1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (APPA) NO.294 OF 2011 IN CRIMINAL APPEAL NO. OF 2011. ( STATE OF MAHARASHTRA THR. PSO, P.S. GHUGGUS..VS..SUDHAKAR PURUSHOTTAM KHADSE.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms. S.S. Jachak, A.P.P. for Applicant/Appellant. CORAM : MRS. V.K. TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATE : JUNE 15, 2011. Heard learned Additional Public Prosecutor for applicant-State. The State has filed this application for grant of leave to file appeal against the judgment and order of acquittal passed by Sessions Judge, Chandrapur in Sessions Case No.164 of 2009 on 21st December, 2010. The respondent was prosecuted by State of Maharashtra through Ghuggus Police Station in Crime No.43 of 2009 for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code. The prosecution was filed after completion of the investigation of the complaint filed by complainant Sunita Nanduji Kohale who is P.W. 1. It was case of the prosecution before the trial Court that the complainant got married in the year 1998. She was staying at Chandrapur with her husband. She had two 2 daughters and one son. The respondent was not known to the complainant much before the date of incident. It appears that the respondent had come into contact with the complainant and her husband few days prior to the date of the incident. The incident had occurred on 13th April, 2009 at about midnight i.e. in the night intervening 13th and 14th April, 2009. It was the case of the prosecution that the respondent and husband of the complainant had consumed liquor at the house of the complainant. Both of them had their dinner after consumption of the liquor. Thereafter all of them, including the respondent, went to sleep in front room of the house of the complainant. The husband of the complainant had gone out to attend the call of nature. While the complainant was in deep sleep she realized that somebody was lying on herself. She realized that it was not her husband. The said person lifted her saree and petticoat. Realizing that it was not her husband, the complainant immediately got up and switched on the light. It was in the light that she had seen the accused. She, therefore, scolded him. The accused went out of the house. The complainant had seen that her husband was sleeping in the courtyard. He was highly under the influence of liquor. It is the case of the prosecution that respondent No.1 had threatened the complainant that she should not shout otherwise she would be defamed. Thereafter the respondent fled away from the spot. The complainant tried to wake up her husband but could not as her husband was under the influence of liquor. She narrated the incident to her husband on next morning and police report was lodged. She had identified her signature on the complaint Exh.17 and proforma First Information Report Exh.18. 3 It is the specific case of the respondent that he was invited by the complainant P.W. 1 to have sexual intercourse with her and he refused to do so, therefore, she shouted. The cross-examination of P.W. 1 complainant would show that the conduct of P.W. 1 was highly questionable inasmuch as she permitted a stranger to be in her room and allowed her husband to sleep outside in the courtyard. Her husband had consumed liquor. It is noted that he was not unconscious. Whatever may be the quantity of liquor consumed by her husband, it was not difficult for her to forcibly wake him up after the alleged incident. Any woman after having suffered such humiliation and sexual assault would not keep mum till morning. The explanation given by P.W. 1 that, she could not wake her husband up because he was totally under the influence of liquor, is not acceptable. On the contrary, the defence of respondent No.1 appears to be probable inasmuch as the conduct of P.W. 1 supports the defence of the respondent. It appears to be possible that P.W. 1 invited the respondent. At the most it is possible that respondent might not have refused to have sexual intercourse with the complainant and he might have agreed for the same. It is possible that the husband of P.W. 1 might have seen both of them. The fact that P.W. 1 did not object sleeping of respondent in her own bedroom itself indicates that P.W. 1 had something in her mind of the sort indicated by the respondent in the cross-examination of P.W. 1. From the evidence of P.W. 1 it appears that the respondent was in fact not very much familiar to the family of P.W. 1. In ordinary course no lady would permit such a stranger to occupy her bedroom though she was accompanied by her children. It 4 was month of April and therefore, the respondent also could have preferred to sleep outside instead of sleeping in the room. Since the husband of P.W.1 was sleeping outside after attending the call of nature, it is obvious that there was a place to sleep outside the room. In view of the evidence discussed by us herein above, we do not find anything wrong in the finding arrived at by the learned trial Court. In fact, there could not have been a charge of 376 read with Section 511 of the Indian Penal Code. At the most charge under Section 354 of the Penal Code could have been framed and the respondent could have been tried by the Court of Magistrate. In any event what is material to be noted is that the evidence of P.W. 1 is totally unbelievable and she had lied before the Court. We do not find any substance in the appeal. The application for grant of leave stands rejected. The appeal be registered and be shown dismissed for statistical purposes. JUDGE JUDGE RR..