1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.45 OF 2009 Mr. Danis Assis D'Souza, S/o Anton D'Souza, Resident of H.No.Not known, Cuche Bhat, Anjuna, Bardez Goa, Native of Gundibala, Honnawar, Karwar, Karnataka State. …. Appellant V/s State of Goa, Through Public Prosecutor, Panaji, Goa. …. Respondent Mr. Mahesh Amonkar, Advocate for the Appellant. Mr. C.A. Ferreira, Public Prosecutor for the Respondent. CORAM : N.A. BRITTO, J. DATE : 30th JUNE, 2010 JUDGMENT : This appeal is filed by the accused who has been convicted and sentenced under Section 376 IPC, by the learned Additional Sessions Judge, Panaji-Goa, by judgment dated 2.3.2009. 2. The accused was charged and tried with allegation that on 18/07/2007, between 18.30 hrs. to 18.45 hrs., he committed rape on PW8/the victim (name withheld) inside her residential hut situated near the crematorium at Badem, Assagao, Goa. 3. Chandralekha Pawar, a deaf and almost dumb woman had two 2 children. One is the victim who was about 20 years of age and the other a son by name Shailesh, who was working for a bakery in Candolim. They were abandoned by the husband, father, respectively and were residing in a hut near the crematorium at Badem, Assagaon. 4. The accused was a baker, who went about selling bread in the said locality for about one and half month prior to the incident. On the date of incident, PW8/the victim was alone in the house while her mother, the said Chandralekha had gone for work. She returned at about 7.30 p.m., when the incident which had taken place was narrated to her by PW8/the victim, whereupon she went to the house of PW1/Digambar to call her son from Candolim and as he was taking long, her brother was called by name PW10/Mahableshwar and after his arrival, PW8/the victim was taken to the police station where a complaint was lodged. The victim and the accused were then sent for medical examination and were examined by PW4/Dr. Andre Fernandes, who found injuries on the persons of the accused and the victim and opined that there was evidence of forcible sexual intercourse. 5. In the trial which followed, prosecution examined 11 witnesses and produced certain documents like reports from CFSL etc. The case of the accused is that he was falsely implicated; an attempt was made to suggest that false implication was due to rivalry between the accused 3 and the said Shailesh, the brother of PW8/the victim. However, in the course of arguments what was argued before the learned trial Court is that the accused had sexual intercourse with PW8, the victim, with her consent, and that is also the plea which has been put forward before this Court. 6. If the mother of PW8/the victim was deaf and dumb, the mental and physical condition of the victim does not appear to have been very good either and a note of this condition was taken by the learned Additional Sessions Judge and, in my view, rightly in appreciating her evidence. As stated by her uncle, the said PW10/Mahableshwar, PW8/the victim was always staying at her home as she was suffering from fits and on that account she was timid and weak. PW8/the victim herself had stated that she suffered from fits and due to fits she was not able to remember all the facts. The learned Additional Sessions Judge has taken note of the fact that the evidence on record clearly showed that the father of the victim girl had abandoned the family; the mother of the victim girl was dumb and she could only make the few sounds and could not speak; that the said mother worked as a servant in other peoples houses; that the victim girl suffered from fits and was physically weak and timid; Shailesh, the brother of the victim did not stay daily at their hut, as he worked in a bakery at Candolim and came home sometimes after 15 days and sometimes after a month and therefore the said factors 4 had to be taken into consideration in appreciating the evidence of prosecution. 7. Be that as it may, PW8/the victim has given the narration as regards the incident. It could be that she has stated a few facts incorrectly and one of them is that she did not know the accused previously. There is sufficient evidence on record to suggest that the accused was visiting the locality as a baker for about one and half month which fact ought to have been known to the victim, but on that count her entire version cannot at all be disbelieved, which version is otherwise corroborated by PW1/Digambar, to whom the mother of the victim went after she returned home, and when she saw her daughter still lying down, and then called her son and as he did not come for a long time the said Chandralekha told him to call her brother the said PW10/Mahabaleshwar, whereupon he went to his house and brought him along with him to the house of the victim. It is quite possible that the said mother of the victim did not tell PW1/Digamber what had transpired at her house due to her inability to communicate, but the fact remains that she was frantically in search of her son and then her brother which showed that something terribly wrong had taken place at her house. The fact that the accused, after the incident was still talking to PW1/Digamber cannot go against the case of the prosecution for it is quite probable that the accused wanted to give an impression to 5 PW1/Digamber that nothing wrong had taken place. 8. PW8/the victim in her evidence has stated that on 18/07/2007 her mother returned from work at about 12.30 p.m. and then went back to the house of her maternal uncle. She stated that at about 6.15 p.m. the accused who is a bread seller came and asked her whether her mother was there and she told him that she was not there and therefore accused caught hold of her mouth and prevented her from shouting and then tied the door of the hut and then put the mat on the floor and pushed her on the mat and then removed his short jeans pant, then tore her maxi at the back and then brought her underwear down and then inserted his pennis into her private part and forcibly raped her. She stated that blood started coming from her private part. She further stated that after the incident, she was shocked, was unable to get up and kept lying on the floor and as a result of the incident, she was unable to speak and when her mother came, she noticed her condition and saw her bleeding and she found that she was unable to speak. Her mother went to the house of the said Deepika i.e. daughter of PW1/Digamber. She stated that she had not seen the accused earlier. Giving further details of the incident, she stated that the accused after coming in, tied the door of the hut and she further stated that at this time she did not shout. Further, she stated that accused removed his clothes and tore her clothes and brought down her underwear by his right hand, but she did not obstruct him from 6 removing his clothes or her clothes. She further stated that after the rape, the accused remained inside the house for about 15 minutes. 9. Shri Amonkar, the learned Counsel appearing on behalf of the accused has submitted that the conduct of the PW8/the victim, in not raising any protest when the accused closed the door of the hut or when he removed his or her clothes and yet the victim offered no resistance or raised shouts, point out to the fact that the accused had sex with PW8/the victim with her consent. Learned Counsel further submits that the fact that the accused waited for another 15 minutes further fortifies the plea of consent. Learned Counsel, therefore submits that since the sexual intercourse by the accused with PW8/the victim was consensual, there could be no offence of rape committed by the accused. Learned Counsel referring to the evidence of PW1/Digamber submits that if the victim had told her mother that the accused had committed rape on her and the mother had seen the accused near the house of PW1/Digamber, it is but natural that she would have told PW1/Digamber what the accused had done to her daughter and would have told PW1/Digamber to catch him. Learned Counsel submits that the conduct of the mother of the victim also shows that the sexual intercourse by the accused with PW8/the victim was with her consent. 10. Shri Ferreira, the learned Public Prosecutor, on the other hand, 7 submits that the victim was in such a shocked and bleeding state that she was not even able to get up and this circumstance shows that she was totally zapped with what had happened to her. Learned Public Prosecutor further submits that the evidence of PW8/the victim that sexual assault was forceful and against her will, is a case which is also corroborated by PW4/Dr. Andre Fernandes. Learned Public Prosecutor further submits that it is not only PW8/the victim in this case, but also the accused who were found with injuries on their persons, particularly, on their private parts and that is yet another indication that the sexual intercourse by the accused was against her will and without her consent. 11. In my opinion, the submissions made by Shri Amonkar, the learned Counsel on behalf of the accused that this is the case of sexual intercourse with consent of PW8/the victim cannot at all be accepted and has been rightly rejected by the learned Trial Court. As already observed by the learned Additional Sessions Judge, the arguments advanced would have assumed significance in case of a girl who was having a normal family background and who was otherwise physically fit and mentally sound. This is not the case at hand. PW8/the victim might have not even known as to what was at hand or what was the intention of the accused when he entered their hut and tied the door of the hut. It is true that she could have screamed and protested but mere silence on that score is not sufficient to discard her evidence, which is 8 otherwise convincing and trustworthy. That the accused waited for about 15 minutes cannot be mathematically construed. It is quite probable that the accused took some more time to dress himself and then go away from the house; and then picked up a conversion with PW1/Digamber only to give an impression that he had not indulged in anything which was wrong. In fact, not even a suggestion was put to PW8/the victim that she had developed any friendship with the accused who was selling bread in the locality and it is more probable that because he was a bread seller that she told the accused that her mother was not there and allowed him to enter the house not knowing the intention of the accused. The medical evidence produced by the prosecution belies the story of consent. So also the evidence of PW1/Digamber as well as that of PW8/victims mother, even if that was to be considered in absence of her examination. She asked the accused to disappear from the spot because she knew what the accused had done and was unable to tolerate him, or see him. In case the sexual intercourse was with consent of PW8/the victim, the mother of PW8/the victim would not have rushed to the house of PW1 and called for her son and as he delayed in coming, called her brother. That she did not tell PW1/Digamber as to what had happened in their hut is understandable as she was deaf and dumb and might have not been in a position to convey to him in signs and sounds, what was narrated to her by her daughter. 9 12. The evidence of PW4/Dr. Andre Fernandes shows that there were several injuries on the persons of PW8/the victim such as; (1) Bruise reddish fresh 2cms x 1.5cms, oval shaped thump imprint mark on medial lower quadrant of left breast. Both breast tender, (2) 6mm x linear sub mucosal laceration horizontal on inner aspect of right cheek, gait painful tenderness present in both thigh regions. (3) Injuries on inner aspect of thighs 3cms x 2cms, (4) Cresentric scratch abrasion on inner aspect of middle 1/3rd of left thigh directed downwards and backwards, (5) Bruise, reddish fresh 1.5cms x 1cms on right labia majora and right labia minora, posterior aspect, (6) Hymen partially flashy in posterior aspect, cresentric type, hymenal tear present at 3.30, 6 and 8 O'clock, odematous, reddish, fresh and bleeding, tender on touch. Vaginal valls no bruising, vaginal contents-blood, tinged mucoid fluid present due to bleeding hymenal tears. 13. As regards the accused the said PW4/Dr. Fernandes found that there were also injuries namely 8mm x 2mm reddend abrasion, reddish fresh on right side of corona glans. Left side of frenulum of penis reddened with red fresh abrasion of 3 x 2 mm adjacent to it on under surface of penis. Multiple superficial laceration present to the prepucial skin. The accused also complained of burning sensation while passing urine till 2.10 p.m. 10 14. PW4/Dr. Fernandes therefore opined that said injuries were consistent with the case of forcible rape/forcible sexual intercourse. 15. As already stated, not even a suggestion was put to PW8/the victim that she has consented to the sexual intercourse with the accused nor the accused had tried to explain the story of consent in his statement under Section 313 of the Code. The case of the accused in his statement under Section 313 was bare denial. On this aspect, the learned Additional Sessions Judge placed reliance on the case of Joseph V/s. State of Kerala (2000 (5) SCC 197) wherein the Apex Court observed that; “During the time of questioning under Section 313 Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him,and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self condemned.” The Apex Court has also observed that; “Of late, the courts have from the falsity of the defence plea and false answers given to the court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed.” 16. This is the case where the version of PW8/the victim is amply corroborated, not only by the evidence of her neighbour and relative but also by medical evidence. In State of Punjab Vs. Gurmit Singh (AIR 11 1996 SC 1393). The Apex Court has held that Courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict the accused, where her testimony is found reliable and inspires confidence. In Hayat Singh V/s. The State (2005 Cr. L. J. 2473) it has been held that in law the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, in a case where her evidence is natural, truthful and inspires confidence. That is the case at hand. In State of Maharashtra V/s. Chandraprakash Kewalchand Jain ( AIR 1990 SC 658) the Apex Court has held that if for some reason the Court is hesitant to place implicit reliance on her testimony it may look for evidence which may lend assurance to her testimony short of corroboration required in the care of an accomplice. 17. The conviction and sentence against the accused therefore cannot be faulted. 18. Considering the above, I find there is no merit in this appeal and, consequently, the same is hereby dismissed. N.A. BRITTO, J. NH/-