IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL APPEAL NO. 79 OF 2000. 1. Agnelo @ Robert Fernandes, 2. Suraj Chodankar, 3. Milton Rebello, 4. Arnaldo Rodrigues, all presently undergoing sentence at Central Jail, Aguada, Bardez-Goa. ... Appellants. Versus State. ... Respondent. Mr. S.G. Dessai, Senior Advocate with Mr. Arun Bras de Sa, Advocate for the Appellants. Ms. W. Coutinho, Addl. Public Prosecutor for the Respondent State. Coram: P.V. HARDAS, J. Date: 21st December 2001. ORAL JUDGMENT. The appeal is filed by the appellants challenging their conviction for offences punishable under Sections 376(2)(g), 342, and 354 of the Indian Penal Code and sentence of rigorous imprisonment for 10 years and to pay fine of Rs. 10,000/- in default 6 months simple imprisonment, rigorous imprisonment for 6 months and to pay fine of Rs. 1,000/- in default 1 month simple imprisonment and rigorous imprisonment for 1 year and to pay fine of Rs. 1,000/- in default 1 month simple imprisonment. The appellants have also been convicted for an offence punishable under Section 323 of the Indian Penal Code and are sentenced to pay fine of Rs. 1,000/- in default 1 month simple imprisonment. The aforesaid conviction and sentence - 2 - has been passed on the appellants by the IInd Additional Sessions Judge, Panaji, in Sessions Case No. 16 of 1996, vide Judgment dated 15th November 2000. 2. P.W.18 Bosco George then P.S.I., received a wireless message on 1st August 1995, from the casualty department of the Goa Medical College, Bambolim that a girl had been admitted in the hospital for attempted rape. P.W.18 George immediately proceeded to the Goa Medical College and requested the doctor on duty to certify whether the girl admitted in Ward No. 115 was in a fit condition to give her statement. On the doctor so certifying, on the letter dated 1st August 1995, at Exhibit 54, P.W.18 P.S.I. George then recorded a detailed complaint of the girl. The said complaint is at Exhibit P.W.2/A and signed by P.W.18 P.S.I. George at point ‘A’. P.W.18 P.S.I. George then handed over the complaint Exhibit P.W.2/A to P.I. Umesh Gaonkar P.W.20, who on the basis of the said complaint registered the offence vide Crime No. 250/95 under Sections 354, 342, 323 and 376 read with Section 34 of the Indian Penal Code. P.W.20 P.I. Gaonkar then directed P.W.18 P.S.I. George to arrest the accused. P.W.18 P.S.I. George arrested original accused nos. 1 to 3 and also attached a Maruti Van vide attachment panchanama Exhibit P.W.3/A. Accused no. 4 was arrested on 2nd August 1995. All the four accused were then referred for medical examination to the Goa Medical College and the certificates of the - 3 - appellants are at Exhibits P.W.1/B, P.W.1/C, P.W.1/D and P.W.1/E. The letter from the police requesting P.W.1 Dr. E.J. Rodrigues to examine the accused and the prosecutrix is at Exhibit P.W.1/H. The examination report of the prosecutrix is at Exhibit P.W.1/A. 3. On 3rd August 1995 P.W.20 P.I. Gaonkar visited scene of the offence alongwith accused no. 2 and conducted the scene of offence panchanama in the presence of P.W.4 Ramesh Ghadi and one Ramdas. The scene of offence panchanama is at Exhibit 58. Alongwith the scene of offence panchanama a white bedsheet, some hair, a hook of the brassier, a torn brassier and a sleeveless banian came to be attached, which are M.Os. 3, 4, 6, 7 and 8. The hotel register of Goa Lodge also came to be attached. The xerox copy of the register is at Exhibit 30. In the presence of P.W.6 and one Nuru Dias the clothes of accused no. 1 came to be attached. The attachment panchanama is at Exhibit P.W.6/A. The panchanama of the attachment of the clothes of the accused 2 to 4 are at Exhibit P.W.6/A Colly. 4. P.W.14 Vasudeo Bandodkar, who was then working as an Executive Magistrate at Panaji, was requested to hold a test identification parade by a letter Exhibit 41. On 20th September 1995, P.W.14 Mr. Bandodkar held the test identification parade. The memorandum of the test identification parade is at Exhibit 41. Original accused 2 - 4 - to 4 had been put up in the test identification parade. P.W.20 P.I. Gaonkar forwarded the muddemal property to the Chemical Analyser and on his transfer handed over the investigation to his successor P.I. Banaulikar. After completing the investigation the chargesheet against the appellants came to be filed. 5. The learned Assistant Sessions Judge, Panaji, vide Exhibit 4 framed a charge against the appellants/original accused 1 to 4 for offences punishable under Sections 323, 342, 354 and 376 read with Section 34 of the Indian Penal Code. The appellants abjured their guilt and claimed to be tried. The prosecution, in support of its case, examined 20 witnesses. 6. The entire prosecution case revolves round the evidence of P.W.1 Dr. E.J. Rodrigues, P.W.2 Edalina Afonso prosecutrix, P.W.14 Vasudeo Bandodkar Executive Magistrate, who conducted the test identification parade and the police officers. 7. P.W.1 Dr. Rodrigues, who had examined the prosecutrix, had noted 8 injuries on her person. The injuries noted by P.W.1 Dr. Rodrigues are as under:- "1. 13 parallel superficial horizontal linear cuts of 3-4 cms. length in an area of 7 x 4 cms. in lower front of left forearm with tailing inwards. - 5 - 2. 23 parallel superficial horizontal linear cuts of 3-4 cms. length in an area of 8 x 4 cms. in lower front of right forearm with tailing inwards. 3. 3 horizontal linear incised cuts on hypothemar emince of right palm, 3-4 cms. length with tailing inwards. 4. horizontal linear incised cut of 6 cms. length in upper front of right forearm with tailing inwards. 5. Multiple cuts with reddish border in bright cuboital fossa with oozing of serous fluid in an area of 4 x 1 cms. 6. Horizontal superficial linear cut of 3 cms. over back of left hand with tailing inwards. 7. Abrasion reddish with soft scab of 0.5 x 0.5 cms. on left side of chin. 8. Bruise, bluish of 1.5 x 0.5 cms. right lower eyeline and right cheek bone prominence." He has opined that the injuries 1 to 6 were covered with reddish soft scab with red margin and caused by sharp edge or tip of a cutting weapon and could have been self inflicted. In respect of injuries 7 and 8 P.W.1 Dr. Rodrigues opined that these injuries could be caused by blunt force. P.W.1 Dr. Rodrigues did not notice any obvious injuries on the neck, back, breast and abdomen. P.W.1 Dr. Rodrigues also noticed fresh tears present at 3-6 and 9 o’clock position of hymen. They were congested edmetos tender and did not bleed on touch. The certificate of examination of the prosecutrix is at Exhibit P.W.1/A. Since the examination of the appellants/accused did not reveal any injuries, P.W.1 Dr. Rodrigues opined that in the absence of any positive signs of recent forcible sexual - 6 - intercourse, no positive opinion could be given. In the cross-examination P.W.1 Dr. Rodrigues has admitted that he had asked the victim girl as to whether she was wearing an underwear or not. However, the prosecutrix was not in a position to give any reply or any history. He admits that the history of sexual assault was not given by the victim. The history was given by the Casualty Medical Officer. He also admits that he had not questioned the Casualty Medical Officer at all. P.W.1 Dr. Rodrigues further admitted that the injuries mentioned at serial nos. 7 and 8 could be caused by fall on the ground. The tenderness just below the left mastoid process on the left side of the neck could be also caused by fall on the ground. 8. Prosecutrix Edalina Raposo was examined as P.W.2. Her examination-in-chief and cross-examination continued from 21st March 1997 till 12th December 1997. It is shocking to note that she was partly examined on 21st March 1997 and the case was adjourned as there was a custody matter. She was, thereafter, examined on 21st May 1997 and after completing her examination-in-chief, the case was adjourned on the ground that the learned Public Prosecutor stated that he had to go to the other Court. She was, thereafter, examined on 27th June 1997, on which date the examination-in-chief was completed and part of the cross-examination was completed. Thereafter the case was adjourned to 25th July 1997, on which date after completing - 7 - a part of the cross-examination, the case was adjourned as the witness had stated that she was not feeling well. Thereafter, she was again cross-examined on 4th August 1997. On this day also the cross-examination was not completed and the case was adjourned to 13th August 1997. She was again cross-examined on 18th October 1997 when the case was adjourned as the witness had stated that she was not feeling well. She was partly cross-examined on two other days and the case was adjourned as the Court time was over. Her cross-examination was ultimately completed and she was discharged on 12th December 1997. The trial had commenced on 28th February 1997 with the recording of evidence of P.W.1 Dr. Rodrigues. The trial concluded on 22nd November 2000, when the Judgment was delivered. It is distressing to note the inordinate time which was taken by the learned trial Court in the disposal of the Sessions trial. What is most distressing is the fact of recording of the evidence of the prosecutrix P.W.2 Edalina piecemeal. The evidence of the prosecutrix had commenced on 21st March 1997 and was concluded on 12th December 1997. The learned trial Court seems to have proceeded in an extremely casual manner in the recording of the evidence of the prosecutrix. Piecemeal recording of the evidence of witnesses has disastrous effects on the prosecution case. Such piecemeal recording of the evidence enures to the benefit of the accused. It is difficult for a witness to re-collect as to what he or she had stated in response to a particular question earlier and - 8 - repetitive questioning is bound to elicit a contradictory answer. A witness who is summoned to appear before the Court and whose examination-in-chief commenced, should be examined, cross-examined and thereafter discharged in a continuous process of recording the evidence of the witness day to day. If either the examination-in-chief or the cross-examination remains incomplete at the end of the day, the Court must ensure that the witness is examined immediately on the next day or within the next two or three days but, in no case should the witness be examined piecemeal and the examination stretching to nearly 8 1/2 months. The Courts have to adjust their calendar of cases accordingly and piecemeal recording of the evidence of the witness has to be scrupulously avoided. The provisions of the Criminal Procedure Code especially Section 309 enjoins upon the Courts to record the evidence day to day and complete the trial. Piecemeal recording of the evidence, which enures to the benefit of the accused, has disastrous effects on the prosecution case to defeat justice and lays bare the procedure and attitude to be scoffed at. The trial Courts are, therefore, directed that in future such piecemeal examination of the witness should be avoided and a trial once begun should be conducted on day to day basis till its conclusion, otherwise the impassioned plea of the victim for justice, if the approach and attitude is not corrected, will remain a cry in the wilderness, buried in the labyrinth of recalcitrant attitude. - 9 - 9. The Supreme Court in Lt. Col. S.J. Chaudhary Lt. Col. S.J. Chaudhary Lt. Col. S.J. Chaudhary v. State (Delhi Administration) v. State (Delhi Administration) v. State (Delhi Administration), A.I.R. 1984 S.C. 618 has held as under:- " The trial before the court of a Sessions must proceed and be dealt with continuously from the inception to its finish. It will be in the interest of both the prosecution and the defence that the trial proceeds from day-to-day. Sessions cases must not be tried piecemeal. Once the trial commences, he must except for a very pressing reason which makes an adjournment inevitable, proceed de die in diem until the trial is concluded" 10. The Supreme Court again in a recent Judgment in Ambika Prasad and another v. State (Delhi Administration) Ambika Prasad and another v. State (Delhi Administration) Ambika Prasad and another v. State (Delhi Administration), (2000) 2 S.C.C. 646 at paragraph 11 has held as under:- "11. It is also to be pointed out that PW 4 Vikram Singh (informant) who had lodged FIR immediately was under constant threat and was compelled not to speak the truth despite the fact that he was the brother of the deceased. Other witnesses also turned hostile including PW 6 Prem Singh, son of Pratap Singh and PW 8 Rattan Singh, which indicates, as observed by the High Court, that the accused party was stronger in terms of money power and muscle power. At this stage, we would observe that the Sessions Judge ought to have followed the mandate of Section 309 CrPC of completing the trial by examining the witnesses from day to day and not giving a chance to the accused to threaten or win over the witnesses so that they may not support the prosecution. It appears from the record that the examination-in-chief of PW 4 Vikram Singh was over on 6-2-1984. The counsel representing Ambika Prasad requested the Court that because of his uncle’s demise, he would not be in a position to cross-examine the witness - 10 - and, therefore, recording of further cross-examination might be adjourned. Thereafter, the witness was cross-examined in the month of July 1985. In our view, this is highly improper. Even if the request for adjournment of the learned counsel for the accused was accepted, the cross-examination ought not to have been deferred beyond two or three days." (Emphasis supplied). The Supreme Court in State of U.P. v. Shambhu Nath Singh State of U.P. v. Shambhu Nath Singh State of U.P. v. Shambhu Nath Singh and others and others and others, (2001) 4 S.C.C. 667 has held as under:- " We make it abundantly clear that if a witness is present in court he must be examined on that day. The court must know that most of the witnesses could attend the court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the court is generally a poor solace for the financial loss incurred by him. It is a sad plight in the trial courts that witnesses who are called through summons or other processes stand at the doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by the presiding officers of the trial courts and it can be reformed by everyone provided the presiding officer concerned has a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are stranded on account of the dimension of his judicial powers, can be a persuading factor for granting such adjournments lavishly, that too in a casual manner. Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the - 11 - requirement then is that the court has to examine them. Only if there are "special reasons", which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court." 11. Mr. Dessai, the learned counsel appearing for the appellants, has urged before me that the evidence of the prosecutrix tasks human credulity for its acceptance. According to the learned counsel appearing for the appellants, the probability factor weighs heavily against the version given by P.W.2 Edalina being true. The learned counsel has also urged that the medical evidence insofar as the injuries are concerned does not corroborate the version of the prosecutrix. It was also urged before me by the learned counsel for the appellants that from the tenor of the evidence of the prosecutrix and the contents of the F.I.R., it is clear that the appellant no. 1 had sexual intercourse with P.W.2 Edalina with her consent. 12. Mrs. Coutinho, the learned Additional Public Prosecutor appearing for the respondent State, has urged before me that the version of the prosecutrix is not required to be corroborated and any attempt to seek corroboration to her version would be adding insult to injury. According to her, the version of the prosecutrix P.W.2 Edalina is strongly corroborated by the F.I.R. and though there are improvements, the version of the prosecutrix deserves to be accepted. According to her, - 12 - therefore, the appeal deserves to be dismissed. 13. P.W.2 the prosecutrix Edalina states in her evidence that the appellant no. 1 stays near the Church at St. Inez and he used to meet her whenever she used to go to the Church. This, according to her, had been going on for about 2 years prior to the incident. She also states that the appellant used to call her on his scooter saying the he would drop her at her house, but, she used to avoid him. P.W.2 Edalina also states that the appellant used to say that he would marry her and P.W.2 used to say to him that if he wanted to marry her, the appellant should approach in a proper manner and meet her brother. P.W.2 Edalina states that on 30th July at about 5.00 p.m. or 4.50 p.m. while she was going to the Church, the appellant no. 1 came in a white Maruti Van. The appellant no.2 was also present with the appellant no. 1 in the said Maruti Van. The appellant no. 1 questioned her as to where she was going and she replied that she was going to attend Mass. The appellant no. 1 told her that he would take her to the Church for attending the Mass but P.W.2 declined. The appellant no. 1 then forcibly made P.W.2 sit on the back seat of the Maruti Van. She corrected herself to state that the appellant no. 1 was driving the said Van and appellant no. 2 who was sitting on the rear seat made her sit in the Van against her wish. P.W.2 Edalina also states that she could not shout as appellant no. 2 had kept his hand on her mouth. P.W.2 - 13 - Edalina further states that appellants 1 and 2 discussed among themselves and decided to go to Dona Paula and, accordingly, she was taken to Dona Paula. The appellant no. 1 stopped the Van somewhere and, thereafter, tried to make advances towards her by touching her body. She states that she was not allowing the appellant no. 1 to touch her body and was fighting with him. Since P.W.2 Edalina was repelling the advances of appellant no. 1, the appellant no. 1 slapped her face many times. P.W.2 Edalina on the pretext of going to answer the call of nature, got out of the Maruti Van and walked a certain distance and, thereafter, ran away. The appellant no. 1 came running behind her and caught her and brought her to the Maruti Van. The appellant nos. 1 and 2 again made her sit in the Maruti Van. Both the appellants then consumed beer and she was made to sit between appellants 1 and 2. She was forcibly made to drink some beer and the appellant no. 1 touched her breast. P.W.2 Edalina states that she told them not to touch her breast. Thereupon the appellant no. 1 again started assaulting her. By this time it was dark and the appellant no. 1 said that they should go to Panaji and, accordingly, brought P.W.2 Edalina to Panaji in the Maruti Van. At Panaji they were joined by the appellant no. 4. Then they proceeded to Altinho, where they were joined by the appellant no. 3. P.W.2 Edalina states that all the accused were discussing amongst themselves that they should go to Margao to find a room. On the way to Margao they were - 14 - discussing that a room was not available and that they should go to Mapusa and, therefore, the Van proceeded towards Mapusa. At Mapusa the appellants discussed and said that they should go back to Panaji. The Maruti Van was parked and appellants 1 and 3 alighted from the Maruti Van and went towards a house. After some time they came back and said that they could arrange a room. The appellant no. 1 told P.W.2 to come out of the Van but P.W.2 Edalina declined. The appellant no. 1 threatened her that in case she did not alight from the Van, she would be forcibly taken in the room. The appellant no. 1 then caught her hand and took her inside the room. P.W.2 Edalina stated that she was scared and, therefore, she went with him. She also states the due to the assault she was totally upset. The appellant no. 1 then dumped her on the bed in the room and all the four appellants tried to make advances towards her by touching her body, legs and hands. The appellant no. 1 told her to remove her clothes and P.W.2 Edalina declined to do so. She states that thereafter appellant no. 1 forcibly removed her clothes and her brassier tore in the process. She states that after removing her clothes, all the appellants started touching her body. However, she escaped from their clutches as she entered the toilet, which was attached to the said room. As she could not latch the door from inside, the appellants forcingly opened the door and P.W.2 Edalina was once again brought in the room and dumped on the bed. She states that she was assaulted by the - 15 - appellant no. 1. P.W.2 Edalina thereafter states that they were discussing that they would bring some eatables and, accordingly, appellants 1, 2 and 4 went out while appellant no. 3 was in the room. P.W.2 Edalina further states that after some time the said three appellants returned and came inside the room. The appellant nos. 2 and 4 caught her. Appellant no. 2 had caught her hands and appellant no. 4 had caught her legs and, thereafter, appellant no. 1, by removing his clothes, had committed rape on her. Thereafter, appellant no. 2 removed his clothes and had also committed rape on her. Appellant no. 4 started touching her breasts, but she pushed him away. She states that appellant no. 1 questioned her as to why she pushed appellant no. 4 and she replied that while he was approaching her she had pushed him. Thereupon, appellant no. 1 again assaulted her. She states that she came out of the room and started walking. She saw a Church and a house. She also states that during the night appellant no. 1 had given some paper and some money for purchasing some medicine. She states that the appellant had told her that after consuming the medicine she would be well. She thereafter went to the Pharmacy and purchased the medicine and then went to the house of the appellant no. 1 and informed the mother of the appellant no. 1 as to what the appellant no. 1 had done. She states that, on seeing her, the mother of the appellant no. 1