by other hand he was pressing her mouth. It was stated that as she was held in that way by the accused, she was not able to resist nor able to shout. The learned Judge opined that it was not possible to pick up such a grown up girl as suggested by her. He pointed out that she could not have been caught and lifted by one hand and could not have been carried by that way. Therefore, as the respondent No. 1 would have been required to hold her by both the hands and in that case she would have been able to shout for her help which she did not do. Thereafter the learned Judge pointed out that she was taken through Collage Road and had to cross Baramati Nira Road which was a busy road. The said road was having tube lights and sufficient traffic on it. The distance was two kilo meters and the prosecutrix was travelling behind respondent No. 1 without shouting or without raising a cry for her help which, according to him, was showing that she was walking behind respondent No. 1 with her own accord and voluntarily.

8. The learned Judge also pointed out that the way in which the prosecutrix has given the evidence itself shows that she was a voluntarily participating being in the said act and as prosecution failed to establish that the said alleged acts were without her consent and against her will, the respondent No. 1 - the original accused - could not have been convicted. The evidence of prosecutrix was disbelieved.

9. In view of the ratio of the judgment of the Supreme Court in the matter of Shivaji Genu Mohite v. State of Maharashtra , the High Court should be slow in setting aside the order of acquittal if it is well reasoned, borne out by evidence on record. The presumption of innocence in favour of the accused prevalent at the time of trial does not weaken at the time of appeal. The prosecution is under an obligation to prove the guilt beyond reasonable doubt and that conjectures and surmises cannot take place of the evidence in criminal trials.

10. This Court does not find any ground for interference in the order of acquittal recorded by the trial Court.

11. Thus, this criminal revision application stands dismissed.

12. Parties to act on ordinary copy of the order duly authenticated by the Private Secretary of this Court.