1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 24 OF 2010 Sampatrao Hegde, S/o Maruti Hegde, aged 44 years, Occupation: Labour, r/o C/o Baby Mascarenhas, New Vaddem, Vasco da Gama, Goa, currently in custody at Sada Sub-Jail, Vasco da Gama, Goa. ... Appellant versus The State of Goa, through the I.O., P.S.I. Shri S. L. Kamble, Vasco Police Station, Vasco, Goa. ... Respondent Shri Ryan Menezes, Advocate for the Appellant. Shri C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 14TH SEPTEMBER, 2010. ORAL ORDER This appeal is by the accused who has been convicted and 2 sentenced under Section 8(2) of the Goa Children's Act, 2003 by Judgment dated 15-12-2008 of the learned Children's Court, Panaji. 2. The accused was sentenced under Section 8(2) of the said Act to undergo Rigorous Imprisonment of two years, and to pay a fine of Rs.1,00,000/-, and in default of payment of fine to undergo further Rigorous Imprisonment of six months. The accused has undergone the sentence imposed upon him after availing remissions, and was released from jail on 3-6-2010. 3. The accused was charged and tried with the allegation that on 13-7-2008 at about 3.00 p.m. at his own house at New Vaddem, Vasco da Gama, the accused committed an offence under Section 8(2) of the said Act r/w Section 354 I.P.C. by fiddling with the breasts of his own daughter PW2 who at the relevant time was of about 15 years and 11 months of age, and, therefore a child within the meaning of the said Act. 4. The accused pleaded not guilty. The prosecution in support of the charge examined four witnesses including PW2/victim(name withheld), the daughter of the accused and PW3/Sangeeta, the wife of the accused. 5. The defence of the accused was that his wife and daughter had deposed falsely against him because his wife was friendly with one contractor, 3 and the accused had objected to the said friendship. The accused did not examine any witnesses in support of the defence. 6. The learned Children's Court has accepted the evidence of the prosecution witnesses particularly PW2/victim, the daughter, and PW3/Sangeeta, the mother of PW2 and wife of the accused and convicted the accused, as aforesaid. In fact, the learned Children's Court has observed that there was no reason why a daughter would falsely implicate her own father unless the incident had actually taken place. Regarding the evidence of PW3/Sangeeta, the learned Children's Court has observed that she supported PW2/Sujata in all respects about the incident on that afternoon, and about the intention of the accused expressed to the mother. 7. Shri Ryan Menezes, learned Counsel appearing on behalf of the appellant/accused submits that the prosecution examined PW1/Dr. Ghodkirekar who proved certain injuries on PW2/Sujata but these injuries were not spoken to by PW2/Sujata herself or for that matter by PW3/Sangeeta, and that apart, they were found on a part of the body which was not transgressed. Learned Counsel, therefore, submits that the evidence of PW1/Dr. Ghodkirekar has got to be considered as hearsay evidence. 4 8. Shri C. A. Ferreira, learned Public Prosecutor on the other hand, submits that the version of PW1/Dr. Ghodkirekar is consistent with the version of PW2, the victim and therefore the version of PW2/victim is corroborated by PW1/Dr. Ghodkirekar. According to the version of PW1/Dr. Ghodkirekar, he examined PW2/victim on 15-7-2008 on the request of P.S.I. Madkaikar, and he found that there were two bruises, both on the lower eyelid, and two abrasions, one on the bridge of the nose and the other on the left forearm, and according to him, these injuries were caused by blunt force and were about two days duration. PW1/Dr. Ghodkirekar further stated that PW2/victim had stated to him that the said injuries were caused to her when she was assaulted by her father and while she resisted him while he was pressing her breasts. In my view, the submission made on behalf of the accused that the evidence of PW1/ Dr. Ghodkirekar is hearsay needs to be accepted because PW2/victim has herself not spoken to as regards the said injuries but that is not the end of the matter. 9. PW2/victim who was over 15 years of age at the time of incident had deposed that 13-7-2008 was a Sunday, and she was at home at about 3.00 p.m. along with her parents, sister and brother. She had deposed that there were two rooms to their house, one being a kitchen and the other being a hall, and there was a veranda outside it. She had also deposed that after washing utensils she was sleeping in the hall and her father also slept in the same room 5 next to the door and on that day, he had come home in the afternoon after consuming alcohol, and at about 3.00 p.m. her father, the accused, came near her and put his hands and legs over her body and caught her tight and started pressing her breasts, and she got up from the floor screaming and went towards the door, and at that time the accused caught hold of her maxi i.e. the gown and she escaped, and at that time, her mother asked her as to what had happened and then she told her mother the acts done by her father, and her mother went inside the house and started questioning the father upon which the accused told her that he wanted to sexually assault her. She stated that at the relevant time, her sister and brother were also around her and thereafter her mother filed a complaint on 14-7-2008. 10. PW3/Sangeeta, the mother of the victim, had stated that her husband, the accused, was in a habit of drinking alcohol and on that count, he often abused them in filthy language, and assaulted them and harassed their daughter PW2/Sujata. She also stated that on 13-7-2008, on a Sunday, in the afternoon time, she and her husband were at home and after having lunch she was sitting outside the house in the veranda, taking lice from her younger daughter Amruta and at that time, her husband and PW2/Sujata were separately sleeping, and at around 3.00 p.m. she heard the shouts of PW2/victim and she went near the door of the house when she saw her husband was sleeping near the place where her daughter PW2/victim was 6 earlier sleeping and on seeing her, PW2/victim came in running towards her and she told her that her husband, had slept next to her, caught her tightly and fiddled with her breasts, and that she managed to escape from his arms and then she asked the accused what he had done and he told her that he will rape PW2/victim. She also stated that PW2/victim had also told her that earlier on two or three occasions, the accused had tried to molest her but out of fear she did not disclose the incident to anybody, and on 14-7-2008 she lodged the complaint at Vasco Police Station, which she produced and the same was taken on record and marked Exh.15. In cross-examination, PW3/Sangeeta admitted that she knew one contractor by name Satish who had helped her and her husband to get the rented room at New Vaddem, and in that connection, the said contractor had visited their landlady twice. However, she denied the suggestion that the said contractor was visiting their room and the accused had objected to the same, and due to the objection she and the daughter had fabricated the incident against the accused. Although, PW2/victim, in further cross-examination had admitted that she and her daughter were having mobile phones, not even a suggestion was put to them that they had got the said mobile phones from the said contractor. 11. Shri Menezes, learned Counsel next has tried to point out certain discrepancies in the evidence of PW2/victim, and her mother PW3/Sangeeta. According to the learned Counsel, if PW3/Sangeeta stated before the Court 7 that she was taking the lice from the hair of Amruta, PW3/Sangeeta had stated in the F.I.R.-Exh.15 that it is Amruta who was taking the lice out of her hair. Apart from this discrepancy being trivial, it cannot be used by the accused, in the absence of the same being put to PW3/Sangeeta and seeking her explanation. Next, learned Counsel submits that PW3/Sangeeta in her F.I.R. had stated that PW2/victim had told her later that on two or three earlier occasions the accused had tried to molest her but that is not a version that she gave before the Court, and her version was that, that version was given when PW2/victim complained about the incident. Further, learned Counsel submits that there are also discrepancies as to where the mother was at the time when the incident took place as well as, as to how the mother reacted hearing the shouts and all these inconsistencies coupled with the absence of narration of injuries by PW2/victim to PW1/Dr. Ghodkirekar points out to the falsity and concoction of their versions. 12. In my view, the discrepancies sought to be highlighted on behalf of the accused by learned Counsel are too trivial and inconsequential so as to reject the versions given by PW2/victim and PW3/Sangeeta against their own father and husband, respectively. PW2/victim was a grown up daughter of the accused. From the evidence of PW2/victim and PW3/Sangeeta, it clearly comes out that while the former had gone to sleep in the hall, the latter was outside the house taking out lice from the younger daughter's hair. Their 8 evidence also brings out the fact that immediately after the incident, PW2/victim came towards the front door and obviously because her mother was outside the house at that time and when her mother asked her as to what had happened she narrated the incident to her and thereafter the mother went and questioned the accused about the incident. Whether PW2/victim had told her mother PW3/Sangeeta that the accused had tried to molest her soon after the incident or a little later would again be of no consequence. The evidence of PW2/victim as well as that of PW3/Sangeeta, the mother, is consistent and convincing on the major aspects of the case, and there is no reason, as rightly pointed out by the learned Children's Court as to why they should have deposed against the accused. A mere suggestion that both PW2/victim and PW3/Sangeeta were close to the contractor who had given them gifts was not sufficient to discard their evidence. The suggestions have not been able to make any dent into their evidence. 13. Consequently, I find there is no merit in this appeal and the same is hereby dismissed. N. A. BRITTO, J. RD