1 IN THE HIGH COURT OF BOMBAY AT GOA. Criminal Appeal No. 7 of 2008 Shri Venkatesh Naidu, Son of Shri R. Ganeshan Naidu, House No.313, Near Ambabai Temple, Mangoor Hill, Vasco-Goa, present undergoing sentence at Central Jail Aguada). .. Appellant v/s. S T A T E .. Respondent. Mr. Arun Bras De Sa, Advocate for the appellant. Ms. Winnie Coutinho, Public Prosecutor for the respondent. Coram: N.A. BRITTO, J Date: 30th July, 2009 ORAL JUDGMENT 1. This appeal is by the accused who has been convicted and sentenced under section 376 I.P.C and Section 8(2) of the Goa Children's Act, 2003. The sentence imposed upon the accused is for a period of ten years fine of Rs.2,00,000/-. 2 2. The victim/Pw1 and the accused are both residents of Mangor Hill, Vasco-da-Gama. The victim (name withheld) was at the relevant time thirteen years and seven months of age and was studying in Standard VIII in Candeleria Church School at Baina, Vasco-da-Gama. The accused was about 19 years of age. Both used to meet one another and for that there were objections of the parents of the victim. On 27.6.04 the victim took Rs.500/- from her house and both decided to go together. First, they took a bus and came to Panaji and then went to Old Goa and after visiting a Church, a Dhargah and a temple and offering prayers therein they came to Miramar and after spending sometime there, they proceeded to Mumbai and on reaching there found that there were no relatives there, and so decided to go to Bangalore where Shakuntla, the aunt of the victim was residing, and boarded a train to Bangalore without tickets. During the journey, the T.C found them travelling ticketless and a good samaritan amongst the passengers gave them some money which enabled them to buy one ticket and they reached Bangalore at about 23.33 hours on 29.6.04. They spent the night at the railway station as there was no bus transport to go to the residence of the said 3 Shakuntala, the aunt of the victim, which was situated at a place known as Yeshanpura and on reaching there they told the aunt that they wanted to stay there and she agreed and stayed there from 30.6.04 to 3.7.04. 3. Meanwhile, the victim's father Pw2 Mehboob Ali gave missing report and then a complaint on 1.7.04 against the accused for kidnapping the victim, his minor daughter. As a result of the said complaint the victim and the accused were brought back to Goa. According to the victim during their stay with the said aunt they had sex together on 3.7.04 at 11.30 p.m. and 4.7.04. On 5.7.04 Prakash, the elder brother of the accused, reached Yeshanpura and told them that the victim's father had lodged a complaint at Vasco Police Station. They were brought back to Goa. 4. On 6.7.04 Pw2 Dr. Sapeco examined the victim and found on her a bruise, red in colour of 2 x 1.5 cm at 5 o 'clock position on the inner margin of labia majora along left side with the posterior commissure which was about 3 to 4 days old. Dr. Sapeco also found an old healed non tender, non-odemaetous, non bleeding tear at 8 o'clock position, and, 4 after having medically examined her, he concluded that the victim was used to sexual intercourse. The report prepared by him and produced at Exhibit 17 was in conformity to the said opinion. 5. At the time of hearing of this appeal, an application has been filed on behalf of the accused for cross examining the victim/Pw1, her father/Pw2 and Salma /Pw4, the sister of the victim, contending that the junior of Advocate Shri Dileshwar Naik engaged by the accused did not cross examine the prosecution witness properly which has seriously prejudiced the case of the accused. It is submitted that he only put suggestions to the witnesses and did not carry out any cross examination. I am not inclined to allow such an application at this stage because such an application was not even made before the Learned Trial Court and one does not know the reasons why no effective cross examination as contended was done of the victim and see said other witnesses and it is quite probable that the victim and the accused being in love, accused did not wish to hurt her feelings. The application, therefore, needs to be rejected. 5 6. The Learned Trial Court referred to the case of State of Punjab V/s Gurmit Singh and others (AIR 1996 SC 1393) wherein it was held that after the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars and that the testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility. The Learned Trial Court, therefore, concluded that the testimony of the victim totally inspires confidence and she had emerged as truthful and wholly reliable witness. The Apex Court has also observed as follows:- "Why should the evidence of a girl and a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base 6 conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is lest likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set 7 of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra V/s. Chandraprakash Kewalchand Jain Ahmadi, J. (as the Lord Chief Justice then as) speaking for the Bench summarised the position in the following words: "A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars". 7. The Apex Court has also held in Dinesh @ Buddha V/s. State of Rajasthan (2006 (2) Supreme Court 363, that the evidence of a victim of rape is entitled to great weight, absence of corroboration 8 notwithstanding. Corroboration is not sine-qua non for conviction in rape case. 8. Shri Arun Bras De Sa Learned Counsel of the accused submits that the medical report shows that the victim was habituated to sexual intercourse but I must hasten to add that it is not anybody's case that if she was habituated with any one else other than the accused. Learned Counsel further submits that Shakuntala with whom the victim and the accused stayed and Prakash the brother of the accused who went to bring them has not been examined by the prosecution and therefore an adverse inference has got to be drawn against them. This submission of the Learned Counsel also needs to be rejected, for, in my view they were not eye witnesses to the offence committed by the accused and their examination would have been only duplication of what Pw1 the victim has narrated and which in this case is corroborated by medical evidence. That apart and in fact an explanation has been given by the Investigating Officer why the said Shakuntala was not examined. As rightly observed by the Learned Trial Court, the version given by the victim is simply convincing. The victim's version is trustworthy and is otherwise 9 corroborated by the medical evidence of Dr. Sapeco which is more than sufficient to base a conviction. In such a case DNA evidence was not at all necessary as submitted by Learned counsel. Pw1/victim was below 16 years, her consent was of no consequence as the case at hand is covered by clause sixthly of Section 375 IPC. 9. Consequently, a conviction of the accused under section 376 of I.P.C and Section 8(2) of the Goa Children's Act, 2003 cannot be faulted. 10. There is no dispute that in terms of section 376 IPC the punishment provided for an offence of this nature is for a term which may not to be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine. Section 8(2) of the Goa Children's Act came to be amended w.e.f. 15.12.2006 when the Governor of Goa gave his consent to the Goa Children's (Amendment) Act, 2005, and it was published on Gazette dated 21.12.2005. Sub section 2 of Section 8 was then amended providing punishment from seven years to ten years and ten years to life imprisonment. The offence in this case was committed on 3.7.2004 i.e. 10 prior to the amendment came into providing for enhanced punishment and hence in my view and as rightly contended by the Learned Counsel punishment could not have been imposed by the Learned Trial Court of ten years under section 8(2) of the Act as minimum punishment. The punishment then provided u/s 8(2) of the Act was for a term that shall not be less than seven years but which may extend to ten years to a fine of Rs.2,00,000/-. 11. As regards sentence, Learned Counsel has submitted that since the victim and the accused were in love with one another this would be a fit case to order release of the accused under Section 4 of the Probation of Offenders Act, 1958, and in that context has placed reliance on the decisions of the Apex Court in Dilip and another V/s. State of M.P. (2001 STPL (LE) 30301 SC, State of Haryana V/s. Prem Chand (1997 STPL (LE) 23846 SC) and Mohammad Alias Biliya V/s. State of Rajasthan 1998 (STPL (LE) 25841 SC). 12. On the other hand, Learned Public Prosecutor, has placed reliance on the case of State of M.P. V/s. Babulal ((2008) 1 SCC 234) 11 and submitted that the Apex Court has not approved the release of an accused under Probation of Offenders Act in a case of rape. Indeed the Apex Court in para 30 has stated that once a person is convicted for an offence of rape, he should be treated with a heavy hand. An undeserved indulgence or liberal attitude in not awarding adequate sentence in such cases would amount to allowing or even to encouraging “potential criminals”. The society can no longer endure under such serious threats. Courts must hear the loud cry for justice by society in cases of heinous crime of rape and impose adequate sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. 13. The Learned trial Court observed that this is a case of an unsuccessful love affair. At the same time, the Learned trial Court was much impressed by the observation of the Apex Court in Dinesh @ Buddha V/s. State of Rajasthan (2006 (2) SC 363), that crimes of violence upon women need to be severely dealt with when in fact this was not a case of violence at all but on the contrary of consensual sex, the 12 same being only a technical offence because of the age of the victim. The provisos below sub section (1) as well as (2) of Section 376 provide for lesser sentence for adequate and special reasons and a case of this nature, of consensual sex without violence could be an adequate and special reason for less punishment. However, as rightly pointed out by the Learned trial Court there is no provision in Goa Children's Act 2003 for lesser sentence than seven years. That being the position, there will be neither scope to deal with the accused under section 4 of the P.O. Act 1958 and impose any sentence of less than seven years. Consequently, the sentence imposed against the accused needs to be modified. The accused is sentenced under section 376 I.P.C. to seven years rigorous imprisonment and to pay a fine of Rs.10,000/- in default to undergo six months simple imprisonment. Likewise, the accused is hereby sentenced under Section 8(2) of Goa Children's Act, 2003, to undergo rigorous imprisonment for a period of seven years and a fine of Rs.2,00,000/- in default to undergo six months simple imprisonment. Both the sentences shall run concurrently. The sentence imposed by the Learned Children's Court, accordingly stands modified. The accused to surrender to undergo 13 the remaining part of the sentence within a period of three weeks from today. N. A. BRITTO oc.