1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 36 OF 2009 Neeraj Maan, Son of Hansbir Singh, aged 25 years, occupation: service, native of Pallam Village, RZ-1273, South West Delhi, at present H.No.259, Palimand Bogmalo, Vasco and presently lodged in Central Jail, Aguada, Goa. ... Appellant versus State, through P.I. Vasco Police Station. ... Respondent Shri S. G. Dessai, Senior Advocate with Shri Pavithran A. V., Advocate for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 5TH APRIL, 2010. JUDGMENT This appeal is by the accused who has been convicted and sentenced by the learned Children's Court under Section 8(2) of the Goa Children's Act, 2003 and Sections 342 and 506(ii) of I.P.C. 2 2. The charge against the accused is that the accused on or about 20-9-2007 at about 2.45 p.m. at Bogmalo, Vasco-da-Gama took PW2/victim (name withheld) and wrongly confined him in his room and then committed the offences of child abuse and grave sexual assault on him and then also committed the offence of criminal intimidation by threatening him to kill him. 3. The case of the accused was one of denial simpliciter. The prosecution examined ten witnesses to support the charge. The accused did not examine any witnesses. The learned Children's Court after assessing the evidence produced has convicted and sentenced the accused for the aforesaid offences. Amongst the witnesses examined by the prosecution, and in addition to the evidence of PW2/victim, prosecution produced the evidence of his mother PW1/Parvati Patil, her two sisters, namely PW3/Laxmi and PW7/Kamal and two Medical Officers, namely PW4/Dr. Banaulikar and PW5/ Dr. Yadav. 4. PW2/victim was of about 8/9 years of age and was residing at the relevant time along with his mother PW1/Parvati and her two sisters PW3/ Laxmi and PW7/Kamal. They were residing in a out hut in the property of PW6/Neelam D'Cruz. The accused who was about 25 years of age at the relevant time was residing in the same locality in a rented house of 3 PW8/Raikar, the accused having come from Delhi for training in Hotel Management at Bogmalo Beach Resort, Bogmalo, Vasco-da-Gama. 5. After PW2/victim returned from school on 20-9-2007 at about 2.00 p.m., PW1/Parvati went for house work in the house of the said PW6/Neelam and told her said son PW2/victim that he should go along with PW7/Kamla. PW7/Kamla and PW3/Laxmi around the same time had left to do some grass cutting work at the house of one Rita and whilst there at about 2.45 p.m. they heard the shouts of PW2/victim from a nearby house and both of them went there. The said house, is proved by the prosecution, to be the house which was rented by the said PW8/Raikar to the accused. When they reached there they found that the door was locked from inside and they banged the door and raised alarm and after some time the accused opened the door and went away saying that he wanted to pass urine. They tried to catch him but could not. When asked, PW2/victim narrated the incident to them and the incident narrated, which can be seen from the FIR, subsequently recorded, is that the accused after removing their respective clothes “inserted a small knife like object in his anus due to which he got bleeding”. Whereupon PW1/Parvati took him to PW5/Dr. Yadav, a Homeopath, and he upon examination of PW2/victim found that there were two small cuts near the mouth of anus of PW2/victim and he prescribed some ointment and some tablets. The news of the incident spread and PW6/Neelam got a message, rather exaggerated, that 4 someone inserted a “chaku” in the anus of PW2/victim, son of PW1/Parvati near the room belonging to PW8/Raikar. PW1/Parvati went to the Police Station and lodged her complaint which was registered as Crime No.245/2007. After registering the crime at about 18.40 hours PW10/P.I.Tavares proceeded to the scene and carried out the scene of offence panchanama for which PW6/ Neelam was one of the panch witnesses and in the course of the said panchanama a wall mounted photograph of the accused was seized. PW2/victim had identified the accused from the said photograph and other documents which were seized from the said room, namely a driving license and a Bank Passbook. Photographs were also taken which were produced. The pant of PW2/victim-Exh.4 produced by PW1/Parvati was attached in the presence of PW9/Pandhare by PSI Dalvi on 20-9-2007. 6. On the next day, as all the three sisters were going to the spring to wash clothes, PW2/victim saw the accused sitting in the veranda of the same house and pointed out to him as the culprit. PW3/Laxmi then got in touch with the Police over the telephone dialing No.100 and the message was conveyed to PW10/P.I. Tavares through his mobile and upon his instructions PSI Dalvi proceeded to the spot and returned with the accused, PW2/victim as well as his mother. 5 7. On the previous day, at about 7.00 p.m. i.e. on 20-9-2007, PW2/victim was sent for medical examination at the Cottage Hospital at Chicalim and was examined by Dr. Jamine B. Pinto. On the next day, after the accused was placed under arrest the clothes the accused was wearing, namely a blue colour T shirt and blue colour pant(Exhs. 5 and 6) were attached. PW2/ victim and the accused were sent for formal medical examination to Goa Medical College where both were examined by PW4/Dr. Banaulikar to whom PW2/victim told that the accused had tried to force his bullie(penis) in his anus on 20-9-2007. The accused was examined by him from 10.45 a.m. to 11.20 a.m. and PW2/victim was examined by him from 11.25 a.m. to 12 noon. Upon examination of PW2/victim, PW4/Dr. Banaulikar found a superficial laceration at 12 o'clock position of the anal opening with redness and tenderness present on touch of the finger. The accused is stated to have admitted the offence of having anal intercourse with PW2/victim, as stated on the medical certificate produced by him. PW4/Dr. Banaulikar, as regards the accused, opined that on physical and genital examination, there was nothing to suggest that the accused was incapable of sexual intercourse. PW4/Dr. Banaulikar also opined that in the absence of any positive signs, no opinion could be given to the fact that he had committed the anal intercourse and further opined that there was evidence of anal penetration in the victim. He also took urethral swabs and smear slides. The report produced from CFSL through PW10/Samamy Tavares shows that there were no positive 6 incriminating signs either on the pant of PW2/victim, or the pant and T shirt of the accused or on the said slides. 8. The learned Children's Court found that PW2/victim was a child within the meaning of Section 2(d) of the Goa Children's Act, 2003. This conclusion is based not only on the evidence of PW1/Parvati and PW2/victim but also the evidence of PW4/Dr. Banaulikar. The learned Children's Court also found that the accused in his 313 Statement had admitted that he had signed the tenant's verification form-Exh.35 indicating that he was staying in the said room which corroborated the deposition of PW8/Raikar. Here, it may be stated that there was overwhelming evidence produced by the prosecution to show that the accused was occupying the said room bearing No.259(new) and 601(old) rented out to him by PW8/Raikar wherein the accused had displayed his own mounted photograph on the wall and documents having his photographs were found. The learned Children's Court noted that Courts were required to insist on quality of evidence and not quantity of evidence and referring to the case of Vadivelu Thevar v. State of Madras(AIR 1957 SC 614) noted that a conviction could be recorded on the statement of a single eye witness. In that regard, it may be stated that in the case at hand the version of PW2/victim was sufficiently corroborated by the evidence of his two aunties, namely PW3/Laxmi and PW7/Kamal who had been to the scene upon hearing his shouts and the medical evidence of PW5/ 7 Dr. Jadav to whom PW2/victim was first taken and then of PW4/Dr. Banaulikar who examined both PW2/victim and the accused. Further corroboration was available to the case of the prosecution from the evidence of PW6/Neelam as well as PW8/Raikar. 9. The Goa Children's Act, 2003(Act, for short) was enacted with a view to promote and preserve the best interests of children in this State of Goa and to create a society that is proud to be child friendly. It defines a child in terms of Section 2(d) to mean any person who has not completed eighteen years of age unless any other law in force specifies otherwise or unless otherwise indicated in specific provisions in this Act; Provided that in so far as a victim in an offence of rape is concerned, a child shall mean any person who has not completed sixteen years of age. 9.1 Section 2(m) defines “child abuse” as follows:- “Child abuse” refers to the maltreatment, whether habitual or not, of the child which includes any of the following:- (i) psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; (ii) any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being. 8 9.2 Section 8 of the Act deals with “child abuse” and trafficking and provides that:- (1) All children should be assured of a safe environment. A safe environment is an environment in which he/she will not be abused in any way and his/her development will be nurtured. (1A) Child Trafficking shall be an offence punishable under this Act. Any person who commits or aids or abets in the child trafficking shall be punishable with imprisonment for a term which may extend to seven years and a fine of Rs.1,00,000/-. (2) Whoever commits any child abuse or sexual assault as defined under this Act, shall be punished with imprisonment of either description for a term that may extend to three years and shall also be liable to fine of Rs.1,00,000/-. Whoever commits any Grave Sexual Assault shall be punished with imprisonment of either description for a term that shall not be less than ten years but which may extend to life imprisonment and shall also be liable to a fine of Rs.2,00,000. Whoever commits incest shall be punished with imprisonment of either description for a term of one year that shall not be less than ten years but which may extend to life imprisonment and also a fine which may extend to Rs.2,00,000/- under Section 375 of the IPC. as laid down by the Supreme Court of India. 9.3 Section 2(y) defines 'Sexual offences” for the purposes of awarding appropriate punitive action to mean and include.- (i) “Grave Sexual Assault” which covers different types of intercourse; vaginal or oral or anal, use of objects with children, forcing minors to have sex with each other, deliberately causing injury to the sexual organs of children, making children pose for pornographic photos or films, and also includes rape; (ii) Sexual Assault which covers sexual touching with the use of any body part or object, voyeurism, exhibitionism, showing pornographic pictures or films to minors, making children watch others engaged in sexual activity, issuing of threats to sexually abuse a minor, verbally abusing a minor using vulgar and obscene language. 9 (iii) Incest which is the commission of a sexual offence by an adult on a child who is a relative or is related by ties of adoption. 10. Shri Desai, the learned Senior Counsel appearing on behalf of the accused submits that the prosecution has not produced the Medical Certificate of PW2/victim issued by Dr. Jasmine B. Pinto, and, therefore necessary adverse inference has to be drawn that if the said certificate was produced it would have absolved the accused of the alleged offence and the suppression of the said medical certificate is fatal to the prosecution. PW10/P.I.Tavares was questioned on that aspect, and he admitted that on 20-9-2007 at about 7.00 p.m., PW2/victim was referred for medical examination and further admitted that the said certificate was not produced before the Court. A suggestion was put to him that he had deliberately suppressed the said certificate, a suggestion which he denied. However, neither the prosecution nor the accused made any effort to get the said certificate on record. In my view, nothing can turn up on the said certificate for the prosecution has produced two other medical certificates or opinions which corroborate the version of PW2/victim, first the opinion of PW5/Dr. Yadav to whom PW2/victim was taken by the mother soon after the incident and then of PW4/Dr. Banaulikar to whom both were sent, on the next day. 11. Shri Dessai, the learned Senior Counsel next submits that the 10 panchanama of the scene of offence in support of which PW6/Neelam was examined has not been sufficiently proved. The learned Senior Counsel points out that PW6/Neelam admitted that the said panchanama was not read over to her nor explained to her. However, in my opinion, the said admission by her is certainly not sufficient to justify the conclusion that the panchanama has not been corroborated or proved. Irrespective of the said statement, PW6/Neelam has corroborated all the material facts recorded in the panchanama and the only contradiction brought about in her cross-examination is her statement that she had seen the accused at the spot on 21-9-2007 wearing a blue colour T shirt and blue colour long pant. 12. Next, Shri Dessai, the learned Senior Counsel submits that the case of the prosecution is inherently suspicious as according to the learned Senior Counsel PW1/Parvati, PW2/victim as well as PW7/Kamal have improved their original versions. According to the learned Senior Counsel, the original versions of these witnesses disclose a lighter offence of child abuse and not of a grave sexual abuse which according to the learned Senior Counsel has been spelt out only in their supplementary statements which is an afterthought. It is not possible to accept this submission as well. As already stated, PW2/victim might have not described in exact terms what was done to him by the accused on the first day but as already noted by me herein above the accused did tell his mother PW1/Parvati that the “accused had inserted a 11 small knife like object in his anus due to which he got bleeding injuries”. It is quite probable that PW2/victim being of tender age and in a position he was placed by the accused with his face towards the ground before inserting his male organ into the anus of PW2/victim that the latter felt piercing pain and therefore felt that the accused had inserted a knife like object and not his own male organ. That is also the version which appears not only in the FIR but also in the panchanama of scene of offence. The “knife like object” then was described by him on the next day as bullie(i.e. penis), and in my view no much importance can be given to the said so-called change in version. It may be stated that the offence of grave sexual assault is wide enough so as to include insertion of even objects. 13. The learned Senior Counsel next contends that the medical opinion of PW4/Dr. Banaulikar does not support the story of the prosecution. According to the learned Senior Counsel in case the accused has inserted his penis into the anus of PW2/victim there could be a corresponding injury on his private part. The learned Senior Counsel then refers to the opinion given by PW4/Dr. Banaulikar who found no injury over the genital area of the accused and in the absence of any injury to the male organ of the accused, learned Counsel contends the benefit of doubt has to go to the accused. In my view, this submission also cannot be accepted. It is not an invariable rule that when there is a penetration and an injury is caused to the victim there has got to be a 12 corresponding injury on the male organ. If there was one, or one was found it would have added additional corroboration but absence of it does not make the case of prosecution less credible but in this case there is sufficient corroboration to the version of PW2/victim from the medical evidence. There is no reason why PW2/victim should have implicated the accused. No motive has been attributed as to why PW2/victim or his mother and aunts should have at all implicated the accused. Shri Dessai, then submits that the Investigation Officer ought to have attached from the scene of offence the knife, the nail cutter or the mattresses, etc. which were vital to the case of the prosecution. In my view, there was no requirement at all for the Investigation Officer to have attached the said articles. It was nobody's case that a knife or a nail cutter was indeed used nor was it any body's case that any blood or semen had fallen on the mattress which was found in the said room, in the possession of the said accused. Non attachment of the said articles in my view, in no manner diminishes the veracity of the case of prosecution and the version given by the witnesses to support the same. As already noted, the exhibits attached, namely the short pant of the victim boy, the T shirt as well as the full pant of the accused, the urethral and other swabs have all been proved to be negative but nothing turns out on the same in the presence of near consistent and convincing evidence led by the prosecution. The learned Senior Counsel then submits that PW1/Parvati, PW3/Laxmi and PW7/Kamal are the mother and the aunts of PW2/victim, and, therefore they are interested witnesses and they 13 could not be believed unless there is corroboration to their evidence. By no stretch of imagination they can be said to be interested witnesses. They can be termed as related. There is sufficient evidence even otherwise by way of corroboration from medical evidence to the version of PW2/victim. Their evidence has also been consistent and convincing. The diversion from “knife like object” to “insertion of penis” cannot be given undue importance. That they are related to PW2/victim is never a ground to discredit the testimony of a witness. All that is required is that their evidence should be carefully evaluated. It is well said that a related witness would not shield the culprit for close relations are always anxious to see that the true culprit is punished. It is to be noted that it was not even suggested, on behalf of the accused, that the witnesses had any grudge or animosity against the accused for them to have deposed falsely. The prosecution witnesses particularly PW1/Parvati, PW3/Laxmi and PW7/Kamal may not have a great social standing, as contended, but they are ordinary rustic labourers and no reason has even been suggested on behalf of the accused which could be considered as good enough to doubt the veracity of the versions given by them. True, as stated by the Apex Court in Gowrishankara Swamigalu v. State of Karnataka and another((2008) 14 SCC 411), on which reliance has been placed by the learned Senior Counsel, the question as to whether the witnesses in criminal cases, irrespective of the nature of offence should be fully relied upon or not, would depend upon the facts of each case and there cannot be any precedent 14 on facts. In the case at hand, there is no new story. The story remains the same. The perception of the previous day is cleared and the object is only more clearly defined on the next date. In the same case, the Apex Court referred to one of its decisions in B. C. Deva v. State of Karnataka((2007) 12 SCC 122) and observed to:- “14. Having carefully gone through the evidence of the prosecutrix, we find no plausible and justifiable reasons whatsoever to disbelieve and discard her testimony. The prosecutrix is a trustworthy witness and her evidence cannot be brushed aside on the abovenoted flimsy plea raised by the accused”. 14. The very words of the Apex Court could be repeated in this case as well for there is nothing to doubt the version to PW2/victim which has been materially corroborated by his mother PW1/Parvati, his two aunts, PW3/Laxmi and PW7/Kamal apart from the fact that there is also independent corroboration in the medical evidence produced, namely that of PW5/Dr. Yadav and PW4/Dr. Banaulikar. 15. The learned Senior Counsel has lastly submitted that in this case there is no child abuse as defined in the Act and has placed reliance on an unreported Judgment dated 28-1-2010 in the case of Mr. Suresh Narvekar v. State of Goa with reference to Section 8(2) of the Act which on the facts of 15 the case was held not to be applicable. The observations made in that Judgment as expressly stated therein were only for the purpose of determining the jurisdictional point. Insertion of penis into the anus of a child would certainly amount to physical abuse and/or sexual abuse which are inclusive of child abuse. 15. In view of the above, in my view, the accused has been rightly convicted and the minimum sentence prescribed by law has been imposed upon him. In fact no grievance has been raised by the learned Senior Counsel on the sentence imposed upon the accused which on the facts of the case could not be faulted. 16. Therefore, I find there is no merit in this appeal, and consequently the same is hereby dismissed. N. A. BRITTO, J. RD