1 Cri. Appeal No.392/1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.392 OF 1991 Jalindhar Tukaram Jadhav ] Age : 32 years, ] Occ. : Agriculturist ] Appellant R/o : Alegaon, Taluka Sangola, ] (Accused) District Solapur. ] At present in Aurangabad Central ] Prison, Aurangabad. ] Vs. The State of Maharashtra ] Respondent Mr. Machindra A. Patil, Advocate for appellant. Mr. Y.M. Nakhawa, APP for State­respondent. Coram : Smt. R.P. SondurBaldota, J. Date : 1st September, 2010 JUDGMENT : 1. The appellant who has been convicted of the offence punishable under Sections 376 and 506 Indian Penal Code challenges his conviction by filing this appeal. The defence of the appellant before the trial court was that, sexual intercourse between him and the prosecutrix had taken place by consent. The solitary evidence on which the appellant has been convicted is the deposition of the prosecutrix. 2 Cri. Appeal No.392/1991 2. The prosecutrix is a married woman with four children. She is a resident of village Gherdi, Taluka Sangola, District Solapur. On the date of the incident, she had gone to village Alegaon for selling items of tooth­paste and kumkum in the bazar held there. After closing of the bazar at about 5 pm., she waited near Siddheshwar temple. The purpose of waiting is not disclosed in her deposition. From there she went to the S.T. stand of Alegaon, as she wanted to return home. Then as she felt hungry, she went to the house of one Kasabai, her acquaintance. She took tiffin from the house of Kasabai and started to return to S.T. stand. On the way, the accused came from behind the temple of Biroba, and pulled her inside the temple. There he had sexual intercourse with her. Thereafter both came to S.T. Stand, where in the street light, two persons saw them. They asked the appellant as to who she was. The appellant showed them away. The prosecutrix did not disclose the incident of rape to these persons. She spent the night in the house of one Kumbhar, earthen pot maker whose name is not disclosed. She did not mention the incident to the person in whose house she stayed and on the next day morning, after narrating the incident to the village Kotwal, made a complaint to the Police. Surprisingly the prosecutrix neither put up 3 Cri. Appeal No.392/1991 any resistance nor showed for help. There is a solitary statement in her deposition that the appellant threatened by saying that he was known as Zelya Ramoshi . She does not explain who is “ ” this Zelya Ramoshi. Further though she had an immediate opportunity to complain about the incident when two persons accosted both at the bus stand, she did not take the opportunity. This conduct on her part indicates that there was consent for the act of sexual intercourse. Another part which is relevant to be considered here is that, after the alleged incident of rape, the appellant did not ran away from the place of the incident, but accompanied the prosecutrix to the bus stand. Had there been use of force, the appellant would not accompany her to the bus stand, thereby exposing himself. 3. Unfortunately the above aspects of the matter, were not considered by the learned Sessions Judge. Major part of the impugned judgment is devoted to establish the fact that sexual intercourse had taken place between the prosecutrix and the appellant on the date and time of the incident. This exercise was wholly unnecessary since the defence of the appellant was that the act of sexual intercourse was with the consent of prosecutrix. In these circumstances, the appellant succeeds. The appeal is 4 Cri. Appeal No.392/1991 allowed. The impugned judgment and order dated 26th June 1991 passed by learned Additional Sessions Judge, Pandharpur in Sessions Trial No. 32 of 1990 is set aside. The appellant, Jalindhar Tukaram Jadhav, resident of Alegaon, Taluka Sangola, District Solapur is acquitted of the offence punishable under Sections 376 and 506 Indian Penal Code. His bail bond stands cancelled. ( Smt. R.P. SondurBaldota, J.)