1 Cri.Appeal 648-1993 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.648 OF 1993 Shahnawaz Abdul Laik Shah ..Appellant Age : 28 years, Occu : business R/o.257, Surya Kiran Building, D.N.Nagar, Andheri (West), Bombay  400 059. V/s. The State of Maharashtra ..Respondent Mr.S.A.Dhamale, Advocate, for the Appellant Mrs.P.P.Shinde, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 30TH MARCH, 2011 ORAL JUDGMENT . This Appeal is directed against conviction of the appellant for the offence punishable under Section 354 of the Indian Penal Code and sentence of rigorous imprisonment for two years with a fine of Rs. 200/- or in default simple imprisonment for two months imposed upon the appellant by the learned Additional Sessions Judge, Greater 2 Cri.Appeal 648-1993 Bombay. 2. Facts which are material for deciding this Appeal are as under :- The prosecutrix was married to Vijay in the year 1982. She used to reside with her in-laws at Parel. Thereafter, on 10th May, 1988 she came to reside with her husband, mother-in-law and sister-in-law Smt Sarita to a flat in Malad. Her husband used to serve at Qatar had come back in July, 1988 to India and started business of Video Cassette Library at Malad (E), Mumbai. The appellant was stated to be his partner in the said business. It is the case of the prosecution that the appellant used to reside at the house of the prosecutrix and used to make sexy advances towards the prosecutrix, like kissing and embracing which she resisted, but did not report. She stated that her husband was impotent and the marriage was not consummated. According to her, on the night of 1st November, 1988, she saw her 3 Cri.Appeal 648-1993 husband and the appellant in homosexual relationship in the hall of house at night. Her husband is alleged to have thrashed her because she noticed that relationship at night. Thereafter, she claims to have overslept and was still asleep on 2nd November, 1988 at about 11:00 a.m. when she found the appellant mounted on her having sexual intercourse with her. She claims to have raised shouts where upon her sister-in-law came out. The appellant is alleged to have threatened that he would dishonour her again if she shouted. She reported the incident to her husband in the evening but her husband as well the appellant thrashed her. Her sister Jyoti came and then the victim conveyed to Jyoti what had happened. Victim still continued to stay in the same house till 4th November, 1988 when the victim went to stay at the house of her sister. On 5th November, 1988 she eventually gave a report about the incident to the police whereupon an offence 4 Cri.Appeal 648-1993 has been registered. 3. Police subjected both the appellant and prosecutrix to the medical examination. They caused the clothes as well as bed sheet to be seized and sent to the Forensic Science Laboratory, recorded statements of witnesses, performed panchanama of the spot and on completion of investigation, charge sheeted the appellant for the offence punishable under Section 376 of the Indian Penal Code in the Court of Metropolitan Magistrate, Mumbai, who committed the case to the Court of Sessions at Mumbai. 4. The learned Additional Sessions Judge to whom the case was made over charge sheeted the appellant for the offence punishable under Section 376 of the Indian Penal Code to which the appellant pleaded not guilty and hence, was put on trial at which the prosecution examined as well as seven witnesses in its 5 Cri.Appeal 648-1993 attempt to bring home guilt of the appellant. Upon consideration of the prosecution evidence in the light of defence of total denial, the learned Additional Sessions Judge found that the offence of rape had not been proved and proceeded to convict and sentence the appellant for the offence punishable under Section 354 of the Indian Penal Code. Aggrieved thereby, the appellant is before this Court. 5. I have heard the learned Counsel for the appellant and the learned APP. With the help of both the learned Counsel I have gone through the record. The prosecutrix, who was examined as P.W.1 stated that her husband was impotent and the marriage has not been consummated. She stated that rape by the appellant on the incidental morning was the first occasion of intercourse for her. This has to be read with the evidence of P.W.3 Dr. Vijay Kelvekar, who had examined the 6 Cri.Appeal 648-1993 prosecutrix on 5th November, 1988. He found no injuries on the person or private parts of the victim. He found that Hymen had healed tears at 5, 8, 10 O'clock positions. Hymenal Orifice admitted two fingers. The doctor has stated in his cross examination that hymen is usually lacerated as a result of complete sexual intercourse having one or more radiating tears the edges of which are red, swollen and painful and bleed on touching, if examined within a day or two after the act. He stated that these tears heal within five or six days and after eight to ten days become shrunken. Healed tears found by the doctor on 5th November, 1988 when intercourse had allegedly taken place on 2nd November, 1988 would put a question mark about veracity of the word of prosecutrix that it was her first intercourse. This has to be read in the context of her evidence that her husband was impotent and her marriage had not been consummated. 7 Cri.Appeal 648-1993 6. On the prosecutrix's own account her sister-in-law Sarita was also supposed to have been in the house. Prosecutrix had stated on the previous night she had seen her husband in compromising position with the appellant and her husband had thrashed her. If the husband was aggrieved because he was caught by the prosecutrix and if the appellant was very much in the house in the night itself, the appellant had an opportunity of ravishing the prosecutrix in the night itself rather than waiting till 11:00 a.m. in the next morning. The story sounds incredible. 7. P.W.4 Sarita has turned hostile and has denied that the appellant was staying in their house. P.W.2 Jyoti Sarmalkar, victim's sister came after the incident and it is curious even after the victim's narration of the incident to her sister they did not march to the police station. It is also curious that the prosecutrix herself states that the 8 Cri.Appeal 648-1993 appellant had been hugging and kissing in the past and still she did not feel like making any report about these unfortunate advances by the appellant. In the context of this, presence of any stain of semen on bed sheet would be insignificant, since no other cloth was found to have any semen stain. The learned Counsel for the appellant is, therefore, right in submitting that the learned Trial Judge should not have relied on testimony of the prosecutrix which did not even receive circumstantial corroboration and the conduct of the prosecutrix was un-natural, first, in not reporting the indecent behaviour of the appellant and secondly, the delay in lodging F.I.R. 8. In view of this, Appeal is allowed. Conviction of the appellant for the offence punishable under Section 354 of the Indian Penal Code and sentence of rigorous imprisonment for two years with a fine of Rs. 9 Cri.Appeal 648-1993 200/- or in default simple imprisonment for two months are set aside. Appellant is acquitted of the said offence. (R.C.CHAVAN, J.)