1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 112 of 2015
Appellant : Gopal Prabhakar Khumkar, aged about 39
years, resident of Khandala, Tahsil Telhara,
District Akola (presently in jail)
versus
Respondent : The State of Maharashtra, through Police
Station Officer, Police Station, Hiwarkhed,
District Akola
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Shri A. J. Thakkar, Advocate and Shri Deepak S. Patil, Advocate with him for appellant.
Shri S. J. Kadu, Addl. Public Prosecutor for respondent-State Coram : S. B. Shukre, J Dated : 14th October 2016 Oral Judgment
1. Heard Shri A. J. Thakkar, learned counsel for the appellant and Shri S. J. Kadu, learned Additional Public Prosecutor for the respondent-State.
2. By this appeal, the legality and correctness of the judgment and order dated 20.1.2015 passed by the Additional Sessions Judge, Akola in Sessions Case No. 33 of 2011, has been questioned. By the impugned judgment ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:11:56 ::: 2 and order, the appellant has been convicted for the offence punishable under Section 376 (1) of the Indian Penal Code and sentenced to suffer rigirous imprisonment for seven years and to pay a fine of Rs. 5000/-, in default, to suffer further rigorous imprisonment for three months. In addition, the appellant has been directed to pay compensation of Rs. 4000/- to the prosecutrix.
3. The appellant was prosecuted for an offence punishable under Section 376 of the Indian Penal Code and also for the offences punishable under Sections 3 (1) (xi) (xii) and 3 (2) (5) of the SC & ST (Prevention of Atrocities) Act.
4. It was alleged that at about 04.00 pm on 14.4.2011 when the prosecutrix, residing in the field of one Dr Sheikh situated at Khandala shivar, Tahsil Telhara, District Akola with her husband and children, had gone to answer nature's call, the appellant suddenly appeared from back side, committed forcible sexual intercourse with her. It was alleged that before committing the forcible sexual intercourse, this appellant caught hold of the prosecutrix by her hair, made her fall down on the ground and thereafter removed his own clothes and lifted saree of the prosecutrix. At that time, husband of the prosecutrix was not present in the house. He had gone to village Khandala. He returned home at about 06.00 pm when the prosecutrix told him about the incident. The prosecutrix and her husband were frightened and, therefore, they left their home and spent the night in the house of one of their acquaintances which was situated at some distance from their house. On the ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:11:56 ::: 3 next day, the couple went to Police Station, Hiwarkhed and lodged the report.
The offences under Section 376 of the Indian Penal Code and Sections 3 (1) (xi)
(xii) and 3 (2) (5) of the SC/ST (Prevention of Atrocities) Act. After completion of investigation, the charge-sheet came to be filed before the Sessions Court. On merits of the case, the learned Judge of the Sessions Court found that the offences punishable under the relevant Sections of the Atrocities Act were not proved beyond reasonable doubt by the prosecution and, therefore, the appellant was acquitted of the same. However, learned Judge of the Sessions Court found that the charge regarding commission of offence of rape was proved and, therefore, by the judgment and order dated 20.1.2015, convicted and sentenced the appellant, as stated earlier. Not being satisfied with the same, the appellant is before this Court in the present appeal.
5. This is a case which is based upon sole testimony of the prosecutrix. There are no eye witnesses and the prosecution has sought to draw support from the circumstantial evidence in order to bring credibility to the version of the prosecutrix. In law, sole testimony of the prosecutrix in rape cases can be accepted and even if there are no eye witnesses, the Court can still rely upon the sole testimony of the prosecutrix if on closure examination and analysis of her testimony, the Court comes to the conclusion that the evidence of the prosecutrix is free from doubt. In rape cases, the attending circumstances as well as conduct of the prosecutrix will be of immense importance. So, now let us examine the evidence of the prosecutrix and see whether or not it should be relied upon by the Court.
::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:11:56 ::: 46. Prosecutrix (PW 1) has stated in her evidence that the appellant committed forcible sexual intercourse with her in the field where she was residing and it was about 4.00 o'clock in the afternoon. According to her, this appellant had caught hold of her by her hair and then pulled her. So, she fell down on the ground and thereafter the appellant mounted himself on her and then committed forcible sexual intercourse with her. It appears from her evidence that she offered no resistance to the appellant although she states that she raised shouts. Her evidence also shows that raising of shouts by the prosecutrix was not since beginning of the incident, but after the incident had taken place. She has not given any reason as to why she did not offer any resistance to the appellant. She stated that the sexual intercourse against her consent culminated with staining of her clothes by semen which was ejaculated by the penis of the appellant. She has further stated that her husband returned home by 6.00 pm on the same day when she narrated the entire incident to him and on the next day, she lodged the report. This version of the prosecutrix is largely corroborated by her oral report dated 15.4.2011. But, the question is, as to why husband of the prosecutrix was not examined by the prosecution and on going through the record, I could not find any answer to this question. Learned Additional Public Prosecutor also could not point out any material available on record in answer to this question. As stated earlier, conduct of the prosecutrix is an important factor which lends assurance to the Court that the prosecutrix is trustworthy in such cases. If the prosecutrix was all the while maintaining that she had narrated the entire incident to her husband at 06.00 pm on the same day, the testimony of the husband confirming this fact, would have gone a long ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:11:56 ::: 5 way in underlining credibility of the prosecutrix. Unfortunately, that has not happened in this case. Then, as stated by me earlier, no resistance had been offered by the prosecutrix and no reason whatsoever is given by her for not putting up any reistence. Sometimes, it may happen that the victim is too frightened to make any resistance. But, this state of fright is also not visible from the evidence of the prosecutrix. So, I must say that the version of the prosecutrix is doubtful.
7. The doubt about the creditworthiness to the evidence of prosecutrix has, in my opinion, deepened further when we consider the medical evidence. Medical Report of the prosecutrix vide exhibit 63 discloses no external injuries whatsoever on any part of her body. It may be recorded here that this is a case where there is a specific allegation that the prosecutrix was caught hold of by the appellant by her hair and was forcibly brought down on the ground. It is, therefore, surprising that not even a scratch or abrasion is seen on the back portion of the prosecutrix. The nature of surface where the incident took place has not been brought on record by the prosecution and even by the appellant. But, when the force is applied for commission of rape and in that, the victim is pulled down by holding her hair on agricultural land, it cannot be accepted that such victim would not suffer from any injury either in the form of abrasions, scratches or contusions. These injuries are conspicuously absent in this case.
There are also no injuries on the private parts of the prosecutrix.
But, in my view, absence of these injuries in this particular case where age of ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:11:56 ::: 6 the prosecutrix at the time of incident was about 34 years and her status was married, would not be of any relevance. But, absence of other evidence, as discussed earlier, would be relevant and that would definitely contribute to the doubtful nature of the prosecution case.
8. Of course, the spot panchanama, forming part of crime details, shows that broken pieces of bangles were lying at the spot of incident, but this evidence by itself cannot be considered to be giving support to the version of the prosecutrix. The other important factors, such as, conduct of the prosecutrix and absence of external injuries over back portion and other parts of the body of prosecutrix create a doubt about the creditworthiness of the prosecutrix and as there is no evidence available on record which would remove this doubt, existence of just one circumstance in favour of the prosecutrix, would not make her evidence as of trustworthy nature. Looking to these facts and circumstances, I am of the view that the evidence of the prosecutrix does not inspire confidence of the Court. Something more was required in this case, but that has not been brought on record by the prosecution. Husband of the prosecutrix could have endorsed the conduct of the prosecutrix and assisted the Court in concluding that the conduct of the prosecutrix was natural had he been examined. But, he was not examined. As already discussed at length, the nature of the medical evidence further deepens the doubt about the version of the prosecutrix. Then, even the C. A. Report does not support the prosecution case as it is negative for presence of any semen on the clothes of the prosecutrix, though she has deposed that they were sullied by stains of semen of ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:11:56 ::: 7 the appellant. All this evidence taken together, does not rule out such possibilities as of false implication of the appellant in this case, the case being the result of some dispute between appellant and the prosecutrix or existence of some kind of relationship between the prosecutrix and the appellant which may have been disturbed due to some unknown factors.
9. In the result, I am of the view that this is a fit case where the appellant deserves to be given benefit of doubt. The material aspects of the case were not considered by the learned Sessions Judge and, therefore, the impugned judgment and order cannot be sustained in the eye of law. Appellant deserves to be acquitted of the offence punishable under Section 376 (1) of the Indian Penal Code by giving him benefit of doubt.
10. The appeal is allowed. The impugned judgment and order is hereby quashed and set aside. Appellant is acquitted of the offence punishable under Section 376 (1) of the Indian Penal Code. Fine amount, if paid by the appellant, be refunded to him. If not required in any other case, the appellant be released forthwith.
S. B. SHUKRE, J joshi ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:11:56 :::