Decided on March 17,2018

State Of Maharashtra Through Dharangaon Police Sta Appellant
Allha Abdul Rahim Mohd Respondents


K.K. Sonawane, J. - (1.) The appellant - State of Maharashtra by invoking remedy under section 378 (1) of the Criminal Procedure Code (for short "Cr.P.C) preferred the present appeal agitating validity, propriety and legality of the judgment and order of acquittal of both the respondents - original accused in Sessions Case No. 07 of 2015 passed by the learned Additional Sessions Judge, Jalgaon, dated 16-05-2016. The respondents-original accused are exonerated from the charges pitted against them for the offence punishable under sections 328, 506 read with 34 and 354-A as well as 107 read with section 109 of the Indian Penal Code (for short, "IPC") and Section 14(a)(b) of the Foreigners Act, 1946 (for short, "Act of 1946"). The impugned findings of acquittal of both respondents -accused is the subject matter of present appeal.
(2.) It has been alleged on behalf of prosecution that the prosecutrix was the student of M. Sc. First Year course studying in North Maharashtra University at Jalgaon (for short, "University"). She took an admission on 24-07-2014 and since then she started residing in ladies hostel located within the University Campus itself. Accused No. 2 Parvin (Parsi) Veisi Birgooni Saha Husen, a Iranian nationality, was also pursuing Ph.D Degree course in Psychology subject in the same University. She had also occupied the Room No. S-41 in the same Ladies Hostel of prosecutrix. Accused No. 1 Allha Abdul Rahim Mohd, a Palestinian nationality, was the friend of accused No. 2 Parvin and used to visit her frequently. There were other girl students of the University residing in the ladies hostel. After acquaintance with each other, on one day some of the inmates of ladies hostel including prosecutrix and accused No.2 Parvin had been to "Gandhi Tekadi" for strolling. They took photographs of each other in the cellphone. Accused No. 2 Parvin insisted the prosecutrix to forward those photographs of girl students on her cellphone. According to prosecution, accused No. 1 Allah came in contact with the prosecutrix at the instance of accused No.2 Parvin under the pretext of repairing of her cell phone. The accused offered dinner to the prosecutrix. Initially, the prosecutrix was reluctant to accompany with the accused for dinner etc. But, the accused Parvin convinced the prosecutrix about the accused No.1 Allha, and made her to join them for dinner. The trio enjoyed the dinner in "Shalimar hotel" and returned to hostel. In the night hours, accused No.1 Allha sent text message on the cellphone of prosecutrix that "I like you, I don't force ladies. I love you and you are decent", etc.
(3.) It has been alleged that, on the day of incident i.e. on 03-08- 2014 in the noon hours, both the accused and prosecutrix had been to Big Bazar for roaming. They watched the movie and in the wee hours of evening, they came to Shalimar hotel for meal. In the hotel, after occupying the seats, accused No.1 Allha left the lunch table and went towards the waiter. He had some conversation with the waiter in the hotel. Thereafter, they enjoyed the meal and returned to the University Campus. There was drizzling at about 5.00 to 6.00 p.m. The accused No.2 Parvin insisted the prosecutrix for halt at Shikshak Bhavan building located in the University Campus instead of going to ladies hostel. Accordingly, accused managed to get two rooms, one on the ground floor and another on first floor of Shikshak Bhavan building. Initially, trio went in the room located on first floor. The prosecutrix was feeling some what giddiness, and therefore, she slept on the bed in the room. The accused No. 2-Parvin divulged the prosecutrix that accused No. 1-Allha wanted to kiss her. But, prosecutrix shouted and asked both the accused to go out of the room. Thereafter, both accused left the prosecutrix alone and came downstairs in the another room allocated in the name of accused Allha. However, at about 9.00 to 9.30 p.m. prosecutrix informed to the accused No.2 Parvin that her menstrual period has commenced. The accused No.1 Allha brought the sanitary napkins for the prosecutrix from market. The prosecutrix was alone in the room on the first floor, whereas, both the accused were chitchatting in the ground floor room. At about 11.00 p.m. prosecutrix woke up from the bed she felt thirsty. Therefore, she came downstairs in the room of accused Allha for drinking water. She saw both the accused were chitchatting in the room. The prosecutrix was feeling loneliness, therefore, she asked accused No.2 Parvin that she would sleep on another bed in the room of accused No.1 Allha, and accordingly, she slept in the room. In the midnight, when prosecutrix awakened from the bed that time she realized that the accused No.2 Parvin was not in the room and accused No.1 Allha was bolting the doors of the room. The accused No.1 Allha came near her and attempted to embrace her. He started kissing her forcibly and made demand for sexual favours. But, the prosecutrix refused to budge for such immoral act. Thereafter, accused No.1 Allha went to sleep on another Bed. In the morning at about 6.00 a.m., accused No.2 Parvin came in the room and took the prosecutrix back to her room at first floor. At about 8.00 a.m. they both left the Shikshak Bhavan and returned to ladies hostel in the University Campus.;

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