1 IN THE HIGH COURT OF BOMBAY, BENCH AT PANAJI-GOA. CRIMINAL APPEAL NO.70 OF 2007. APPELLANT: Mauricio D'Mello, S/o Michael D'Mello, R/o H.No.688, Dongri Raia, Salcete Goa. ..VERSUS.. RESPONDENT : State of Goa, (through P.I. Attached to Maina – Curtorim Police Station) =-=-=-===-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.Galileo Teles, Adv. For the appellant. Ms. W.Coutinho, Public Prosecutor for the respondent. ==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM: C.L.PANGARKAR,J. DATE : 02/02/2009. ORAL JUDGMENT: 1. This is an appeal by the accused,who was convicted of offences punishable under Section 376 and 342 of the Indian Penal Code. He is sentenced to undergo seven years' rigorous 2 imprisonment and fine of Rs.5000/- for having committed offence under section 376 of I.P.Code and three months simple imprisonment and fine of Rs.500/- for having committed offence under section 342 of I.P.Code. 2. The facts giving rise to this appeal are as follows - The complainant, who is a married woman lives with her children and mother-in-law at Salcete Goa. Her husband is serving in middle East. The children of the complainant usually leave for their school in the morning. She prepared them for going to the school and even gave break-fast etc. She left them at the bus stop at 8.00 a.m. and came back home. While she was cleaning the house, the accused came in under a pretext of making a telephone call. The telephone is located in the living room. After some time, the accused told the complainant that he was unable to make any telephone call since he was not getting the dialed number. He, therefore, started leaving the house. The complainant was all the while under impression that the 3 accused must have left the home. The clothes of the complainant's children were lying on the floor. She picked them up and went to the store-room to keep them in the cupboard. While she was going towards cupboard, somebody came from behind and caught hold of her. The complainant thought that it must be her mother-in-law. She was being dragged to the bed- room which is adjacent to the kitchen. When she turned back, she found that it was the accused who had caught hold of her and was dragging her towards the bed-room. The complainant tried to resist but was overpowered. She found that the front door of the house was latched inside. She shouted for help. The accused tried to gag her. Then he forcibly lifted her and put her on th bed. He lifted her and removed her panty. He also removed the brassier. The complainant in order to resist, had beaten the accused. Thereafter, the accused inserted his finger in her private part. The complainant became semi-unconscious. In the meanwhile, she heard the door being opened. The people came in and then she was shifted to hospital. She was initially 4 shifted to Hospicio Hospital, Madgaon and then to Government Hospital at Bombolim. 3. The complainant was examined by the Medical Officer. In the meanwhile, the complainant had lodged the report with the police. The accused was arrested. He too was examined by the Medical Officer. The Medical Officer found evidence of forcible sexual intercourse on the person of both complainant and the accused. The vaginal swab and the clothes of the accused and the complainant were thereafter forwarded to the Forensic Science Laboratory. The statements of the witnesses were also recorded. The complainant also gave her additional statement in the evening around 6.00 p.m. A charge-sheet was thereafter filed against the accused. The Judicial Magistrate (F.C.) committed the accused to the court of Sessions. The Sessions Judge framed charge against the accused. The accused pleaded not guilty and claimed to be tried. On consideration of the evidence, the Sessions Judge found the accused guilty of offences 5 under Section 376 and 342 of the Indian Penal Code and convicted him and sentenced as stated above. Being aggrieved by that order of conviction and sentence, this appeal has been preferred. 4. I have heard the learned counsel for the accused and the State and have perused the record. 5. A very limited controversy in fact now needs to be decided. The learned counsel for the appellant/accused submits that accused is at the most guilty of attempt to commit murder and not actual rape. He fairly concedes that the appellant/accused does not dispute that he was found inside the house and lying over the person of the complainant. According to him, even the FIR (Exh.17) only discloses an attempt and the entire prosecution story has to be accepted or rejected on the touch stone of FIR (Exh.17). There is no doubt that initially offence was registered only under Section 376 r/w 511 of the Indian 6 Penal Code. We have, therefore, only to see if the accused actually committed rape or there was merely an attempt. 6. Exh.17 is the FIR which the prosecutrix lodged after going to the Police Station at 10.30 a.m. It appears that Exh.18 is her additional statement recorded at 6.00 p.m. in the evening as is stated by PW 1 – the prosecutrix. This additional statement (Exh.18) ought not to have been exhibited since it cannot be said to be an FIR or any addition to the FIR. The Law is well settled that there could be only one FIR and there could never be successive FIRs. Any statement recorded or any information received after the information first in time has to be treated merely as a statement under Section 162 of Cr.P.C. Therefore, the contents of Exh.18, which is an additional statement could be treated only as a statement under Section 162 of Cr.P.C. and could be used only for the purpose of contradiction under Section 145 of the Evidence Act. 7 7. It was urged that the court should, therefore, consider FIR (Exh.17) only for determining the trustworthiness of the allegations of actual rape i.e. sexual intercourse. The Law is again well settled that it is always not necessary that the FIR must contain all minute details of occurrence. It can so happen that a person lodging FIR may not remember all details due to his mental state at that relevant time. In the instant case, there is no doubt that FIR does not disclose that the accused had sexual intercourse with her. The prosecutrix (PW 1) in her evidence says that she did not recollect everything when she lodged the report, as she was in shock due to the act of the accused. She says that she does not exactly remember if there was a seminal discharge. The incident had taken place at 8.30 a.m. and the report is lodged at 10.30 i.e. within two hours. It is quite probable that the prosecutrix must be under a state of trauma and shock. It is quite natural and probable by that time she may not have even regained the composure and therefore, was unable to narrate the exact incident. There is nothing 8 unnatural if she was unable to give the exact details of what had happened. If the mental state of a person undergoing a rape is taken into account, even if such person fails to disclose all details, that necessarily does not render the version of that person untrustworthy. Therefore, simply because the FIR does not disclose that there was a sexual intercourse, that itself would not be a ground to reject the testimony of the complainant. Ultimately, FIR is not the substantive piece of evidence and it need not contain all minute details. 8. Learned counsel for the accused contended before me that the prosecutrix did not tell the Medical Officer the history of sexual intercourse but only of sexual assault He invited my attention to the report of the Medical examination of prosecutrix (Exh.50). The history is recorded as follows - “Alleged h/o (as given by victim) at about 8.30 a.m. of today (6/7/2004) morning. She returned home after dropping children school, she was collecting dresses of her children which was lying 9 down on the ground. At this time, neighbour's Mauricio entered her house with pretext of making phone call. The he told her that he could not get phone. Then went towards the door, closed door, he came, caught her from behind, he took her in her bed room and then latched the room. He came back on the bed where she was placed, removed her underwear and started pressing breast and her vagina. She shouted for help. She tried for all possible defence like biting him over back and pushing him aside. Still, he continued sexual assault till people entered house after breaking the door”. 9. The doctor uses the word sexual assault. The learned counsel submits that had the prosecutrix given the history of intercourse the doctor would have so mentioned. PW 11 Dr.Madhu in cross-examination says that prosecutrix did not disclose the history of sexual intercourse but disclosed all other history. The doctor, however, does say that history of sexual assault is given. The learned counsel submits that the word 10 assault means a show of use of force alone. Assault is defined in Section 351 of I.P.C. It says assault means show of use of force. The doctor uses the word sexual assault, even when in the history the prosecutrix tells of removal of under garments, pressing her breast and even vagina. The fact is that there was more than a show of force. There was thus disclosure of use of criminal force. Apparently the doctor did not understand the difference between assault and use of criminal force. It is in her evidence that even at that time she was in a state of shock and may have again failed to disclose. The history as given to the doctor goes to show that she had told that vagina was pressed. Therefore, the question is whether it was pressed due to the insertion of his penis or his finger. It is in this background or context that the oral evidence of the prosecutrix has to be appreciated. 10. Before adverting to the evidence, it is necessary to bear in mind the law. In a decision reported in 2004(4) SCC 379 11 (Aman Kumar and anr. ..vs.. State of Haryana), the Supreme Court observes as follows - “Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The depth of penetration is immaterial in an offence punishable under Section 376 IPC. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law.” 12 11. Thus, what is necessary to be proved is slight penetration, and complete act of intercourse is not necessary. Even if a male organ enters into labia majora that can be treated as sufficient. The learned counsel for the appellant/accused submits that in the instant case, there is no evidence of such nature, available and the evidence is only in respect of insertion of a finger. 12. I have already pointed that the accused does not dispute having tried to commit a rape. This is even otherwise clear from the evidence of other eye witnesses – a rare phenomena. PW 2 Peter says that when he reached near the house of prosecutrix, he heard shouts and therefore, went inside the house. He states that he found accused in the bed-room lying over the person of the prosecutrix and PW 3-Augustine Rodrigues tried to pull him away from the prosecutrix. If the cross-examination of witness is seen, it is clear that what the witness stated in the examination-in-chief is in fact got repeated by the accused. 13 Since the very same thing is got repeated even in the cross- examination the accused does not dispute that fact. The other witnesses PW 3 Augustine, PW 4 Maria Rodrigues and PW 5 Antonette Gomes corroborated the version of PW 2 to the fullest extent and there is no difficulty in accepting their evidence, since the accused himself does not dispute his own act up to that stage. Here, however, one thing that needs to be seen is that the witnesses say that the under- garment of both prosecutrix and the accused were down below the knee. With this admitted position, the evidence of PW 1 prosecutrix is to be assessed. It is the prosecutrix alone who can, in fact, tell whether the accused had inserted the penis into her vagina or not. No other witness speaks about it nor can they tell. 13. PW 1 states that while she was in the house, the accused came from behind, caught her and dragged her in the bed room. She states that she resisted and had bitten the accused. She also states that yet the accused lifted her, threw her on the bed and 14 then lifted her frock and removed her panty. She further goes on to state that accused pressed her breast and inserted his finger in the vagina. Further, she states that the accused slept over her and had sexual intercourse with her and when she further tried to resist and shout, the accused gagged her mouth. She states that the accused continued this act for three minutes. She further states that due to this act, she became semi- unconscious and was in the shock. She also corroborates the version of PW 2, 3, 4 and 5 that they came to the spot and pulled the accused away from her. She states that she does not recollect if there was a seminal discharge. Now, this evidence clearly shows that there was a sexual intercourse. The learned counsel submits that there was only an insertion of finger since, according to him, the report of the Forensic Science Laboratory does not show any traces of spermatozoa in the vaginal swab. The report of F.S.L. shows that no spermatozoa was found in vaginal swab. But, it has to be borne in mind that the witness does not say in her evidence that there was any seminal 15 discharge. If there is no evidence of seminal discharge, there was no question of there being any spermatozoa or semen found on the person of the prosecutrix or in the vaginal swab. On the other hand, the evidence of the prosecutrix is completely corroborated by the medical evidence. The medical certificate (Exh.50) in respect of the prosecutrix shows that there was forcible sexual intercourse. The injuries, which were fresh, were found on the genitals suggesting forceful sexual intercourse. The doctor specifically says that there was a forceful sexual intercourse. The certificate of examination of accused is at Exh.49. It shows that a bruise was found on the penis of the accused which was red and tender. The doctor even found the evidence of forceful sexual intercourse. Thus, the evidence of forceful sexual intercourse is not only to be found on the person of prosecutrix but even the accused. Although the accused has stated in his statement under Section 313 of Cr.P.C. that he was assaulted by police on his private part, no such suggestion is even put to the Investigating Officer (PW 12) Gajanand. Thus, 16 the defence as set up does not appear to be probable and true. On the other hand, the evidence of the prosecutrix shows that inspite of the resistance, the accused did the act and that evidence explains the injuries on the person of the prosecutrix as well as the accused. The other injuries on person of prosecutrix further corroborate her version. There is manner of doubt that the accused did commit sexual intercourse against the will of complainant. 14. If the evidence of the prosecutrix is seen, there is no contradiction or omission which is proved. The Additional statement (Exh.18) cannot be read in evidence at all. It was contended that the evidence of the prosecutrix is untrustworthy since she contradicts her statement and fails to give the complete history initially. We have already dealt with this aspect as to why disclosure of the complete history while filing the FIR cannot be treated to be fatal or sufficient to reject the testimony of the prosecutrix. In the circumstances, the 17 decision relied upon by the learned counsel for the accused reported in 2008 ALL MR (Cri) 2514 (Sanjay Shriram Joshi .vs. State of Maharashtra has no bearing on the case at hand. 15. The learned Public Prosecutor for the respondent/prosecution submits that the accused had made an extra judicial confession to a doctor. I do not propose to deal with that aspect since I find other evidence sufficient to hold the accused guilty and confirm the judgment of the sessions Judge. I need not, therefore, look into the decision reported in (1997(1 SCC 272 (State of A.P. ..vs.. Gangula Satya Murthy) . 16. The learned Sessions Judge has rightly appreciated the evidence on record. The conviction of the accused does not suffer from illegality or infirmity and therefore, needs to be confirmed. 17. It was contended that the accused is a young boy of 21 18 years and therefore, the court may take a lenient view. It was further contended that an opportunity to reform may be given to the accused and he may be released on the sentence, already undergone by him. It was submitted that he is in custody since July, 2004. A decision reported in (1979)4 SCC 413 (Phul Singh .vs.. State of Haryana) was relied on in support of the contention that even in such cases the accused needs to be dealt with compassionately. In this regard, I may mention that the section itself mandates that the court may impose less punishment than minimum prescribed for special and adequate reasons. In the instant case, there are no special or adequate reason. In the reported case, the parties were closely related i.e. cousins, and the victim had forgiven the accused. It was in those circumstances, the lenient view was taken. On the other hand, it may be mentioned here that the Supreme Court in the following decision has come heavily on the courts for reducing the sentence to less than minimum prescribed. See decision reported in (2005)8 SCC 12 (State of M.P. .vs.. Dayanand 19 Dohar). I do not find that there are extenuating circumstances to reduce the sentence. In the circumstances, I do not find any substance in the appeal. It is dismissed. JUDGE chute