1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 11 OF 2008 Mr. Lalmand Nabhik Chaudhary son of Satyanarayan, of full age, r/o House No.405, Ganga Nagar, Near Saraswat School, Khorlim, Mapusa, Goa. Presently undergoing sentence at the Central Jail Aguada. ... Appellant versus State (through the Mapusa Police Station). ... Respondent Shri Nigel Costa Frias, Advocate for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 27TH JULY, 2009. ORAL JUDGMENT This appeal is by the accused who has been tried, convicted and sentenced for incestuous rape under Sections 376, and 506 IPC. The accused has been sentenced under Section 376 to undergo R.I. for ten years and pay a fine of Rs.60,000/- and in default to undergo R.I. for one year, and under Section 506 the 2 accused has been sentenced to pay a fine of Rs.500/- and in default to undergo R.I. for one month. 2. The accused was charged and tried with the allegation that between 1-1-2006 to 24-1-2006 the accused committed rape on the victim(name withheld) in House No.405, Ganga Nagar, Mapusa, Goa and also threatened her with dire consequences. The case of the accused was one of denial simpiliciter. The prosecution examined 12 witnesses in support of the charge. The accused examined none. After considering the evidence produced, the learned trial Court came to the conclusion that inspite of all the attempts made by the victims's mother and other family members to make the victim turn hostile in the Court, the prosecution was able to prove beyond reasonable doubt that the victim girl was being constantly molested and raped by her own father, in the absence of the victim's mother who was staying at that time in Allahabad. 3. The accused, the father of the victim was residing at Ganga Nagar in Mapusa while the victim/PW1 who is the eldest daughter was residing in their native place in Village Dasupur in Allahabad(U.P.) with her mother and brother Akash, 4, and sister Geeta, 6. The accused was residing at Ganga Nagar along with his nephew Daya Shankar Nabhik/PW2 and his wife Vandana Nabhik/PW5, children Gayatri/PW4 who was 11 years old, Usha,10, Shivkumar, 8, Kavita, 6, Rakesh, 15 and Mahesh, 7. The accused brought the victim/PW1 to reside along with him at Mapusa. The victim was 3 brought down by the accused on or about 23-12-2005 with a promise that he would teach her tailoring. The victim/PW1 filed a complaint on 24-1-2006 and the same was registered by PSI Po of the Mapusa Police Station. The said complaint was written down at the instructions of the Police Inspector Shri Patil/PW7. A scene of offence panchanama was prepared on 25-1-2006 during the course of which certain articles were attached. Shrikant Badigar/PW6 was examined to prove the said panchanama. In the course of the said panchanama, the victim had pointed out to a lungi on the cot stating that it was of her father which he was wearing at the time her father had raped her. However, the said lungi(Exh.C-1) when sent for forensic analysis did not exhibit any signs of semen. The victim was then sent for medical examination and was examined by Dr. E. G. Rodrigues/PW3 who deposed that the victim had given to him the history of sexual intercourse by her own father for last three months on multiple occasions last being on 24-1-2006 at 12 p.m. and upon examination Dr. Rodrigues, inter alia, found that although there was no injury on the inner aspects of thighs or abrasions on genitals there was a bruise of 2 x 1 cms. at 6 o'clock position which was fresh, reddish, tender and was within 24 hours duration. Dr. Rodrigues also found old healed hymeneal tear at 3 and 9 o'clock position, and, in the opinion of Dr. Rodrigues/PW3 the victim was accustomed for sexual intercourse and there was recent penetration. The accused was also examined by him and he opined that upon physical and genital examination there was nothing to suggest that he was incapable of sexual intercourse. 4 4. The victim deposed before the Court for the first time on 3-8-2006 at a time when she was still residing in her father's house, and on that day the victim was declared hostile and was cross-examined by the prosecution. Subsequently, the victim showed an inclination to pursue her studies and with the assistance of Preetu Nair/PW10, a journalist, and Shri Arun Kumar/PW12, the Director of ARZ(Anyaye Rahit Zindagi) the victim was admitted first to Nav Jyoti Rehabilitation Centre at Nuvem and thereafter in Nitya Seva Niketan at Rivonna whose in charge was Sister Rohini D'Costa/PW11. That was after 21-8-2006. 5. Thereafter in her affidavit dated 21-8-2006-Exh.75, the victim stated that she was the victim of sexual abuse by her own father against whom she had filed a complaint in January, 2006, and that her father was then in judicial custody because of her complaint. She also stated that she was determined to make something of herself and for that her family was not co-operative with her and every time she took out that topic with her family members they insisted that she should take the permission of her father. She also stated that she had written a letter to the said Shri Arun Kumar/PW12, Director of ARZ, requesting for help and that on the same day i.e. on 21-8-2006 with the help of a social worker and two police constables from Mapusa Police Station she came out of her house at Khorlim on her own free will so that she could pursue her further studies of which she was being deprived of. While the victim was at Nitya Seva Niketan at Rivona an application was made on her behalf dated 23-4-2007 for her re-examination. It appears that on 3-8-2006 her cross-examination was not completed and further 5 cross-examination was adjourned as M.O's were not available. The said application was filed along with an affidavit of the victim in which it was stated that she had resiled from her statement because of certain circumstances as she had felt that she had to carry on life with the same family and also out of concern for the welfare of her siblings. She stated that she was now studying in a convent school and was able to speak the truth, and, therefore be given a chance to speak the truth. The said application was disposed of by the learned trial Court by Order dated 15-6-2007. The victim therefore was recalled, exercising powers conferred under Section 311 of the Code(Code of Criminal Procedure, 1973) with a view to have a fair trial. In between the evidence of the said Daya Shankar Nabik/PW2, the cousin of the victim, Gayatri Nami/PW4, the sister of the victim and Vandana Nabhik/PW5, victim's cousin whom she referred to as Babi was completed. They were examined, declared hostile and cross-examined. 6. Pursuant to Order dated 15-6-2007, the victim was re-examined on 12-7-2007 and cross-examined by the accused. In her deposition recorded on 12-7-2007 the victim stated that for a few days her father's behaviour with her was in a normal manner and after a few days he started touching her on her breasts whereupon she told him not to do so and that otherwise she would tell everybody but he slapped her and told her not to tell the same to anybody else. She stated that when he used to touch her in that manner, that was in the absence of the family members in the room. She stated that thereafter she told her Babi Vandana about the behaviour of the accused and when her father came to know about it, he beat 6 her up and told the said Babi not to tell anybody else that he was behaving in that manner with her. She stated that she(Babi) was staying in a separate room and on 1-1-2006 when the said Babi was in the house and other family members had gone to Calangute she was sleeping in the drawing room where T.V. is kept and her father removed her clothes and forcibly started touching her breasts and thereafter touched her private parts and had sexual intercourse with her and although she told her father to leave her he did not listen to her. She stated that she tried to shout but he kept her mouth shut with his hands and beat her up. She stated that Gayatri who was sleeping in the same room got up and saw the aforesaid incident and when he came to know that Gayatri had seen the incident he beat her up and told her not to tell the said incident to anybody and thereafter when the entire family members came to know about the incident nobody took any action against her father because all the family members were afraid of the father as otherwise he used to beat her. She also stated that on 24-1-2006 when she woke up early morning and had done her household work at about 12 noon her father removed her clothes forcibly, touched her private parts and had sexual intercourse with her and thereafter she went to her tailoring classes and then lodged a police complaint at Mapusa and identified her signature on the complaint earlier produced at Exh.14. She stated that upon her complaint being filed, the Police came and attached the lungi belonging to the father and also took photographs. She identified the said lungi of her father taken from the cot. She also identified the blue colour shirt and light colour pant to be that of her father. In cross- examination she stated that she did not remember whether besides Gayatri any of 7 her sisters or brother had seen the incident and perhaps she had told the Police that the aforesaid incident was witnesses by Shrikumari along with Gayatri. She stated that at the time of rape by her father her mother was in Allahabad. In further cross-examination she admitted having written to her father the letter dated 22-7-2007-Exh.92. 7. Thereafter, the deposition of Preetu Nair/PW10, sister Rohini D'Costa/PW11 and Arun Kumar Pandey/PW12 came to be recorded between 27-8-2007 and 16-10-2007, whose statements were otherwise not recorded by the Police in the course of the investigation. 8. Thereafter, the accused filed an application dated 12-11-2007 again in terms of Section 311 of the Code for further cross-examination of the victim. This application was filed with the contention that the victim was not cross- examined with reference to the letter Exh.57 and the affidavit dated 21-6-2009 produced by Arun Kumar/PW12. The same was granted by Order dated 19-11-2007 and as a result of which the victim was cross-examined on 18-1-2008, re-examined by the learned Public Prosecutor and again cross-examined by the learned Public Prosecutor after a submission was made that the victim had resiled from her complaint as well as her deposition given in re-examination. It is interesting to note that on 12-7-2007 when the victim was re-examined on behalf of the prosecution she had stated that whatever she had stated on that day in the Court was truth. On 18-1-2008 when she was again cross-examined by the 8 accused the victim stated that she had written a letter to the accused after her last deposition to the Court and the said letter dated 22-7-2007 was marked Exh.92. Two other letters dated 21-3-2006 and 23-5-2006 admittedly written by her were also taken on record and marked as Exh.93 colly. As regards letter dated 15-4-2006-Exh.57, she admitted that it was sent by post and on 22-7-2007 she stated that it was written just like that and on 18-1-2008 she stated that she used to get angry when her father used to beat her and that she had put him in trouble and implicated him and she stated that in her letter dated 22-7-2007-Exh.92 she had written to her father asking his forgiveness and she had made false statements and that whatever she was writing in the said letter was true. On 18-1-2008, she had again confirmed that whatever she had stated in the Court on that day was the truth. 9. The learned trial Court referred to certain observations of the Apex Court in State of Punjab v. Jagir Singh((1974) 3 SCC 277) particularly the observation that “a criminal trial cannot be equated with a mock scene from a stunt film and the realities of life have to be kept in mind while appreciating the evidence for arriving at the truth and the Court is required to replace the traditional dogmatic hyper technical approach by rational, realistic and genuine approach for administering justice in a criminal trial. It also took note of the observation that the Courts cannot ignore the erosion in values of life which is a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind”. 9 10. Reference could also be made to the State of M.P. v. Shyamsunder Trivedi((1995) 4 SCC 262) wherein Apex Court observed that “the exaggerated adherence to and insistence upon establishment of proof beyond reasonable doubt ignoring ground realities, the fact situations and peculiar circumstances of a given case .... often results in miscarriage of justice and makes the justice delivery system a suspect(emphasis supplied). 11. As regards the standard of proof required to accept the evidence of a rape victim, the learned trial Court referred to the State of Maharashtra v. Chandra Prakash Kawel((1990) 1 SCC 550) wherein the Apex Court has stated that “the prosecutrix of a sex offence cannot be put on par with an accomplice as she is a victim of crime and ordinarily her evidence should carry as much weight as the evidence of an injured person”. The learned trial Court further observed that when a trial had started the victim had turned hostile and had stated that she had lodged a complaint because the accused had assaulted her, and as such did not support the case of the prosecution. The learned trial Court observed that the other witnesses who were family members of the accused and the victim also turned hostile and did not support the case of the prosecution and that at that time the accused was admitted to bail. The learned trial Court noted that an application was made on 23-4-2007 and after she was examined pursuant thereto the victim had clearly stated in Court that she had earlier turned hostile and had not deposed the truth because she was worried about her brother and sisters, eight in number thinking that in case her father continued to be in jail there would be nobody to 10 look after them and feed them and since she was now studying in a Boarding School she had made up her mind to depose the truth. The learned trial Court also noted that after the prosecution evidence was over and the case was fixed for recording 313 Statement of the accused the said application was made dated 12-11-2007 and this time she deposed that she had made a false complaint against her father and that her father never raped her. The learned trial Court therefore concluded that it was clear that the victim had at least once deposed falsely before the Court, and, as such it was the duty of the Court to ascertain which of her statement was false and simply because the victim turned hostile once it did not mean that her entire evidence has become tainted and if that was done the trial Court would be abdicating its duty in case it fails to sift the truth from falsehood specially taking into consideration that since the rape was committed by her own father, and it was not unnatural for the victim to turn hostile when she had five brothers and three sisters, all younger to her to be looked after by the accused. The learned trial Court noted that the clinching evidence that the victim was raped by her father came from Dr. Rodrigues/PW3 and it also came from Preetu Nair/PW10 who had no axe to grind as well as from Sister Rohini D'Costa/PW11 as well as Arun Kumar Pandey/PW12 and thus concluded as follows:- “The doctor's evidence, doctor's report, the victims own affidavit at Exh.75, the depositions of journalists Ms. Preetu Nair and Mr. Arun Kumar Pandey lend credence to the version of rape given by the victim girl. Her application dated 23-4-2007 along with her affidavit to the Court requesting her to speak the truth 11 as earlier she had resiled from the truth thinking that if her father would be jailed, there would be nobody to look after and feed her eight small brothers and sisters, also supports the true version of rape given by the girl”. 12. As regards the letters written by the victim, the learned trial Court observed that they had to be considered against the backdrop of the deposition given by Preetu Nair/PW10, Sister Rohini D'Costa/PW11 and Arun Kumar Pandey/PW12. In that regard, the learned trial Court referred to their evidence and came to the conclusion that the said letters were tainted with the colours of pressure, undue influence and emotional blackmail by the victim's own parents and other family members thus putting the victim more under stress and trauma. The learned trial Court, therefore, came to the conclusion that inspite of attempts made by the victim's mother and other family members to make the victim turn hostile in the Court, the prosecution had proved beyond doubt that the victim girl was frequently molested in the absence of her mother who was staying at the relevant time in Bihar. 13. Shri Nigel Costa Frias, learned Counsel appearing on behalf of the Appellant/Accused has submitted that the victim was examined in Court thrice. Learned Counsel further submits that the accused was on bail from 29-9-2006 and prior to that the victim had written two letters dated 15-4-2006 and 25-1-2006 and after the accused filed the application on 19-11-2007, and the victim was cross- examined, the victim went back to her first deposition, recorded on 3-8-2006 and 12 further stated for the last time on 18-1-2008 that what she had told in Court on that date was the truth, and, therefore there was no other truth except that she had implicated her father falsely. Shri Costa Frias has further submitted that in view of the said statement nothing remains in the evidence of the victim to convict the accused. Learned Counsel further submits that the evidence of a victim of rape can otherwise be relied upon in case it is clinching and trustworthy and not in this case where the victim has given three versions. Learned Counsel further submits that what the victim has stated to the prosecution witnesses, namely Preetu Nair/PW10, Sister Rohini D'Costa/PW11 and Arun Kumar Pandey/PW12 is nothing but hearsay. Learned Counsel further submits that the victim was a major when the alleged offence was committed against her and was also of full age when her deposition was recorded all the three times before the trial Court. Learned Counsel further submits that her last statement recorded on 18-1-2008 wherein it was stated that whatever she had stated on that day was truth was after the evidence of the said three witnesses, namely Preetu Nair/PW10, Sister Rohini D'Costa/PW11 and Arun Kumar Pandey/PW12 was recorded inasmuch as what the said three witnesses had stated was not put to the victim either in her re-examination or cross-examination on 18-1-2008. Learned Counsel further submits that the mother of the victim was also not examined, to come to the conclusion that the victim was being pressurized by her mother inasmuch as no complaint was filed against her mother by the prosecution for pressurizing the said victim. Learned Counsel further submits that the statements of Preetu Nair/PW10, Sister Rohini D'Costa/PW11 and Arun Kumar Pandey/PW12 were 13 also not recorded by the Police in the course of investigations. Learned Counsel has placed reliance on the case of Ramdas and others v. State of Maharashtra(AIR 2000 (7) SCC 155) wherein it is stated that in a case of rape delay in lodging FIR is not necessarily fatal to prosecution case but the fact that a report was lodged belatedly is a relevant fact of which the Court must take notice. In that case, the delay was of eight days and there was no explanation given by the uncle of the prosecutrix who had seen the accused taking her to a field and tried to rescue her. Reliance is also placed on the case of Narayan v. State of Rajasthan((2007) 6 SCC 465) wherein it is stated that in a case where the evidence of prosecutrix is found full of contradictions, without any corroboration from any witness, her evidence was found to be artificial and as such it was held that it could not be accepted. 14. On the other hand, Ms. Winnie Coutinho, learned Public Prosecutor has submitted that in this case there are four versions given by the victim and not three, and, therefore the evidence of the victim is required to be appreciated in proper prospective. Learned Public Prosecutor submits that the statement made by the victim before Dr. Rodrigues/PW3 on 25-1-2006 that her own father had raped her is a cogent piece of evidence being an admission which is relevant under Section 21 of the Evidence Act, and, therefore that part of her version needs to be accepted. Learned Public Prosecutor further submits that there is no reason for Dr. Rodrigues/PW3 to depose falsely. She further submits that there was no reason for Preetu Nair/PW10, Sister Rohini D'Costa/PW11 and Arun Kumar 14 Pandey/PW12 to tell lies. Learned Public Prosecutor has placed reliance on the case of Kanda Padayachi v. State of Tamil Nadu(AIR 1972 SC 66). That was a case where the statement was made by the accused in police custody to the doctor that injuries on his person were caused by the murdered person and it was held that the said statement amounted to an admission of fact, though incriminating and such a statement was admissible, not being hit by Section 26 of the Evidence Act. 15. Broadly stated, this is not a case where it could be said that there are three or four versions given by the victim, as contended by learned Counsel on behalf of the accused and the learned Public Prosecutor, respectively. Substantially, there are only two versions. The version given by the victim in her complaint dated 24-1-2006 which was substantiated by her after she was re-examined pursuant to her own application on 12-7-2004 and then there is the other version which she resiled on 3-8-2006, as given in the complaint and reiterated the same on 18-1-2008 when she was further cross-examined by the accused pursuant to the application filed on behalf of the accused and Order dated 19-11-2007. Ordinarily, a witness who gives two versions at two different stages is discarded as not being worthy of credit but here we have a case where the victim was no one but the daughter of the accused and she has given two versions before the Court one implicating her father and the other trying to save him. It is important to note that the victim had gone on her own, and that must have been after mustering a lot of courage, to file a complaint against her own father 15 whereupon she was sent to Dr. Rodrigues/PW3 who found on her evidence of recent forcible penetration. It was not the case of the victim at any time that she had sex with any other person, and, that evidence the victim never tried to explain either on 3-8-2006 when she chose to resile from her complaint and again on 18-1-2008 when she tried to save her father again by confirming what she had stated in the letters written by her to him, namely that