JUDGMENT : 1. This appeal questions the legality and correctness of the judgment and order dated 13th December 2017 rendered in Sessions Trial No. 151 of 2013 by the Additional Sessions Judge, Gondia The learned additional Sessions Judge held the appellant guilty of the offences punishable under Sections 448, 323, 376 and 506 of the Indian Penal Code and accordingly sentenced him to suffer different punishments. For the offence punishable under Section 376 IPC, sentence of rigorous imprisonment for ten years and a fine of Rs. 5000/- in default, rigorous imprisonment for one month has been imposed. For the other offences, sentences varying from seven years RI to one year RI and fine amounts from Rs. 1000/- to Rs. 500/- have been imposed. 2. The story of the prosecution goes as under: The prosecutrix, aged about 40 years when the incident took place, was present in her house in the night between 22.8.2013 and 23.8.2013 at village Soni, Tahsil Goregaon, District Gondia. In the evening of 22.8.2013, she had attended 13th day function, which was a part of the last rites performed in respect of death of one Shrikrishna Patle. There was also a kirtan organized in the night. After having dinner at about 10.00 pm, the prosecutrix went to her room as she was not keeping well and slept. In the adjoining room, her brother-in-law, sister-in-law and mother-in-law had gone to sleep. Between 02.30 and 03.00 am, according to the prosecutrix, one person suddenly entered her room and forced himself upon her. The prosecutrix at that time was sleeping on the cot. He pressed her mouth and threatened her that if she resisted or shouted, he would kill her. Thereafter that person committed sexual intercourse with the prosecutrix. By that time, the prosecutrix had identified that person and he was the appellant. When the intercourse was going on, husband of the prosecutrix entered the room and saw what was going on inside the room. He shouted at the man i.e. the appellant. The appellant started to run away. But, the husband of the prosecutrix caught hold of him. By that time, the other relatives i.e. brother-in-law and sister-in-law sleeping in the other rooms of the house, also came to the room of the prosecutrix. He shouted at the man i.e. the appellant. The appellant started to run away. But, the husband of the prosecutrix caught hold of him. By that time, the other relatives i.e. brother-in-law and sister-in-law sleeping in the other rooms of the house, also came to the room of the prosecutrix. The prosecutrix alleged that because of loud sound of kirtan and also the rain that was falling then, the shouts of the prosecutrix could not be heard outside her room. But, as it happened, her husband came to the room and rescued her from the assault that was made upon her by the appellant. It is stated that the husband of the prosecutrix at that time had gone outside the house to attend the kirtan in the village. As it was a night time, the prosecutrix could not immediately approach the police for lodging the report. Next day in the morning at about 09.00 am, the prosecutrix along with her husband went to the Police Station and lodged the report against the appellant. It was reduced into writing and crime was registered against the appellant. Investigation was commenced by the police; spot panchanama was prepared; necessary seizures were made and the prosecutrix and appellant were sent for medical examination. Statements of witnesses were recorded. After completion of investigation, charge-sheet was filed against the appellant. 3. The appellant was prosecuted for the offences punishable under Sections 448, 323, 376 and 506 of the Indian Penal Code. On merits of the case, learned Additional Sessions Judge held that all the offences stood proved and, therefore, convicted and sentenced the appellant, as aforesaid. Not being satisfied with the same, the appellant is before this Court in the present appeal. 4. I have heard Shri D.V. Mahajan, learned counsel for the appellant and Shri Harshal Dube, learned Additional Public Prosecutor for respondent-State. I have gone through the impugned judgment and order and so also the record of the case. 5. Now, the following points arise for my determination: (1) Whether the sexual intercourse with the prosecutrix was nonconsensual? (2) Whether the prosecution has proved that the appellant committed offences of voluntarily causing simple hurt and criminal intimidation? (3) Whether any interference in the impugned judgment and order is necessary? 6. 5. Now, the following points arise for my determination: (1) Whether the sexual intercourse with the prosecutrix was nonconsensual? (2) Whether the prosecution has proved that the appellant committed offences of voluntarily causing simple hurt and criminal intimidation? (3) Whether any interference in the impugned judgment and order is necessary? 6. In the present case, evidence of the prosecutrix and her husband is of great importance as the prosecutrix is a married woman, aged about 40 years at the time of incident and her husband had actually seen what was going on inside the room of the prosecutrix at the relevant time. Therefore, it would be appropriate that we consider the testimonies of these two witnesses first. 7. On going through the evidence of PW-1 victim of crime or the prosecutrix, one would find that her testimony cannot be believed for what it says against the appellant. The reason being that, according to her, when she was sleeping inside the room of her house, at about 2/2.30 am, the appellant entered the room and giving threat to her not to raise any voice, the appellant committed forcible sexual intercourse with her and all this happened against the background of the door to the room of the prosecutrix being not closed in that night, though usually she was in the habit of keeping it closed and the other relatives like mother-in-law, brother-in-law and sister-in-law were sleeping in different rooms, but adjoining to the room of the prosecutrix, who could have immediately rushed to the help of the prosecutrix, if sufficient alarm was raised. 8. The prosecutrix states that when she raised her voice, her husband came to her room and caught red-handed the appellant committing sinful act. She stated that thereafter her husband called her sister-in-law, brother-in-law and mother-on-law who, on such calling, arrived at the scene of crime. Her such evidence is, however, inconsistent with the evidence of her husband PW-4 Yograj and PW-2 Geeta, the sister-in-law of the prosecutrix. Inconsistencies, of course, are of different nature, but they are there and are material, thereby creating doubt over the credibility of PW-1 prosecutrix. 9. While prosecutrix states that when she raised voice, her husband came to her room, PW-4 Yograj does not say so. Inconsistencies, of course, are of different nature, but they are there and are material, thereby creating doubt over the credibility of PW-1 prosecutrix. 9. While prosecutrix states that when she raised voice, her husband came to her room, PW-4 Yograj does not say so. According to him, he was busy attending Kirtan in that night and in between 2 am and 3 am, he came home to relieve himself when he heard some noise which he has described in Marathi as “Ghud Ghud”. He does not say that this sound was of shouts of his wife, as she has deposed before the Court. This is a material contradiction with the evidence of PW-1, the prosecutrix indicating that her husband entered her room because she raised shouts. Even PW-2 Geeta, sister-in-law of the prosecutrix sleeping in the adjoining room does not say that she heard shouts of prosecutrix and so, she rushed to the room of the prosecutrix. Now, this sound “Ghud-Ghud” described by PW-4 Yograj is very different from the sound of shouts. It is quite like a clatter sound which comes out when two or many hard objects strike each other and it is certainly not a sound of hostility or disapproval, which is very much there in the shouts. Remarkably, he does not say that this noise was in the nature of some sort of help sought or alarm raised by the prosecutrix. PW-4 Yograj further states that when he entered the room, he saw the appellant as lying on the person of the prosecutrix and that at that time, the appellant had pressed the mouth of his wife and then he goes on adding that he also saw the appellant as having forcible sexual intercourse with her. He then states that at that time, he managed to catch hold of the appellant. He further states that he shouted for help and thereafter his brother, wife of his brother, his sister, his mother and his nephew came to the spot of incident and with their help, he caught hold of the appellant. 10. PW-2 Geeta, wife of brother of PW-4 Yograj, however, gave a different version. She states that due to some uproar heard from the room of the prosecutrix, she and her husband woke up and went to the room of the prosecutrix. 10. PW-2 Geeta, wife of brother of PW-4 Yograj, however, gave a different version. She states that due to some uproar heard from the room of the prosecutrix, she and her husband woke up and went to the room of the prosecutrix. Then, according to her version, she and her husband saw the appellant and the prosecutrix having sexual intercourse. She has further stated that the prosecutrix came to them in a frightened state. She states that when she and her husband asked the victim as to what happened, she told them that the appellant threatened to kill her if she raised her voice and then pressing her mouth, he did sexual intercourse with her. Her such evidence, however, is contrary on a material aspect of the case as to how she and her husband arrived at the spot of incident. The evidence of PW-4 Yograj shows that on his shouting for help, his brother and wife of his brother came to the spot while evidence of PW-2 Geeta discloses that she and her husband went there on hearing some unusual sound. The unusual sound as described by PW-2 Geeta was in the nature of “uproar” while the husband of the prosecutrix called it “Ghud-Ghud” (clatter). Though there is a difference in the description of sound given by these two witnesses, there is unanimity between them on the point that they reached room of the prosecutrix not because they heard her alarm calls indicated by her shouts as she would want us to believe, but for the reason that they heard some sounds, unusual in their nature, which ignited their curiosity to ascertain their source. Even the sound of “uproar” described by PW-2 Geeta was not an alarm call but a heavy sound which comes out due to friction of hard objects. 11. The evidence of these material witnesses of the prosecution discussed above would show that there is no consistency between their versions on material aspects of the case. Admittedly, the house of the prosecutrix had different rooms and all these rooms were occupied by different relatives of the prosecutrix. Admittedly at the time of incident, husband of the prosecutrix was away from home as he was busy attending recitation of kirtan and that he happened to come back home by chance when he noticed some sort of noises coming from the room of the prosecutrix. Admittedly at the time of incident, husband of the prosecutrix was away from home as he was busy attending recitation of kirtan and that he happened to come back home by chance when he noticed some sort of noises coming from the room of the prosecutrix. These noises, it appears, made PW-4 Yograj curious and that is why he went to his room to ascertain the cause of those noises. He has described those noises as “Ghud Ghud”. Even PW-2 Geeta has heard these noises which she described as “uproar”. None of these witnesses is saying that those noises were in the nature of alarm or shouts for help. When so many relatives were sleeping in the adjoining rooms, it was very easy for the victim to put up a good deal of resistance to the appellant and if she had, effective assistance would surely had come her way. No doubt, in that night, sound of kirtan had filled the air, but as PW-2 Geeta and PW-4 Yograj had still heard those queer sounds coming from the room of the prosecutrix, there is no gainsaying that kirtan sound had drowned the shouts for help raised by the prosecutrix. In fact, as the evidence of PW-2 and PW-4 would show, there were no shouts raised for help by the prosecutrix. 12. The prosecutrix in her cross-examination has admitted that door to her house on that day was open, although she would keep the door closed. The prosecutrix has not explained as to why on the day of incident, the door to her room was not closed by her. Added to it, are those odd sounds heard by husband of the prosecutrix as well as her sister-in-law emanating from the room of the prosecutrix. To my mind, these facts are sufficient indicators of the possibility of consensual sexual intercourse between the prosecutrix and the appellant. This inference in the present case is further strengthened by the fact that the husband of the prosecutrix was out of his house as he had gone to attend kirtan being held in the night and that it was not expected of him to come back home so early. Usually, kirtans are held for the entire night. The husband of the prosecutrix also states that as he wanted to ease himself, he visited his house. Usually, kirtans are held for the entire night. The husband of the prosecutrix also states that as he wanted to ease himself, he visited his house. It would mean that the husband of the prosecutrix had no intention to come back home for the purpose of sleeping. Thus, the visit of the husband of prosecutrix to the house was by way of chance only and it appears, it was an unexpected visit from the view point of the prosecutrix. As stated earlier, the prosecutrix also does not explain as to why did she not close the door in that night though usually she would keep it closed. So, the strange conduct of the prosecutrix shown by keeping the door open especially when her husband was out of the house and not raising the shouts for help coupled with material inconsistencies and coming of unusual sound from the room of the prosecutrix during presence of appellant in her room, all create a large circle of doubt over the version of prosecutrix giving rise to a strong possibility of presence of consent of the prosecutrix in the whole incident. There is no other evidence, which has ruled out consent of the prosecutrix. 13. In view of the above, I find that the prosecution has failed to establish beyond reasonable doubt that there was a forcible act on the part of the appellant behind his sexual intercourse with the prosecutrix. While the fact of sexual intercourse of the appellant with the prosecutrix has been established, about which there is not much establish, it was without consent of the victim, ged about 40 years, has not been. The learned Additional Sessions Judge, it is seen, has not considered the material aspects manifestly coming out from the evidence of the prosecution witnesses which are discussed at length earlier and the result is of a perverse finding recorded by the learned Additional Sessions Judge. Inevitably, I am of the opinion that the prosecution has failed to prove the main offence of rape by the appellant upon the prosecutrix. 14. Once it is proved that the possibility of consent in the present case has not been ruled out, offences of house trespass (Section 506 IPC) and criminal intimidation (Section 506 IPC) would also stand as not proved. 15. 14. Once it is proved that the possibility of consent in the present case has not been ruled out, offences of house trespass (Section 506 IPC) and criminal intimidation (Section 506 IPC) would also stand as not proved. 15. As regards the offence of causing of simple hurt punishable under Section 323 of the Indian Penal Code, I must say, the evidence brought on record by the prosecution does not show that the simple hurt that was caused to the lips of the prosecutrix was voluntarily caused by the appellant. The offence of simple hurt punishable under Section 323 of the Indian Penal Code is constituted only when the prosecution proves beyond reasonable doubt that the simple hurt is caused by the accused with an intention or with the knowledge to cause it and then only it could be termed as voluntarily causing of the hurt. Since I have found that possibility of consensual sex was very much there, the theory of intentional or wilful causing of hurt to the prosecutrix cannot be believed. The medical evidence of Dr Trupti Katre does show some abrasions and contusions on upper lips and chest and also lacerated wound on the lower lip. But, these injuries, as stated earlier, could not be said to have been caused voluntarily in view of the evidence of three main prosecution witnesses discussed earlier. So, I find that even the offence punishable under Section 323 of the Indian Penal Code has not been proved by the prosecution. 16. For the aforesaid reasons, I find that the impugned judgment and order, therefore, deserve to be quashed and set aside and the appeal deserves to be allowed. All points are answered accordingly. 17. The appeal is allowed. The impugned judgment and order are hereby quashed and set aside. The appellant is acquitted of the offences punishable under Sections 376, 448, 323 and 506 of the Indian Penal Code. The appellant is in jail and, therefore, he is directed to be set at liberty forthwith, if not required in any other case. Muddemal property, being worthless, be destroyed after a period of six months. 18. Since the appeal has been allowed, application being Criminal Application No. 1099 of 2017 for suspension of sentence and grant of bail does not survive for consideration. Disposed of as such.