Ku. Anuradha D/O Shivaji Nagre vs Vikas S/O Babarao Ghuge And ...
2021 Latest Caselaw 11094 Bom

                                                                                            APPEAL.343.14
                                                        1



                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT NAGPUR, NAGPUR.
                                       ...

                             CRIMINAL APPEAL NO. 343 /2014

*        Ku. Anuradha D/o Shivaji Nagre
         Aged about 20 years, occu; Household
         R/o Bramhanwada Police Station and
         Tahsil Malegaon Dist. Washim (Mah)                                   ..        ..APPELLANT

                   versus

1.       Vikas s/o Babarao Ghuge
         Aged about 38 years, occu: service
         R/o Bramhanwada Police Station and
         Tahsil Malegaon, Dist. Washim (Mah)

2.        The State of Maharashtra
          Through Police Station officer
          Police Station Malegaon, Dist.Washim
          (Mah).                                                     ..                  RESPONDENTS
..................................................................................................................
                    Mr E.W. Nawab, Advocate for appellant
                    Mr. C.A. Joshi, Advocate for Respondent no.1
                    Mr. I. J. Damle, APP for respondent no.2-State
...................................................................................................................

                                                 CORAM: MRS. SWAPNA JOSHI &
                                                         AVINASH G. GHAROTE, JJ.

DATED : 17th August, 2021.

JUDGMENT: (PER MRS.SWAPNA JOSHI, J.)

1. This Appeal has been preferred has been preferred at the

instance of victim, (hereinafter referred to as "the prosecutrix" ) against

APPEAL.343.14

the respondent no.1-Vikas (hereinafter referred to as "the accused") ,

challenging the judgment and order dated 25th March, 2014 delivered

by learned Sessions Judge, Washim, in Sessions Case No.12/2013,

whereby the learned Judge acquitted the accused of the offence

punishable u/ss. 366 and 376 of the Indian Penal Code.

2. The prosecution version as unfolded during the trial can be

summarized as under:-

At the relevant time, the prosecutrix was aged about 19-

years and the accused was aged about 38-years and both were residing

the same vicinity. The accused at the relevant point of time was a

married person having two grown up children. It is alleged that on

10.08.2012, the accused abducted the prosecutrix from Malegaon and

took her at several places like Shirdi, Pune, Savargaon, Risod with

intent to have sexual intercourse with her under the pretext of

marrying her and during the period between 18.8.2012 and 30.08.2012

committed sexual intercourse with her.

3. As per the prosecution case, on 10.08.2012, the prosecutrix

went from Bramhanwada to Malegaon with her cousin brother-Vishal by

means of an auto to the hospital of one Dr. Satish Ghuge. The accused

came to that place and asked her to accompany him at Shirdi so as to

enable them to perform marriage. The prosecutrix sent back Vishal to

APPEAL.343.14

the village and accompanied accused to Shirdi. They stayed there in a

'Bhakta Nivas'. On the next day, they both left for Pune and then they

then proceeded to the Savargaon, Dist.Akola, at the house of cousin of

the prosecutrix. They stayed there for two days and then they

proceeded to the Risod and stayed for two days. On 22.08.2012, the

prosecutrix was called at the Police Station. She accordingly went to the

Police Station along with the accused on 23.08.2012. The prosecutrix

requested the accused to marry with her, however, he refused.

According to the prosecutrix, the accused since last ten months used to

promise to marry with her and therefore she accompanied the accused

to Shirdi and at plethora of places in order to perform the marriage.

The prosecutrix then lodged report against the accused. On the basis

of the said report, the offence came to be registered. Formal

investigation was carried out. In her further statement, the prosecutrix

informed to the police that the accused committed sexual intercourse

with her at Risod, on allurement of marriage. After the supplementary

statement of the victim was recorded, Section 376 of the IPC was

incorporated.

4. After completion of investigation, charge-sheet was filed.

The case was committed to the court of Sessions. On analysis of the

evidence and after hearing both the sides, the learned trial Judge

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acquitted the accused, as aforesaid.

5. We have heard Mr. E.W. Nawab, learned Advocate for the

appellant; Mr.C.A. Joshi, learned Advocate for the accused and Mr. I. J.

Damle, learned Additional Public Prosecutor for the respondent no.2-

State. With their able assistance, we have carefully gone through the

entire record and proceedings of the case.

6. Learned Advocate for the prosecutrix vehemently contended

that the accused although was a married person having two grown up

children, has taken away the prosecutrix at various places and

committed sexual intercourse on the pretext of performing marriage

with her. The learned APP too, supported the contention of the learned

Advocate for the appellant.

7. The learned Advocate for the accused, however, stoutly

opposed the said contention and submitted that the prosecuturix was a

matured girl, aged 19-years and was very well aware that the accused

was a married person having two grown up children. They are residing

in the same vicinity and as there were love affair between them, the

prosecutrix on her own accord, accompanied the accused at various

places and when the father of the prosecutrix came to know that the

prosecutix is staying at Risod, she was called to the Police Station and

then the report came to be lodged against the accused.

APPEAL.343.14

8. The testimony of the prosecutrix speaks about the recitals

narrated in the complaint. The testimony categorically states that she

had fallen in love with the accused and was aware that the accused

was a married person having children. She deposed that though the

accused was married he used to promise to marry with her and keep

physical relationship with her.

9. It is significant to note that the cross-examination of the

prosecutrix shows that till lodging of the report, she had not told her

parents about the proposal of the accused to marry with her. She

admitted that she had not stated before the police while lodging her

report that the accused used to keep physical relations with her. The said

version of the prosecutrix goes to the root of the prosecution case and

creates serious doubt about her credibility. Thus, the testimony of the

prosecutrix clearly indicates that she was a matured girl of 19-years

and although she was aware that the accused is a married person

having two grown up children, she used to love him and she on her

own, accompanied the accused at different places and it appears that

only when the police contacted her, she went to the Police Station along

with the accused and lodged her complaint. It is quite ridiculous to

believe that the prosecutrix on the pretext of promise of marriage,

accompanied the accused at different places and established physical

APPEAL.343.14

contact with him. As discussed hereinabove, the prosecturix had not

stated before the police in her report about the accused keeping physical

contact with her. The improvement with regard to the accused

establishing sexual relationship with the prosecutrix is an improvement

in the testimony of prosecutrix which goes to the root of the case and,

therefore, it is doubtful whether the accused committed sexual

intercourse with the prosecutrix on the pretext of performing marriage

and had taken her to various places.

10. In the case of Mahendra Pratap Singh vs. State of Uttar

Pradesh, reported in (2009) 11 SCC 334, the Hon'ble Apex Court has

given a rule of prudence that if on appraisal of evidence and on

considering relevant attending circumstances, it is found that two views

are possible, one for acquitting accused and other for convicting accused,

in such a situation rule of prudence should guide High Court not to

disturb the order of acquittal made by the trial court, unless conclusions

of trial court drawn on evidence on record are found to be unreasonable

and perverse or unsustainable, High Court should not interfere with the

order of acquittal.

11. In the case of Harbeer Singh vs. Sheeshpal and others,

reported in (2016) 16 SCC 418, it is observed by the Hon'ble Supreme

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Court on the same facts that another view could also have been taken on

the evidence on record, is not a ground for reversing an order of

acquittal. In view of the aforesaid facts and circumstances, no

interference is warranted with the order of acquittal.

12. Thus, the appellant has failed to prove her case against the

accused. The learned trial Judge has rightly appreciated the evidence

before him and needs no interference. In view of the facts and

circumstances, the entire edifice of the case comes under the shadow of

doubt and, therefore, the appeal needs to be dismissed. Hence the

following order :-

ORDER

Criminal Appeal No. 343/2014, at the instance of prosecutrix, is

hereby dismissed.

                          JUDGE                       JUDGE
sahare