MASODKAR J. - The accused Bhimrao son of Harnooji Wanjari, a police constable, stood charged for having committed rape on one Tulsabai (P. W. 2) at about 5 P. M. on March 12, 1971, near village Shivangaon within the limits of Nagpur town, and having caused voluntarily hurt to two ladies Jaiwantabai (P. W. 5) and Shashikala P. W 6) respectively and having found drunk contrary to the inhibitions of section 66 (1)(b) and section 85 (1)(3) of the Bombay Prohibition Act. He stands acquitted of the offence under section 376 of the Indian Penal Code while has been found culpable under section 323, Indian Penal Code as well under section 66 (1) (b) and-section 85 (1) (3) of Bombay Prohibition Act. For these offences, he has been convicted and sentenced to rigorous imprisonment for one year, rigorous imprisonment for six months and a fine of Rs. 1,000 or in default R. I. for the month and further to a fine of Rs. 200 or in default R. I. for seven days, respectively.

2. - The accused has appealed against the judgment of conviction and sentence, while the State has appealed against his acquittal of the charge under section 376 of the Penal Code.

3. It appears that the present accused Bhimrao was deputed on duty along with P. W. 7 Digambar, while he was attached as police constable to Sonegaon Police Station on March 11, 1971. They went to village Jaitala on duty on that day and on the next day, i.e. the day of the incident, i.e. March 12, 1971, left Jaitala to come back to report to the Police Station at Sonegaon. It is the case of the prosecution that the present accused Bhimrao consumed liquor and was behaving in a manner completely disorderly, when they reached nearby the Air-port area, which is shown in Exh. 5 the map of the locale. There is a suburb village, Shivangaon and the Police Station is attached to it. These two police constables, i.e, accused Bhimrao and P. W. 7 Digambar, started at about 4.30 P. M. from Shivangaon to go to Sonegaon Police Station and were riding on bicycles. While they were passing by the road, it is the prosecution case, that, near about the Air-port's area they came across three women who were picking firewood near about the area of the Air-field. Accused Bhimrao is said to have accosted these women by asking them to which village they belonged and further by directing abuses and saying that the persons from Shivangaon were all scoundrels and they should be arrested and kept behind bars. Followed by these abuses and threats, the accused is said to have taken a stick and given beating to two of the ladies, Jaiwantabai and Shashikala, who tried to run away from the spot. The accused chased these ladies and it is alleged that they were brought back towards the strip portion of the road nearby a square. One Janba (P. W. 8) was going on cycle at the same time with a bundle of grass and the accused is alleged to have scolded him too and he was allowed to go after remonstrations. The accused took all the women towards the Air-field side and made 'two of the ladies, i. e. Jaiwantabai and Shashikala, to sit at a distance, which is presumably shown by point No.4 in Exh. 5, and asked Tulsabai to go and fetch Janba, the person was had left on cycle. Though Tulsabai was unwilling, the accused made her to go and as soon as she had gone for a short distance, he followed her. It is the further case of the prosecution that accused failed Tulsabai down near Hiwar-tree by the side of the road and had forcible intercourse against her will. The two ladies, Jaiwantabai and Shashikala, appear to have expressed their anxiety and, therefore, they started going towards the side by which Tulsabai had gone. Digambar, who was with the two ladies, went ahead and gave a call to the accused and thereupon Tulsabai and accused came to the road. Tulsabai was at that time weeping and she disclosed immediately that she was subjected to rape by the accused. People assembled and the accused wanted to run away from the spot, but peopl