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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.163 OF 2016

Amar s/o Shrawan Patil,
Aged about 25 years,
Occupation: Labour,
R/o Mohodoli, Tahsil: Warora,
District: Chandrapur (confined at
Central Prison, Nagpur). ……. APPELLANT

…V E R S U S…

State of Maharashtra,
through Police Station Officer,
Police Station, Warora,
Tahsil: Warora,
District: Chandrapur. ……. RESPONDENT
——————————————————————————————-
Shri D.A. Sonwane, Advocate appointed for the Appellant.
Shri H.R. Dhumale, APP for the Respondent-State.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT : 09.10.2017
DATE OF PRONOUNCING THE JUDGMENT : 30.01.2018

JUDGMENT :

1] The appellant is aggrieved by the judgment and order

dated 27.01.2016 passed by the learned Additional Sessions

Judge, Warora in Sessions Case 1/2014, by and under which, the

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appellant is convicted for offence punishable under Section 376 of

the Indian Penal Code (“IPC” for short) and is sentenced to suffer

rigorous imprisonment for ten years and to payment of fine of

Rs.500/- and is further convicted for offence punishable under

Section 452 of the IPC and is sentenced to suffer rigorous

imprisonment for three years and to payment of fine of Rs.500/-.

The appellant (hereinafter referred to as the

“accused”) is acquitted of offence punishable under Section 323 of

the IPC.

2] Heard Shri D.A. Sonwane, learned Advocate

appointed for the appellant and Shri H.R. Dhumale, learned

Additional Public Prosecutor for the respondent-State.

3] Shri D.A. Sonwane, learned Advocate for the accused

submits that the evidence on record would suggest that the sexual

intercourse was consensual and that the prosecutrix cried foul

only because her husband came to know of the incident from the

villagers. Per contra, Shri H.R. Dhumale, learned Additional

Public Prosecutor for the respondent-State contends that consent,

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if at all, was given when the prosecutrix was not in a position to

understand the nature and consequences of the act due to

intoxication and the prosecution has established offence

punishable under Section 375 of the IPC in view of the provisions

of Section 375 fifthly.

4] The prosecutrix lodged report at Police Station

Warora on 04.11.2013, the gist of which was that she was

residing with her husband in village Mahadoli. She and her

husband earn livelihood by doing labour work. Her husband had

gone to Madhya Pradesh on 02.11.2013 along with the father of

one Bhujade who was to receive some medical treatment.

The prosecutrix was alone in the house. She was having meals

when at 10:00 p.m. or thereabout, the accused came to her house

to give her the labour charges payable to her husband.

The accused made himself comfortable. He had brought liquor

which he poured in a glass and forcibly made the prosecutrix to

consume liquor. The accused undressed the prosecutrix and

subjected her to sexual intercourse. The prosecutrix resisted and

the accused assaulted her. The prosecutrix started shouting and

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the accused pressed her mouth. In the morning on 03.11.2013 at

07:00 a.m. the mother of one Birkha came to the house, the

prosecutrix was not wearing any clothe, the prosecutrix narrated

the incident to the mother of Birkha. Birkha’s mother helped the

prosecutrix to wear clothes and left. The husband of the

prosecutrix returned at 08:30 p.m. on 03.11.2013 to whom the

prosecutrix narrated the incident. The prosecutrix’s husband and

the prosecutrix went to the police patil to whom the incident was

narrated. The police patil advised the prosecutrix to lodge report.

The police report was lodged.

5] P.W.4 Manorama Bhujade to whom, according to the

prosecutrix, the incident was narrated in the morning of

03.11.2003, has not supported the prosecution on material

aspects. However, P.W.4 has not been declared hostile. P.W.4 has

deposed that the prosecutrix was residing in the cattle shed of one

Raju Vaidya. P.W.4 had gone to fetch cow-dung from the cattle

shed of Raju Vaidya at 08:00 a.m. The prosecutrix was weeping.

P.W.4 asked the prosecutrix as to what happened. The prosecutrix

was wrapping clothes. The prosecutrix asked P.W.4 for tea which

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was provided to her. She denies that the prosecutrix was not able

to stand and that there were no clothes on her person. She states

that the prosecutrix did tell her that she was beaten by one

Sherya.

In the cross-examination, P.W.4 admits that the

prosecutrix and she did not understand each others language and

that the prosecutrix conveyed that she needed tea by sign.

She admits that other than asking for tea the prosecutrix did not

tell her anything. She admits that the prosecutrix and her husband

are habituated to consume of liquor. She admits that she did not

ask the prosecutrix as to why she was crying. She admits that the

incident occurred in winter and that the prosecutrix had a blanket

wrapped on her person when P.W.4 saw her. She admits that the

prosecutrix was weeping due to cold.

6] The evidence of P.W.4 would reveal that she has not

supported the prosecution inasmuch as she has denied that the

prosecutrix narrated the incident of forcible sexual intercourse to

which she was subjected by the accused. She has gone out of the

way to support the accused by admitting that the prosecutrix was

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weeping due to cold. However, she does admit that the

prosecutrix conveyed to her that one Sherya assaulted the

prosecutrix.

7] The husband of the prosecutrix Virendra is examined

as P.W.2. He has deposed that when he returned from Madhya

Pradesh, the prosecutrix narrated the incident. The suggestions

given to the said witness would reveal that the defence is that the

sexual intercourse, if any, is consensual. It is brought out in the

cross-examination that he came to know of the incident from the

villagers. He denies the suggestion that the accused is falsely

implicated to avoid defamation of the prosecutrix.

8] P.W.6 Dr. Vishal Pise, who examined the prosecutrix

and issued medical certificate Exh.29 has deposed that he noticed

abrasion of size 1 x 1 cm on left side of temporal bone caused by

hard and blunt object. It is elicited in the cross-examination that

the prosecutrix had no injuries on her internal parts.

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9] In response to question 22 in the statement recorded

under Section 313 of the Criminal Procedure Code, the accused

states that he is falsely implicated since the accused had an

altercation with the employer of the prosecutrix. However, the

trend and tenor of the cross-examination would suggest that the

defence is not disputing that the accused established sexual

relationship with the prosecutrix. The defence is also not disputing

that the prosecutrix consumed liquor. The bone of contention is

that according to the prosecutrix she was forced to consume liquor

and the sexual intercourse was against her will while according to

the accused after consuming liquor, the sexual intercourse which

followed was consensual. P.W.4 Manorama Bhujade, despite her

attempt to support the defence, corroborates the evidence of

P.W.1 to the extent that it was narrated to her by P.W.1

prosecutrix that the accused assaulted her. P.W.4 further states

that when she went to the cattle shed, the prosecutrix was

weeping. In response to a suggestion in the cross-examination,

P.W.4 agrees that Laxmibai was weeping due to cold.

The evidence of P.W.4 Manorama is partly reliable and partly

unreliable. The court must separate the grain from the chaff.

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What can be gathered from the evidence of P.W.4 is that the part

of testimony that the prosecutrix narrated the assault by accused

and that she was weeping corroborates the evidence of the

prosecutrix.

10] The evidence of the prosecutrix is also corroborated

by the medical evidence. The prosecutrix is a married woman and

the sexual contact was established when she had concededly

consumed alcohol. The absence of any visible sign of injury on the

private parts of the prosecutrix is of little significance. The injury

noticed in the medical examination corroborates the evidence of

the prosecutrix that she was beaten by the accused.

11] The defence is that the sexual intercourse was

consensual. The trend and tenor of the cross-examination would

suggest that the endeavour of the accused was to bring on record

that since the husband of the prosecutrix (P.W.2) came to know of

the incident from villagers, the prosecutrix falsely claimed that she

was raped. The defence is not probablized even on the touchstone

of preponderance of probabilities. Concededly, there was no

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witness to the accused coming to the house of the prosecutrix or

leaving the house. There was no reason for the prosecutrix to

nurture an apprehension that the sexual intercourse with the

accused would be in public domain. P.W.2 Virendra, who is the

husband of the prosecutrix has deposed that the incident was

disclosed to him by the prosecutrix. The admission that he came

to know from the villagers that P.W.4 Manorama Bhujade saw the

prosecutrix in naked condition is not inconsistent with the

testimony that when he returned home from Madhya Pradesh the

prosecutrix disclosed the incident to him.

12] Even if it is assumed that the defence of the accused

deserves serious consideration, the obstacle in the way of the

defence is that the consent, if at all, is not valid since the evidence

would suggest that due to intoxication the prosecutrix was not in

a position to understand the consequences and implications of her

actions. The suggestion given by the defence is that the

prosecutrix was seen in naked condition by P.W.4 Manorama.

The fact that the prosecutrix was not in a position to wear her

clothes and was found naked in the morning would suggest that

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she was intoxicated. The consent, under such circumstances, is no

consent in the eyes of law and the finding to that effect recorded

by the learned Sessions Judge, is unexceptionable.

13] It is well settled that conviction can be based even on

the uncorroborated testimony of the prosecutrix. In the present

case, the testimony of the prosecutrix is corroborated by medical

evidence of assault and to a certain extent by the testimony of

P.W.4 who saw the prosecutrix in naked condition and weeping.

14] On a holistic appreciation of evidence on record, I do

not find any serious infirmity in the judgment and order

impugned. The conscious of the court is satisfied that the

prosecution has established offence punishable under Section 376

of the Indian Penal Code beyond reasonable doubt. However, the

prosecution has not established the ingredient of Section 452 of

IPC in as much as there is no cogent evidence on record to show

that the accused committed house trespass intending to commit

any offence.

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15] In the result, while acquitting the accused offence

punishable under Section 452 of IPC, I maintain the conviction

and sentence of the accused under Section 376 of the Indian Penal

Code.

16] The judgment and order impugned is set aside to the

extent the accused is convicted for offence punishable under

Section 452 of IPC. The conviction and sentence of the accused

under Section 376 of IPC is affirmed.

17] The appeal is partly allowed and disposed of in the

above terms.

JUDGE

NSN

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