1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 21 OF 2004 Sajji Kumar, S/o Pappu Kumar, R/o Saji Bhavan, P.O. Eramathoor, Mannarvia Alleppey District, (Presently lodged in Central Aguada Jail, Aguada). ... Appellant versus State of Goa(Through Public Prosecutor, High Court). ... Respondent Mr. Menino Teles, Advocate for the Appellant. Mr. S. N. Sardessai, Public Prosecutor for the State. CORAM : V. M. KANADE,J. DATE : 10TH JUNE, 2005. ORAL JUDGMENT The appellant is challenging the Judgment and Order passed by the Additional Sessions Judge at Mapusa in Sessions Case No.15/2002. By the said Judgment and Order dated 25-3-2004 the Additional Sessions 2 Judge convicted the appellant for the commission of offence of rape which is punishable under Section 376(i)) of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for a term of seven years and also to pay fine of Rs.5000/- in default to undergo Simple Imprisonment for a period of six months. 2. The prosecution case in brief is that the prosecutrix Ms. Hazel Smith who is a citizen of United Kingdom had come to Goa in the month of December, 2001. She was having her Travel Agency in United Kingdom and she had come to Goa for finding a new destination. Accordingly, she decided to stay here for a period of one month. The prosecution case is that one day prior to her departure to her native country she decided to take a massage at an Ayurvedic Massage Parlour as she was thoroughly exhausted after her stay in Goa. She, therefore, took a taxi and came on Tito's road to have a massage at the Ayurvedic Centre. Three persons were standing on the road when she made inquiries about the Ayurvedic Centre. She was informed by one of the persons that the Ayurvedic Centre was closed. He further represented to her that he was an Ayurvedic doctor and was in a position to give her an Ayurvedic massage. The prosecutrix relied on his representation and she was taken to a room. The accused bolted the door from inside and thereafter asked her to remove her clothes. Accordingly, she removed her clothes and was asked to lay down on a bedsheet which 3 was laid on the floor. The accused started giving her massage and after some time, he asked her to sleep on her back. Initially, she was embarassed because she was not wearing anything on her upper body. However, the accused assured her that he had given massage to several ladies and, therefore, she should not be embarassed but she should close her eyes and relax. The prosecution case is that with great hesitation the prosecutrix followed the directions given by the accused. It is alleged that thereafter the accused started massaging her leg and thigh and pubic portion at which point of time she got up. The accused however, pushed her down and committed rape on her. The prosecution case further held that the prosecutrix thereafter came out of the room, took a taxi and told her friends as to what had happened. They advised her that she should lodge a Police complaint. Accordingly, she lodged a Police complaint on the same day and she was accompanied by a friend to the Police Station. Thereafter, she was examined by the doctor. The Police thereafter went to the place where the offence had taken place and arrested the accused. A spot panchanama was prepared. The accused was also examined by the doctor and the blood samples and other samples of the prosecutrix were sent to the Chemical Analyser. The Investigating Officer recorded the statement of the witnesses and a charge-sheet was filed against the accused. Thereafter a charge was framed against the accused. He, however, pleaded not guilty to the charge. The prosecutrix attended the Court in March, 2003. However, since the 4 accused was not present initially she could not be examined and she had to return back to her native place. Thereafter, a letter was sent through the British Embassy stating therein that it was not possible for the prosecutrix to come to Goa on account of financial contraints and, therefore, in the letter it was stated that the case should be disposed of expeditiously. The trial Court, therefore, proceeded to record the evidence of the other witnesses on which reliance was placed. Since the prosecutrix could not be examined her statement which was recorded under Section 164 of the Code of Criminal Procedure by the Special Executive Magistrate was brought on record and the prosecution relied on the said statement and also the F.I.R. which was reduced into writing by the friend of the prosecutrix. The trial Court on the basis of available evidence on record convicted the accused for offence punishable under Section 376 of the Indian Penal Code and sentenced him to suffer Rigorous Imprisonment for seven years and also to pay fine of Rs.5000/- and in default to suffer further imprisonment for six months. The accused initially was arrested on the same day i.e. on 11-1-2002. He was later on released on bail on 25-3-2002. He thereafter continued to be in Jail. 3. I have heard the learned Counsel appearing on behalf of the appellant/accused and the learned Public Prosecutor appearing on behalf of the State at length. The learned Counsel appearing on behalf of the 5 appellant has taken me to the evidence adduced by the prosecution in the course of the trial and on the Judgment and Order of the trial Court. The learned Counsel submitted that the First Information Report was not proved by the prosecution because neither the prosecutrix nor the person who had reduced the F.I.R. into writing had been examined by the prosecution. He, therefore, submitted that though the F.I.R. had been executed after it was produced by the Investigating Officer the contents of the F.I.R. could not be read in evidence as the contents had not been proved. He has relied on a Judgment of the Bombay High Court reported in AIR 1983 Bombay and has also relied on other Judgments in support of the said submission. The learned Counsel thereafter submitted that assuming without admitting that the F.I.R. had been proved by the prosecution even then no reliance could be placed on the F.I.R. as it was not a substantive piece of evidence but could be only used for the purpose of corroboration or contradiction of the complainant and other witnesses examined by the prosecution. In support of the said submission he has also relied on Judgments of the Supreme Court and High Courts which will be dealt with at the subsequent stage. The learned Counsel thereafter submitted that the statement which was recorded by the Magistrate under Sectiuon 164 of the Code of Criminal Procedure also should not be relied upon by the prosecution as a substantive piece of evidence but at the highest the statement could have been used only for the purpose of contradiction and corroboration. He 6 submitted that since the prosecutrix was not examined by the prosecution her statement which was recorded under Section 164 of the Code of Criminal Procedure, therefore, could not be of any assistance to the prosecution. The learned Counsel submitted that the non examination of the prosecutrix in the present case was an irregularity which could not be cured and which was fatal to the prosecution case. He submitted that the prosecutrix had appeared in the Court on 2 to 3 dates however on the actual date she chose to remain absent. He submitted that if the prosecutrix had been examined the learned Counsel for the accused could have cross- examined her on a number of aspects and, therefore, by not examining the prosecutrix serious prejudice was caused to the accused. He submitted that on this ground alone the entire prosecution case was liable to be dismissed. He submitted that this Court should draw an adverse inference on account of the non examination of the prosecutrix. The learned Counsel thereafter submitted that P.W.6, S. D. Sapeco, was a doctor who examined the prosecutrix as also the accused found that there was no injuries on the person of the accused or the prosecutrix. He submitted that assuming that the incident in question as alleged by the prosecution had taken place the absence of injuries indicate that there was absolutely no resistence when the said incident happened and this indicated that the prosecutrix was a consenting party to the incident which had taken place. He submitted that the prosecutrix was an able healthy woman of 35 years of age and could 7 have raised a hue and cry and could have resisted the accused. He submitted that the medical evidence, therefore, in fact did not support the prosecution case. He further submitted that the doctor could not give the exact time when the sexual intercourse had taken place. He submitted that it had come in the evidence that the prosecutrix had a boy friend named Daniel and that it had come in the evidence that Daniel had thrown her out of his room on 13-1-2002. He submitted that even if it is held that there was a sexual intercourse it could not be said that accused had committed the said act. He thereafter submitted that even if the F.I.R. is read in its totality it did not constitute an offence punishable under Section 376. It is submitted that in the F.I.R. the complainant has not stated that either she was raped or that the accused had inserted his penis in her private part. He submitted that in the F.I.R. it is recorded that while the massage was going on the complainant felt that the accused was licking her private part and when she got up he pushed her down and penetrated her. He submitted that thus even if the F.I.R. is read as a whole it could not be said that he had penetrated his penis in her private part and, therefore, no offence punishable under Section 376 was made out. The learned Counsel appearing on behalf of the appellant thereafter submitted that several persons who were named by the complainant in the statement under Section 164 of the Code of Criminal Procedure were not examined by the prosecution and, therefore, adverse inference should be drawn against the 8 prosecution. He thereafter submitted that all the witnesses who are examined by the prosecution are pliable witnesses inasmuch as all these witnesses are carrying on business and are practically at the mercy of the Police Officers. He thereafter submitted that even otherwise the proseution had not been in a position to establish that the said offence had taken place as there were several defects in the manner in which spot panchanama was taken. No arrest panchanama was prepared by the prosecution. He pointed out to the several lapses in the investigation made by the Investigating Officer. The learned Counsel appearing on behalf of the appellant further submitted that the Test Identification Parade could not be relied upon firstly because all the arrangements were made by the Investigating Officer though the guidelines prepared by the High Court clearly indicated that the Special Executive Magistrate is required to take every precaution to ensure that the Test Identification Parade is held in an independent manner and there is no possibility of any interference by the Police Officer. He further submitted that the Test Identification Parade was vitiated by the fact that the prosecutrix had seen the accused before he was arrested. He submitted that this fact has been stated by P.W.4, Joanita Fernandes, who in her evidence has stated that she along with the prosecutrix and the Police had gone to the place where the accused stayed and they noticed the accused there and thereafter he was arrested by the Police. He submitted that, therefore, it was not necessary to hold the Test Identification Parade and the said 9 evidence was, therefore, liable to be discarded. He thereafter invited my attention to the evidence of P.W.5, Alerio Lobo and P.W.8, Liliya Lobo and pointed out the various infirmities in their evidence and submitted that their evidence did not support the prosecution case and also was not of any assistance to come to the conclusion that the accused had committed the said offence. The learned Counsel appearing on behalf of the appellant relied on a number of Judgments of the Supreme Court and the High Court in support of these submissions. 4. The learned Public Prosecutor appearing on behalf of the State submitted that non examination of the prosecutrix was not fatal to the prosecution case. He submitted that the evidence which was brought on record clearly indicated that the offence in question had taken place and that the accused was the perpetrator of the said crime. He relied on a Judgment of the Supreme Court reported in State of Karnataka v. Mahabaleshwar G. Naik (1992 Cri. L. J. page 3786) in support of the said submission. He submitted that though the F.I.R. or the statement which is recorded under Section 164 of the Code of Criminal Procedure cannot be treated as a substantive piece of evidence yet it could be relied upon for the purpose of establishing the fact that the incident in question had taken place and the prosecutrix had promptly reported the matter to the Police at 11.30 p.m. When the incident had taken place between 8.30 and 9.30 on 10 the same date, the learned Public Prosecutor submitted that the promptness with which the complaint was lodged by the complainant indicated that the incident in question had taken place and, therefore, to that extent reliance could be placed on the first information report and the statement which was recorded under Section 164. He further submitted that the medical evidence clearly indicated that there was some injury to the private part of the prosecutrix as there was a slight abrasion near her fouchette and there was a swelling in her private part. The learned Public Prosecutor has taken me to the evidence of the various witnesses for examining on behalf of the proseution. He submitted that on the evidence of P.W.4, Joanita Fernandes, it could be seen that she had given a room to the accused on rent and he was residing in the said room. She has further stated in her evidence that she had seen the accused in the company of a foreigner. Further, he invited my attention to the evidence of P.W.5, Alerio Lobo, who has stated that he had seen a foreigner crying in his compound and that his servant Karuna told him that the foreigner had informed her that she had been raped. Further, P.W.8, Liliya Lobo, according to the learned Public Prosecutor also corroborated the case of the prosecutrix. He submitted that though it is held that the Test Identification Parade was vitiated on account of arrangements being made by the Investigating Officer yet even otherwise the prosecutrix had identified the accused when she had gone along with P.W.4, Joanita Fernandes along with the Police Officer. He, therefore, 11 submitted that any lacuna in holding the identification parade did not demolish the fact that the prosecutrix had identified the accused. He further submitted that though there may be some lapses on the part of the prosecution on that count benefit should not be given to the accused. In support of the said submission, he relied on a Judgment of the Supreme Court reported in AIR 1988 SC 2514 and in the case of Vishwasvaran v. State represented by SDM reported in 2003. He submitted that the prosecutrix had attended the Court and had come on her own from her native country and had attended the Court on 3 dates and thereafter she had expressed her inability to attend the Court on account of financial constraints. He further submitted that this showed the conduct of the prosecutrix in pursuing the case on account of injustice which was done to her. He further submitted that unless there is a strong motive for the prosecutrix to falsely implicate the accused the sole testimony of the prosecutrix is sufficient to convict the accused. In support of the said submission, he relied on a Judgment reported in (2004) 6 Supreme 596. He further submitted that it could not be said that the prosecutrix had deliberately remained absent but was unable to attend on account of financial constraints. He invited my attention to the various findings given by the trial Court and urged that the findings of the trial Court may be confirmed by this Court. 12 5. In the present case, the prosecutrix unfortunately has not been examined by the prosecution. In my view, the trial Court ought to have recorded her examination-in-chief when she had attended the Court on more than one occasion. It was the duty of the prosecution to have requested the trial Court to record the statement of the prosecutrix. In my view, the trial Court ought not to have adjourned the case merely because the accused was not present in the Court. The accused admittedly was represented by an Advocate. The prosecutrix had travelled all the way from England to Goa for the purpose of giving evidence after having spent considerable time and money as the charge which was levelled against the accused was very serious. Instead of recording the evidence of the prosecutrix the trial Court has adjourned the case at least on 3 dates. Thereafter, a letter was sent by the British Embassy which is at Exh.94, page 196 of the Paper Book in which it has been mentioned that the prosecutrix was unable to come to the Court again on account of financial constraints and because of emotional distress which was caused to her. Since a letter has been sent by the British Embassy stating the reason why the prosecutrix is not in a position to attend the Court, it would not be possible to pass an Order under Section 391 of the Code of Criminal Procedure for the purpose of recording additional evidence and no useful purpose would be served by permitting the prosecution to lead evidence in the High Court or by remanding the case to the trial Court for the purpose of recording the 13 evidence of the prosecutrix as she has declined to come to the Court. Therefore, it will have to be seen whether the prosecution has established its case on the basis of the other evidence which has been brought on record. The prosecution has in all examined 10 witnesses. P.W.1, Vinayak Alornekar, is a Special Executive Magistrate who conducted the Test Identification Parade. P.W.2, Marcelino A. Fernandes, is a panch witness who prepared the spot panchanama. P.W.3, Krishna V. Shetgaonkar, was attached to the C.I.D. Branch, Panaji as P.S.I. and he has sent the samples which were taken from the accused and the prosecutrix to the Chemical Analyser. P.W.4, Joanita Fernandes is the landlady of the accused who had given one room to the accused and has stated that the accused was using the room as a massage room. She has stated that she was running a restaurant along with a bar known as "Seby" in the front portion of her house. P.W.5, Alerio Lobo, was carrying on a business of a small hotel and he has been examined by the prosecution in order to brief that the prosecutrix was found crying in the compound on the said date of the incident. The prosecution has also examined his wife P.W.8, Liliya Lobo. The prosecution has further examined P.W.6, Dr. Silvano Dias Sapeco. P.W.6, Dr. Sapeco examined the prosecutrix and also the accused on the next day. On 12-1-2002 at 3.10 a.m. he examined the prosecutrix and on 12-1-2002 he examined the accused. The prosecution thereafter examined P.W.7, Gaurish Mapari, who was attached to the C.I.D. Crime Branch as a 14 Scientific Assistant who forwarded the sealed exhibits and the report. The prosecution then examined P.W.9, Deu Banaulikar who is the Officer in charge of the Police Station and who carried out the investigation of the entire offence and lastly, the prosecution examined P.W.10, Reginald Remedios who is a photographer who had taken photographs of the scene of offence when the panchanama of the scene of offence was in progress. The Investigating Officer, P.W.9, Banaulikar, in his evidence has produced the F.I.R. which was recorded in the Police Station. He has stated that the prosecutrix was frightened and stunned and was not in a position to write the F.I.R. and, therefore, her friend Esmath had reduced the F.I.R. into writing and the signature of the complainant was obtained. The Investigating Officer has been cross-examined at length on this point and an attempt is made to show that in fact the F.I.R. which was produced by the prosecution was subsequently prepared. In my view, the Investigating Officer has given cogent reasons in his examination-in-chief and cross- examination and has explained as to why the complainant was not in a position to write the F.I.R. The F.I.R., therefore, in my view, has been properly proved by the Investigating Officer and has been exhibited by the trial Court. The learned Counsel appearing on behalf of the appellant has relied upon a number of Judgments in support of his submission. Since the complainant has not been examined the contents of the F.I.R. cannot be relied upon and that the F.I.R. should be used only for the purpose of 15 corroboration and contradiction. He has relied on a Judgment of the High Court reported in the case of Om Prakash and another v. United Trust of India and others(1983 Bombay page 1). He has also relied upon a Judgment of the Supreme Court in the case of Harking v. State of Punjab (1997 Cri. L. J 3954). He has further relied upon a Judgment of the Supreme Court in the case of George v. State of Kerala and another(1998 Cri. L. J. 2034. He has also relied upon a Judgment of the Supreme Court in Madhu v. State of Bihar(AIR 1995 SC 1467). 6. There cannot be any dispute regarding the ratio laid down in the said Judgments. It is a well settled law that the F.I.R. by itself cannot be used as a substantive piece of evidence and it can only be used as a contradiction or corroboration thereof. In the present case, the complainant has not stepped into the witness box and, therefore, even otherwise it will not be possible to rely on the said F.I.R. as a substantial piece of evidence. Even otherwise, the Supreme Court in the case reported in 1998 2034 has observed that the F.I.R. even otherwise cannot be used as a substantive piece of evidence to discredit the testimony of other witnesses. However, the F.I.R. can be used only for the limited extent for the purpose of establishing the fact that the F.I.R. was lodged at 11.30 on 11-1-2002 immediately after the alleged offence had taken place and, therefore, there is no reason to disbelieve the testimony of the Investigating Officer that the 16 prosecutrix had personally come to the Police Station along with her friend and the F.I.R. was reduced into writing by her friend. 7. The second submission which is made by the learned Counsel appearing on behalf of the appellant is that the statement of the prosecutrix which was recorded under Sectrion 164 of the Code of Criminal Procedure cannot be used as a substantive evidence also in my view has to be accepted. It is a settled position that a statement under Section 164 can be used only for the purpose of corroboration and contradiction and cannot be used as a substantive piece of evidence. In the case reported in Audumbar Digambar Jagdane and another v. State of Maharashtra (1999 Cri. L. L. 1936) a Division Bench of this Court has observed in para 12 as under:- ""In our opinion once Narayan has not supported the prosecution, the