-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 04 OF 2005 STATE Through Public Prosecutor, Panaji, Goa. ...... Appellant V e r s u s Rajendra Datta Zarekar, R/o. H. No.6, Asode, Sattari, Goa. ...... Respondent Mrs. Winnie Coutinho, Public Prosecutor for the State. Shri S. N. Joshi, Advocate for the Respondent/Accused. Coram:­ N. A. BRITTO, J. Date:­ 16 th August, 2006 ORAL JUDGMENT This is State's appeal against the acquittal of the accused under Section 342 and 376 of I.P.C. 2. The case of the prosecution could be summarized as follows: -2- 3. The victim/P.w.8, is the second daughter of Pushpa and Satyam Ahire, namely P.w.1 and P.w.2, respectively. Pushpa/P.w.1 has an aunt namely Manda/P.w.4, who has three houses in the locality, two of which she has allowed her sisters to occupy and one of the rooms of her house, she has let out to be occupied by some boys working in Nestle factory. The accused was one of the six boys occupying the said room let out by Manda/P.w.4. The incident took place on 14.03.2003, and on that day, the accused left the Nestle factory at about 4.30 p.m. The house of Pushpa/P.w.1 and Satyam/P.w.2 is close to the said house of Manda/P.w.4. Pushpa/P.w.1 served tea for her children at about 3.45 p.m. and then went to prepare some sweetdish/Satwa for her children and as she was preparing the same, she heard the sound of her younger daughter, namely the victim/P.w.8, from the house of the said Manda/P.w.4, who is married to Mohandas, and therefore, Pushpa/P.w.1 went to the said room and found it closed. Pushpa/P.w.1 knocked at the door and she heard the victim/P.w.8 was crying inside the said room and when the door of the said room was opened, the victim/P.w.8, came running towards her and she asked the accused as to what he was doing inside the room but the accused kept quiet and when she asked her daughter, the victim/P.w.8, her daughter informed her that she was called inside the room by the accused and thereafter closed -3- the door and forced her to lie down on the mat and then removed her knicker and then his own pant and thereafter inserted his private part into the private part of her daughter and she also told her that the accused had threatened her not to disclose the said fact to her mother. As per Pushpa/Pw.1, Sandesh, of about 17 years of age, the son of Manda/P.w.4, was with her at that time. Then she brought the victim/P.w.8 to her residence and called her sisters and other family members. The husband of Pushpa/P.w.1, namely Satyam/P.w.2, returned from Tisk, Usgao, at about 05.05 p.m. and he found that his daughter was totally down and exhausted, etc. and his wife was not at home and after his wife returned, after about ten minutes, his wife told him that she had gone to see the accused and when he told his wife that he would lodge a complaint, his wife advised him not to lodge the complaint until their aunty Manda/P.w.4 returned and after the said Manda @ Amrutem/Pw.4 returned, she was told about the incident whereupon Manda/P.w.4 is stated to have examined the victim/P.w.8 but did not see any blood inside her private part. Thereafter they proceeded to Ponda Police Station, where they met PSI Vaigankar/P.w.11, who was informed about the rape committed by the accused and he in turn referred the victim/P.w.8 for medical examination where the victim/P.w.8 was examined by Dr. Rodrigues/P.w.10, Associate -4- Professor in Forensic Medicine of Goa Medical College, Bambolim, who found that the victim/P.w.8 had a bruise of 2 x 1.5 cms on right labia majora and minora, tender to touch. He also found that there was laceration of 5 x 2 mms on right labia minora near the clitoris, tender to touch and although he found that the hymen was intact, he found that the hymenal border was bruised, edematous and tender to touch and upon the said physical examination of the victim/P.w.8, Dr. Rodrigues/P.w.10 concluded that there was evidence on recent penetration. After receiving the said information, PSI Vaingankar/P.w.11, recorded a detailed complaint of Pushpa/P.w.1 and the statement of the victim/P.w.8 and, thereafter, proceeded to arrest the accused to the said Nestle factory and then after obtaining the address of the accused, proceeded to Sattari, at the residence of the accused and brought him to the Police Station and arrested the accused and seized the clothes produced by the accused at the Police Station in the presence of Tarun Kumar/P.w.5. The accused was sent for medical examination and was examined by the same Dr. Rodrigues/P.w.10. Dr. Rodrigues found the accused to be of 21 years of age and was of average built. As per Dr. Rodrigues/P.w.10, all the clothes of the accused were changed and therefore, they were not preserved. Dr. Rodrigues/P.w.10 found that there were no abrasions or bruises on the -5- genitals of the accused but opined that on physical and genital examination, there was nothing to suggest that the accused was incapable of sexual intercourse. The scene of offence panchanama was conducted on 15.10.2003, in the presence of Narayan/P.w.6, during which a mat and a bedsheet were seized. Later the clothes of the victim/P.w.8, produced by Pushpa/P.w.1 were attached in the presence of the said Tarun Kumar/P.w.5. The blood grouping was done through Sanjay/P.w.9, who certified that the victim/P.w.8 was having blood group O Rh positive, while the accused was having the blood group A Rh positive. The seized articles of the accused namely the pant, the shirt and the underwear (exhibit 1/A to C), those seized from the scene namely nylon mat and bedsheet, (exhibit 2A and 2B), and those of the victim/P.w.8, namely a frock and a knicker, (exhibit 3A and 3B), were sent to the Central Forensic Science Laboratory, which opined that neither semen nor blood could be detected on the said exhibits. As on the date of the incident, the victim/P.w.8, was 5 years, one month and three days old, while the accused, as already stated, was 21 years of age. 4. The accused having been charged under Section 342 and 376 I.P.C., prosecution examined in all eleven witnesses. The accused did not -6- examine any. The case of the accused, as suggested to Pushpa/P.w.1, was that she was friendly with the accused for the last about four years and that as the earnings of her husband were not sufficient, she used to borrow money from the accused as well as his brother. The accused also suggested to her that the accused was having extra marital relation with her, a suggestion which she denied. It was also suggested to her that on the date of the incident, she had called the accused to her house, forced the accused to touch her body and after the accused discharged the semen, the same was cleaned with the frock of the victim/P.w.8 and this she did in an attempt to rope in the accused as she wanted to continue to have relations with the accused. The said bold suggestions were subsequently not adhered to by the accused, when the accused was examined under Section 313 of the Code (Code of Criminal Procedure, 1973). All that the accused stated in his said statement is that he used to go to the said room only when he was working on the second and third shifts but if he was on first shift, he would go home. The accused stated that whenever he went to the room, Pushpa/P.w.1 used to call him to her house and demand money from him on the day of salary and after some days, she started demanding gold chain, and on account of such demands, he stopped going to her room. The accused stated that he had not gone to the room for about eight days and, -7- therefore, when she met him, she asked him why he was not coming to the room and as he did not come to the room as per her request, she filed a false complaint against him. The accused also stated that on 14.10.2003, the police came to his house at about 12.10 in the night and woke him up and inquired with him as to what had happened and brought him to the Police Station in the police jeep and Pushpa/P.w.1 and her daughter/P.w.8, had come on the next day to the Police Station and when Pushpa/P.w.1 was asked whether he had raped her daughter, she had answered in the negative and, on the same day, his brother approached Pushpa/P.w.1 at her residence and asked her as to why she filed a complaint against him and, at that time, Pushpa/P.w.1, demanded Rs.5,00,000/­ and on payment of the same, promised to withdraw the complaint. The accused also stated that on the date of her deposition before the Court, Pushpa/P.w.1 again approached outside the Court premises and as a final warning, demanded Rs.50,000/­ from him with a promise to retract from her earlier statement. The accused also stated that on the said date, the statement of the victim/P.w.8 was recorded, the victim was brought duly tutored. 5. In the trial, the prosecution had examined as many as eleven witnesses including the Investigating Officer. The learned Trial Court -8- proceeded to appreciate the evidence of the victim/P.w.8 as if she was an ordinary child witness not realizing that she was also the victim and therefore, an injured witness. The learned trial Court did not apply the standard which was required to be applied whilst appreciating the evidence of injured witnesses. There is no doubt that child witnesses many a times are prone to tutoring but it is an accepted norm even in the case of such witnesses that if after careful scrutiny of their evidence, the Court comes to the conclusion that there is impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. The learned trial Court lost sight of the fact that the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury, is the best witness in the sense that he is least likely to exculpate the real culprit, the evidence of a victim of a sex­offence is entitled to great weight, absence of corroboration notwithstanding. While appreciating the evidence of a injured witness, it has to be kept in mind that his or her presence at the time and place of occurrence cannot be doubted. He or she does not have any reason to omit the real culprit/s and implicate falsely the accused persons. The evidence of an injured witness is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the -9- incident because it is difficult to imagine how a witness would act or react to a particular incident. Even in the case of other witnesses, if there is an exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence. Courts are not required to attach undue importance to minor discrepancies, but must consider broad spectrum of the case of the prosecution. Discrepancies many a times are found in the evidence of witnesses due to normal errors or perceptions or observations or due to lapse of memory. Even truthful witnesses at times with a view to back up a good case add an exaggerated version and, in situation like this, it is the duty of the Court to discard the exaggerated version and not the entire version. In case there is a doubt in respect of certain facts stated by a witness, the proper course is to ignore that fact only unless it can be shown that the said fact is so vital that it goes to the very root of the case so as to demolish the entire case of the prosecution. In the case at hand, it appears that minor discrepancies in the evidence of the prosecution witnesses have been blown up out of proportion by the learned trial Court in an attempt to disbelieve the versions given by them. 6. The law as far as the appreciation of the evidence of a victim of rape is well settled. In the case of Santan Fernandes v. State (2001(2) -10- G.L.T. 237), on which reliance has been placed on behalf of both the parties, this Court had referred to the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 SC 753), wherein the Supreme Court had stated that corroboration is not the sine qua non for a conviction in a rape case. 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 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? To do so, is to justify the charge of male chauvinism in a male dominated society. The Apex Court had further observed that a girl or a woman in the tradition bound non­permissive society of India, would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. Again the Supreme Court in the case of Punjab v. Gurmit Singh (1996 (2) S.C.C. 384), held that it is now well accepted principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. It is also well accepted principle of law that corroboration as a condition or judicial reliance on the testimony of the prosecutrix, is not a requirement of law but a guidance of prudence. The woman or a girl subjected to sexual assault is -11- not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion treating her as if she was an accomplice. In the case of State of Rajasthan v. N. K. ((2000) 5 S.C.C. 30), the Supreme Court again held that the testimony of the prosecutrix should be appreciated on the basis of probabilities like the testimony of any other witness and conviction can be based solely on such testimony but if the Court finds it difficult to accept her testimony, it must seek assurance to her testimony which may be short of corroboration of their evidence. The same view has been reiterated by the Apex Court in the case of State of Tamil Nadu v. Ravi @ Nehru (2006 AIR SCW 3444), wherein the Supreme Court has reiterated the view expressed in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (supra). 7. After having considered the law to be kept in mind, it is now necessary to advert to the evidence of the prosecution witnesses, particularly the victim/P.w.8, her parents Pushpa/P.w.1 and Satyam/P.w.2, her aunt Manda/P.w.4 and last but not the least, Dr. Rodrigues/P.w.10. The evidence of other witnesses is of not much relevance to the case of the prosecution in the light of the findings given by the C.F.S.L., Hyderabad. -12- 8. The victim/P.w.8 in her evidence before the Court stated that the accused resided in a room close to her house and was employed and that the accused returned in the evening to the said room. She stated that when she was looking at the book, the accused came out from the said room/house of her aunt/P.w.4 and then pulled her in his room. She stated that accused had opened the latch of the door and had taken her inside and at that time, she was wearing a frock and a knicker and after taking her inside, the accused closed the door and latched it from inside and then removed his pant and her knicker and thereafter the accused “tyache nini majha hetun ghatli”, after the accused made her to sit on his lap and at that time she had pain and cried “mummy mummy”, when her mother/P.w.1 and Sandesh (her cousin), came to the door and knocked at the door and the accused opened the door and she narrated the incident to her mother. In cross examination, the victim/P.w.8 stated that she did not remember how many months back the incident had taken place but stated that her father on that day had gone to Ponda to bring some articles and her mother was preparing Satwa/sweet dish. She also stated that Manda/P.w.4, was inside the house. She also stated that whenever she used to go to the house of Manda/P.w.4, the accused used to play with her but the accused had never given her any chocolate nor had taken her on his lap. In further cross -13- examination, the victim/P.w.8 stated that she was not playing outside but was in the house of her aunt/P.w.4 and was watching T.V. She again stated that on that day, the accused called her, played with her and left her and yet again she stated that there was a mat and a bedsheet in the room where she was made to sleep on the mat and the bedsheet and the accused had slept over her. On behalf of the accused, reliance has been placed on the case of Ratansinh Dalsukhbhai Nayak v. State of Gujarat (2004 (1) S.C.C. 64), and it is submitted that the evidence of the victim/P.w.8 from the very tenor of it, appears to have been that of a tutored witness. It has also been submitted that the learned trial Court had the benefit of observing the victim/P.w.8 giving the said evidence and since the learned trial Court has also come to the conclusion that the victim/P.w.8 has been tutored, the said finding need not be interfered in by this Court. 9. In the case of Ratansinh Dalsukhbhai Nayak v. State of Gujarat (supra), the Supreme Court observed that the decision on the question whether a child witness has sufficient intelligence primarily rests with the trial Judge, who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his -14- understanding of the obligation of an oath. The decision of the trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear that its conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make­believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. It may be observed at this stage, that the case of Ratansinh Dalsukhbhai Nayak v. State of Gujarat (supra), was a case of child witness simpliciter and not a child witness who was also the victim of offence like the case at hand. The learned trial Court did take note of certain discrepancies appearing in the evidence of the victim/P.w.8. The learned Trial Court noted that the victim/P.w.8 in her examination in chief had deposed that prior to the incident, she was looking at the book at the house of her aunt and in the cross examination she stated that she was watching T.V. inside the house of her aunt and yet in her further cross examination she stated that she was playing with her sister Supriya and brother Sanket. The learned trial Court noted that the -15- victim/P.w.8 had made three different statements about what activity she was doing before the alleged incident. Likewise, the learned trial Court had also noted that the victim/P.w.8 at one stage, had stated that the accused had pulled her in the room and in cross examination had stated that the accused had called her into the room. The learned trial Court had then concluded, and in my view rightly, the said discrepancies were minor in nature in the evidence of the prosecutrix and that it was possible that she was carrying the said activities of looking at the book, watching the T.V. and playing with her brother and sister before the incident. At the same time, the learned trial Court observed that the said evidence would show that the victim was not able to express herself and that the capacity of the victim to understand and give rational answers was not satisfactory in the light of the said discrepancies. I am unable to endorse this conclusion based on available material on record. The evidence of the victim/P.w.8 shows that she volunteered to give the statement after she was made comfortable in the presence of her mother/P.w.1 and in the absence of the accused. In my view, the learned trial Judge did not make any allowance to the victim/P.w.8, considering that she was of a tender age and was coming from a rural background and, as such, her understanding of the entire situation was limited to some extent. Her evidence could not have been -16- appreciated as that of a grown up girl of mature understanding. The learned trial Court read the statement “the accused called her, played with her and left her out” out of context of the evidence given by her. In fact, her entire evidence had to be read as a whole, which the learned trial Court failed to do, and when so read, it indicated that she had sufficiently described the act committed by the accused. No doubt that the victim/P.w.8 had stated in her examination in chief “tyache nini majha hetun ghatli”, which the learned trial Court found to be a tutored statement. In my view, there was nothing fundamentally different in the said statement of the victim/P.w.8 when otherwise her mother/P.w.1 had stated that the victim/P.w.8 had told her that the accused had inserted his private part in the private part of her daughter. That is the same statement, which her mother/P.w.1 gave whilst narrating the incident in FIR as well as before the Court and, therefore, it could not be said that the said statement recorded in actual words used in Konkanni, was in any way materially different from the version given by the victim/P.w.8 to her mother/P.w.1. It was nobody's case that the said room which was occupied by the accused along with other boys had any bed or chairs and all that it had was mats and bedsheets. Whether the act was performed by the accused by taking her on his lap or after making her sleep on the mat and the bedsheet and then the accused -17- sleeping over her, would not carry any weighty significance since the said discrepancies came from child who was five years old. The said discrepancies do not create a different story nor do they change the complexion of the case. In my view, the evidence of the victim/P.w.8 could not have been rejected either because the victim lacked understanding or because she was tutored. Being an injured witness herself, she would not have falsely implicated the accused. Her evidence, when read as a whole, had an impress or ring of truth. The discrepancies did not touch the core of her version. Her evidence could not have been rejected. Moreover, her evidence was substantially corroborated by the evidence of other witnesses, and that takes us to Dr. Rodrigues/P.w.10. 10. Dr. Rodrigues/P.w.10, is the Associate Professor in the Department of Forensic Medicine in