IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL APPEAL NOS. 59 AND 64 OF 2001. CRIMINAL APPEAL NO. 59 OF 2001. 1. Uday Hulaswar, at Central Jail, Aguada. 2. Mahesh Veer, r/o Gaonkarvaddo, Dhargal, Pernem. 3. Shantaram Salkar alias Parwar, r/o Khutvalvaddo, Pernem. ... Appellants. Versus State. ... Respondent. Mr. Arun Bras de Sa, Advocate for the Appellants. Mr. S.N. Sardessai, Public Prosecutor for the Respondent/State. CRIMINAL APPEAL NO. 64 OF 2001. Sanjay Kerkar, r/o H. No. 194, Boavistavaddo, Bastora. ... Appellant. Versus State. ... Respondent. Mr. S.S. Kantak with Mrs. Leena Dharwadkar, Advocates for the Appellant. Mr. S.N. Sardessai, Public Prosecutor for the Respondent/State. Coram : P.V. HARDAS, J. Date : 29th August 2003. ORAL JUDGMENT. Criminal Appeal No. 59 of 2001 is filed by original accused 1 to 3 and Criminal Appeal No. 64 of 2001 is filed by original accused no. 4. Original - 2 - accused no. 1 stands convicted for offences punishable under Sections 363, 365 and 376 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for 2 years and to pay fine of Rs. 1,000/-, in default simple imprisonment for one month and rigorous imprisonment for 7 years and to pay fine of Rs. 500/-, in default simple imprisonment for 3 months. Accused 2, 3 and 4 are convicted for an offence punishable under Section 109 read with Sections 363 and 365 of the Indian Penal Code and are sentenced to undergo rigorous imprisonment for two years and also to pay fine of Rs. 1,000/- each, in default simple imprisonment for one month. The substantive sentences of accused no. 1 are directed to run concurrently. The appellants, being aggrieved by the conviction and sentence passed by the IInd Additional Sessions Judge, Panaji, by Judgment, dated 13th November 2001, in Sessions Case No. 18 of 1998, have filed these appeals challenging the conviction and sentence. 2. The facts in brief as are necessary for the decision of these appeals are stated hereunder:- P.W.27 L.P.S.I. Sunita Sawant was attached to Mapusa Police Station. On 9th March 1998, P.W.6 Cristalina Fernandes complained that her minor daughter Jennamicka had been kidnapped while she was returning - 3 - from school by accused no. 1 Uday and others in a Sumo vehicle. On the basis of the complaint, at Exhibit 41, an offence, vide Crime No. 16/98, under Sections 363 and 365 of the Indian Penal Code, was registered. After registration of the Crime, a wireless message was issued to all police stations regarding the offence and the staff of the police station were deputed to Margao, where some relatives of accused no. 1 were working. On the same day, P.W.27 L.P.S.I. Sunita recorded the statement of P.W.4 Sharada Kittar. Meanwhile P.W.27 L.P.S.I. Sunita received information that a white colour Sumo bearing registration no. GA-O1-M-9976 had left Mapusa stand alongwith some customers and was probably heading in Londa-Belgaum direction. P.W.27 L.P.S.I. Sunita issued wireless message for keeping a check on the said vehicle and its occupants. On 10th March 1998, a look out notice was circulated to all the police stations. P.W.27 L.P.S.I. Sunita recorded the statement of P.W.11 Remedios Colaco and, on the same day, on perusal of the records of the Regional Transport Office, gathered information regarding the name of the owner. It transpired that the said Tata Sumo vehicle was registered in the name of Mrs Bhanumati Harishchandra Kerkar. Police personnel were deputed at the residence of the said Mrs. Bhanumati Harishchandra Kerkar and P.W.27 L.P.S.I. Sunita was informed that the said vehicle was driven by one Sanjay Kerkar, who had - 4 - left on 9th March 1998 and had not returned. On 11th March 1998, the Tata Sumo was found at Verla and the presence of accused no. 4 Sanjay was secured and he was interrogated. The said Tata Sumo vehicle was attached under a panchanama, at Exhibit 28, in the presence of P.W.2 Anil Kerkar and one Raymond Menezes. Accused no. 4 Sanjay came to be arrested. Accused no. 5 came to be arrested and later on accused no. 2 Gajanan and accused no. 3 Mahesh came to be arrested. On 12th March 1998, P.W.6 Cristalina approached the police station and informed P.W.27 L.P.S.I. Sunita that her daughter, who had been kidnapped, had telephonically informed P.W.6 Cristalina that she was calling from the house of one Babasahel Patil, situated near the bus stand, Kolhapur. P.W.27 L.P.S.I. Sunita after recording the supplementary statement of P.W.6 Cristalina, proceeded to Kolhapur alongwith the police party and apprehended accused no. 1 Uday and original accused no. 6 Anil Mohite, in whose house the minor girl was staying. The statement of the minor girl P.W.19 Jennamicka came to be recorded and it transpired that an offence under Section 376 had been committed by accused no. 1 Uday and, accordingly, Section 376 was added. P.W.19 Jennamicka and accused no. 1 Uday were sent for medical examination and were examined by P.W.8 Dr. E.J. Rodrigues. In respect of P.W.19 Jennamicka, P.W.8 Dr. Rodrigues found that her general development was good. - 5 - He found a reddish bruise of 1.5 cms. x 3 mm. around 5 to 7 o’clock position of hymen. The margins were edimatous and tender to touch. There was an old healed hymenal tear at 5 and 7 o’clock position of hymen. Hymenal opening admits two fingers easily. He, accordingly, opined that there was evidence of recent sexual intercourse. Vaginal swabs and slides were prepared for being sent for chemical examination. The report of P.W.19 Jennamicka is at Exhibit 47. He had also examined accused no. 1 Uday and found no injuries on his body. On his physical genital examination he opined that no positive opinion could be given in respect of recent forcible sexual intercourse. The examination report of accused no. 1 Uday is at Exhibit 48. The vaginal swabs, slides of P.W.19 Jennamicka and the underwear of accused no. 1 Uday were sent for chemical examination vide Exhibit 49 Colly. On 14th March 1998, blood samples of accused no. 1 Uday and P.W.19 Jennamicka were drawn for blood test at Goa Medical College. The clothes of P.W.19 Jennamicka were attached vide Exhibit 45. 3. On 17th March 1998, a letter was sent to P.W.17 Special Judicial Magistrate Vinayak Alornekar for holding the test identification parade. The letter is at Exhibit 104. P.W.17 Alornekar arranged for test identification parade on 22nd March 1998, in the - 6 - premises of Civil and Criminal Court at Mapusa. Twelve dummies were secured and initially two accused were put up with these dummies for the test identification parade. P.W.19 Jennamicka identified accused no. 3 Shantaram and accused no. 2 Mahesh. She had also identified accused no. 1 Uday. P.W.5 Clara D’Silva also identified accused nos. 2 and 3. P.W.4 Sharada had also identified the accused. The memorandum of the test identification parade is at Exhibit 69. 4. On 19th March 1998, A.S.I. Vatangi had attached the hotel register of Hotel Sanman. The specimen handwriting of accused no. 1 Uday came to be attached, vide panchanama at Exhibit 54. The muddemal property was forwarded to the Central Forensic Science Laboratory, Hyderabad, vide covering letter at Exhibit 105. The specimen handwriting of accused no. 1 Uday alongwith forwarding letter was forwarded to the Officer for examination of records vide Exhibit 106 Colly. The handwriting expert P.W.25 Nilu Raut Dessai, by his opinion at Exhibit 101, opined that the person who had written the specimen writings marked S1 to S6 had written the question writings marked Q1 and Q2. The reasons of the expert P.W.25 Nilu is at Exhibit 102. The report of the Central Forensic Science Laboratory is at Exhibit 97. The muddemal property had been examined by P.W.24 Dr. N.R.K. Rao, a Junior Scientific Officer, - 7 - working in the Central Forensic Science Laboratory, Hyderabad. He detected human spermatozoa in the two urethral swabs and two urethral smear slides. Similarly human spermatozoa were detected in the two vaginal swabs and two vaginal smear slides. 5. After completion of the investigation P.W.23 A.S.I. Manjunath Naik filed the charge-sheet against the accused. On committal of the case to the Court of Sessions, the learned Assistant Sessions Judge, Panaji, vide Exhibit 15, framed a charge against the appellants/accused. The appellants/accused denied their guilt and claimed to be tried. The prosecution in support of its case examined 27 witnesses. The accused no. 1 Uday in his defence examined himself as D.W.1. The learned trial Court on consideration of the evidence convicted and sentenced the appellants/accused as aforestated. 6. Mr. De Sa, the learned counsel appearing for appellants/accused 1 to 3 in Criminal Appeal No. 59 of 2001, has urged before me that the evidence of P.W.19 Jennamicka together with the evidence of P.W. 4 Sharada and P.W. 5 Clara suffer from inter se contradiction and, as such, the evidence cannot be implicitly relied upon for sustaining the conviction. In respect of accused 2 and 3, the learned counsel has urged that - 8 - their conviction with the aid of Section 109 is wholly unsustainable. It is also urged before me by the learned counsel for accused no. 1 that the accused no. 1 has been in custody since 13th March 1998 and has virtually undergone five years and five and half months of imprisonment. It is also stated that, while in custody, accused no. 1 Uday had undergone a bypass surgery and has been diagnosed as suffering from heart ailment. The medical papers have been produced and the same are taken on record and marked ‘X’ for the purpose of identification. It is, thus, submitted, by the learned counsel for the accused no. 1 Uday, that, in the alternative, the accused no. 1 be ordered to be released on the period of imprisonment already undergone by him. 7. Mr. Kantak, the learned counsel appearing on behalf of the appellant/accused no. 4 Sanjay in Criminal Appeal No. 64 of 2001, has submitted that the appellant/original accused no. 4 was a driver of the Tata Sumo vehicle. There is no evidence to suggest that he was acquainted with original accused no. 1 and there is no evidence to suggest that he had given intentional aid and, therefore, abetted the commission of the offence. According to the learned counsel for appellant/accused no. 4 Sanjay, the evidence suggests that he was paid charges for hiring - 9 - the vehicle and in such circumstances, his conviction with the aid of Section 109 of the Indian Penal Code is wholly unwarranted. 8. Mr. Sardessai, the learned Public Prosecutor, has submitted that assuming that there are inter se contradictions in the evidence of the prosecutrix P.W.19 Jennamicka and P.W. 4 Sharada and P.W. 5 Clara, the evidence of the prosecutrix P.W.19 Jennamicka clearly establishes the offence against all the appellants. He has further submitted that the medical evidence corroborates the version of P.W.19 Jennamicka and, therefore, the conviction is justified. 9. P.W.1 Manuel Pereira states that he had taken the bakery of one Emilia Cristalina Fernandes on contract basis for which he was paying Rs. 1,500/- per month. Accused No. 1 Uday and one Remy were employed by him in the bakery. Accused no. 1 Uday and the other person Remy used to reside in a portion of the bakery. He further states that the said Emilia @ Cristalina (P.W.6) had two daughters and three sons and P.W.19 Jennamicka is her second daughter. He further states that P.W.6 Cristalina, mother of P.W.19 Jennamicka, had informed him that there was a love affair between the accused no. 1 Uday and P.W.19 Jennamicka and that he should keep a watch. He further states that he had - 10 - observed that accused no. 1 Uday used to talk to P.W.19 Jennamicka from the window to the wall separating the two premises. He, accordingly, requested accused no. 1 Uday to leave the job and that he would provide him with a job elsewhere. He has further stated that he had asked accused no. 1 Uday to leave the job just prior to the incident. In the cross-examination he has admitted that P.W.19 Jennamicka used to visit the bakery and he was told by P.W.6 Emilia @ Cristalina to discharge accused no. 1 Uday from services, since there was a love affair between the prosecutrix P.W.19 Jennamicka and accused no. 1 Uday. He has also admitted that accused no. 1 Uday used to write love letters to P.W.19 prosecutrix Jennamicka. He has also admitted that prosecutrix P.W.19 Jennamicka used to write love letters to accused no. 1 Uday. 10. P.W.6 Cristalina, mother of prosecutrix P.W.19 Jennamicka, states that about two months prior to the incident, since accused no. 1 was teasing the prosecutrix P.W.19 Jennamicka, she told P.W.1 Manuel to remove him from service. On 9th March 1998, at about 7.30 a.m., prosecutrix P.W.19 Jennamicka left the house for attending the school at Tivim. She was wearing her school uniform and was carrying her school books in the school bag. In the afternoon, at about 2.00 p.m., P.W.4 Sharada and P.W.5 Clara came and informed her that - 11 - P.W.19 Jennamicka had been forcibly taken in a Tata Sumo vehicle by accused no. 1 Uday. She, accordingly, went to the police station and lodged the complaint at Exhibit 41. On 11th March 1998, she received a phone call from her daughter and, on her asking her whereabouts, her daughter revealed that she was somewhere in Karwar. She told her daughter that she would come and collect her but her daughter informed her not to do so. Her daughter had asked her if she had lodged a complaint but P.W.6 Cristalina falsely informed her daughter that she had not done so. On 12th March 1998, P.W.6 Cristalina received another phone call from her daughter and said that accused no. 6 Anil, who is the brother-in-law of accused no. 1 Uday, wanted to talk with her. Accused no. 6 Anil is alleged to have told P.W.6 Cristalina to get the prosecutrix P.W.19 Jennamicka married to accused no. 1 Uday or else they would not send her home. On the same day, she had received another message from her daughter P.W.19 Jennamicka informing her about the contact number at Kolhapur. She then informed the police and the police went and brought prosecutrix P.W.19 Jennamicka back to Goa. In the cross-examination she has admitted that her daughter P.W.19 Jennamicka used to go to the bakery of P.W.1 Manuel some times. She has produced the Baptism Certificate Exhibit 40. She has stated that she was not informed by her daughter P.W.19 Jennamicka of any love - 12 - affair with accused no. 1 Uday. She has denied to have stated in her complaint at portion marked A - A1 that her daughter P.W.19 Jennamicka and accused no. 1 were friendly. She has disclaimed any knowledge whether accused no. 1 Uday and her daughter P.W.19 Jennamicka used to exchange any love letters. An omission was brought out that she had not stated in her statement that accused no. 1 Uday had forcibly taken P.W.19 Jennamicka in a Sumo vehicle. 11. P.W.4 Sharada and P.W.5 Clara were studying in Standard VIII, in the same school in which P.W.19 Jennamicka was studying in Standard VII. P.W.4 Sharada states that on 9th March 1998 she attended the school as usual, which got over at 12.30 p.m.. She alongwith P.W.19 Jennamicka, P.W.5 Clara and one Joyce were walking home from school. She saw a white colour Sumo with dark glasses coming from Mapusa side. The said Sumo stopped near them and one person got down from the Sumo and came towards them. The person, who got down from the Sumo, was the accused no. 1 Uday. Uday caught the hand of P.W.19 Jennamicka and pulled her towards the Sumo. P.W.19 Jennamicka shouted ‘Uday what are you doing’. Accused no. 1 Uday then pushed P.W.19 Jennamicka into the Tata Sumo. She states that she does not know who was driving the Tata Sumo and has failed to identify accused no. 4 as the person, who was driving - 13 - the Tata Sumo. She states that the vehicle then sped away and she went and informed P.W.6 Cristalina, mother of P.W.19 Jennamicka. She states that 9th March 1998 was a Saturday. Her statement was recorded by the police on the same day in the evening. She has further stated that they were shouting when P.W.19 Jennamicka was being taken by accused no. 1 Uday. She has also stated that there was no talk between them and accused no. 1 Uday. She has also stated that she was not informed by P.W.19 Jennamicka regarding her relationship with accused no. 1 Uday. 12. P.W.5 Clara states that on 9th March 1998 at about 12.00 to 12.30 p.m.she alongwith P.W.19Jennamicka, P.W.4 Sharada and one Joyce were walking home from school. She saw one Tata Sumo with dark glasses coming from the opposite direction. The Tata Sumo went ahead took a U-turn and came and stopped on the other side of the road. Accused no. 1 Uday got down from the vehicle and after coming to their side, pulled P.W.19 Jennamicka by her hand, upon which, P.W.19 Jennamicka said ‘Uday what are you doing’. Accused no. 1 Uday then pushed P.W.19 Jennamicka into the jeep and she saw accused no. 3 sitting inside the jeep. Accused no. 2 was sitting by the side of the driver and the driver was accused no. 4. The vehicle then sped away. They went and informed the mother of P.W.19 Jennamicka. She has stated that - 14 - she has identified accused nos. 1 to 4 in the identification parade. In the cross-examination she has stated that she saw the vehicle for the first time when it was at a distance of 10 to 15 metres from them. She has described the clothes worn by accused no. 1 Uday. She has stated that since the window on the driver side was rolled down, she could see inside the vehicle. An omission was brought out in respect of her not stating in her statement that after P.W.19 Jennamicka was forcibly taken by accused no. 1 Uday, P.W.5 Clara and others started screaming. She has stated that she was not aware regarding any love affair between accused no. 1 Uday and P.W.19 Jennamicka. She has also stated that she had seen accused no. 4 Sanjay for the first time on the day of the incident and does not recall if he had a beard. She has further stated that she had gone to the police station on 22nd March 1998. She denied the suggestion that the accused were present in the police station at that time. She has denied the suggestion that she had not identified the accused in the identification parade. 13. P.W.19 Jennamicka states that she knows accused no. 1 Uday and that she knows all the accused. She has given her date of birth as 7th July 1983 and was studying in VII standard at the time of the incident. On the death of her father, the bakery was handed over - 15 - to P.W.1 Manuel, who was running it on contract basis. Accused no. 1 Uday and one Remy were employed by P.W.1 Manuel in the bakery. P.W.1 Manuel, accused no. 1 Uday and Remy were residing in the bakery itself. There was friendship between accused no. 1 Uday and her. Some time during the New Year of 1998, accused no. 1 Uday had proposed to her for getting "friendly with him". She had stated that she would ask her mother and, accordingly, she asked her mother, who told her that she was young and studying in school and that she should not be friendly with accused no. 1 Uday. She states that, thereafter, accused no. 1 Uday started harassing her and she informed him that she was not interested in him. P.W.19 Jennamicka further states that she, accordingly, informed her mother about it and her mother asked P.W.1 Manuel to remove accused no. 1 Uday from the employment. She has further stated that, on 6th March 1998, during the night time, accused no. 1 Uday asked her to go along with him and she told accused no. 1 Uday that she would require time to think. On the next day, that is, on 7th March 1998, she told her mother that she was having loose motions and did not go to school. On 8th March 1998, accused no. 1 Uday came and told her that he had made fun and not to take him seriously. 14. On Monday, the 9th of March 1998, she went to - 16 - school as usual wearing her school uniform and carrying her school bag. While returning home in the company of P.W.4 Sharada, P.W.5 Clara and one Joyce, she saw a Tata Sumo vehicle with dark glasses parked at a spot. She observed that the Tata Sumo vehicle went ahead towards the main road and after taking a turn came towards their side. The vehicle slowed down near them and accused no. 1 Uday got down from the rear side and caught hold of her hand. She asked accused no. 1 Uday as to what he was doing but accused no. 1 Uday took her to the vehicle and pushed her inside. According to her, accused no. 2 Gajanan pulled her by her hair and made her to sit in the Sumo. She was made to sit between accused no. 2 Gajanan and accused no. 1 Uday. Accused no. 4 Sanjay was driving the said vehicle while accused no. 3 Mahesh was sitting beside him. The driver increased the speed of the vehicle and when they had reached near Limberament Hall, she saw one of her neighbour P.W.3 Diago Pereira. As she was about to call out to P.W.3 Diago, accused no. 2 Gajanan put his right palm over her face and put a "shamaldar" and kept her head on his lap. The vehicle proceeded towards Assanora. After some time the vehicle stopped and accused no. 1 Uday and accused no. 2 Gajanan asked her the size of her footwear. Accused no. 2 Gajanan and accused no. 3 Mahesh got down from the vehicle, went to the market and came back with a pair of shoes, - 17 - hair-pins, a packet of rubber bands and rolled gold earrings and gave them to her. After some time the vehicle was stopped and accused no. 2 Gajanan and accused no. 3 Mahesh got down and accused no. 2 Gajanan came back to the vehicle with a yellow colour churidhar while accused no. 3 Mahesh gave a gutka packet to accused no. 1 Uday, who, in turn, gave it to her. The vehicle was again stopped after some time and she was asked by accused no. 1 Uday and others to change her clothes. All the accused alighted from the vehicle and she closed all the windows and changed her dress from uniform to churidhar. Since the churidhar pant was not having a string, she removed her ribbons and tied them together and used as a string for the churidhar pant. On the way the accused had offered her a cold drink and a banana, which she declined. After reaching Belgaum, the accused nos. 1 to 3 got down for booking a hotel. She was alone in the vehicle with accused no. 4 Sanjay. Since no accommodation was available in that hotel, the vehicle was taken to Hotel Sanman. Accused no. 1 Uday alone got down and went to the hotel. Accused no. 1 Uday came to the vehicle and asked her to get down and follow him and, accordingly, she got down and walked behind him. According to her, accused no. 1 Uday had booked one room in the name of Rajesh Naik and paid Rs. 300/-. Accused no. 1 Uday then told accused no.