1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 67/2009 State Through Police Inspector, Mapusa Police Station, Mapusa, Bardez Goa. ... Appellant V e r s u s Shaikh Mohammad Rafiq, S/o Shaikh Amrul Hassan, Indian National, 39 years of age, R/o Per Seraulim, Colva, Salcete Goa. ... Respondent AND CRIMINAL APPEAL NO. 53/2009 State Through Police Inspector, Mapusa Police Station, Mapusa, Bardez Goa. ... Appellant V e r s u s Shaikh Mohammad Rafiq, S/o Shaikh Amrul Hassan, Indian National, 39 years of age, R/o Per Seraulim, Colva, Salcete Goa. ... Respondent 2 Mr. C. A. Ferreira, Public Prosecutor for the Appellant. Mr. Mike Mehta, Advocate for the Respondent. Coram :- N. A. BRITTO, J. Date :- 16 th October, 2009. JUDGMENT : 1. Heard Shri C. A. Ferreira, learned Public Prosecutor on behalf of the Appellant and Shri Mike Mehta, learned Counsel on behalf of the Respondent/accused. 2. These appeals can be conveniently disposed of by this common judgment. 3. The Second Appeal is directed against the acquittal of the accused under Section 363 IPC, and, the First Appeal is directed against the sentence imposed upon the accused under Section 8(2) of the Goa Children's Act, 2003 ( Act, for short ) i.e. the accused has been dealt with under Section 4(1) and 5 of the Probation of Offenders Act, 1958, ( P. O. Act, for short ). 3 4. The case of the prosecution is that the respondent – accused on or about 21.12.2006 at about 8.15 hours at Green Park Junction at Guirim, kidnapped the victim boy i.e. to say PW2 from the lawful guardianship and thereafter committed sexual abuse on him, thereby committing offences punishable under Section 363 of IPC and Section 8(2) of the Act. 5. The case of the accused is that on that day, he was going to Mapusa from Panaji with his red colour Alto car, and as the battery was weak, he parked the car near Bodgeshwar Temple. At that time he saw a boy, PW2 urinating, so he slapped him. Accused stated that he limps with his left leg as he has paralysis. He stated that this is a false case filed against him. Accused did not examine any witnesses. 6. To support the charge framed against the accused, the prosecution examined six witnesses which included the said PW2, a minor boy, who at the relevant time was of 15 years, 3 months of age, having been born on 28.9.1992; PW1 Dr. Kuncolienkar who medically examined him subsequently; his mother PW3 Shobha Padgaonkar; and PW4 Namdev Mandrekar who happened to reach the scene and who informed the said mother; PW5 Rajesh Kerkar who acted as a pancha witness to the scene of offence panchanama, as well as arrest panchanama of the accused, which took place at about 16.15 hours on the same 4 day. PW6 PSI Prajyot Fadte not only recorded the complaint of PW2 but also investigated the case. 7. The State having filed both these appeals, one against the acquittal and the other against the sentence, on behalf of the accused, it is submitted that the accused is entitled for an acquittal or in the alternative, for the sentence to be maintained, if required, after calling for a report of the Probation Officer. 8. PW2, who at the relevant time was below 16 years of age was residing at Bastora and was studying in Saraswat Vidhyalaya at Mapusa, in IXth standard. As stated by him, on 21.12.2006, he left his house at Bastora to go to school at about 7.45 a.m. and as he was waiting for the bus, at the bus stop near Green Park Junction at Guirim, at about 8.15 a.m., he saw a red colour Alto car going to Mapusa and the said car stopped near him. Then he described the accused and the clothes he was wearing. He further stated that on stopping the car, he opened the left side front door thinking that the car had stopped for him, and when he went to see, the accused caught him by his hand and pulled him inside. He further stated that he was frightened as there was no one around him but he sat in quietly and he sustained scratches on his right hand and on reaching near Bodgeshwar Temple, as there was traffic jam, the accused took the car in the field and he started to drive the vehicle slowly, and started kissing him on his 5 face and also attempted to remove his short pant and he screamed for help, when he saw that one person was coming towards him. According to him, the accused was holding his right hand tightly, but he managed to free himself from his hand, opened the door of the car, and escaped and he pulled his pant up and went running towards one person who was nearby and on seeing him crying, the said person, whose name he came to know later as Namdev Mandrekar, and he inquired with him as to what had happened and told him everything and in the meantime the driver of the car i.e. the accused disappeared, leaving the car in the field but he noted down the number of the car as GA-08-A-4903 and he also noticed that the driver ran away, limping. He stated that he gave his landline number and his father's mobile number to the said Namdev Mandrekar and he telephoned his parents, and his mother reached the spot, and thereafter he went to the Mapusa Police Station and lodged the complaint against the driver of the Alto car. He produced the complaint and identified his signature on the said complaint and identified the accused as the driver of the said car. He further stated that after lodging the complaint, the police came to the spot and he accompanied them, and he showed the spot to the police who conducted the panchanama. He also identified the clothes of the accused which were shown to him. 6 9. In cross examination PW2 stated that the distance between the seat of the driver of the car and the front door may be around 1 ½ metre. He stated that he was standing at the bus stop which was towards Panaji side from Green Park Junction and at the junction one by-pass road goes towards Pernem, and one goes towards Mapusa. He further stated that the Bodgeshwar Temple would be seen from the tar road and same is at a distance of about 100 metres from the road. He further stated that his mother reached within 15 minutes after PW4 Namdev Mandrekar had telephoned her, from his mobile. He stated that from the spot, they came from somebody's vehicle, to Mapusa Police Station, and further stated that he did not know how many persons were with the police, when they had come to the spot. He stated that a crane was also brought by them. He admitted that on that day there was school picnic but denied the suggestion that he was not regularly attending the school from December, 2006. He denied all the suggestions put to him which were contrary to the facts stated by him and, further denied that he signaled the accused to stop and asked for a lift to Mapusa. He also denied the suggestion that when the car reached near Bodogeshwar Temple, the battery of the car was low and as such the car was stopped. He also denied the suggestion that he started fighting with the accused to reach him to school and because the accused had declined, he opened the door and he started urinating inside the car. He also denied the suggestion that the accused had slapped him once or that the accused had got down, locked the 7 car and then had gone away. 10. PW4 Namdev Mandrekar stated that he drives van No. 5703 and on the morning of 21.12.2006 he dropped the teachers at the Holy Family High School, Porvorim, by the said van, kept the said van near the school and returned with one Ramesh who dropped him near Bodgeshwar Temple. He stated that he heard shouts of one boy asking for help saying “sir, help me” from one red colour Maruti Alto car at around 8.25 a.m. He stated that the car was parked in the field near Bodgeshwar Temple, which was in the field and the number of the car was GA-08-A-4903. He stated that the boy came running towards him and he was around 15 to 17 years of age and the boy was in a frightened condition and his short pant was unbuttoned which he was buttoning and the bag of the boy was kept in the car. He stated that the boy told him that he had been pulled inside the car by the driver of the car, and inside the car he started kissing him and tried to remove his short pant. He stated that boy told his name as Vallabh Padgaokar and he went to the car to bring the bag of the said boy and at that time he noticed the accused was sitting on the front seat of the car and when he asked his name he gave his name as Sheikh Mohamood Rafique. He stated that he opened the door of the car and ran away towards Bodgeshwar Temple and while he was running he noted that he was limping by right leg. He further stated that, he was having a mobile of his Madam Irene Manuel and from the 8 same he contacted the mother of the boy on her phone, and told her to come to the Bodgeshwar Temple to take her son and after that his mother came and they took a lift and went to the Mapusa Police Station. He identified the said boy and the clothes worn by him as well as by the accused. 11. In cross examination PW4 stated that his statement was recorded on the same day at about 9.00 a.m., but he did not know the name of the policeman who recorded the same. He admitted that he had not stated to the police that he had called the mother of the boy from mobile of his Madam and had also not stated to the police that the mother and the victim took a lift and went to the police station. He stated that he went to the Police Station later. He denied all the suggestions put to him contrary to the facts stated by him. He was confronted with his statement recorded by the police where he had not stated that the said boy had said to him, “Sir, help me”. He further stated that he was given a cash award of Rs. 1500/- by Mapusa Police Station for having done good job by helping the victim in this case. In further cross examination he stated that he did not remember the landline number of the mother of the victim. 12. The learned Children's Court after considering the evidence led by the prosecution came to the conclusion that PW2, the boy had emerged as truthful and reliable witness. Learned Children's Court further observed that the defence 9 of the accused appeared to be wild imagination and further observed that only because the accused has not reached the victim boy to Mapusa, the victim boy would have started urinating in the car as that was not the normal conduct of human being. As regards PW4 Namdev Mandrekar, the Children's Court noted that there were no inconsistencies between his evidence and that of PW2, the boy, and further observed that even if there was a minor variation the law was well settled that there are bound to be minor variations in the depositions of even truthful witnesses and the Court cannot expect parrot like depositions from truthful witnesses . Learned Children's Court referred to the aforesaid omission which was proved through PW6 PSI Fadte and found that the same was not very material, and, in my view rightly, and further held that only because PW4 Namdev Mandrekar was subsequently given a cash reward by Mapusa Police Station for having done a good job, his testimony could not be discarded and he too had emerged as a reliable witness. 13. First, I will deal with the aspect whether the accused is entitled for an acquittal. Accused has sought for his acquittal and is entitled to in an appeal against sentence. The Act itself has laid down the standard required to be followed in appreciating the evidence in cases involving offences against the children and that standard is a standard which is followed in appreciating the evidence of child rape victims i.e. the evidence of victim should carry as much 10 weight as that of an injured person. In other words, the statement of a victim of an offence under the Act is not required to be corroborated but some evidence which lends assurance to his or her evidence would be sufficient ( 1995 (5) SCC 518 ). 14. Learned Counsel on behalf of the accused submits, that the victim boy was to go on picnic on that day, and, was in haste to go to school, and further submits that as the accused was not in a position to take him, the victim boy behaved in the manner, narrated by the accused. He further submits that the mother of the boy namely PW3 Shobha is a teacher and boy's father is a reporter and it is because of that the police have falsely implicated the accused. He further submits that PW4 Namdev Mandrekar is also associated with teaching as he had dropped some teachers at Holy Family High School, Porvorim, and he was a chance witness and as such his evidence ought not to have been accepted by the Court. Learned Counsel further submits that the cause for the said boy to complain was that the accused had slapped him for urinating in his car. He further submits that if PW4 Namdev Mandrekar was present, then he did not make any efforts to catch the accused from running. Learned Counsel further submits that in case the accused had pulled the boy there could have been some resistance on his part and this very story shows that the version of the boy is improbable. He further submits that the accused would not have behaved with 11 the boy in the manner alleged by him, because on the road there was heavy traffic. 15. Learned Public Prosecutor, on the other hand, submits that if the case of the accused is only of urination and slapping, then the accused has not explained as to how the boy got scratches on his hand. Learned Public Prosecutor submits that the plea of the accused that the said boy has urinated in his car is unreasonable and unbelievable. Learned Public Prosecutor submits that the version of PW2, the minor boy, is consistent, corroborated by PW4 Namdev Mandrekar and also by medical evidence. Learned Public Prosecutor submits that there was no reason for a young boy to falsely implicate a total stranger. 16. Considering the evidence produced by the prosecution, in my opinion there is no scope for the acquittal of the accused at all. The case of the prosecution as projected through the evidence of PW2 is consistent, convincing and amply corroborated by the evidence of PW4 Namdev Mandrekar, his mother PW3 Shobha as well as the medical evidence of PW1 Dr. Kuncolienkar, besides other evidence. 12 17. The presence of PW4 Mandrekar at the scene cannot be doubted. In fact he is the very reason for PW2 Shobha to reach the scene, and then for the mother and son go to the Police Station to lodge the complaint. In fact he connects the versions of PW2 and PW3 and prompt lodging of the complaint at 8.50 hours. 18. PW2 has stated that the scratch marks on his hand were caused when he was pulled in the car, but in my view, it is more probable that these scratches were caused in the process of the accused kissing PW2 and attempting to remove his short pant. It is quite possible that PW2 has got his facts mixed up, but that is no reason to disbelieve him. As rightly pointed out by the learned Public Prosecutor, there is no reason at all as to why PW2 a minor boy, should falsely implicate a total stranger like the accused in this case. The explanation given by the accused that battery of the car was weak is inheritantly improbable explanation considering that the car of the accused had run at least from Panaji to Mapusa and even in case the battery was low, the said run was more than sufficient for the battery to be sufficiently charged. If the battery was low, why did not the accused stop the car by the side of the road ? If the battery was low, the car would not move, slowly in the field as stated by PW2. The very purpose of taking the car in the field was to abuse the boy. Similarly, the explanation of the accused that PW2 urinated in the car cannot be accepted. A small boy would not venture to do that in the presence of an accused who was almost 13 thrice of his age. This is a case where the evidence of PW2, the minor boy, is not only consistent but the same is amply corroborated by medical evidence of PW1 Dr. Kuncolienkar who found two superficial minor abrasions over forearm of the said boy, by the evidence of PW3, his mother, who otherwise had no reason to reach the scene unless she was called by PW4 Namdev Mandrekar as well as by PW4 Namdev. It may be that there is no evidence on record to show as to how the car of the accused was ultimately taken to the Police Station but the accused also made no effort to get such evidence by cross examining the relevant witnesses but that is of no importance to the case of prosecution. 19. Learned Counsel on behalf of the accused submits that PW4 Namdev Mandrekar could not have known the name of the accused for it was stated by the investigation officer in the reply filed to the bail application that the accused was required to be identified. Here, it may be stated that there was no question of any identification of the accused as the incident itself was not disputed though the version given by the accused is different. PW2 had travelled in the car of the accused for some distance. Secondly, the statement of PW4 Namdev that he had asked the accused for his name and was told by the accused, is a fact which is reflected in his statement recorded earlier, subsequent to the recording of the complaint. There was no contradiction brought out in the evidence of PW4 Namdev Mandrekar in that regard, and even otherwise the statement given by 14 PW4 Namdev Mandrekar is in conformity with the statement given by him to the police and therefore it is quite possible that by the time the statement of PW4 Namdev Mandrekar was recorded, PW4 Namdev Mandrekar was aware of the name of the accused and only because PSI Fadte stated in his reply that the accused was required to be identified, is no reason to doubt the credibility of the version given by PW4 Namdev Mandrekar. The said explanation might have been given by PW6 PSI Fadte only with a view to deny bail to the accused but that in no way can affect the veracity of the version given by PW4 Namdev Mandrekar. That PW4 Namdev went to assist PW2 is quiet commendable. Nowadays, not everyone intervenes. It was certainly not expected of PW4 Namdev to have caught the accused and for not doing that, he cannot be disbelieved. Not everyone gets involved to that extent inviting a risk upon himself. 20. PW3 Shobha might have been a teacher and her husband a reporter. PW4 Namdev was only a driver and even if he was a teacher, there was no reason to discard his evidence which is also consistent. His presence at the scene cannot be doubted. The omission noticed in his evidence is too minor to be taken note of. 15 21. There are two other submissions made by learned Counsel on behalf of the accused. One is that the prosecution produced all witnesses who were associated with the family of the victim boy and has further submitted that on the same day PW5 Rajesh Kerkar stood as a pancha witness twice. Both the submissions made on behalf of the accused by learned Counsel need to be rejected. Only because the victim boy was known to PW5 Rajesh Kerkar when he was residing at Saligao which is also the place of residence of the said PW5 Rajesh Kerkar is no reason to suspect his independence. The Apex Court in Joseph Fernandes V/s State of Goa ( 2001 SCC 707 ) has observed that if a pancha witness had stood as a pancha witness previously that would not denude him from his independent character. It is good to remember that when a person gives his evidence on oath, the presumption is that he has spoken the truth and that presumption can be rebutted by showing that the evidence given is inherently improbable or against the general tenor of the case or otherwise demonstrated to be false. The Apex Court with reference to independent witnesses observed in Hazari Lal V/s Delhi Administration (1980 (2) SCR 1053) that :- “Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purposes whatsoever.” 16 The Apex Court further observed that :- “Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons.” The said observations of the Apex Court are relevant to the facts of this case not only in relation to PW5 Rajesh Kerkar being known to the family of the victim boy as well as being called for the second time by the police to act as a pancha witness. 22. Another submission made by learned Counsel for the accused is that there is delay in filing the charge sheet which appears was filed after about seven months i.e. 18.7.2007. Learned Counsel submits that there is no explanation for this delay but the fact remains that the accused even did not try to find out in cross examination of PW6 PSI Fadte as to why there was delay in filing the charge sheet. If asked, possibly he could have given a convincing explanation. That apart only because the charge sheet was filed with delay does not mean that the trial would be vitiated. Learned Counsel further submits that in a Sessions triable case more serious investigations were required to be done. I do not find merit in this submission, for whatever was required to be done was done. The 17 I.O. was not cross examined to bring all details of investigation, on record, and for that it cannot be said, the case was not sufficiently investigated. 23. Considering the evidence produced by the prosecution, the accused was not at all entitled to be acquitted. 24. Next, what is to be considered is whether the learned Children's Court was justified in acquitting the accused under Section 363 IPC ? 25. Learned Children's Court has rightly observed that what was required to be proved for an offence of kidnapping was that the