RUSTOM JAMSHED SOONAWALA Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure ("Cr.P.C." for the sake of brevity) and incidentally the order rejecting an application for discharge by the learned Special Judge in Sessions Case No.175 of 2014 is also challenged therein.

(2.) Heard the learned Advocate appearing for the applicant/original accused. By drawing my attention to various resolutions of the NGO called 'CitiSpace' and communications made by the applicant as well as orders of the Honourable Apex Court, the learned Advocate argued that the applicant is a public spirited citizen taking active part in activities of a NGO named as "CitiSpace". My attention is dawn to the fact that he is a member of the Core Committee of that NGO apart from being member of a SubGroup having charge of Bandra, Five Gardens H/W and F/N wards. It is pointed out from the order passed by the Honourable Apex Court on 30/11/2010 in Civil Appeal No.4156-4157 of 2002 that suggestions of this NGO came to be accepted by the Municipal Commissioner and accordingly adverse remark on failure to perform duty by the Ward Officer were agreed to be entered into his service record. It is further pointed out that this order of the Honourable Apex Court reflects that the Municipal Commissioner of Mumbai conceded to the suggestion by the NGO that six adverse entries of such type will entail termination of services of the municipal employee. With this, my attention is further drawn to the communications made by the applicant to the higher officers of the Municipal Corporation pointing out that the Lorry Inspector of the Corporation had taken hawkers to his place to point them out that they were removed at the instance of the applicant. It is further argued that subsequently, for partial noncompliance of the order of the Honourable Apex Court, the Municipal Corporation of Mumbai had to shell out cost of Rs. 2,00,000/. With this, it is argued that out of malice and ill-will the applicant is framed in a false charge of the offence punishable under Section 376 of the Indian Penal Code by some antisocial elements. It is argued that though in the FIR the prosecutrix had categorically narrated the theory of ejaculation while doing the act constituting the offence, subsequently, she modulated her version in her supplemental statement that she is not certain whether there was ejaculation or not and this happened when the applicant had shown his willingness to give his blood and semen sample immediately after knowing about the allegations against him. It is further argued that forensic evidence is totally against the prosecution case. The learned advocate for the applicant further argued that the anticipatory bail granted to the applicant is confirmed by the Hon'ble Apex Court.

(3.) As against this, in submissions of the learned Additional Public Prosecutor as well as the learned Advocate appearing for the prosecutrix, the challenge in the instant application is to the order rejecting the application for discharge and that order cannot be faulted because statement of the prosecutrix as well as her husband unerringly point out that there was forcible sexual intercourse with the prosecutrix. It is further argued that when there is variance in the occular evidence and the medical evidence, occular evidence always prevails. The learned Advocate appearing for the prosecutrix has also placed reliance on Judgment of the Honourable Apex Court in the matter of State of Maharashtra v. Priya Sharan Maharaj and Ors., (1997) 4 Supreme Court Cases 393 to point out the law on the point of discharge, which can be found in paragraph 8 of that Judgment.