- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL MISCEALLENOUS APPLICATION NO. 96/2010 IN STAMP NUMBER MAIN 883 OF 2010. STATE THROUGH P.I. PORVORIM POLICE STATION ….... Applicant. Versus PIRBADSHAH YABSURE .….... Respondent. Shri C. A. Ferreira, Public Prosecutor for the Applicant. CORAM :- N. A. BRITTO, J. DATE : 2 nd August, 2010. P.C. : The State seeks leave to appeal against the acquittal of the accused under section 376 of Indian Penal Code and section 8 of the Goa Children's Act, 2003, vide judgment dated 18.12.2009 of the learned Children's Court. 2. The case of the prosecution, briefly stated, was that on 31.12.2004, the accused took the victim to a lonely place at Porvorim and committed rape on her. Prosecution in all examined 12 witnesses. The case of the accused was one of denial simplicter. 3. The learned Children's Court after considering the evidence produced by the prosecution has come to the - 2 - conclusion that PW2, the victim, was above 16 years of age and the sexual intercourse by the accused was with her consent. In coming to the said conclusion the learned Children's Court has made a detailed analysis of the evidence led by the prosecution, which, in my opinion, cannot at all be faulted. 4. As regards the age, the learned Children's Court has come to the conclusion that prosecution has made no efforts to produce her birth certificate. Learned Children's Court has considered the evidence given by Dr. Sapeco who after having done necessary test had given the opinion that the age of the victim was 16 years, 4 months as on 5.1.2005 and in that regard learned Children's Court also relied upon the decision of this Court reported in Balasaheb Versus State of Maharashtra, (1994 Cri. L. J. 3044). The learned Children's Court therefore has come to the conclusion that a margin of at least 6 months plus/minus on either side and the one which is beneficial to the accused has to be considered and thus has come to the conclusion that the age of the victim was about 17 years of age. 5. The learned Children's Court, also considered the facts stated by PW2 victim that she had left the school 10 years back and in case it was considered that she had studied up to VIIIth standard as stated by her, it could be presumed that the victim was around 22 years of age as on date of the incident and if considered from that angle the age of the victim was 18 years. 6. As regards the consent, the learned Children's Court considered the conduct of PW2 victim. The evidence of - 3 - PW6 Nitin also could have been considered and supporting the story of the consent. It appears that PW6 Nitin went with one Zarina and the accused with PW2, victim on separate motorcycles in jungle areas where the accused is alleged to have indulged in sex with PW2 victim. The said Zarina was not examined. PW2 victim did not raise any alarm although help was available to her close by from Zarina and PW6 Nitin. PW2 also stated to have come to Panaji. She could have gone to the nearby police station at Panaji and lodged a complaint or even at Porvorim, to report about incident. She did not go to her house. She went to Merces to the house of Nicholau and Antonette. Antonette, having been examined as PW3, her evidence shows that the victim did not tell them that the accused had committed rape on her but instead told them that the bleeding was due to menstrual period. Said Antonette gave some clothes to PW2 victim to change and it was seen that inspite of changing the clothes PW2 was still bleeding . She then requested Antonette's husband said Nicholau to accompany her to Santa Cruz to the place where she wanted to go, and it is at this time the said Nicholau called the police. PW2 victim appears to have been from Bambolim but did not go there either. The police came and took her to Dr. Sapeco in Goa Medical College and even then PW2 the victim, did not give any history of forcible rape on her to Dr. Sapeco who examined her. In case such a history was given Dr. Sapeco, he would have certainly recorded the same on Exh. 18 as noted by the learned Children's Court. 7. PW9 Deepak Pednekar, has stated that the victim - 4 - had informed him that she was taken by one boy at Porvorim hill and she was handed over to 4 unknown boys one of whom had forcible intercourse with her at around 16.00hours on 31.12.2004. The learned Children's Court has observed, and in my view rightly, that there is no explanation as to why PW9 PSI, Deepak Pednekar had not recorded the complaint of the victim immediately or register an FIR against four unknown boys and the learned Children's Court has come to the conclusion that the evidence of PW9 PSI Pednekar creates a serious doubt about making of such statement to him by the victim. If not for bleeding and Nicholau's intervention nothing might have come to light. The conduct of PW2 victim throughout shows that she had consented to the sexual intercourse. 8. Considering the facts of the case, the conclusion arrived at by learned Children's Court cannot be faulted. It is not a fit case for grant of leave to appeal. Application is therefore hereby dismissed. N. A. BRITTO, J. vn*