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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

Criminal Appeal No. 619 of 2017

Appellant : Hemraj s/o Fulchand Patle, aged about 41
years, Occ: Cultivator, resident of Soni, Tahsil
Goregaon, District Gondia

Versus

Respondent: The State of Maharashtra, through Police

Station Officer, Police Station, Goregaon,
District Gondia

Shri D. V. Mahajan, Advocate for appellant
Shri Harshal Dube, Addl. Public Prosecutor for respondent-State

Coram : S. B. Shukre, J

Dated : 7th February 2018

Oral Judgment

1. This appeal questions the legality and correctness of the

judgment and order dated 13th December 2017 rendered in Sessions Trial

No. 151 of 2013 by the Additional Sessions Judge, Gondia The learned

additional Sessions Judge held the appellant guilty of the offences

punishable under Sections 448, 323, 376 and 506 of the Indian Penal

Code and accordingly sentenced him to suffer different punishments. For

the offence punishable under Section 376 IPC, sentence of rigorous

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imprisonment for ten years and a fine of Rs. 5000/- in default, rigorous

imprisonment for one month has been imposed. For the other offences,

sentences varying from seven years RI to one year RI and fine amounts

from Rs. 1000/- to Rs. 500/- have been imposed.

2. The story of the prosecution goes as under:

The prosecutrix, aged about 40 years when the incident took

place, was present in her house in the night between 22.8.2013 and

23.8.2013 at village Soni, Tahsil Goregaon, District Gondia. In the

evening of 22.8.2013, she had attended 13 th day function, which was a

part of the last rites performed in respect of death of one Shrikrishna

Patle. There was also a kirtan organized in the night. After having dinner

at about 10.00 pm, the prosecutrix went to her room as she was not

keeping well and slept. In the adjoining room, her brother-in-law; sister-

in-law and mother-in-law had gone to sleep. Between 02.30 and 03.00

am, according to the prosecutrix, one person suddenly entered her room

and forced himself upon her. The prosecutrix at that time was sleeping

on the cot. He pressed her mouth and threatened her that if she resisted

or shouted, he would kill her. Thereafter that person committed sexual

intercourse with the prosecutrix. By that time, the prosecutrix had

identified that person and he was the appellant. When the intercourse

was going on, husband of the prosecutrix entered the room and saw what

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was going on inside the room. He shouted at the man i.e. the appellant.

The appellant started to run away. But, the husband of the prosecutrix

caught hold of him. By that time, the other relatives i.e. brother-in-law

and sister-in-law sleeping in the other rooms of the house, also came to

the room of the prosecutrix. The prosecutrix alleged that because of loud

sound of kirtan and also the rain that was falling then, the shouts of the

prosecutrix could not be heard outside her room. But, as it happened,

her husband came to the room and rescued her from the assault that was

made upon her by the appellant. It is stated that the husband of the

prosecutrix at that time had gone outside the house to attend the kirtan in

the village. As it was a night time, the prosecutrix could not immediately

approach the police for lodging the report. Next day in the morning at

about 09.00 am, the prosecutrix along with her husband went to the

Police Station and lodged the report against the appellant. It was reduced

into writing and crime was registered against the appellant. Investigation

was commenced by the police; spot panchanama was prepared; necessary

seizures were made and the prosecutrix and appellant were sent for

medical examination. Statements of witnesses were recorded. After

completion of investigation, charge-sheet was filed against the appellant.

3. The appellant was prosecuted for the offences punishable

under Sections 448, 323, 376 and 506 of the Indian Penal Code. On

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merits of the case, learned Additional Sessions Judge held that all the

offences stood proved and, therefore, convicted and sentenced the

appellant, as aforesaid. Not being satisfied with the same, the appellant is

before this Court in the present appeal.

4. I have heard Shri D. V. Mahajan, learned counsel for the

appellant and Shri Harshal Dube, learned Additional Public Prosecutor for

respondent-State. I have gone through the impugned judgment and order

and so also the record of the case.

5. Now, the following points arise for my determination:

(1) Whether the sexual intercourse with the prosecutrix was non-

consensual ?

(2) Whether the prosecution has proved that the appellant

committed offences of voluntarily causing simple hurt and criminal

intimidation ?’

(3) Whether any interference in the impugned judgment and

order is necessary ?

6. In the present case, evidence of the prosecutrix and her

husband is of great importance as the prosecutrix is a married woman,

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aged about 40 years at the time of incident and her husband had actually

seen what was going on inside the room of the prosecutrix at the relevant

time. Therefore, it would be appropriate that we consider the testimonies

of these two witnesses first.

7. On going through the evidence of P.W. 1 victim of crime or

the prosecutrix, one would find that her testimony cannot be believed for

what it says against the appellant. The reason being that, according to

her, when she was sleeping inside the room of her house, at about 2/2.30

am, the appellant entered the room and giving threat to her not to raise

any voice, the appellant committed forcible sexual intercourse with her

and all this happened against the background of the door to the room of

the prosecutrix being not closed in that night, though usually she was in

the habit of keeping it closed and the other relatives like mother-in-law,

brother-in-law and sister-in-law were sleeping in different rooms, but

adjoining to the room of the prosecutrix, who could have immediately

rushed to the help of the prosecutrix, if sufficient alarm was raised.

8. The prosecutrix states that when she raised her voice, her

husband came to her room and caught red-handed the appellant

committing sinful act. She stated that thereafter her husband called her

sister-in-law, brother-in-law and mother-ion-law who, on such calling,

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arrived at the scene of crime. Her such evidence is, however, inconsistent

with the evidence of her husband PW 4 Yograj and PW 2 Geeta, the

sister-in-law of the prosecutrix. Inconsistencies, of course, are of different

nature, but they are there and are material, thereby creating doubt over

the credibility of PW 1 prosecutrix.

9. While prosecutrix states that when she raised voice, her husband

came to her room, PW 4 Yograj does not say so. According to him, he

was busy attending Kirtan in that night and in between 2 am and 3 am,

he came home to relieve himself when he heard some noise which he

has described in Marathi as “Ghud Ghud”. He does not say that this

sound was of shouts of his wife, as she has deposed before the Court.

This is a material contradiction with the evidence of PW 1, the prosecutrix

indicating that her husband entered her room because she raised shouts.

Even PW 2 Geeta, sister-in-law of the prosecutrix sleeping in the adjoining

room does not say that she heard shouts of prosecutrix and so, she rushed

to the room of the prosecutrix. Now, this sound “Ghud-Ghud” described

by PW 4 Yograj is very different from the sound of shouts. It is quite like

a clatter sound which comes out when two or many hard objects strike

each other and it is certainly not a sound of hostility or disapproval, which

is very much there in the shouts. Remarkably, he does not say that this

noise was in the nature of some sort of help sought or alarm raised by the

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prosecutrix. PW 4 Yograj further states that when he entered the room,

he saw the appellant as lying on the person of the prosecutrix and that at

that time, the appellant had pressed the mouth of his wife and then he

goes on adding that he also saw the appellant as having forcible sexual

intercourse with her. He then states that at that time, he managed to

catch hold of the appellant. He further states that he shouted for help

and thereafter his brother, wife of his brother, his sister, his mother and

his nephew came to the spot of incident and with their help, he caught

hold of the appellant.

10. PW 2 Geeta, wife of brother of PW 4 Yograj, however, gave a

different version. She states that due to some uproar heard from the

room of the prosecutrix, she and her husband woke up and went to the

room of the prosecutrix. Then, according to her version, she and her

husband saw the appellant and the prosecutrix having sexual intercourse.

She has further stated that the prosecutrix came to them in a frightened

state. She states that when she and her husband asked the victim as to

what happened, she told them that the appellant threatened to kill her if

she raised her voice and then pressing her mouth, he did sexual

intercourse with her. Her such evidence, however, is contrary on a

material aspect of the case as to how she and her husband arrived at the

spot of incident. The evidence of PW 4 Yograj shows that on his shouting

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for help, his brother and wife of his brother came to the spot while

evidence of PW 2 Geeta discloses that she and her husband went there on

hearing some unusual sound. The unusual sound as described by PW 2

Geeta was in the nature of “uproar” while the husband of the prosecutrix

called it “Ghud-Ghud” (clatter). Though there is a difference in the

description of sound given by these two witnesses, there is unanimity

between them on the point that they reached room of the prosecutrix not

because they heard her alarm calls indicated by her shouts as she would

want us to believe, but for the reason that they heard some sounds,

unusual in their nature, which ignited their curiosity to ascertain their

source. Even the sound of “uproar” described by PW 2 Geeta was not an

alarm call but a heavy sound which comes out due to friction of hard

objects.

11. The evidence of these material witnesses of the prosecution

discussed above would show that there is no consistency between their

versions on material aspects of the case. Admittedly, the house of the

prosecutrix had different rooms and all these rooms were occupied by

different relatives of the prosecutrix. Admittedly at the time of incident,

husband of the prosecutrix was away from home as he was busy

attending recitation of kirtan and that he happened to come back home

by chance when he noticed some sort of noises coming from the room of

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the prosecutrix. These noises, it appears, made PW 4 Yograj curious and

that is why he went to his room to ascertain the cause of those noises. He

has described those noises as “Ghud Ghud”. Even PW 2 Geeta has heard

these noises which she described as “uproar”. None of these witnesses is

saying that those noises were in the nature of alarm or shouts for help.

When so many relatives were sleeping in the adjoining rooms, it was very

easy for the victim to put up a good deal of resistance to the appellant and

if she had, effective assistance would surely had come her way. No doubt,

in that night, sound of kirtan had filled the air, but as PW 2 Geeta and

PW 4 Yograj had still heard those queer sounds coming from the room of

the prosecutrix, there is no gainsaying that kirtan sound had drowned the

shouts for help raised by the prosecutrix. In fact, as the evidence of PW 2

and PW 4 would show, there were no shouts raised for help by the

prosecutrix.

12. The prosecutrix in her cross-examination has admitted that

door to her house on that day was open, although she would keep the

door closed. The prosecutrix has not explained as to why on the day of

incident, the door to her room was not closed by her. Added to it, are

those odd sounds heard by husband of the prosecutrix as well as her

sister-in-law emanating from the room of the prosecutrix. To my mind,

these facts are sufficient indicators of the possibility of consensual sexual

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intercourse between the prosecutrix and the appellant. This inference in

the present case is further strengthened by the fact that the husband of

the prosecutrix was out of his house as he had gone to attend kirtan being

held in the night and that it was not expected of him to come back home

so early. Usually, kirtans are held for the entire night. The husband of the

prosecutrix also states that as he wanted to ease himself, he visited his

house. It would mean that the husband of the prosecutrix had no

intention to come back home for the purpose of sleeping. Thus, the visit

of the husband of prosecutrix to the house was by way of chance only and

it appears, it was an unexpected visit from the view point of the

prosecutrix. As stated earlier, the prosecutrix also does not explain as to

why did she not close the door in that night though usually she would

keep it closed. So, the strange conduct of the prosecutrix shown by

keeping the door open especially when her husband was out of the house

and not raising the shouts for help coupled with material inconsistencies

and coming of unusual sound from the room of the prosecutrix during

presence of appellant in her room, all create a large circle of doubt over

the version of prosecutrix giving rise to a strong possibility of presence of

consent of the prosecutrix in the whole incident. There is no other

evidence, which has ruled out consent of the prosecutrix.

13. In view of the above, I find that the prosecution has failed to

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establish beyond reasonable doubt that there was a forcible act on the

part of the appellant behind his sexual intercourse with the prosecutrix.

While the fact of sexual intercourse of the appellant with the prosecutrix

has been established, about which there is not much establish, it was

without consent of the victim, ged about 40 years, has not been. The

learned Additional Sessions Judge, it is seen, has not considered the

material aspects manifestly coming out from the evidence of the

prosecution witnesses which are discussed at length earlier and the result

is of a perverse finding recorded by the learned Additional Sessions

Judge. Inevitably, I am of the opinion that the prosecution has failed to

prove the main offence of rape by the appellant upon the prosecutrix.

14. Once it is proved that the possibility of consent in the present

case has not been ruled out, offences of house trespass (Section 506 IPC)

and criminal intimidation (Section 506 IPC) would also stand as not

proved.

15. As regards the offence of causing of simple hurt punishable

under Section 323 of the Indian Penal Code, I must say, the evidence

brought on record by the prosecution does not show that the simple hurt

that was caused to the lips of the prosecutrix was voluntarily caused by

the appellant. The offence of simple hurt punishable under Section 323

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of the Indian Penal Code is constituted only when the prosecution proves

beyond reasonable doubt that the simple hurt is caused by the accused

with an intention or with the knowledge to cause it and then only it could

be termed as voluntarily causing of the hurt. Since I have found that

possibility of consensual sex was very much there, the theory of

intentional or wilful causing of hurt to the prosecutrix cannot be believed.

The medical evidence of Dr Trupti Katre does show some abrasions and

contusions on upper lips and chest and also lacerated wound on the

lower lip. But, these injuries, as stated earlier, could not be said to have

been caused voluntarily in view of the evidence of three main

prosecution witnesses discussed earlier. So, I find that even the offence

punishable under Section 323 of the Indian Penal Code has not been

proved by the prosecution.

16. For the aforesaid reasons, I find that the impugned judgment

and order, therefore, deserve to be quashed and set aside and the appeal

deserves to be allowed. All points are answered accordingly.

17. Thew appeal is allowed. The impugned judgment and order

are hereby quashed and set aside. The appellant is acquitted of the

offences punishable under Sections 376, 448, 323 and 506 of the Indian

Penal Code. The appellant is in jail and, therefore, he is directed to be set

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at liberty forthwith, if not required in any other case. Muddemal

property, being worthless, be destroyed after a period of six months.

18. Since the appeal has been allowed, application being

Criminal Application No. 1099 of 2017 for suspension of sentence and

grant of bail does not survive for consideration. Disposed of as such.

S. B. SHUKRE, J

joshi

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