[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.475 OF 2006. CRIMINAL APPEAL NO.475 OF 2006. CRIMINAL APPEAL NO.475 OF 2006. Bhagwan Pandurang Vasaikar. ] Age 34 years, Occ.Labour, ] R/o. Naigaon Koliwada, ] Tal.Vasai, District Thane. ] ..Appellant. versus versus versus The State of Maharashtra & Anr. ]..Respondent. .... Mr.Ujjwal Agandsurve, i/b. Mr.I.R. Kulkarni, Advocate for Appellant. Mr.K.V. Saste, APP for State. .... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JUNE 16, 2008 DATE : JUNE 16, 2008 DATE : JUNE 16, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Through this appeal, the appellant- original accused has impugned judgment and order dated 28th February 2006, passed by the learned First Adhoc Additional Sessions Judge, Palghar, in Sessions Case No.125 of 2005. By the said judgment and order, the learned Sessions Judge convicted the appellant under section 376 of Indian Penal Code. 2. The prosecution case briefly stated is, as under :- The prosecutrix P.W. 2 - Narmada is the sister of the complainant, PW 1 - Vasanti. They were residing at Nandgaon, District Thane. The accused [-2-] was also residing in the same area. Narmada was slightly dull. The case of the prosecution is that the accused committed rape on Narmada. Some time thereafter, Narmada started vomiting, hence, she was taken to the doctor. On examination, it was found that Narmada was pregnant. Thereafter, Narmada disclosed to the complainant that the accused had sexual intercourse with her on about 4-5 occasions. The complainant asked the accused to marry Narmada, but he refused saying that Narmada was a dullard. Thereafter, the complaint came to be lodged. 3. Charge came to be framed against the appellant under section 376 of Indian Penal Code. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. On going through the evidence adduced by the prosecution, the learned Sessions Judge convicted the appellant as stated in para 1 above. Hence, this appeal. 4. I have heard the learned Advocate for the appellant Mr. Saste, learned A.P.P for the State. I have perused the judgment and order as well as the evidence. On carefully considering the matter, [-3-] I am of the opinion that this appeal deserves to be allowed. 5. In order to prove its case, the prosecution has examined the prosecutrix, PW 2 and her sister- Vasanti, i.e. the complainant. It is an admitted fact that at the time of the incident, the prosecutrix was about 19 years old. The prosecutrix has stated that when she had gone to wash her clothes at the well near the temple, the accused had sexual intercourse with her. It is pertinent to note that the prosecutrix has not stated anywhere that the accused had forcible sexual intercourse with her or that the sexual intercourse was without her consent or against her will. From the evidence of the complainant, it is seen that it was not the solitary occasion on which the accused had sexual intercourse with the prosecutrix, but in fact, on 3-4 other occasions thereafter also, the accused had sexual intercourse with the prosecutrix. The complainant PW.1-Vasanti has stated that the accused told the prosecutrix to take Rs.5/- and accompany him. Thereafter, he took the prosecutrix towards a field and committed rape on her. In this connection, it is necessary to take note of the evidence of the prosecutrix. From [-4-] the evidence of the prosecutrix, it is seen that she was in a habit of accepting money and having sexual intercourse with various men. The prosecutrix has admitted that one Raju, Jitya, Datta and Mojes used to give her Rs.5/- to Rs.10/- and used to have sexual intercourse with her. Looking to the evidence on record, it cannot be said that it was a case of the forcible sexual intercourse or that the intercourse was without the consent or against the will of the prosecutrix. From the evidence, it clearly appears to be a case of consent. 6. The learned APP submitted that the consent of the prosecutrix cannot be taken into account, because the prosecutrix was a dull girl and hence, she was not capable of giving consent. However, in the present case, it is seen that the prosecutrix has been examined. She has given proper answers. The prosecutrix was capable of carrying on day-to-day affairs, like taking clothes for wash and other daily activities. The prosecutrix knew the relations of the accused. She knew that the accused is not the cousin of the police patil. She also knew who is the police patil of her village. From the evidence of the prosecutrix, it is seen [-5-] that she was capable of knowing the nature and consequences of her act. Her evidence shows that she also had the capacity to understand that she could exchange sexual favours for money. Thus, from all the answers elicited from the prosecutrix, it shows that she had sufficient understanding about life and about the nature and consequences of the act. 7. I have already observed earlier that it is not the case of the prosecutrix that she had opposed or resisted the sexual intercourse. The age of the prosecutrix was 19 years at the time of the incident. The material on record show that it was the case of consent. In such case, the conviction of the accused cannot be allowed to stand. 8. In the result, the appeal is allowed. The judgment and order dated 28th February 2006 passed by the learned First Adhoc Additional Sessions Judge, Palghar in Sessions Case No.125 of 2005 is set aside. The appellant Bhagwan Pandurang Vasaikar is acquitted of the offence punishable under section 376 of the Indian Penal Code. The appellant is in jail. He be set at liberty if not required in any other case. [-6-] (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)