APEAL/337/2011 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.337 OF 2011 Aparna Sharad Ghule ... Appellant V/s. Dnyaneshwar Baburao Pawar & Anr. ... Respondents Mr. R.B. Deshmukh for the Appellant. Mr. Kuldeep Patil for Respondent No.1. Mrs. A.S. Pai, APP, for Respondent No.2-State. CORAM : B. H. MARLAPALLE & A.M. THIPSAY, J.J. DATE : 8 TH APRIL, 2011. P.C. : 1. Heard the learned Counsel for the parties. 2. This Appeal filed under Section 372 of the Criminal Procedure Code is directed against the order of acquittal passed in Sessions Case No.78 of 2008 by the learned Additional Sessions Judge at Baramati, District Pune. The Appellant is the prosecutrix and as per her case she came to be appointed as a “Shikshan Sevak” on 11 th October, 2005 under the Satara Zilla Parishad and was posted at the Zilla Parishad School, Dahiwadi. She was trying for her transfer so as to be close to her native place. Respondent No.1-accused was an employee of the Zilla Parishad, Satara. Her father and she herself had approached the accused who had APEAL/337/2011 2 Dixit helped them in pursuing her case for transfer. She got acquainted with the accused and he had accompanied her and her father to visit Pune (Office of the Divisional Commissioner) in connection with her transfer and consequently on 18 th August, 2007, she was transferred to Village Asu, Taluka Phaltan. She was still not happy and she continued her efforts for transfer. On 30 th June, 2007, she claimed to have received a message from the accused that her transfer to Village Bijwadi had materialized and she was required to collect the transfer order from the office of Panchayat Samiti. It is also her case that the accused called her to Satara and accordingly she met him on 30 th June, 2007 at the Zilla Parishad office at about 4 P.M. He offered her a cup of tea while waiting for the transfer order and on declining to have tea, he offered her some cold drink. After consuming the same, she felt giddiness and lost consciousness. When she gained her consciousness, she realized that she was in a dark room and in the company of the accused. She asked the accused as to where he had brought her and she was informed that she was initially taken to the Hospital as she was unconscious and from there she was brought to the Lodge. She further alleged that she was threatened not to make noise and was informed by the accused that while she was unconscious, she was raped and her photographs in nude were snapped by him. In short, it was her claim that she was blackmailed and exploited by the accused from time to time over a period of about three months. APEAL/337/2011 3 Dixit 3. On 14 th September, 2007, she contacted her father on phone while she was in the house of the accused and on 15 th September, 2009 she lodged a complaint with the Baramati Police Station (Exhibit-11). She also submitted a complaint to the Superintendent of Police (Rural), Pune on 17 th September, 2007 (Exhibit-12). Crime was registered against the accused and during the process of investigation, the Charge Sheet came to be filed. The prosecution examined seven witnesses including PW-7-Shivaji Khandekar who was Investigating Officer. The prosecutrix was examined as PW-1, her father as PW-3, PW-2 Sunil Shinde, cousin of the prosecutrix, while PW-4 Santosh Pawar was working as the Manager of Swagat Lodge, Chiplun and PW-6 Shriram Shende was the owner of Varad Vinayak Lodge at Ganpatipule. PW-5 Sandeep Jadhav was attached to the Baramati City Police Station and he had registered the crime on the basis of the complaint lodged by Sharad Ghule, father of the prosecutrix. On assessment of the evidence, the trial Court held that there was no case made out for the offence punishable under Section 366A as well as 376 of the Indian Penal Code and that the prosecutrix by her own free will had visited Chiplun as well as Ganpatipule along with the accused. The trial Court further held that the prosecutrix by her own free will had developed intimacy with the accused and that there was no evidence on record for the offence punishable under Section 376 of the Indian Penal Code. APEAL/337/2011 4 Dixit 4. We have considered the evidence of all the seven witnesses and more particularly the depositions of the prosecutrix, PW-4 Santosh Pawar and PW-6 Shriram Shende. As per the prosecutrix, the first incident of rape had taken place on 30 th June, 2007. She alleged that she was offered cold drink mixed with some chemical which made her unconscious and when she regained her conscious, she realized that she was in a lodge in the company of the accused. It is her case that accused told her that she was subjected to sexual intercourse while she was unconscious. Throughout her depositions before the trial Court she did not disclose the place or the name of the lodge where the first incident had taken place. She is an educated lady and employed as “Shikshan Sevak” (Teacher). It is also an admitted fact that her father and she herself had sought the help of the accused from time to time including financial assistance. The evidence of PW-4 Santosh Pawar proved that on 7 th July, 2007, the accused and prosecutrix stayed in Swagat Lodge, Chiplun (Room No.6) and they left the said lodge on 8 th July, 2007 at about 5 p.m. In his cross-examination, he stated specifically that the lady with the accused had disclosed that she was his wife and, therefore, he did not record her name in the Register which he produced before the Court. A receipt was issued to the accused for the payment towards room charges of Rs.260/-. Thus, the prosecutrix and the accused were together between 7 th and 8 th July, 2007 at Swagat Lodge, Chiplun (Room No.6). The prosecutrix never complained APEAL/337/2011 5 Dixit to anyone about the conduct of the accused or that she was forcibly brought to the said lodge and subjected to sexual intercourse by the accused. 5. PW-6 Shiriram Shende, the Proprietor of Varad Vinayak Lodge at Ganpatipule stated before the trial Court that his lodge had in all eleven rooms and he further stated that on 12 th September, 2007, the accused with the prosecutrix had stayed in the said lodge. They had checked in the Lodge at about 1 p.m. and on the next day they left the lodge at 7 a.m. He identified both of them before the Court. He also stated that the accused had paid Rs.350/- as the room charges. He further stated that in the Hotel’s Register the accused had written his name as well as the name of the prosecutrix (Exhibit-30). The purpose of the visit, as mentioned in the Register, was to take Darshan of Lord Ganpati. Thus, the evidence of both these witnesses proved before the trial Court that she had visited Ganpatipule as well as Chiplun along with the accused and she had stayed with him as his wife. 6. The prosecutrix in her depositions before the trial Court also admitted that on 13 th September, 2007, she stayed in the house of the accused and on 14 th September, 2007 she called her father from the house of the accused. In her cross- examination, she admitted that she informed her father that she was in the house of the accused and she would return on the next day. She also admitted that she had applied for leave for the period from 12 th September, 2007 to 26 th September, APEAL/337/2011 6 Dixit 2007 on account of sickness. The application was submitted by herself. She further stated that the sick leave application was submitted as per the advice of Dr. Pawar and she was taking rest during that period. She reported for duty on 27 th September, 2007. She further admitted that at Satara she was in the company of the accused on 12 th September, 2007 and had done shopping to purchase clothes for her. The money was spent by the accused. She also admitted that while in the house of the accused, his wife was friendly with her and she met his two grown up sons (age about 17 years and 13 years). 7. Having regard to the evidence brought before the trial Court, the trial Court did not fail to consider any circumstances so as to decide the complicity of the accused. On the other hand, the trial Court rightly recorded the finding that the prosecutrix, by her own free will, developed relationship with the accused and she visited Chiplun as well as Ganpatipule and stayed in lodges as his wife. She also stayed at his house along with his family on 13 rd and 14 th September, 2007. The reasoning set out by the trial Court does not suffer from any infirmities and the order of acquittal is required to be upheld. The trial Court was fully justified in holding that the prosecutrix had joined the company of the accused of her free will and there was a consensual sexual relationship between them. 8. Hence, this Appeal fails and the same is hereby dismissed. APEAL/337/2011 7 Dixit 9. During the course of arguments, the learned Counsel for the accused assured us that to put an end to the litigation between the parties he shall withdraw Special Civil Suit No.181 of 2010. We called upon the accused to submit such an affidavit, which has been placed before us today. The accused has undertaken that he will withdraw Special Civil Suit No.181 of 2010 presently pending before the learned Civil Judge, Senior Division at Satara and the withdrawal application shall be made forthwith. We accept the said undertaking. We also hope that the Appellant before us will not resort to any further litigation against the accused and they will put an end to any dispute arising from Sessions Case No.78 of 2008. We are informed that Special Civil Suit No.181 of 2010 is scheduled to be listed on 24 th April, 2011 before the learned Civil Judge, Senior Division at Satara and on that day the plaintiff-accused will submit his application for its withdrawal. 10. A copy of this order be also forwarded to the learned Civil Judge, Senior Division at Satara so as to take it on record in Special Civil Suit No.181 of 2010. [A.M. THIPSAY, J.] [B.H. MARLAPALLE, J.]