1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.3733 OF 2009 The State of Maharashtra ..APPLICANT VERSUS Kalyan Bhagwan Naik ..RESPONDENT Mr V.D. Godbharle, A.P.P. for the applicant. CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ. DATE : 11th November, 2009 PER COURT : The State, being aggrieved by the judgment of the Sessions Judge, Osmanabad, dated 13th July, 2009 in Sessions Case No.78 of 2008, acquitting the respondent/accused for offence punishable under section 504 and 376 of the Indian Penal Code, has filed the present application seeking leave to file appeal against the acquittal of the respondent. 2. The prosecutrix was examined in the trial as P.W.1 and whose name is withheld in this order and is referred to as the "prosecutrix", was disbelieved by the Trial Court on various grounds. The version of P.W.1 2 prosecutrix is that on the day of the incident her children were sleeping in the cattle shed while her husband had gone for sleeping in the shop. She was sleeping alone outside the house and at about 2.00 a.m. in the night she was awakened on account of the arrival of the respondent/accused. She questioned the accused as to why he had come and the accused suddenly made advances towards her. According to prosecutrix she was threatened by the accused not to shout. The accused thereafter removed his clothes and had forcible intercourse with the prosecutrix. According to her the accused was sitting besides her and she was weeping and at that time her husband had arrived and she had narrated the entire incident to her husband. The Trial Court found that the woman who was aged 30 years at the time of the incident had not offered any resistance to the advances of the accused. There was sufficient time and opportunity for the prosecutrix to have raised cries or to have fled from the scene of the offence. The evidence of her husband P.W.2 Hanumant indicates that he had come to his house for taking a "round" and had noticed prosecutrix weeping while the accused sitting on the cot. He further states that the incident was thereafter narrated to him by the prosecutrix. The accused undisputedly is a cousin of the husband of the prosecutrix. It also appears from the cross-examination of the prosecutrix that her husband Hanumant had performed a second marriage. She had denied the suggestion that her husband had demanded divorce to her in order to marry one girl by name Kalpana. The Trial Court, on the basis of the aforesaid evidence, came to the 3 conclusion that it could not be ruled out that the accused had sexual intercourse with the prosecutrix with her consent. After hearing the learned Counsel for the applicant and after perusal of the findings recorded by the Trial Court, according to us the evidence of the prosecutrix that the accused had forcible sexual intercourse with her smacks of artificiality. We find that the conduct of the prosecutrix in not raising any cries or attempting to flee speaks volumes about her consent. In any event, the circumstances are such that the consent cannot be ruled out. We further find that there is no perversity in the reasoning of the Trial Court to warrant interference in the present appeal. The view taken by the Trial Court is a possible view to be taken on the basis of evidence on record. In that light of the matter, therefore, there is no merit in the application and the application is dismissed. Leave refused. ( A.V. NIRGUDE, J.) ( P.V. HARDAS, J.) amj/criap3733.09