2014 Supreme(Bom) 1476

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI & A.S. GADKARI, JJ.
The State of Maharashtra - Applicant
Versus
Golmahamad Noormahamad Shaikh and others - Respondents
CRIMINAL APPLICATION NO.75 OF 2014
Decided on: 28th July 2014

Headnote:[INDIAN] PENAL CODE, 1860 - Sections 376 and 506 Criminal Procedure Code, 1973, Section 378(3) Rape Appeal against acquittal order. Where there was delay of one month and two days in lodging complaint and no explanation as to said delay acquittal of accused was held to be unjustified. It is surprising to note that the complaint did not inform her father immediately after the alleged incident of rape. PW 3 in his testimony did not specify when the incident occured or when his daughter told him about the said incident. It further appears that the evidence of PW 4 and PW 5 i.e. the brothers of the complainant is not consistent with each other and both of them have given different versions. The record discloses that the alleged incident of rape is dated 6th November, 2007. As per the version of the complainant herself she remained silent upto 18th November, 2007.

       It further appears that the complainant did not make any attempt to inform the said fact even to her parents or brothers. It is further important to note that after disclosure of the incident to the parents and brothers on 18th November, 2007 by the complainant, the complaint came to be lodged on 8th December, 2007, i.e. after a period of twenty days from 18th November, 2007 and after approximately one month and two days from the alleged occurrence of incident. The evidence of prosecution is absolutely silent about the delay which has caused in lodging of the first information report. The prosecution has not explained the delay caused in lodging the FIR. The prosecution has totally failed to prove the offence under Section 376 of the Indian Penal Code against the respondent No. 7.

       [INDIAN] PENAL CODE, 1860 - Section 498-A Cruelty Acquittal justification of. Where prosecution was found unable to prove its case who was causing mental cruelty by taunting victim because she could not be mother of any child and no names of accused were described in complaint, acquittal of accused person was held to be justified. As far as charge under Section 498-A is concerned, the same has been founded on the basis of the allegations made by the complainant against the respondent Nos. 1 to 6. In her substantive evidence she had stated that after two to three months of her marriage, her husband and his parents started beating and assaulting her. She has further stated that her husband owned an Indica car and whenever there was any defect in the said car, her husband and his parents forced her to bring money from her brother for repairs of the car. That her brother on two occasions in the year 2005-06 gave an amount of Rs. 5,000/- and Rs. 10,000/- to them. As the complainant could not give birth to a child, her sister-in-laws used to taunt her has barren. In the evidence of PW 3 - Mohd. Rafiq Abdul Karim who is the father of the complainant he has stated that he paid Rs. 5,000/- once and Rs. 10,000/- twice to the respondent No. 2 - ’N’ and despite the fact the demand of the respondents continued. He has further stated that the respondents used to torture the complainant. The evidence of PW 4 and PW 5 who are the brothers of the complainant also discloses that the respondents used to demand from the complainant to which they have fulfilled and despite the fact the demand from the Respondents used to continue. After scrutinizing the evidence of PW 1 - complainant ’T’, PW 3 - Mohd. Rafiq Abdul Karim the father of the complainant and PW 4 and PW 5 - the brothers of the complainant, it is clear that they are unable to state when the demand was exactly made and when they fulfilled the same. It appears that their evidence is absolutely vague as far as demand of amount and its fulfillment is concerned. It appears to us that there is material inconsistency in the versions of these witnesses about the demand made by the respondents and its alleged fulfillment by them. Thus, according to us the prosecution has utterly failed to prove the charge under Section 498-A of the Indian Penal Code beyond reasonable doubt.