Criminal Appeal No.21 of 2007

20th August, 2008

Petitioner Counsel: Mr. R. MENEZES
Respondent Counsel: Ms. W. COUTINHO

Cases Cited:
Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753 [Para 12]
State of Punjab Vs. Gurmit Singh, 1996(2) SCC 384 [Para 12]
State of Rajasthan Vs. N. K., 2000(5) SCC 30 [Para 12]
State of Tamil Nadu Vs. Ravi @ Nehru, 2006 ALL MR (Cri) 2356 (S.C.)=2006 AIR SCW 3444 [Para 12]
Prithi Chand Vs. State of Himachal Pradesh, AIR 1989 SC 702 [Para 13]
Ishwar Vs. State of Maharashtra, 2005 ALL MR (Cri) 720 [Para 13]
Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat, 2004(1) S.C.C. 64 [Para 15]

JUDGMENT

JUDGMENT :- This appeal is by the accused who has been convicted and sentenced under Sections 342, 376, IPC and Section 8(2) of the Goa Children's Act, 2003.

2. The accused was charged and tried for the said offences with the allegation that on 27/09/2004 between 12.00 to 13.00 hrs. at Bepquegal, Curchorem, the accused wrongfully confined the victim/PW-5 and committed rape on her. In the course of the trial, prosecution had examined 10 witnesses including the Investing Officer.

3. The accused was a tenant of Loteiro Colaco/DW-1 while the victim/PW-5 and her mother Shamshad Aktar/PW-3 were the tenants of one Mingulina and all were close neighbours of Avita Mary Almeida/PW-8. The first information report was filed by Shamshad Aktar/PW-3 on the same day, after she returned from work and thereafter at about 17.45 hrs. the scene of offence panchanama was drawn in the presence of Shaikh Isak/PW-7 and in the course of the said panchanama a blue, white and red colour mat (MO No.2) pointed out by the said victim/PW-5 was attached. A blue colour T-shirt belonging to the accused, pointed out by the victim/PW-5 was also attached (MO No.3).

4. All the above mentioned articles were subsequently sent along with blood samples of the accused for DNA finger printing to Central Forensic Laboratory at Hyderabad, but since the report received was negative, the same was not produced before the Court. At about 20.00 hrs, the clothes worn by the victim/PW-5 namely a frock and underwear/chaddi/panty (MO No.1) were attached in the presence of Elyas Shaikh/PW-6 after the same were handed over by Shamshad Aktar/PW-3, the mother of the victim/PW-5. Thereafter, the accused was arrested at about 20.45 hrs..

5. By letter dated 27/09/2004-Exhibit 6 the victim/PW-5 and the accused were sent for medical examination, and were examined by Dr. Madhu Ghodkirekar/PW-1.

6. The prosecution examined ten witnesses in support of the charge.

7. The accused and the victim/PW-5 were examined by Dr. Madhu Ghodkirekar/PW-1 around midnight of 28/09/2004 and who has produced the reports of examination at Exhibit 7 and Exhibit 11, respectively. As per Dr. Ghodkirekar/PW-1 upon the examination of the accused he found a bruise red in colour of 0.3 x 0.4 cms. over the glans of penis and upon the examination of the victim/PW-5 he found congestion and tenderness present on vulva. He opined that there was evidence of recent sexual intercourse, and, as regards the injuries on the victim/PW-5, he stated that the injuries was the evidence of vulval penetration.

8. The accused was working as line helper in the Electricity Department at Quepem and to prove that the accused had not attended his duties from 26/09/2004, the prosecution examined Assistant Engineer Shri. Deshpande/PW-4.

9. The case of the accused was that he was falsely implicated, soon after he was threatened by the wife of the accused by name Tony Fernandes who was earlier convicted on 20/09/2001 in a rape case which had taken place in the same house where the accused was residing and who had threatened the accused saying that the accused had put her husband in difficulty and God would teach him a lesson.

10. The learned trial Court accepted the evidence of the prosecution and convicted the accused. The learned trial Court observed that the medical evidence brought on record supported the evidence of the victim girl. The learned trial Court discarded the defence evidence observing that there was nothing on record to show that the wife of the said Tony Fernandes had instigated the mother of the victim girl to implicate the accused falsely for having raped her daughter. Moreover, the learned trial Court observed that the said Loteiro Colaco/DW-1 had stated that they had not filed any complaint against the wife of Tony Fernandes for giving abuses and threats to them and that he had also admitted that neither he nor his wife had stood as witnesses in the case which was filed against the said Tony Fernandes. The learned Trial Court therefore discarded the evidence of the said Loteiro Colaco/DW-1 as not trustworthy and further observed that it was not possible to discard positive evidence led by the prosecution against the accused, on the basis of the said evidence of Loteiro Colaco/DW-1. In fact, the evidence of Loteiro Colaco/DW-1 was nothing but hearsay and ought to have been rejected on that count alone.

11. Shri. Menezes, the learned Counsel appearing on behalf of the accused, at the outset, has submitted that the accused was unable to cross-examine effectively the victim girl/PW-5, since the cross-examination was controlled by the learned trial Court by exercising the powers available under Section 32(1)(n) and Section 32(2)(e) of the Goa Children's Act, 2003. This submission is not made on the basis of any material on record. In fact there is nothing on record to accept such a submission, for the deposition of the victim/PW-5 recorded by the learned trial Court does not show that any such powers were exercised by the Children's Court. Therefore, such submission cannot be accepted without there being any foundation for it.

12. As far as the appreciation of evidence in rape cases is concerned, the law is well settled for over two decades and half and, in that context, learned Public Prosecutor has placed reliance on the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat (AIR 1983 SC 753). In this case, the Hon'ble Supreme Court has stated that corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. In the case of State of Punjab Vs. Gurmit Singh (1996(2) SCC 384), the Apex Court held that it is a well accepted principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. It is also well accepted principle of law that corroboration as a condition or judicial reliance on the testimony of the prosecutrix, is not a requirement of law but a guidance of prudence. The woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion treating her as if she was an accomplice. The view held in Bharwada Bhoginbhai Hirjibhai (supra) as well as in the case of State of Punjab (supra) and the State of Rajasthan Vs. N. K. (2000(5) SCC 30), was again reiterated by the Apex Court in the case of State of Tamil Nadu Vs. Ravi @ Nehru (2006 AIR SCW 3444 : [2006 ALL MR (Cri) 2356 (S.C.)]). Thus it is now well settled that the testimony of the prosecutrix should be appreciated on the basis of probabilities like testimony of any other witness and conviction can be based solely on such testimony, but if the Court finds it difficult to accept the version of such victim, it can seek assurance to her testimony which may be short of corroboration.

13. Learned Counsel on behalf of the accused submits that even though the CFSL report was found negative, it ought to have been produced by the prosecution, but I have not been able to see any reason why a negative report was required to be produced. It is now well settled that a negative report of this nature does not negate the other evidence on record and in this context reference could be made to the decision of the Apex Court in Prithi Chand Vs. State of Himachal Pradesh (AIR 1989 SC 702) wherein the Apex Court has stated that the mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case, and, therefore in the absence of semen found either on the clothes of the accused or the victim, the entire case of the prosecution which is otherwise well corroborated at every stage cannot be thrown overboard. To the same effect is the decision of this Court in Ishwar Vs. State of Maharashtra (2005 ALL MR (Cri) 720).

14. Shamshad Aktar/PW-3 in her evidence stated that on that day she returned at about 1.30 p.m. and at that time her daughter was not at home and thereafter she proceeded to the house of her landlord and returned back at about 2 p.m. and on her return she inquired with the accused about the daughter and nobody told her as to where she was. She further stated that she went to her mother's place and found her daughter there and she brought her home and asked her whether the accused had given money to buy chocolates and her daughter replied stating that he was sometimes giving her money to buy chocolates and further told her that the accused had taken her to his house and had given her one rupee to buy chocolates and thereafter had taken her in the kitchen, latched the door and thereafter the accused removed his black colour T-shirt and chaddy and also removed her chaddy and thereafter made her to lie on the ground and put his penis (popat) inside her vagina. She also stated that her daughter told her that she started crying and that her legs were paining and thereafter the accused dressed back and gave her a rupee once again and told her to go. She further stated that her daughter told her that she had purchased two chocolates for that one rupee. She further stated that at about 6 p.m. on the same day she went to the house of the accused and questioned him about the incident, but the accused denied his involvement in the case. She also stated that she had also gone to the house of the accused soon after the daughter narrated to her about the incident but at that time he was not at home and thereafter she went to the police station to file the complaint. In cross-examination she stated that on the say of incident at about 2 p.m. she had suspected the involvement of the accused in the case as the accused was giving money to her daughter as he had given money to her daughter on about four prior occasions but she had not told the accused not to give money to her daughter.

15. The victim/PW-5 who was little over five years at the time of the incident, having been born on 3/12/1999 was given competency test by the learned trial Court and after being satisfied that she was competent to depose was allowed to do so. At this stage reference to Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat (2004(1) S.C.C. 64) will not be out of place wherein the Apex Court has stated that the decision on the question whether a child has sufficient intelligence primarily rests on the trial Judge. In her version before the Court, she stated that she returned from school at 12.00 noon and her mother goes to work. Referring to the accused, she stated that she knew the accused who was residing near their house. She also stated that she was going to her grandmother's house after her school was over and on that day, on the way the accused met her, and took her to his house by catching her hand and thereafter opened the door and took her inside the house and then latched the door and thereafter took her in the kitchen and put a mat on the floor and than removed his chaddy and also her chaddy and thereafter inserted his penis in her private part and she shouted "mummy mummy" and thereafter the accused put his chaddy back and so also hers and then gave one rupee to her to buy chocolates and thereafter she went to the shop of Aslinda Rodrigues/PW-2 and purchased the chocolates and thereafter she went to her grandmother's house which is very close to her house but she did not tell anything to her grandmother about the incident and her mother came in the evening and took her in the house and she narrated the incident to her mother and thereafter her mother and she went to the police station and narrated the incident to the police. In cross-examination she did falter as regards mentioning of the colour of her frock which according to her was white and the chaddy was black when otherwise in fact the dress was purple, orange and green flower design on white background and the chaddy blue in colour. Learned Counsel on behalf of the accused submits that since the victim/PW-5 was unable to identify colours, her version cannot be accepted. In my view, considering the age of the victim/PW-5 some allowance had to be made to her in not being able to identify correctly the colour of her dress and the underwear and on that count alone her evidence cannot be discarded. Learned Counsel on behalf of the accused has also submitted that at the time of his arrest vide panchanama Exhibit 32, the accused was wearing a blue shirt and a blue long pant, as stated therein and if that is so there could not have been a blue colour T-shirt attached from the house of the accused as stated by Shaikh Isak/PW-7. Learned Counsel further submits that the tenor of the evidence of Shamshad Aktar/PW-3 asking the accused about the whereabouts of her daughter instead of first coming to her mother's place, and finding a blue T-shirt in the house of the accused as stated by PW-7, which T-shirt the accused was otherwise found wearing at the time of his arrest, point out to an attempt of falsely implicating the accused. Learned Counsel also submits that there is nothing positive in the evidence given by Dr. Madhu Ghodkirekar/PW-1.

16. In my view, none of the aforesaid submissions made on behalf of the accused can be accepted. In my view, it was absolutely normal for the mother Shamshad Aktar/PW-3 to have asked the accused, the accused being their neighbour, as to whether she had seen her daughter, when she found that the daughter was not at home, even though normally she would go to her grandmother's house. It is nobody's case, much less of the prosecution that the clothes the accused was wearing at the time of his arrest at 20.45 hrs. were attached by the police. The accused could always have another T-shirt of same colour at his house and that was attached on being pointed out by the victim/PW-5 at 17.45 hrs. in the presence of Shaikh Isak/PW-7. That nothing turned out on that T-shirt is another matter. The injuries found by Dr. Ghodkirekar/PW-1 on the victim/PW-5 as well as the accused is nothing but positive evidence which led him to arrive at the conclusion that there was recent sexual intercourse, and, as far as the injury on the accused is concerned the accused has not been able to give any explanation except to say that the evidence of Dr. Madhu Ghodkirekar/PW-1 is false, and, that could be taken as an additional circumstance in the evidence of the prosecution going against the accused.

17. This is a case where the victim/PW-5 has given a very candid version about the incident and there is no reason attributed to her as to why she should have deposed falsely against the accused. The version of Loteiro Colaco/DW-1 was hearsay and could not have been accepted. The version of the victim/PW-5 was sufficiently corroborated not only by the mother Shamshad Aktar/PW-3, but also to some extent by the neighbour Aslinda Rodrigues/PW-2 who confirmed that the victim/PW-5 had purchased two chocolates for Re. 1/- from her at about 1 p.m. on 27/09/2004. Their evidence is truthful and convincing, besides the medical evidence concludes the controversy.

18. Considering the evidence produced by the prosecution, the conviction against the accused and consequently the sentence imposed upon him could not be faulted.

19. I find there is no merit in this appeal and consequently the same is hereby dismissed. The bail bonds of the accused shall stand cancelled.

Appeal dismissed.