Ahmadi, J. -
(1.)This appeal by special leave is brought by the State of Maharashtra against the judgment of acquittal recorded by the Nagpur Bench of the High Court of Bombay (Maharashtra) reversing the conviction of the respondent Chandraprakash Kewalchand Jain, a Sub-Inspector of Police, under Section 376, I.P.C. for having committed rape on Shamimbanu, a girl aged about 19 or 20 years on 22nd August, 1981. The learned Additional Sessions Judge, Nagpur, came to the conclusion that the prosecution had brought home the charge under Section 376, I. P. C. and sentenced the respondent to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for 6 months. He was, however, acquitted of the charge under Section 342, I.P.C. The respondent challenged his conviction in appeal to the High Court. The High Court set aside the order of conviction and sentence imposed by the trial Court and acquitted the respondent. The State feeling aggrieved sought special leave to appeal. On the same being granted this appeal is before us.
(2.)Briefly the facts are that the parents of Shamimbanu were residing as tenants in a part of the building belonging to the father of Mohmad Shafi while the remaining portion was occupied by the owner's family. PW 1 Mohmad Shafi aged about 25 years fell in love with PW 2 Shamimbanu aged about 19 years. The prosecution case is that although the parents of both knew about their love affair, for some reason or the other, they were not married. Both of them left Nagpur and went to Bombay where they contracted a marriage through a Kazi and returned to Nagpur by train on 20th August, 1981. They got down at Ajani Railway Station (a suburb of Nagpur) and went to a nearby Gurudeo Lodge and occupied Room No. 204. That night i.e. on the night of 20th/ 21st August, 1981, PW8 Police Sub-Inspector Qureishi checked the hotel and learnt that the couple was living in the said room in the assumed names of Mohmad Shabbir and Sultana. On being questioned PW 1 Mohmad Shafi gave out the true facts and showed the Nikahnama Ex. 10. On being satisfied about the correctness of the version, Police SubInspector Qureishi got their correct names substituted in the register of the Lodge as is evident from the entry Ex. 31, proved by PW 5 Manohar Dhote, the Manager of the Lodge. Police Sub-Inspector Qureishi did not deem it necessary to take any steps against the couple.
(3.)On the next night between 21st and 22nd August, 1981 the respondent-accused went to the hotel room No. 204 occupied by the couple at the odd time of about 2.30 a.m. and knocked on the door. He was accompanied by PW 7 Constable Chandrabhan. When Mohmad Shafi opened the door the respondent questioned him on seeing Shamimbanu with him. Mohmad Shafi told him that she was his wife and gave their correct names. Notwithstanding their replies the respondent insisted that they accompany him to the police station. PW 5 requested the respondent to sign. his visit book since he had inspected a few room of his Lodge including Room No. 204 but the respondent told him that he would do it later. So saying he left the Lodge with the couple.