.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.85 OF 2006 Raju Dagadu Rajpoot, ] Age : 23 years, R/o.Vijapurnaka] Slum area No.2, Sanjay Gandhi ] Nagar, Vijapur Road, Solapur. ] ..APPELLANT. Versus The State of Maharashtra. ] ..RESPONDENT. .... Mr.U.R.Agandsurve, Adv. for the Appellant. Mr.V.B.Konde-Deshmukh, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 17th June, 2008. DATED : 17th June, 2008. DATED : 17th June, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Through this appeal, the appellant-orig.accused has challenged the judgment and order dated 5th January, 2006 passed by the learned IInd Additional Sessions Judge, Solapur in Sessions Case No.100 of 2005. By the said judgment and order, the learned Sessions Judge convicted the appellant-orig.accused for the offences punishable under Sections 306, 354, 323, 341, 451 of IPC. For the offence under Section 306 IPC the applicant has been sentenced to suffer RI for seven years & fine of Rs.1000/- in default RI for two months, for the offence under Section 354 IPC the applicant has been sentenced to suffer RI for one year, for the offence under Section 323 .(2). IPC the applicant has been sentenced to suffer RI for six months, for the offence under Section 341 IPC the applicant has been sentenced to suffer SI for fifteen days and for the offence under Section 451 IPC the applicant has been sentenced to suffer RI for one year & fine of Rs.500/- in default RI for one month. 2. The prosecution case briefly stated is as under :- . Deceased Rupali Myakal was residing at Vijapurnaka Slum Area No.2, Solapur along with her mother and brother PW-3 Rahul. On 28th July, 2003 at about 3:00 p.m. Rupali was alone in the house. At that time accused entered into her house. He removed the clothes of Rupali and tried to outrage her modesty. At that time, PW-3 Rahul came there and he asked the accused why he is doing such type of act with his sister. The accused gave one slap on the cheek of Rahul and ran away. At that time Rupali informed her brother not to disclose about the incident to anybody. At about 5:30 p.m. Rupali committed suicide by pouring kerosene on herself and setting herself on fire. It is the prosecution case that due to the act of the .(3). accused, Rupali felt that it would not be possible for her to move in the society after the said incident. Hence due to shame she committed suicide. After Rupali set herself on fire, she was taken to the hospital. Her statement Exh.27 came to be recorded by PW-6 ASI Dhanshetty. The same was treated as FIR. The dying declaration Exh.21 of Rupali came to be recorded by PW-5 Special Judicial Magistrate Shri.Mane. After completion of investigation, charge-sheet came to be filed. 3. Charge came to be framed against the appellant under Sections 354, 306, 341, 451 and 323 of IPC. The accused pleaded not guilty and claimed to be tried. The defence of the accused person is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant-orig.accused, as stated in para-1 above. Hence this appeal. 4. I have heard Mr.Agandsurve, the learned Counsel for the Appellant-orig.accused and Mr.Konde-Deshmukh, the learned APP for the State. .(4). I have also perused the impugned judgment and order as well as the record pertaining to the present case. 5. The prosecution case is mainly founded on the statements given by the deceased Rupali at Exhs.21 & 27 and the evidence of PW-3 Rahul who is the brother of deceased Rupali. 6. PW-3 Rahul has stated that Rupali is his sister. On 28th July, 2003 Rupali was alone in the house. On that day he entered home at 3:00 p.m. to collect note-book. At that time the door of the house was closed. He opened the door of the house and entered inside. When he entered inside he saw that the accused was forcibly trying to outrage the modesty of his sister. Hence he asked why he is doing such type of act. Thereafter the accused gave a slap to him and ran away. As Rahul was in hurry he went to school. At about 5:30 p.m. when he returned home, he saw crowd collected infront of his house and his sister had received burn injuries. His sister told him that the accused tried to commit rape on her due to which she has lost her character and she was not in a position to show her face to .(5). people hence she has poured kerosene on her person and set herself on fire. Thereafter his sister was taken to the hospital. 7. After Rupali was taken to the hospital, her statement Exh.27 came to be recorded by PW-6 ASI Ghanshetty and the same was treated as FIR. Thereafter her dying declaration Exh.21 came to be recorded by PW-5 Special Judicial Magistrate Shri Mane. In her dying declaration (Exh.21) Rupali has stated that on seeing that Rupali was alone in home, the appellant came into her house and he removed her clothes. As soon as she shouted for help, the appellant ran away. As Rupali felt that she could not show her face in society, she set herself on fire. However, in her statement Exh.27 Rupali has stated that the appellant came into her house and he closed the door. Thereafter he removed the gown from her body and he was trying to forcibly catch her. At that time her brother Rahul came and asked the accused as to why he was doing such act, whereupon the accused slapped Rahul. It is pertinent to note that thereafter Rupali has stated that she told her brother not to inform anyone about this incident. Thereafter her brother went away. However, Rupali felt that she .(6). would not be able to face the society, hence she set herself on fire. 8. Mr.Agandsurve, the learned Counsel for the appellant submitted that the accused and Rupali were well known to one another. There was an affair between Rupali and accused. At the time of the incident Rupali was about 20 years of age. Apparently on account of the affair the accused went to the house of Rupali when nobody was present. Unfortunately, PW-3 Rahul came and caught them. Hence there was heated discussion between Rupali and Rahul. Rupali felt that Rahul would inform her mother despite the fact that she told him not to tell about the incident to anyone. As Rupali was afraid of her mother, she set herself on fire. In support of his contention, the learned Counsel for the appellant has placed reliance on the evidence of PW-2 Vijaykumar who is the cousin of Rupali. Vijaykumar has stated that "It is true that the mother of Rupali was not knowing the love affair in between Rupali and accused". 9. PW-2 Vijaykumar was the cousin brother of Rupali. His house is adjacent to that of Rupali. .(7). At about 3:00 p.m. he was in his house. If at all the act of the accused was against the wishes of Rupali, she would have raised shouts. If she raised shouts, her shouts would have been heard by Vijaykumar whose room was adjacent to that of Rupali. This witness has stated that there was some heated discussion in between Rahul and Rupali on the day of the incident and at that time the accused was present. It is not case of the witness that there was any heated discussion between Rupali and the accused, but the heated discussion was in between Rahul and Rupali. If as per the prosecution case, Rahul had questioned the accused as the accused had done a wrong act, there would have been heated discussion between the accused and Rahul. There was no occasion for Rahul and Rupali to have a heated discussion, unless as submitted by the learned defence counsel the act was with the consent of Rupali on account of her affair with the accused and as Rahul had caught them and he was inclined to disclose the fact to their mother, there was heated discussion between Rupali and Rahul. 10. It was further submitted that if the accused had forcibly removed clothes of Rupali and indeed if she had raised shouts for help, PW-2 .(8). Vijaykumar who was living in the room adjacent to the room of Rupali, would have heard the same. This is also seen from the statement of PW-2 Vijaykumar wherein he has stated that as his house is adjacent to the house of Rupali one can hear the discussion which takes place in the house of Rupali. In case the discussion can be heard, shouts for help could certainly be heard. The fact that this witness did not hear anything except hot discussion between Rahul and Rupali shows that whatever happened between accused and Rahul happened with the consent of Rupali. 11. At the time when Rahul had entered the house, clothes of Rupali had already been removed. If the act of accused was not with consent of Rupali she would have shouted for help. In which case if she had shouted for help, PW-2 Vijaykumar would have come to her rescue. The very fact that Vijaykumar does not make any mention of any shouts for help, but, only about heated discussion between Rupali and her brother PW-3 Rahul, show that Rupali had not shouted for help. I have already stated earlier that in the FIR Rupali has stated that she had told her brother not to inform about the incident to anybody. At that time, only .(9). her brother had seen the incident. Obviously, her brother would not inform the neighbours and other people about the incident specially when it involves the prestige of his sister. In such case, there was no need for Rupali to fear that anyone in the society would come to know about the act due to which she would not be able to face anyone in the society. The real reason appears to be that PW-3 Rahul had suddenly came home and caught Rupali and the accused together in compromising position. Therefore there was heated discussion between Rupali and her brother. Though Rupali told her brother not to tell anyone about the incident, Rupali felt that on account of the heated discussion between her and her brother, her brother Rahul would inform their mother about the incident. Rupali was afraid of her mother hence she poured kerosene on herself before her mother came home and set herself on fire. 12. Looking to the evidence on record, it does not appear that on account of any act of the accused, Rupali set herself on fire, but, it was on account of the fact that she had been caught by her brother who came home suddenly. Hence she was afraid that her brother could inform her mother, .(10). and as Rupali was afraid of her mother she set herself on fire. Looking to the evidence on record, in my view, the act of Rupali cannot be attributed to the accused. Hence the conviction of the appellant deserves to be set-aside. 13. In the result, the appeal is allowed. The judgment and order dated 5th January, 2006 passed by the learned IInd Additional Sessions Judge, Solapur in Sessions Case No.100 of 2005 is set aside. The appellant- Raju Dagadu Rajpoot is acquitted of the offences punishable under Sections 306, 354, 323, 341 and 451 of IPC. Appellant is in jail. He be set at liberty forthwith if not required in any other case. Fine amount, if any, paid by the appellant shall be refunded to him. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)