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2013 DIGILAW 178 (BOM)

Shamrao s/o Baburao Walke v. State of Maharashtra

2013-01-22

M.L.TAHALIYANI

body2013
JUDGMENT M.L.TAHALIYANI, J. 1. The appellant has been convicted by the learned Additional Sessions Judge, Chandrapur for the offences punishable under Sections 376 (2) (c) and 506 Part I of the Indian Penal Code. The appellant was working as a Cook at Mata Santoshi Ashram School, village Rui, Tah. Brahmapuri, Dist. Chandrapur in the year 200809. 2. The complainant Vidya Ishwar Kumre, was an inhouse student of the said Ashram School from 200203 till 200809. There was a School as well as lodgingboarding within the premises of Mata Santoshi Ashram School. The hostel building is separate from the School building. The Girls’ room was situated on the first floor. There was a separate room for boys adjoining the Girls’ Room. There was a common gallery to both the rooms and there was common staircase for entering and exiting the said two rooms. The room where the girls were sleeping during night hours was about 20 x 30 ft. The incident in question had occurred on 19th February, 2009 at about 6.00 a.m. It is the case of prosecution that as per usual practice, the boys and girls had gone to the open playground for running or playing as per their choice. The appellant visited the Girls Room where the complainant Vidya used to sleep along with other students and asked her to roll the carpet. Accordingly, the complainant started rolling up the carpet. At this stage, it may be mentioned here that one of the students by name, Madhuri also did not go for the usual exercise in the open ground. She was sleeping in the same room where the appellant had asked the complainant to roll up the carpet. It is further case of the prosecution that the appellant suddenly came from behind the complainant and shut her mouth means of his palm and after removing clothes of the complainant, had forcible sexual intercourse with the complainant. During the course of sexual intercourse, he continued to keep his palm on the mouth of the complainant so that she could not shout. It is alleged that after committing rape on the complainant, the appellant had threatened the complainant that she should not disclose the incident to anybody. The complainant, therefore, got frightened and did not disclose the incident to anybody till 3rd March 2009. The matter was reported to Police Station by the complainant on 3rd March.2009. It is alleged that after committing rape on the complainant, the appellant had threatened the complainant that she should not disclose the incident to anybody. The complainant, therefore, got frightened and did not disclose the incident to anybody till 3rd March 2009. The matter was reported to Police Station by the complainant on 3rd March.2009. The statement of the complainant was recorded on the same day which is at Exh. 30. The printed FIR was also recorded vide Exh.31. The complainant was sent for medical examination and the appellant was arrested. During the course of medical examination, the Medical Officer found that hymen of the complainant was ruptured, the vaginal cavity entered one finger easily and two fingers with difficulty. No injury marks were found either at vulva or on thighs. Cervix vaginal was found healthy and there was no other abnormality detected by the Medical Officer. 3. At this stage, it may also be noted here that the incident in question was witnessed by the witness Madhuri who was sleeping in the same room. It is case of the prosecution that though she was lying and she had covered herself with a bedsheet, she was, in fact, awake. She was pretending as if she was sleeping. It is the case of prosecution that she could see the incident from the transparent bedsheet. The teacher was informed by Madhuri that the appellant had committed rape on the complainant. The Headmaster of the School was also made aware of the incident by the teacher. As far as the complainant is concerned, she had not stated anything either to the teacher or the Headmaster. It is PW 3 who had narrated the incident to the other students and the teacher. The teacher, in turn, had informed the Headmaster. 4. As already stated, after recording of FIR, the complainant was sent for medical examination and the accused was arrested. His medical examination was also conducted. Spot Panchnama was drawn and after completion of investigation, the chargesheet was filed in the Court of Magistrate. The case was committed to the Court of Sessions for trial according to law. 5. During the course of trial, the prosecution had examined in all nine witnesses. PW 1 who was working in Revenue Department, was present at the time of Spot Panchnama. PW 2 is also one of the Panch witnesses. PW 3 is the victimgirl. The case was committed to the Court of Sessions for trial according to law. 5. During the course of trial, the prosecution had examined in all nine witnesses. PW 1 who was working in Revenue Department, was present at the time of Spot Panchnama. PW 2 is also one of the Panch witnesses. PW 3 is the victimgirl. PW 4 is the most important witness of this case who claims to have seen the whole incident. PW 5 is one of the students of the said Ashram school. PW 6 is one of the teachers. She came to know about the incident from PW 4Madhuri. PW 7 is Dr. Dipti Shrirame, who had examined the victimgirl after registration of offence. PW 8 is one of the Investigating Officers. PW 9 was working as Headmaster of the said Ashram school. 6. Before evaluating the evidence of the prosecution witnesses, what is necessary to be stated here is that the incident had occurred on 19th February, 2009 and it was reported to the police on 3rd March, 2009. The evidence of prosecution witnesses will have to be examined keeping in view the inordinate delay caused in recording the FIR. There is one more issue which needs to be kept in mind while evaluating the evidence of witnesses i.e. most of the other witnesses came to know about the incident from PW 4Madhuri and not from the victim Miss Vidya. 7. In this background, let me examine the evidence of PW 3. At the first instance, let it be stated here that the delay has been attempted to be explained by this witness by stating that she was frightened and that therefore she did not disclose the incident of a forcible sexual intercourse to anybody will 3rd March, 2009. This explanation, in fact, is of no implication inasmuch as the Headmaster and other teachers of the School claimed to known the involvement of the appellant in the alleged incident of rape. 8. PW 3 in her evidence has stated that on 19th February, 2009 at about 6.00 a.m. the appellant asked her to roll up the carpet which was lying on the floor of one of the rooms where girl students used to sleep during night hours. 8. PW 3 in her evidence has stated that on 19th February, 2009 at about 6.00 a.m. the appellant asked her to roll up the carpet which was lying on the floor of one of the rooms where girl students used to sleep during night hours. While PW 3 was busy in rolling up the carpet, the appellant had entered the room suddenly from the back side, put his palm on the mouth of PW 3, removed her clothes and had a forcible sexual intercourse with her. The witness has stated that the matter was reported to police on 3rd March, 2009. It could not be reported to police earlier because she was frightened. 9. PW 4, who is the star witness of this case who claims to have been present at the time of incident. She had not left the room where the girlstudents used to sleep. She was sleeping on her usual place when PW 3 was rolling up the carpet. She had a bed sheet with which she had covered her face. It is claimed by this witness that she was awake and was pretending that she was sleeping. She had seen the whole incident involving the appellant in the alleged forcible sex with PW 3. 10. If we examine the evidence of PW 3 and PW 4, it can be seen that neither PW 3 had described as to in what manner she resisted the attempt on the part of the appellant nor PW 4 has given any evidence as to the resistance on the part of PW 3. Careful examination of evidence of PW 4 shows that there was no resistance at all on the part of PW 3. The reading of evidence of PW 4, in fact, gives an impression that the appellant had sexual intercourse with PW 3 by consent of PW 3. The room where the incident had occurred was so small that it was just not possible for PW 4 to remain in the said room when the alleged incident had occurred. It appears that PW 3 and appellant had sex by consent. It further appears that PW 4 was not there in the room. The possibility of PW 4 witnessing the incident from some other place cannot be rule out. It is noted that the incident got wide publicity in the school through PW 4 only. It appears that PW 3 and appellant had sex by consent. It further appears that PW 4 was not there in the room. The possibility of PW 4 witnessing the incident from some other place cannot be rule out. It is noted that the incident got wide publicity in the school through PW 4 only. It further appears that the authorities ultimately took decision to file a report against the appellant only to save the image of the Ashram school. 11. As such, the evidence of PW 3 and PW 4 both does not appear to be reliable. It was highly risky on the part of the learned trial Judge to base conviction on the basis of evidence of highly doubtful nature. In the circumstances, I pass the following order: ORDER: The Appeal is allowed. The judgment and order dated 21.1.2012 in Sessions Case No.90/2009 passed by the learned Additional Sessions Judge, Chandrapur, is set aside. The appellant Shamrao Baburao Walke is acquitted of the offence punishable under Section 376 (2)(c) of the Indian Penal Code. He is also acquitted of the offence punishable u/s 506Part I of the IPC. The appellant shall be released from the prison, if not required in any other case. Fine, if paid by the appellant, shall be refunded to him. Fees to be pad to the learned counsel Mrs. Sonali Saware is quantified at Rs. 5,000/(Rupees five thousand ).