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2012 DIGILAW 1484 (BOM)

Sunil Harischandra Bhoir v. State of Maharashtra

2012-08-07

R.C.CHAVAN

body2012
JUDGMENT This appeal is directed against the appellants conviction by the learned Additional Sessions Judge, Raigad at Alibag for the offences punishable under Sections 376, 354, 452, 323 and 506 of the Indian Penal Code (for short, "IPC") and sentence of rigorous imprisonment for seven years with fine of Rs. 5,000/-, simple imprisonment for six months with fine of Rs. 500/-, rigorous imprisonment for one year with fine of Rs. 1,000/-, simple imprisonment for three months and six months, with fine of Rs. 300/- and Rs. 500/- respectively imposed upon the appellant on the said charges. 2. The facts which are material for deciding this appeal are as under: The victim is a widow who was staying with her sons Mohan and Jaywant, both serving in private sector. The appellant was a friend of the victims sons. At the time of the incident on 12-9-20 10 the victim was 51-years old and the appellant was 20-years old. The victim and her two sons had gone to the house of her sister-in-law for dinner. The victim came back to her house while her sons stayed at the house of her sister-in-law. The victim had closed the door and chained it. She heard knock on the door and believing that her sons had returned, she opened the door. The appellant is then alleged to have entered the house and committed rape upon her at three places in the house. She states that she changed her clothes and went to the house of her brother-in-law after the accused had run away. Thereafter, she narrated the incident to her sons and relations and then a report was made to the police, whereupon investigation started. 3. The police caused the victim to be sent for medical examination and also sent the appellant for medical examination. The police seized the victim's clothes, performed panchnama of the spot, recorded statements of witnesses and on completion of the investigation sent the charge-sheet to the Court of Judicial Magistrate, First Class, Karjat, who committed it to the Court of Sessions at Alibag. 4. The learned Additional Sessions Judge, to whom the case was made over, charged the appellant for offences punishable under Sections 376, 354, 452, 323 and 506 of the IPC. 4. The learned Additional Sessions Judge, to whom the case was made over, charged the appellant for offences punishable under Sections 376, 354, 452, 323 and 506 of the IPC. Since he pleaded not guilty, he was put on trial at which the prosecution examined in all twelve witnesses in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence in the light of defence of denial, the learned Judge convicted and sentenced the appellant as aforementioned. Aggrieved thereby, the appellant is before this Court. 5. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the State and with the help of both I have gone through the evidence on record. 6. The prosecutrix stated that on the incidental night there was no electric supply in the village. But her claim has been falsified by PW-11 Shashikumar Ramkrishna Kurup, who was serving as a Junior Electrical Engineer in the MSEB, who stated that in the concerned village Pimpaloli there was no load-shedding at the relevant time. The prosecutrix stated that the appellant had entered her house and then dragged her to the kitchen and first committed rape upon her in the kitchen. The appellant then allegedly took her to another room, possibly the bed-room, and again committed rape upon her. Then she was taken to the hall and there, too, the appellant allegedly committed rape upon her. It is not that her house is at an isolated place in the village. It seems that the house of her brother-in-law is just nearby. The house of one Sitaram Kalan is shown to be adjacent to the victims house in the panchnama of the spot at Exhibit-17. It is strange that all-through the three incidents of intercourse the victim did not raise any cries or did not attract the attention of any neighbour. The victim had herself stated in the cross-examination that the appellant was known to her since he was coming to her house for about 4-5 years before the incident. She stated that the appellant was in her house from 12 midnight till 3:00 a.m. She ultimately stated in para 11 of her cross-examination that she had not identified as to who had come on that day and it was true that she had a suspicion on the accused and therefore disclosed his name. She stated that the appellant was in her house from 12 midnight till 3:00 a.m. She ultimately stated in para 11 of her cross-examination that she had not identified as to who had come on that day and it was true that she had a suspicion on the accused and therefore disclosed his name. Now a person who was well-known to the victim and who had been visiting the victims house for five years is alleged to have been with the victim for a period of three hours from the midnight till 3:00 a.m., when there was electric supply in her house, and yet if the victim cannot state for sure that it was the appellant who had committed the rape upon her, the Courts cannot help. There is absolutely no justification for relying on such evidence, since with the opportunity to see the miscreant for a period of three hours, the victim could have come up with the name of the person who had committed the rape or if she did not know such person, could have stated that she did not know that person. Her admission in para 11 of her cross-examination that she had not identified the person, rules out the complicity of the appellant, who was well-known to the family. The learned Judge was thoroughly unjustified in convicting the appellant for the offences punishable under Sections 376, 354, 452, 323 and 506 of the IPC on the basis of this type of evidence. 7. In view of the above, the appeal is allowed. The conviction of the appellant for the offences punishable under Sections 376, 354, 452, 323 and 506 of the IPC and the sentences imposed are set aside. The appellant be set at liberty forthwith, if not wanted in any other case. 8. Since the main appeal itself has been allowed, the Bail Application No. 500 of 2012 does not survive and it accordingly stands disposed of. Appeal allowed.