Criminal Appeal No.72 of 2009

29th March, 2011

Petitioner Counsel: Mr. M. S. JOSHI
Respondent Counsel: Mr. G. TELES

Cases Cited:
Md. Kalam Vs. The State of Bihar, 2008 ALL MR (Cri) 2892 (S.C.)=2008(7) SCC 257 [Para 6]
State of Maharashtra Vs. Rajendra Jawanmal Gandhi, 1997 ALL MR (Cri) 1767 (S.C.)=(1997)8 SCC 386 [Para 6]
Koppula Venkat Rao Vs. State of A.P., (2004)3 SCC 602 [Para 6]
Aman Kumar Vs. State of Haryana, (2004)4 SCC 379 [Para 7,24]
Sou. Vijaya Alias Baby Vs. State of Maharashtra, (2003)8 SCC 296 [Para 7,24]
Maloji N. Patil Vs. State of Goa, 2009 ALL MR (Cri) 1118=2009(1) AIR Bom.R. 264 [Para 27]

JUDGMENT

JUDGMENT :- Heard Mr. Joshi, learned Special Public Prosecutor for the appellant and Mr. Teles, learned Counsel for the respondent.

2. By this appeal preferred by the State of Goa under Section 377 of Cr.P.C., the appellant takes exception to the judgment and order dated 5th December, 2008 on the ground that the sentence imposed on the respondent is inadequate. By the impugned judgment and order, the respondent has been convicted for the offence punishable under Section 376 read with Section 511 of I.P.C. and Section 8(2) of the Goa Children's Act, 2003 ('The Act' for short) and sentenced to undergo R.I. for two years and to pay fine of Rs.5,000/-.

3. Indisputably, the respondent has undergone substantive sentence imposed upon him and he has not paid fine. The respondent was prosecuted for the offence punishable under Section 376 read with Section 511 of I.P.C. and Section 8(2) of The Act for having committed rape on the prosecutrix on 2.10.2004 at about 4.00 p.m. at Chinchawada, Ambaulim in the veranda of Anganwadi school. The prosecutrix was aged about 7 years at the time of commission of offence. The First Information Report was lodged by the mother of the prosecutrix on 3.10.2004 at Quepem Police Station. Pursuant to the report lodged by the mother of the prosecutrix, investigation was taken out by officer in-charge of Quepem Police Station, who conducted spot panchanama, attached the clothes of the prosecutrix which according to prosecution, were stained with semen. The statements of several witnesses were recorded. The accused was arrested on 3.10.2004. The articles seized were sent for analysis. The prosecutrix and the accused were referred for medical examination to Dr. Madhu Ghodkirekar-PW-3.

4. After completion of investigation, the charge-sheet was filed against the accused for the offence punishable under Section 376 of I.P.C. and Section 8(2) of The Act.

5. In Special Case No.19/2005 before the Children's Court, the prosecution examined 7 witnesses. The defence of the accused was of total denial. The statement of the accused under Section 313 of Cr.P.C. was recorded. The accused did not lead any evidence. The learned Children's Court upon appreciation of the evidence led by the parties, held the accused guilty as stated above and sentenced him as mentioned hereinabove.

6. Mr. Joshi, learned Special Public Prosecutor submitted that the sentence imposed on the accused is inadequate and considering the nature of the crime committed and the fact that the prosecutrix was hardly 7 years of age, the Children's Court erred in awarding light punishment. Mr. Joshi further submitted that the Children's Court ought to have awarded sentence of five years Rigorous Imprisonment upon the accused considering the age of the prosecutrix and the manner of commission of the offence. In support of his submissions, Mr. Joshi placed reliance upon the following judgments :

(i) Md. Kalam Vs. The State of Bihar; 2008(7) SCC 257 : [2008 ALL MR (Cri) 2892 (S.C.)].

(ii) State of Maharashtra Vs. Rajendra Jawanmal Gandhi; (1997)8 SCC 386 : [1997 ALL MR (Cri) 1767 (S.C.)].

(iii) Koppula Venkat Rao Vs. State of A.P.; (2004)3 SCC 602.

7. Mr. Teles, learned Counsel for the respondent/accused submitted that since the appeal is preferred under Section 377 of Cr.P.C., the accused is entitled to argue for acquittal. Learned Counsel further submitted that the entire evidence led by the prosecution does not establish the commission of offence of attempt to commit rape and, therefore, conviction of the accused for the said offence is unsustainable in law. He further submitted that at the time of commission of the alleged offence, rape was not included in the definition of sexual offences and it was introduced only by way of amendment in the year 2005 and as such, the accused could not have been charged for the offence punishable under Section 376 of I.P.C. and consequently, could not have been convicted for the offence of attempting to commit rape. He further submitted that the evidence on record does not establish any attempt on the part of the accused to commit any offence under The Act by placing reliance upon the provisions of the Act. Referring to the evidence led by the prosecution, Mr. Teles submitted that the evidence led by the prosecution does not establish that any offence of attempting to commit rape on the prosecutrix by the accused was committed. According to the learned Counsel, at the most, offence under Section 354 of I.P.C. is made out against the accused and, therefore, the impugned order is liable to be quashed and set aside thereby acquitting the accused for the offence punishable under Section 376 read with Section 511 of I.P.C. and Section 8(2) of The Act. In support of his submissions, Mr. Teles placed reliance upon the judgment of the Apex Court in the case of Aman Kumar and another Vs. State of Haryana; (2004)4 SCC 379 and Sou. Vijaya Alias Baby Vs. State of Maharashtra; (2003)8 SCC 296.

8. Mr. Joshi, learned Special Public Prosecutor, in rejoinder, submitted that since the application for condonation of delay filed along with the appeal by the respondent/accused has been dismissed by this Court by order dated 22nd September, 2009, the respondent/accused is not entitled to urge that he is entitled to be acquitted for the offences for which he has been convicted.

9. I have carefully considered the rival submissions and perused the record and the judgments relied upon.

10. In view of the rival submissions, the following points arise for determination in this appeal :

(i) Whether the respondent/accused is entitled to contend in this appeal that he is entitled to be acquitted for the offences for which he has been convicted ?

(ii) What offence is made out against the respondent/accused ?

(iii) Whether the sentence imposed on the respondent/accused is inadequate ?

11. I am not inclined to accept the submission of Mr. Joshi, learned Special Public Prosecutor that the accused is not entitled to urge that he is entitled to be acquitted of the offences for which he has been convicted in as much as in the order dated 22nd September, 2009, the learned Judge while dismissing the application for condonation of delay has held that the appellant (the respondent herein) is entitled for the remedy as provided by subsection 3 of Section 377 of Cr.P.C.. This being the position, the respondent/accused cannot be deprived of his right to urge that he is entitled to be acquitted for the offences for which he has been convicted in the appeal preferred by the State under Section 377 of Cr.P.C.. I, therefore, hold that the respondent is entitled to urge that evidence on record does not establish the offences for which he has been convicted by the trial Court.

12. The next two points are interrelated and, therefore, I would deal with them together.

13. As stated above, the prosecution has led the evidence of seven witnesses in support of its case i.e. to prove the charge under Section 376 of I.P.C. and Section 8(2) of the Act. The trial Court upon appreciation of the evidence has held that the evidence of the prosecutrix and her mother coupled with the evidence of PW4 Pascoal Rebello, the neighbour of the prosecutrix clearly establishes that the accused attempted to commit rape upon the prosecutrix. The evidence of the prosecutrix -PW-2 which was recorded after conducting competency test, establishes that on 2.10.2004 in the evening when prosecutrix was playing near her grand-mother's house at about 4.00 p.m., the accused, who was her neighbour offered her bread and vegetables and which she did not eat; thereafter the accused pulled her towards the Balwadi and in the gallery of Balwadi, the accused removed her underwear and lifted the frock of the prosecutrix and after removing his pant, he slept over the prosecutrix. Thereafter prosecutrix started crying and at that time one lady reached there and said 'Konn rodta'. The said lady has been identified to be Pascoal Rebello-PW-4, who was prosecutrix's neighbour. Thereafter, the accused started running by taking his pant. She saw that some white liquid had falled on her and she felt something was poking on her private part. She thereafter took her underwear and wore it and went to the tap. She returned home. Thereafter at 7.00 p.m. she was questioned by her mother, she told her all the details. She identified the accused in the Court. In the cross-examination, she stated that since her mother would have beaten her, she did not on her own tell the incident to her mother when she reached home at 4.30 p.m. before Quaitan came. She further stated that when her mother had inquired with her how her clothes were dirty then she told her that they were dirty with the cow dung in the Balwadi. No doubt, on behalf of the accused, suggestions have been put to the effect that prosecutrix has made up false case against the accused. However, upon close scrutiny of the evidence of this witness, I do not find any infirmity to disbelieve her version that it was the accused, who attempted to commit rape. Her statement that she felt that something was poking on her private part clearly proves attempt to commit rape by the accused on the prosecutrix.

14. The evidence of the mother of the prosecutrix-PW-1 is in consonance with the evidence led by the prosecutrix on material aspects. She also deposed regarding the incident which had been conveyed to her by her daughter later at about 8.00 p.m. on the same day. She further stated that she was knowing the accused since he was their neighbour and he was coming to their house to watch T.V. programmes. She also identified the accused. She also stated that she had filed report at Quepem Police Station next day at about 4.00 p.m. and she identified the report at exhibit 26. The prosecutrix and this witness also identified the clothes of the prosecutrix i.e. MO1 and MO2. In cross-examination, nothing tangible has been brought on record to discredit her version. Except for putting suggestion on behalf of the accused no dent has been made in the cross-examination of this witness.

15. Evidence of Pascoal Rebello-PW-4 discloses that in the year 2004 at about 4.00 p.m. when she was in her house, she heard cries of a child in the veranda. When she came in the varanda and she noticed one boy by name Joaquim (accused) passing in naked condition. She identified the accused. She further deposed that she heard one girl crying near Balwadi school and she went there and enquired with the girl as to why she was crying, but she did not tell anything. She identified the girl. The girl was daughter of Joaquim Rebello and Lawrencinha Rebello. In the cross-examination, she reiterated that she had seen the accused coming out from the Balwadi school in a naked condition and he went walking towards the side of his house. Thereafter, she went towards the victim girl and at that time the girl was wearing clothes. The witness insisted that when she saw the accused, he was completely naked. The witness has denied the suggestion put on behalf of the accused that she was deposing falsely. Close scrutiny of the evidence of this witness, substantially corroborates the evidence of the prosecutrix and her mother on material aspects.

16. The evidence of Tara Kerkar-PW-5 establishes that the report was lodged in her presence and the victim was examined in her presence at medical college.

17. Umesh Patekar-PW-6 is a panch for scene of offence and for seizure of the clothes worn by the prosecutrix at the time of commission of the offence. His evidence has corroborated by two panchanamas i.e. scene of offence exhibit 46 and attachment panchanama exhibit 47.

18. Siddhant Shirodkar, P.S.I.-PW-7 attached to Quepem Police Station, has deposed about the various steps taken in the investigation. His evidence also proves the attachment of underwear of the accused on 3.10.2004.

19. The evidence of Dr. Madhu Ghodkirekar-PW-3 discloses that on 3.10.2004, he conducted medical examination of victim girl in the presence of Dr. Philomena D'Souza and he did not find any positive signs of recent forcible sexual intercourse. He produced report exhibit 34 and identified his signature on the same. He also carried out medical examination of the accused on 3.10.2004 on the same day and he found that there were no positive signs of recent forcible sexual intercourse. He identified the signature on the report exhibit 36 and confirmed its contents as correct. He also found linear bruise of 6x1 cm on left knee of the accused with tenderness present. The accused was examined by Dr. Vishal. He identified the signature of Dr. Vishal at Point B in the report exhibit 38.

20. The evidence of the prosecution referred to above clearly proves that on 2.10.2004, the accused attempted to commit rape on the prosecutrix by undressing himself and the prosecutrix.

21. The evidence on record establishes beyond reasonable doubt that the accused attempted to commit rape on the prosecutrix. The oral evidence led on behalf of the prosecution is corroborated by the presence of semen on the clothes of the prosecutrix as well as the underwear of the accused as disclosed in DNA report exhibit 61 colly.

22. Section 30 of The Act provides that subject to the provisions of The Act, the Children's Court shall have jurisdiction to try all offences against the children whether such offences are specified under this Act or not. This being the position, in my considered opinion, the learned Special Judge had jurisdiction to try an offence of rape against the accused although it was not specifically included in the definition of 'grave sexual assault' in terms of Section 2(y)(i) of The Act. The act of attempting to commit rape on the victim would also constitute sexual assault as defined under Section 2(y)(ii) of The Act. As stated above, the evidence of the prosecutrix clearly discloses that the private part of the accused touched the body of the prosecutrix and, therefore, there is no doubt that sexual assault as defined under Section 2(y)(ii) is clearly made out.

23. Thus, upon reappreciation of the entire evidence, I have no hesitation to hold that the prosecution has been able to establish beyond reasonable doubt offence under Section 376 read with Section 511 of I.P.C. and Section 8(2) of The Act.

24. I shall now deal with the authorities cited on behalf of the respondent/accused.

In the case of Sou. Vijaya (supra), the Apex Court held that although in a given case the defective charges does not vitiate the trial, but in the instant case, the omission was vital and the substance of accusations was totally different from what was sought to be established by the prosecution and there was no evidence to establish the essential ingredients of relevant Section. In this factual background, the Apex Court acquitted the appellant for the offence punishable under Section 201 of I.P.C. The ratio of the said judgment does not advance the case of the respondent/accused in as much as the charge against the respondent/accused was that he had committed rape on the prosecutrix and the evidence led by the prosecution clearly established that an offence attempting to commit rape on the prosecutrix was established against the respondent/accused.

In terms of Section 222, sub-section 3 of Cr.P.C., the accused who is charged with an offence can be convicted for attempt to commit the said offence, though the attempt is not separately charged. Moreover, as stated above, the evidence led by the prosecution clearly establishes an offence of sexual assault in terms of Section 2(y)(i) of The Act which is a minor offence as compared to Section 376 of I.P.C.. Therefore, I do not find any legal infirmity in the impugned order passed by the learned Children's Court in so far as the conviction is concerned.

In the case of Aman Kumar (supra), the Apex Court held that in order to find the accused guilty of attempt to commit rape, the Court has to be satisfied that the accused, when he caught hold the prosecutrix, not only desired to gratify passions upon her person but that he intended to do so at all events and notwithstanding any resistance on her part. The evidence on record clearly proves beyond reasonable doubt that the intention of the respondent/accused was to commit rape on the prosecutrix which he could not accomplish. Therefore, the ratio of this judgment also does not help the respondent/accused.

25. The next question which arises for consideration is whether the sentence imposed on the accused is inadequate. At this stage, it would be appropriate to refer to Section 26 of the General Clauses Act, 1897, which reads thus:

"26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."

26. In view of Section 26 of the General Clauses Act, it is evident that an accused can be prosecuted for both the offences under Indian Penal Code as well as under The Act. However, he cannot be punished twice for the same offence.

27. Considering that the accused was tried by the Children's Court, I am of the considered opinion that it would be appropriate to impose sentence on the accused provided under Section 8(2) of The Act. Section 8(2) of The Act provides for a sentence of imprisonment of either description for a term that may extend to 3 years and fine of Rs.1,00,000/- for the offence of sexual assault. The Children's Court has awarded sentence of rigorous imprisonment for two years on the accused which admittedly the accused has undergone. In so far as imposition of fine of Rs.5,000/- by the Children's Court is concerned, I find that the same is patently unsustainable in law, in view of the ratio laid down in the judgment delivered by the learned Single Judge in the case of Maloji N. Patil Vs. State of Goa; 2009(1) AIR Bom.R. 264 : [2009 ALL MR (Cri) 1118] in which the learned Single Judge of this Court has held that in the case of sexual assault punishable under Section 8(2) of The Act, the Children's Court has no jurisdiction to impose fine less than Rs.1 Lac. I am in respectful agreement with the view taken by the learned Single Judge in the said case. Therefore, imposition of fine of Rs.5,000/- by the Children's Court is patently unsustainable in law. The accused is liable to be punished with fine of Rs.1 Lac for the said offence. In so far as imposition of substantive sentence of imprisonment is concerned, I do not find any ground to interfere with the sentence since the Children's Court has exercised its discretion in awarding the said sentence and it is settled law that the appellate Court should not normally interfere with the sentence unless it is totally inadequate or contrary to law.

28. In view of the above, I do not deem it necessary to refer to the authorities relied upon by Mr. Joshi in support of his submission that the respondent/accused deserves to be awarded higher punishment for the offence punishable under Section 376 read with Section 511 of I.P.C..

29. In view of the above discussion, the appeal is partly allowed. The sentence of two years rigorous imprisonment for the offence punishable under Section 8(2) of The Act and Section 376 read with Section 511 of I.P.C. is maintained. However, fine amount is increased to Rs.1 Lac.. In case of default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.

30. Mr. Teles, learned Counsel for the respondent/accused seeks time of eight weeks to pay the fine.

31. The respondent/accused is granted time of eight weeks to pay fine amount. In case fine amount is not paid within eight weeks, the learned Children's Court shall take appropriate steps to take the accused into custody and to undergo the sentence in default of payment of fine.

32. The bail bond executed by the respondent/accused shall stand discharged only after payment of fine.

33. The appeal stands disposed of accordingly.

Appeal partly allowed.