1 Cri.Appeal No.173/1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.173/1998 1) Sanjay Narsappa Godbharle Age: 28 Yrs., occu. Agril. R/o Ramwadi, Tq. Renapur, District Latur. 20 Namdeo Narsappa Godbharle, Age: 26 Yrs., occu. Agril. R/o Ramwadi, Tq. Renapur, District Latur. - APPELLANTS VERSUS 1) State of Maharashtra. 2) Satyasheela Ramrao Waghmare Age: 27 Yrs., occu. Labour r/o Latur. - RESPONDENTS ***** Mr.VN Damle, Adv.h/for Mr.VD Gunale, Advocate for Appellants; Mr.KM Suryawanshi, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 12th January, 2011. ORAL JUDGMENT: . Heard learned Counsel for the appellants/accused and learned APP for State. 2) The appeal is admitted on 30th June, 1998. 2 Cri.Appeal No.173/1998 3) The appellants/accused impugn the judgment and order of conviction and sentence in Special Case No.3 of 1997, passed by the learned Sessions Judge, Latur, whereby the learned Judge convicted the accused/appellants for offences punishable under Section 452 r/w 34 of IPC and 354 and 323 thereof. The learned Judge has acquitted the accused for the offences punishable under Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 7(i)(d) of the Protection of Civil Rights Act, 1955. The accused were also acquitted for the offences punishable under Sections 504, 506 r/w 34 of Indian Penal Code. 4) The prosecution story proceeds that, in the night of 21.12.1996 at around 10.30 when the complainant (PW 1) – Satyasheela was sleeping with her mother – PW 2, the accused intrude in her house with common intention to commit an offence at village Ramwadi, Tq. Latur. Both the accused/appellants had scuffle with PW 1 – Satyasheela, as they tried to have forcible sex and in the scuffle her Saree and blouse was torn. PW 2 – her mother, tried to intervene, accused no.2 pushed her aside and consequently the above referred charge. 5) With the assistance of learned Counsel, I have perused the evidence of PW 1 and PW 2. PW 3 Cri.Appeal No.173/1998 2 in unmistakable terms accepts, she had controversy with the accused and there was altercation fifteen days prior to 21.12.1996. She was on cross-terms with Digambar Godbharale, who was cultivating her property. The narration of PW 1 and PW 2 also illustrate, Vyankati Kamble father of PW 1, was sleeping in the court yard when the accused allegedly intrude in the house. Natural consequence of the events would be, having noticed the accused illegally entered into the house, with malice in their mind to commit the offence, father sleeping in the court yard would not remain a spectator or a hapless person. No role of father in the events is brought forward. He was skipped away to be examined. 6) The two accused, at their ages of 28 and 26 years, well-built, while entered with an intention to commit trespass, after preparation for hurt or assault or wrongful restrain would not have allowed PW 1 to go scot-free, without suffering any injuries. If there was scuffle, as PW 1 and PW 2 desired the Court to believe, and rather believed by the learned Sessions Judge, the corollary is, there should be at least abrasion to either PW 1 or to her mother PW 2. PW 1 frankly accepts, she did not suffer any injury to her person. There is no medical examination of PW 1. Nothing is brought forward 4 Cri.Appeal No.173/1998 to show that the household articles, at the material time, were disturbed due to the act of the scuffle or due to the house-trespass . The elements of house-trespass for Section 452 is, preparation for hurt or assault or wrongful restraint. If indeed, two brothers/accused, in concert, had decided to teach a lesson by a hurt, either to PW 1 or PW 2, it is unbelievable that they would go unprepared. The mindset of the accused to commit ravishness though is demonstrated, however, it is illusory and difficult to act upon. A situation of doom is created by PW 1 and PW 2. 7) The incident has taken place in the house at Ramwadi of PW 2, mother when PW 1 resides at a different place, which is around 26 kms. No reason or plausible explanation is assigned by PW 1 to stay with her mother at the relevant time on the date of incident. Since there was already cross-terms between the accused/appellants and mother, there was no occasion or reason for the accused/appellants to visit the house of mother of PW 1, that too at odd hours at 10.30 p.m. It is peculiar and pertinent that the house of PW 2 is surrounded in habitation. Even if the persons in adjoining houses or dwellers belonged to the caste of the accused/appellants, however, they could be made 5 Cri.Appeal No.173/1998 available by the police officer to narrate some incident has taken place. However, barring two interested witnesses, i.e. PW 1 and PW 2, there is no independent witness to explain the situation. To repeat, father has been deliberately kept away in the narration of the events. 8) The findings recorded by the learned Judge, in the set of above facts, which are far away from the appreciation, need interference. The learned Judge was influenced by the evidence of PW 1 to believe that she was tried to be ravished by the accused/appellants with ill intention and consequently inflicted the sentence of imprisonment referred herein above. No case for the offence of house-trespass, punishable under Section 452 of IPC or outrage of modesty of PW 1 or causing hurt to PW 1, is surfacing. The conviction is on imaginary grounds and, therefore deserve to be set aside. 9) In the result, the conviction is set aside. The appeal is allowed. ( K.U.CHANDIWAL ) JUDGE bdv/