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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: ABDUL HAFIZ FAROKI & ORS.

DATE OF JUDGMENT:       28/04/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                          THE 28TH DAY OF APRIL, 1998 Present:              Hon ’ble Mr.Justice G.T. Nanavati              Hon ’ble Mr.Justice S.P. Kurdukar Mr.S.M.Jadhav,   mr.    D.M.Nargolkar   and   Mr.S.S.Shinde, Advocates for the appellant. Mr.Y.Raja Gopala Rao, AC for the respondents.                       J U D G M E N T The following Judgment of the Court was delivered: NANAVATI, J.      These appeals  are filed  by the  State of  Maharashtra against the  common judgment  of the  High Court  of  Bombay whereby it  acquitted the  accused who were convicted by the trial court for the offences punishable under Sections 120B, 376, 342 and 506 I.P.C.      The trial  court believed the evidence of P.W.1 Rukmani and P.W.  2  Kesarbai  and  held  that  all  the  8  accused including the  one who  had died  during the pendency of the trial, had boarded the train leaving Pulgaon Railway Station for Wardha  at 9.55 P.M., 2 were sitting and after the train left the  Station they  committed rape  on P.W. 2 Keasarbai, The trial court also believed the evidence train when it was about 1/2  k.m. away  from Wardha  and then she was taken to the nearby hillock where again A-1 and A-2 committed rape on her.      The High  Court, on  re-appreciation of the evidence of P.W.1 and P.W.2 held that, apart from the inconsistencies to be found  in their  evidence, the  version given by them was highly improbable.  The High  Court also  held that  in  all probability Kesarbai  had willingly  gone along with A-1 and A-2. The High Court, therefore, acquitted all the 7 accused. The State  of Maharashtra  has, therefore, filed this appeal against  their  acquittal.  During  the  pendency  of  these appeals, respondent  Arun (A-6)  died and, therefore, appeal against him has abated.      We have  carefully gone  through the  evidence of P.W.1 Rukmani and  P.W. 2  Kesarbai. Judging  it on  the ground of probability, their version that 8 persons had committed rape on Kesarbai  and that  too  twice  does  not  appear  to  be correct. In  the first  information report  given by  P.W. 1

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Rukmani her  version was  that Kesarbai  was taken  into the latrine of  the compartment  and  therein  the  accused  had committed rape  on her. In her evidence before the Court she changed her  version and  she and  Kesarbai both stated that rape was  committed on her not inside the latrine but inside the compartment on the floor in between two berths. Kesarbai at the  time of  the incident  was not carrying on well with her parents and she had left Village Kekatumra with her aunt Rukmani two  days before  the date of the incident. They did not have money to purchase tickets and, therefore, they were travelling without tickets. That was the reason why they had to get  down at Akola Railway Station and stay there for the whole day.  They and boarded the train at Akola for going to Wardha at  12 mid  night without purchasing tickets possibly believing that  they will  not be  caught at night. However, the Ticket  Checker caught  them and,  therefore, they  were required to  get down at Pulgaon. They stayed at Pulgaon for the whole  day and boarded the train for going to Chandrapur at 9.00  P.M. Neither P.W.1 Rukmani nor P.W. 2 Kesarbai have stated why they wanted to go to Chandrapur. Neither Kesarbai nor her  aunt had  more than  three rupees  when  they  left Village Kekatumra.  According to  the  evidence  of  P.W.  1 Rukmani after  the accused  had committed  rape on  Kesarbai they had  pushed her  giving kicks  upto  the  door  of  the compartment and  then had  thrown her out of the compartment when the  train was  passing through the Wardha Railway Yard and was  only  a  short  distance  away  from  the  Station. Kesarbai has  also stated  that she  was pushed  out of  the running  train.  If  really  8  persons  committed  rape  on Kesarbai and  that too  twice and  had pushed her out of the running train  after giving  kicks then  some injuries would have been  found on  her person.  But  except  for  a  small incised wound  on her  right hand and some minor superficial abrasions on  other injury  was  found  on  her  person.  If Kesarbai was  really thrown  out of  the train  while it was passing through  the Railway  Yard and was taken forcibly by A-1 and A-2 to the nearby hillock then she would have raised some shouts.  But that  is not her evidence. That appears to be the reason why the High Court held that possibly Kesarbai had gone  with A-1  and A-2  willingly involved the accused. Considering the  infirmities in the prosecution evidence, it cannot be  said  that  the  view  taken  by  High  Court  is unreasonable and calls for any interference by this Court.      These appeals are, therefore, dismissed. The bail bonds of the respondents are ordered to be cancelled.