Gopal Prabhakar Khumkar (In Jail) vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 6007 Bom

                                                        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
                                 
                                        --------

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

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

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.

6. 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

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

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

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