1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 54/2008 Nagraj Bajannath, s/o. Shivanand Bajanath, aged 19 years, r/o. H.No.261, Vishwambarwadi, Sanvordem, Sanguem, Goa. ......... Appellant. V/s. S T A T E Through P.P. ......... Respondent. Mr. Arun Bras De Sa, Advocate for the appellant-accused. Mr. C. A. Ferreira, Public Prosecutor for the State-respondent. CORAM :- SMT. V.K. TAHILRAMANI & N.A. BRITTO, JJ. Date : 20th November, 2009 O R A L J U D G M E N T : (Per SMT. V.K. TAHILRAMANI, J.) 1. Through this appeal, the appellant-original accused, has challenged the Judgment and Order passed by the learned President, Children's Court for the State of Goa, at Panaji, whereby the appellant came to be convicted under Section 376 IPC, read with Section 8(2) of 2 the Goa Children's Act, 2003. For the said offence he came to be sentenced to Life Imprisonment and he has been ordered to pay a fine of Rs.2,00,000/-, in default, to undergo Rigorous Imprisonment for a period of two years. 2. The Prosecution case, briefly stated, is as under : The complainant PW.2 Minaxi Ingle was residing along with her daughter PW.1 - victim girl (name withheld) at Sanvordem, in a rented house. At the time of incident in question PW.1 was four and half years old. PW.3 Kasturi Pujari, the maternal grandmother of PW.1 was also residing with them. On 5.1.2005, at about 4 p.m., PW.1 was playing in the courtyard. At that time, the accused came to her and told her that he would give her some sweets. Saying so, the accused took PW.1 to his house. Accused took PW.1 inside a room, in which there was a bed. The accused made her lie down on the bed, and removed her underwear. The accused also removed his underwear. Thereafter, the accused inserted his private part in her private part. PW. 1 started getting pains. She started crying. The accused then left her. PW.1 then went home and reported the incident to her grandmother PW.3 Kasturi and mother PW.2 Minaxi. PW.1 showed the house of the accused to 3 her mother PW.2 Minaxi and PW.3 Kasturi and also the room in which she was taken by the accused. She also pointed out the bed on which she was made to lie down by the accused. On the same day, at about 7.00 p.m., PW.1 started crying as she was finding it difficult to pass urine. Her mother PW.2 Minaxi checked her private part and noticed that blood was coming out from her private part. PW.2 Minaxi applied powder to her private part. PW.2 Minaxi informed her aunt PW.14 Asha who was residing nearby, about the incident. Thereafter, all of them went to the house of one Mrs. Patil, who was their neighbour and informed her about the incident. Mrs. Patil went to the house of the accused. Thereafter, Mrs. Patil came back to the house of PW.2 Minaxi with Neela mother of the accused. Neela, mother of the accused told them not to disclose the said fact to any one as the names of PW.1, as well as her son would be spoilt. The mother of the accused also told them that she will bear the medical expenses of PW.1 Hence, PW.2 and PW.3 kept quiet. During night time, again PW.1 started crying and complaining of pain to her private part, whereupon PW.2 applied oil to her private part. On the next day, in the morning, Neela mother of the accused and PW.3 Kasturi took PW.1 to PW.4 Dr. Seema Divani, who 4 is a private Doctor. Neela took PW.1 inside the cabin of PW.4. She informed PW.4 that PW.1 sustained injury while playing. PW.4 prescribed medicines, which were purchased by Neela, mother of the accused. On 7.1.2005, people from the Village came to know about the incident. The villagers insisted that the accused should leave the locality. PW.2 Minaxi was hesitant to file a complaint because the villagers were telling her that nothing would come out of filing a complaint and she would be in difficulty in case a complaint is filed. However, PW.7 James Lopes, an Advocate encouraged PW.2 Minaxi to file a complaint and, therefore, she lodged her complaint on 8.1.2005. After filing of FIR, investigation commenced. The accused came to be arrested. PW.1 was sent for medical examination. PW.8 Dr. Silvano Sapeco, along with one Dr. M. Philomena Pereira D'Souza, examined the victim girl. On examination, they found that there was a healing lacerated wound of 1 ¾ x ½ ½ cms. seen between left labia majora and minora with inflammation around and posterior fourchate had a healing tear of ½ x ½ cms with inflammation around. After completion of investigation, the charge-sheet came to be filed. 5 3. Charge came to be framed against the appellant-accused under Section 376 of IPC and Section 8(2) of Goa Children's Act, 2003. The accused pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. Further defence of the accused was that he had birth defect called phymosis, because of which he did not get erection and in such case, it was impossible for him to have committed rape on PW.1. After going through the evidence adduced by the prosecution, the learned President, Children's Court, convicted and sentenced the appellant- accused as stated in para 1 above. Hence, this appeal. 4. We have heard Mr. Arun Bras de Sa, learned Counsel for the appellant and Mr. Ferreira, learned P.P. for the State. We have perused the evidence in the present case, as well as the Judgment and Order passed by the learned President, Children's Court. After carefully considering the matter, we are of the opinion that the appellant-accused has been rightly convicted under Section 376 of IPC and Section 8(2) of Goa Children's Act, 2003. We now propose to deal with the evidence of the witnesses examined by the prosecution in this case. 6 5. PW.2 Minaxi who is the complainant in the present case, has stated that she knows the accused who is her neighbour. She was residing at Sanvordem, along with her mother PW.3 Kasturi and her daughter PW.1. On 5.1.05, at about 4 p.m., her daughter PW.1 had gone out to play. At about 4.30 p.m., her daughter PW.1 came home crying and told her that the accused took her to his house, licked her private part and put his private part into her private part. PW.1 told her that there was no one in the house of the accused at the time of the incident. Thereafter, PW.3 Kasturi mother of Minaxi went along with PW.1 to the house of the accused to ask him about the incident. The accused told them that he had only given sweets to PW.1. They came back to the house. At about 7.00 p.m., PW.1 started crying as she was finding it difficult to pass urine. Minaxi has stated that she checked private part of PW.1 and noticed that blood was coming out from her private part and her private part was appearing reddish in colour. She applied powder to her private part. Minaxi informed her aunt Asha PW.14 who was residing in her neighbourhood about the incident. They then went to the house of one Mrs. Patil who was their neighbour and informed her about the incident. Mrs. Patil went to the house of the accused. Thereafter, Mrs. Patil came back to the house of PW.2 7 Minaxi with Neela, the mother of the accused. Mother of the accused told them not to disclose the said fact to any one as the names of PW.1 as well as her son would be spoilt. The mother of the accused also told them that she will bear the medical expenses of PW.1 Hence, they kept quiet. During night time again PW.1 started crying and complaining of pains to her private part, whereupon PW.2 Minaxi applied oil to her private part. On the next day, in the morning, Neela mother of the accused and PW.3 Kasturi took PW.1 to PW.4 Dr. Seema Divani, who is a private Doctor. Dr. Diwani prescribed medicines, which were purchased by Neela, mother of the accused. On 7.1.2005, people from the Village came to know about the incident. The villagers insisted that the accused should leave the locality. PW.2 Minaxi was hesitant to file a complaint because the villagers were telling her that nothing would come out of filing a complaint and she would be in difficulty in case a complaint is filed. However, PW.7 James Lopes, encouraged PW.2 Minaxi to file a complaint and, therefore, she filed her complaint on 8.1.2005. 6. PW.3 Kasturi is the grandmother of victim girl. She has stated that at 4.30 p.m. on 5.1.05, she was at home with her daughter 8 PW.2 Minaxi. At that time, PW.1 who was playing outside the house, came home crying. PW.1 told them that the accused took her to his house by saying that he would give her some sweets. Thereafter, the accused made her to lie on the bed and removed her panty, spread her legs and inserted his penis in her private part. They then went to the house of the accused, which was pointed out to them by PW.1. The said house is at a distance of 10 to 15 metres from her house. PW.1 pointed out the accused as well as the spot where the accused made her lie down. PW.3 questioned the accused about the incident, however, he denied his involvement. At about 7.30 p.m. PW.1 started crying while passing urine. She complained of severe pain in her private part. They checked her private part and they found that there was redness and there was slight bleeding. 7. PW.14 Asha Chikodi, the sister of PW. 3 Kasturi was residing in the neighbourhood of PW.3. Asha Chickodi has stated that PW.2 and PW.3 narrated the incident to her. One Mrs. Patil PW.13 was also residing close to their house. They went to the house of Mrs. Patil and narrated the incident to her. Mrs. Patil advised them not to tell about the incident to anyone. Mrs. Patil then went to the house of the 9 accused. At that time, Neela, the mother of the accused was present in the house. Mrs. Patil narrated the incident to Neela. Neela came to the house of PW.2 and PW.3. Neela requested them not to disclose the incident to anyone and said that she would bear the expenses of the medical treatment to PW.1. Thus, the evidence of PW.14 Asha totally corroborates the evidence of PW.2 Minaxi and PW.3 Kasturi. Nothing has been elicited from the evidence of any of these 3 witnesses, viz. PW.2 Minaxi, PW.3 Kasturi and PW.14 Asha so as to disbelieve their testimony. 8. The main witness in the present case is the victim girl herself i.e. PW.1. At the time of the incident, PW.1 was about four and half years of age. PW.1 has stated that she knew one Nagaraj. She has identified the appellant as the said Nagaraj in the Court. She has stated that on the day of the incident, in the afternoon, she was playing in the courtyard. The accused came to her and told her that he would give her sweets. Saying so, the accused took her to his house. There was nobody in the house of the accused. The accused took her inside a room in which there was a bed. The accused made her lie down on the bed, spread her legs, and licked her private part with tongue. Then the 10 accused removed his underwear and inserted his private part in her private part. She started getting pains and started crying. The accused then left the spot. PW.1 then went home and reported the incident to her mother PW.2 Minaxi and her grandmother Kasturi PW.3. She showed the house of the accused to her grandmother PW.3. PW.1 also showed the room in which she was taken by the accused and also pointed out the bed on which she was made to lie down by the accused. Her mother applied oil and powder to her private part. On the next day, her grandmother PW.13 Kasturi and mother of Nagraj took her to a Doctor at Sanvordem. The Doctor gave her some medicines. 9. The learned Counsel for the appellant submitted that PW.1 who was just 4 and half years old at the time of the incident, being a child witness, her evidence would be most susceptible to tutoring and on account of fear and inducement a child witness can depose about things which the child witness has not seen or experienced. He argued that a child is a most dangerous witness, as a child has a tendency to live in a world of make-believe and a child is prone to imagine things which it has not seen. In support of his contention, he has placed reliance on a decision of the Supreme Court in Caetano Piedade 11 Fernandes and anr. vs. Union Territory of Goa, Daman and Diu, Panaji, Goa, AIR 1977 SC 135. He has also placed reliance on a decision of Division Bench of this Court in Narayan Kanu Datavale vs. State of Maharashtra, 1997 Cri. L. J. 1788. It is well settled that testimony of a child witness can be accepted after great caution and circumspection. Hence, keeping this in mind, we have evaluated the testimony of PW.1 with great caution and circumspection. On carefully going through her testimony, we are satisfied that it inspires confidence. 10. Indisputably, certain factors are required to be considered as regards reliability of the testimony of the child witnesses, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is a ring of truth in it, there is no obstacle in the way of accepting the evidence of child witnesses. A child indisputably is competent to testify if he/she understands the question(s) put to him/her and gives rational answer (s) thereto. 11. Under Section 118 of the Evidence Act, all persons are competent to testify unless the court considers that they are prevented 12 from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Thus, Section 118 of the Evidence Act seeks to exclude evidence of those who may suffer from intellectual weaknesses due to various reasons. However, in terms of Section 118, all persons shall be competent to testify unless by reason of tender years, the court considers that they are incapable of understanding the questions put to them and of giving rational answers. It is for the Judge to satisfy himself as regards fulfillment of the requirements of the said provision, which, has been done in the present case. 12. Learned Counsel for the appellant has submitted that even if rape was committed on the child, the child witness did not know the identity of the accused at the time of the incident and the accused has been falsely implicated as an afterthought. In support of his submission, he has drawn our attention to the evidence of the child witness, wherein she has stated “ I was not knowing the name of the accused prior to the incident”. However, this sentence cannot be seen in isolation because just prior to this sentence, PW.1 has stated that she was knowing the 13 accused prior to the incident and immediately after the sentence which we have reproduced above, PW.1 has stated that “I told the name of the accused to my mother as Nagaraj immediately after the incident.”. Thus before this sentence and immediately thereafter, the deposition of PW.1 clearly shows that she knew the accused prior to the incident. It is also noticed that PW.1 being of tender age, had been subjected to searching and lengthy cross examination and it is in the course of this cross examination that the aforesaid statement was made by this witness which is relied on by the learned Counsel for the appellant. Even at the time when this statement was made by PW.1, she was quite tired, which is seen from the record itself. Hence, in such circumstances, she may have made that solitary statement. The said statement cannot be read out of context and it has to be seen in the light of the other evidence on record. From the evidence which has come on record, it is quite clear that she clearly knew who the perpetrator of the crime was. 13. Thereafter, the learned Counsel for the appellant again submitted that the name of the appellant was not known to the victim or her family members and they have falsely implicated the appellant. In 14 this connection, he has relied on the evidence of PW.15 Auda Viegas, who is a social activist. This witness had meetings with the victim girl on 15.1.05 and 16.1.05. Mr. D'Sa has pointed out that PW.15 Auda Viegas has stated that neither the victim nor her family members told her the name of the accused person, nor did she ask them. Mr. D'Sa has relied on the deposition of this witness where she has stated that neither the mother nor the grandmother of the victim had told her that they had gone to the house of the accused on that day. Mr. D'Sa submitted that the name of the accused was not known either to the victim girl or her family on the day of the incident and, hence, there was delay in filing the FIR, as they did not know the name of the accused. He, therefore, submitted that the delay in lodging the FIR, would be fatal. As far as this submission is concerned, it is seen that the FIR was lodged on 8.1.05 on which day the name of the accused person was already revealed to the police. PW.15 Auda Viegas had meetings with the victim and her family on 15.1.05 and 16.1.05 i.e. almost a week after the FIR was lodged. As the name of the accused was already known to the investigating agency, much prior to the meeting being held by PW.15 with the victim girl and her family, deposition of this witness would not cause any dent in the prosecution case. 15 14. Learned Counsel for the appellant submitted that there is delay in lodging the F.I.R. which fact shows that the appellant has been falsely implicated by way of an afterthought. He pointed out that the incident had occurred on 5.1.05 at about 4.30 p.m., whereas FIR (Exhibit-10) has been lodged by PW.2 Minaxi on 8.1.05. According to him, only on account of delay in lodging the FIR, the prosecution case is suspect and cannot be believed. In a case of this nature, delay in lodging the FIR has been viewed very differently. Delay in lodging an FIR in a case of this nature is a normal phenomenon. We find that the explanation offered by PW.2 Minaxi, in this behalf, is fair and sufficient. Evidently, for good reasons they did not lodge an FIR. This Court can take judicial notice of the fact that ordinarily, the family of the victim would not want to get any stigma attached to the victim girl or the family. They are always conscious of the danger of being looked down by society. If the girl is unmarried, it would be apprehended that it would be difficult to secure a suitable match for the victim girl from a respectable or an acceptable family. The feeling of extreme embarrassment is also present. Hence, the natural inclination would be to protect the family name and family honour. Thus, more often than 16 not, there is a delay in lodging FIR in such cases. It is also to be borne in mind that Minaxi PW.2 was hailing from a poor family, and was working as a domestic servant. There was no male person in the house. Her financial condition was very poor. When Neela, the mother of the accused assured her that she would bear all the medical expenses for the treatment of the victim girl and that Minaxi should keep quiet about the incident, in view of all the facts, including her financial condition, she did not lodge the FIR till 8.1.05. Delay by itself is not fatal to the prosecution, but it is absence of any reasonable explanation for the delay which is fatal. We have already observed that sufficient explanation has been furnished by the prosecution for the delay in lodging FIR. Thus, we find no merit in this submission. 15. Mr. Ferreira, learned P.P. submitted that the evidence of the victim girl is sufficient to prove the involvement of the accused in the crime. He submitted that the sole testimony of a rape victim is sufficient and does not require any corroboration. In support of his contention, he has placed reliance on the decision of the Supreme Court in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, (1983) 3 SCC 217. Reliance is placed on the observations in the said Judgment 17 which are as under : “... In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? ... Corroboration may be considered essential to establish sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identifies of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons.” Supreme Court in the said case further observed that by and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of 18 sexual assault. However, in our opinion, even if some corroboration is found to be necessary to evidence of PW.1, her evidence has been amply corroborated by PW.2, PW.3 and PW.14. Corroboration is also found to the testimony of PW.1 from the medical evidence which clearly shows that sexual act has been committed on the victim girl. 16. There is another circumstance which lends assurance to the prosecution case. The evidence on record clearly shows that Neela, the mother of the accused had given assurance to PW.2 Minaxi i.e. the mother of the victim girl, that she would bear medical expenses. This fact has been stated by PW.2 Minaxi as well as PW.3 Kasturi. Evidence of PW.3 Kasturi, as well as PW.4 Dr. Seema Divani shows that on the next day of the incident, Neela mother of the accused and PW.3 Kasturi took the victim girl to Dr. Seema Divani for examination and treatment. PW.4 Dr. Divani has stated that on 6.1.2005 at about 10.00 a.m. two ladies with a minor girl visited her clinic at Curchorem. The minor girl was about 6 years old. The two ladies introduced themselves as mother and grandmother of the minor victim girl. The lady who introduced herself as the mother of the victim girl remained inside the examination room during examination. This lady informed 19 Dr. Divani that the minor girl was suffering