1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 30 OF 2010 Shri Manohar Gawandalkar, s/o Krishna Gawandalkar, aged 42 years, Occupation: Business, R/o. H. No.228, Ambegal, Pale. ... Appellant versus State Through Public Prosecutor. ... Respondent Shri Arun Bras De Sa, Advocate for the Appellant. Shri C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 28TH SEPTEMBER, 2010. ORAL JUDGMENT This appeal is by the accused who was charged and tried under Sections 293 I.P.C. r/w Section 2(y)(ii) r/w Section 8(2) of the Goa Children's Act, 2003, Sections 504 and 506 I.P.C. but who has been convicted and sentenced under Section 293 r/w Section 8(2) of the Goa Children's Act, 2003. 2 2. PW1/Sumitra Chari had two daughters, namely PW2/Durga @ Sonia and PW4/Tanaya. PW1/Sumitra was residing at Mulgaon along with her family and used to work in the Office of the Registrar of Co-operative Societies at Mapusa, and she became friends with the accused who used to go to Mapusa as the latter offered the former lifts on her way to work, and then the accused started visiting their family. The C.D. cassette was given by the accused to PW2/Durga on 18-7-2006 telling her that she should not disclose it to anybody or show it to anyone and also conveyed to her by signs about the nature of the C.D. which signs presumably PW2/Durga did not understand, and when she along with her sister PW4/Tanaya viewed the C.D., they found it was of obscene pictures, and, therefore they removed it from the computer and handed over to her mother who in turn handed it over to their father. 3. On the next day, the accused came to take the said C.D. whereupon PW2/Durga stated that he should collect it from her father but the accused took some C.Ds from the computer table and went away. The said C.Ds were subsequently handed over to the sister of PW1/Sumitra, who although cited as a witness was not examined by the prosecution. A report was filed to Bicholim Police Station on 20-7-2006 but the C.D. in question was not handed over to PW6/PSI Rane who recorded the said report. The accused was then called by PW6/P.S.I. Rane where the accused gave in writing that he - 3 would not interfere with the family of PW1/Sumitra and the matter was almost forgotten until the accused started giving blank calls. The complaint/FI.R. came to be filed on 17-5-2006 before Women's Police Station and was registered by PW7/P.I.Verenkar, and the C.D. was produced, and which was viewed in the presence of PW3/Sushma, a social worker and as stated by her one of the files on the said C.D. contained obscene pictures of a male and female having sexual intercourse and the said C.D. was thereafter sealed. 4. The prosecution examined 7 witnesses in support of the charge against the accused including PW5/Krishna, a retired Police Officer, who was a neighbour of the Complainant and who was called on phone and told that the person who had gone in the car, was the person who abused her and was asking for the C.D. 5. The case of the accused was of denial. Accused stated that he was falsely implicated as PW1/Sumitra could not pay back the money which she had taken from him. 6. Section 293 I.P.C. provides that whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do, shall be punished on first conviction with imprisonment 4 of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees. 7. Sub-Section(1) of Section 292 I.P.C. states that a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or where it comprises two or more distinct items, the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. 8. Section 2(y)(ii) provides that sexual offences for the purposes of awarding appropriate punitive action means and includes 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. 5 9. Sub-Section (2) of Section 8 of the Act further provides that whosoever commits any child 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/-. Statement of the child victim shall be treated on par with the statement of a child rape victim under Section 375 I.P.C. as laid down by the Supreme Court. 10. As far as the burden of proof is concerned, that is also provided by sub-section (2) of Section 8 of the Act. It is now well settled that the evidence of a victim of rape does not require corroboration as such. (See AIR 1983 SC 753). Some evidence which lends assurance to the victims evidence is sufficient to base a conviction.(See 1995(5) SCC 518). 11. PW2/Durga and PW4/Tanaya were born on 5-7-1991 and 6-7-1989, respectively, both being below 20 years of age. 6 12. Shri Arun Bras De Sa, the learned Counsel on behalf of the accused submits that the learned Children's Court by Order dated 4-4-2008, on an application filed by the accused, had directed the C.D., part of the muddemal property to be given to the accused before it was made use in the trial. Learned Counsel submits that the said C.D. was not provided to the accused, and, therefore the accused has been prejudiced in his defence. 13. Shri C. A. Ferreira, learned Public Prosecutor submits that the conduct of the accused shows the falsity of the aforesaid submission. Learned Public Prosecutor points out to the evidence of PW3/Sushma and states that after PW3/Sushma deposed before the Court on 11-9-2009, learned Counsel of the accused made a statement before the Court that the accused would not dispute the contents of the C.D., and, therefore the Court ordered that the C.D. need not be viewed. The learned Public Prosecutor is right. In case the accused had really required the said C.D. for some reason or other, there was no reason why the accused could not insist on the Order dated 19-4-2010 of the learned Children's Court being complied with. It appears that the accused did not want the C.D. to be seen, and, therefore told the Children's Court that the accused would not dispute the contents of the said C.D. In such a situation, there is no question of any prejudice being caused to the accused. 7 14. Next, learned Counsel submits that the C.D. was not produced by PW1/Sumitra on 20-7-2006 before PW6/P.S.I. Rane of Bicholim Police Station, and it was brought only on 17-8-2006 at the time of filing the F.I.R. before the Women Police Station, and, therefore there was ample scope for PW1/Sumitra to have tampered with the said C.D. I am not impressed with the said submission. In my view, there was no reason at all for PW1/Sumitra or for that matter her daughters to have tampered with the said C.D. The said C.D., as given by the accused, was seen by both the sisters and after having found that it contained obscene pictures they immediately handed over the same to their mother who in turn handed it over to the father to be produced before the Women's Police Station at the time of lodging the F.I.R. The C.D. was not handed over at the Bicholim Police Station, as PW1/Sumitra wanted the accused only to be warned not to harass them and to go away from their life. 15. Shri Arun Bras De Sa, learned Counsel then submits that an adverse inference has got to be drawn for non examination of Kishori, the sister of PW1/Sumitra to whom the C.Ds taken by the accused were subsequently handed over. In my view, Kishori was not at all a material witness to unfold the prosecution case. PW1/Sumitra and her two daughters, namely PW2/Durga and PW4/Tanaya have been examined and they were the main witnesses of the prosecution. 8 16. Learned Counsel next submits that the very fact that the accused has been acquitted under some Sections shows that the case of the prosecution under other Sections was not believable. In my view, there can be no such proposition. It is quite possible that the prosecution was able to prove the ingredients of some penal sections but was unable to prove the ingredients of others but on the basis of the same, it cannot be said that the entire case of the prosecution was not proved. 17. Next, learned Counsel submits that the F.I.R.-Exh.9 dated 17-8-2006 could be considered as a supplementary statement, since as regards the same incident, a report was lodged on 20-7-2006 and produced as Exh.8. The learned Counsel may be right. The report-Exh.8 and the F.I.R.-Exh.9 have been produced, without any objection from the accused, and, therefore there is no room for suspicion. The report was filed soon after the incident and at that stage, she was not interested in prosecuting the accused but was interested only in warning the accused so that he did not interfere with them. It is because they continued to receive blank calls and suspecting the accused, that PW1/Sumitra filed the F.I.R.-Exh.9. 18. The case of PW1/Sumitra is consistent and there is no question of any fabrication. Shri Bras De Sa, learned Counsel submits that unless the C.D. was seen by the Court, the Court would not have come to the conclusion 9 that it had any obscene pictures. That, in my view was wholly unnecessary because the C.D. produced by PW1/Sumitra was identified with the markings on the same and it was seen by both the sisters, namely PW2/Durga as well as by PW4/Tanaya who found that it contained obscene pictures of a couple in naked condition, a fact which was also deposed to by the panch witness PW3/ Sushma who also saw that the C.D. contained obscene pictures of a male and female having sexual intercourse. Admittedly, PW2/Durga who was born on 5-7-1991 and PW4/Tanaya who was born on 6-7-1989 were adolescent daughters of PW1/Sumitra and being of impressionable minds, such C.D. as given by the accused was bound to corrupt their minds at a young age. 19. As regards the loan, it is true that PW1/Sumitra in her cross- examination denied having taken any loan from the accused, as suggested to her on behalf of the accused; PW2/Durga did make a statement that some amount was due by her mother to the accused but on that statement alone the entire versions of either PW1/Sumitra or for that matter PW2/Durga cannot be discarded. The learned Children's Court did observe that the accused could not take advantage of the said statement of PW2/Durga to support his case that there was indeed a loan transaction between PW1/Sumitra and the accused. The evidence of PW1/Sumitra, PW2/Durga and PW4/Tanaya is consistent, convincing and is otherwise corroborative. Their evidence has also to a great extent been corroborated by their neighbour and ex-Police Officer 10 PW5/Krishna. The contention that PW1/Sumitra and PW2/Durga have given different versions cannot be accepted. 20. In my view, the prosecution has proved its case beyond reasonable doubt against the accused, and, therefore the conviction and sentence imposed upon the accused was inevitable. 21. I therefore find there is no substance in the present appeal, and accordingly the same is hereby dismissed. N. A. BRITTO, J. RD