1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEALS NO. 64 OF 2006 & 71 OF 2006 CRIMINAL APPEAL NO. 64 OF 2006 Maloji Patil, S/o, Nanappa Patil Major of Age, and r/o. Jamboti Cross, Shivajinagar, Khanapur, Karnataka. ......... Appellant. Versus The State of Goa, through Valpoi Police Station, Goa. .......... Respondent. Mr.Ryan Menezes, Advocate for the appellant. Mr.C.A. Ferreira, Public Prosecutor for the respondent. CRIMINAL APPEAL NO. 71 OF 2006 The State of Goa, through P.I. Valpoi Police Station, Valpoi,Goa. ............ Appellant. Versus Maloji Patil, S/o, Nanappa Patil Major of Age, and r/o. Jamboti Cross, Shivajinagar, Khanapur, Karnataka. ............ Respondent. Mr.C.A.Ferriera, Public Prosecutor for the appellant Mr.Ryan Menezes, Advocate for the respondent. . Coram :- R.M.S. KHANDEPARKAR,J. Date : - 13th/14th March, 2008 2 ORAL JUDGMENT :- Heard. Both these appeals arise from the common judgment and order dated 4th and 11th August, 2006 passed in Special Case No.10/2004 by the Children's Court at Panaji and both were heard together and are being disposed of by this common judgment. By the impugned judgment and order, the appellant in appeal No.64/2006 has been convicted for the offences punishable under Section 354 and 509 of the Indian Penal Code, as well as under Section 8(2) of the Goa Children's Act,2003 (hereinafter called as “the said Act”) and has been ordered to undergo the punishment for 3 months and a fine of Rs.500/- on account of the offence punishable under Section 354 of IPC one month Simple Imprisonment and a fine of Rs.200/- for the offence punishable under Section 509 IPC and to suffer Simple Imprisonment for 3 months and a fine of Rs.2,000/- for the offence punishable under Section 8(2) of the said Act. Aggrieved by the said conviction and sentence, the accused has preferred the appeal No.64/2006. On the other hand, being dissatisfied with the punishment of fine to the extent of 2,000/- in spite of being convicted under Section 8(2) of the said Act, the State has filed the appeal No.71/2006. 2. The appellant accused was a teacher at the Primary School at Malpan in Satari Taluka at the relevant time. The F.I.R. came to be registered on 12th November, 2003 at Valpoi Police Station complaining 3 of outraging modesty of and being subjected to sexual abuse, a minor girl of 8 years of age studying in 3rd standard in the primary school in the village by the accused-appellant under the pretext of teaching the said girl along with other students in the school. Pursuant to the said FIR, the investigation was conducted and the chargesheet came to be filed against the accused-appellant wherein the prosecution examined 10 witnesses including the victim. The Children's Court, on analysis of the evidence on record, passed the impugned judgment and order. 3. The judgment is sought to be challenged by the accused on the ground that the case put forth by the prosecution appears to be totally improbable taking into consideration the materials on record. In that regard, it is sought to be contended that the timing as regards the incident in question is concerned, there is no uniformity in the statements of the witnesses. Different versions have been given regarding the incident, as well as regarding the conversation between the accused and the victim by the different witnesses. There is also discrepancy as regards the exact place of the scene of offence is concerned and even the testimony of the so called eye witnesses on this aspect do not find corroboration. It is further sought to be contended on behalf of the appellant-accused that strangely, the close relations of the victim themselves were the panchas for the scene of offence panchanama and there is no explanation forth coming from the 4 investigating agency as to why the independent panchas could not be procured for such panchanamas. It is also sought to be argued that the competency test, before the school children were examined in the matter, was not properly conducted, more particularly in view of the fact that the evidence on record discloses that the Villagers had previously discussed the matter and only thereafter had filed the complaint against the accused. This, according to the learned Counsel appearing for the accused, assumes importance considering the various defects which can be pointed out in relation to the investigation as well as failure on the part of the prosecution to place before the Court the cogent materials which could establish the charges against the accused. 4. The appellant-accused was charged for the offences punishable under Sections 354 and 509 of IPC as well as Section 8(2) of the said Act. The charge against the appellant under section 354 relates to unfastening of his pant chain and holding the left hand of the victim girl and keeping the same on his private part and also touching the private part of the victim girl after rolling up her uniform and thereby trying to outrage the modesty of the minor girl; whereas the offence under Section 509 IPC related to the act on the part of the appellant-accused in sitting near the said girl with the intention to insult modesty of the said girl by uttering in her ears the words “karum karum”. The prosecution examined 10 witnesses in support of 5 the said charges against the appellant-accused, including the said girl. On the basis of the evidence produced by the prosecution, the appellant-accused has been convicted as stated above. 5. The testimony of PW.1 discloses that he is the father of the said girl and is the complainant in the mater. He has narrated in his testimony that on 10.11.03, her daughter, the said girl had attended the school upto 1 p.m. At about 7 p.m. when he returned the home, after his work, his wife told him that her daughter had narrated the incident which took place in her school and the same related to sex abuses by the appellant who was the teacher of the said girl, and that the accused had forced his daughter to touch his private part, as also he had removed her underwear. After consulting the people in the village, he filed the complaint against the appellant-accused. He has also stated that he got the confirmation regarding the said incident from some of the girls studying in the same school and he had also made a representation to A.D.E.I. Valpoi – Satari on 14.11.03, along with 21 other persons and meanwhile, he had filed the complaint to the police on 12.11.03. In the course of cross examination he had admitted that Sadashiv Gaonkar to whom he had consulted about the incident before making the representation, is his cousin brother and the said Sadashiv had contested the Panchayat elections prior to the incident and he was defeated in the said elections. He has expressed his ignorance about 6 feud having developed between Sadashiv and the accused on account of the said election result. It was suggested to the witness that the accused had supported the opponent of Sadashiv, which was also denied by the witnesses. 6. The second witness PW. 2, Vishwas Gaonkar who was a panch witness along with said Sadashiv in relation to the scene of offence panchanama has stated that the school is located at Malpan on the right hand side of the road while proceeding from Satari to Malpan. It is a tiled roof building. He has further stated that the said girl, who was present at the time of panchanama, had shown her class room which is a second room. He has also stated that photographs were clicked at the time of recording of the panchanama. In the course of cross examination, he has stated that the father of the said girl is his paternal uncle, as also of another pancha by name Sadashiv. 7. The third witness PW.3 is the said girl and in her testimony she has stated that in the year 2003, she was studying in Standard III in the Government Primary School at Malpan and there were altogether 21 students studying in the said school and in the concerned room of the school, there were about 5 students and they were Suvarna, Priyanka, Rajesh, Rupesh and herself. Their teacher's name was Maloji Patil and she had identified him when he was present in the Court at the time of her deposition. She has further stated that her school timings 7 were from 8.00 a.m. to 1.00 p.m. and there were two rooms in the school and one of the rooms was occupied by Standard IVth students and the second room was for 1st and 2nd standard students, whereas the 3rd standard students were made to sit on the ground behind the benches in the second room where first and second standard students were also being taught. She has deposed in her testimony that on 10.11.03, she had seen their teacher, the accused herein, rolling up the school uniform of one of the girls by going near the said student, whom she had identified in her testimony and who was then examined as the PW.6, and further touching her private part. The accused then came to the deponent girl and uttered “karun karun” to which she had refused. The accused thereupon unfastened zip of his pant and caught her left hand and placed it on his private part. The accused placed his right hand on the private part of the deponent whereupon she got scared and started crying. Her another classmate PW.7 came near her to whom the deponent narrated the incident. After going home, she narrated the incident to her mother. She has also stated that the accused had told her that she should not do such things with others and threatened her of dire consequences, in case she behaved similarly with other boys. Her mother narrated the incident to the Villagers and therefore, she was called to the police station from where she was taken to the hospital. In the cross examination, she has stated that PW.6 was sitting very close to her and PW.7 was sitting on the bench, whereas PW.9 was 8 sitting on the floor, close to her at the time of incident. The bench in the classroom was at a distance of about half a meter from the place where she was sitting. Sadashiv is cousin brother of her father. All the suggestions, on behalf of the accused denying the incident and the conduct on the part of the accused were specifically denied by the deponent in the course of her cross examination. She has also denied the suggestion that she was tutored to depose against the appellant- accused by her father and Sadashiv. 8. PW.4 Dr. Shyam Kankonkar who had examined the victim girl has stated in his testimony that while working as Medical Officer at the Community Health Center at Valpoi Satari in November, 2003 on 13th of the said month, the patient victim girl was brought by the police for being examined. There were no external injury marks and he had accordingly issued the certificate. He has also stated in his testimony that in case private part of a minor girl is touched, there need not be any injury to the private part necessarily. However, it would depend upon the manner in which the private part is touched. 9. PW.5 Govindrao Naik has deposed in his testimony that he was working as an Assistant District Education Inspector and in the year 2003 he was posted at Valpoi. He knew the accused as a teacher in Malpan Government Primary School since 22.6.1993. On 10.11.2003, the accused was on duty as per attendance roll. He has 9 identified the muster roll for the period from 9th June, 2003 to 9th December, 2003 which was exhibited as Exhibit 13 in the evidence. In his cross examination, he has stated that he had not received any complaint against the accused regarding his moral character, apart from the present complaint. 10. PW.6 is one of the girls from the school, aged 12 years and was examined after necessary competency test. She has deposed in her testimony that she was studying in IIIrd Standard along with the said girl and in her class there were about 5 students, including herself, the others included the said girl, PW.7, and Suvarna. She has confirmed the statement of other witnesses regarding arrangement in which the students were made to sit in two different classrooms for their studies from 1st to 4th Standards. She has further deposed that on the day of the incident which took place on 10.11.03, she had gone to the classroom at 8.00 a.m. and after the prayers, as usual they were made to sit on the floor of the classroom. Their teacher, the accused had asked them to read Marathi book. The accused then came near her and rolled up her school uniform and touched her private part. The P.W.3 was sitting next to her. The accused uttered something in her ears to which the said girl replied stating “naka naka”. The accused then unfastened the chain of his pant and took the hand of the said girl and placed it on his private part. The accused then placed his hand on the private 10 part of the said girl. During the interval time, the said girl narrated the above facts to her friend PW.7. She was crying while narrating the said incident to PW.7. The witness also identified the accused. Further the notings by the trial Court disclose that the Advocate for the accused had stated that the accused did not dispute the identity of the accused. In the course of cross examination, she denied the suggestion that all the students were made to sit on benches and no students from any class were made to sit on the floor. She admitted the suggestion that the incident in question took place on the first working day after the Diwali Vacation. She denied the suggestion that she was tutored to depose before the Court. She has also confirmed that she had narrated the incident to her father before giving statement to the police. She has denied all the suggestions contrary to her testimony in her examination- in-chief. She has further confirmed that there were about 21 students in the School and all the students were present on the day of the incident. 11. PW.7 is yet another girl from the same school and her testimony was recorded after the necessary competency test. She has deposed in her testimony that in the year 2003 she was studying in Standard IVth in Government School at Malpan at Valpoi and there were about 20 students in the said school. She knew the said girl who was studying at the relevant time in 3rd Standard. She also knew PW.6, as also Suvarna, and Rajesh. They were also studying in IIIrd 11 Standard. The name of the teacher who was teaching them at the relevant time was Maloji and as far as his identity is concerned, the Advocate for the accused had stated that the same was not being disputed. She has further stated that she had attended the school on 10.11.03 and the students of IVth were in the first room and the students from IIIrd standard onwards were made to sit in the 2nd room. During the interval time, she saw the said girl crying. She asked the said girl as to why she was crying. The said girl told her that their teacher had unfastened the zip of his pant in the classroom and had forced her to place her hand on his private part. She also told the deponent that the accused had also rolled up her uniform and had touched her private part with his hand. In the course of cross examination, the witness has stated that all the students from the class had attended the school on the said day. She denied all the suggestions contrary to her testimony in her examination in chief. 12. PW.8 is yet another student from the said school who was studying in IVth Standard in 2003. He has deposed that he knew the said girl who was studying in IIIrd Standard in the same school. On 10.11.2003, during the interval period, he had seen the said girl crying, and PW.7 and others were inquiring with her about the reasoning for her crying. On inquiry with the said girl, it was told to them that the accused had unfastened the zip of his pant, and had placed her hand on 12 his private part and also that he had rolled up her uniform and had touched her private part with his hand. He denied the suggestion to the effect that he had deposed falsely that the said girl was crying or that she had told them that the accused had rolled up her uniform or that had touched her private part with his hand. He had also denied that he was deposing falsely. 13. PW.9 is yet another student from the said school, who was studying in IIIrd Standard in 2003 and had deposed that there were about 20 students in the entire school and in his class, there were five students, namely Survarna, PW.6, PW.3, Rajesh and he himself, and the accused was their teacher at the relevant time. He has also confirmed the sitting arrangement of the students as deposed by other witnesses. He had stated that the students of Standard IVth were made to sit in first room and the students of Standard III were made to sit in the second room as was narrated by other students in the course of their testimony. He has further stated that on 10.11.2003, the accused went near PW.6 and rolled up her uniform and pushed his hand near her private part and at that time he was sitting by the side of the said girl. The accused then whispered something in the ears of the said girl to which she said no no (naka naka). The accused then unfastened the zip of his pant and caught the hand of victim girl and placed it on his private part and on seeing the accused behaving in that manner, he was 13 frightened and therefore kept quiet. The said incident took place before the recess period. During the recess, they came out of the class room, including the said girl and he noticed that the said girl was crying. In the cross examination, he has denied all the suggestions which were contrary to his testimony in his examination in chief. 14. PW. 10 Ramesh Y. Gaonkar is the Investigating Officer and he has stated in his testimony that on registration of the complaint, he proceeded to the scene of the incident, recorded the panchanama in the presence of two panchas, and got photographs clicked of the site. He has further stated that the spot was shown by the said girl. He has also stated that he recorded the statements of student witnesses. On 13.11.03, he received a representation from the parents of the students, addressed to the Director of Education and that after completing the investigation, he filed the chargesheet. During his tenure, no Panchayat elections were held at Valpoi. While denying all the suggestions which were put in the cross examination, he has stated that the accused had told him that said Sadashiv Gaonkar was against the accused on the assumption that the accused had supported the opponent who had contested against said Sadashiv Gaonkar and said Sadashiv Gaonkar was trying to take revenge against the accused. 15. On consideration of the above evidence on record, it is apparent that the girls, including the said girl from the concerned 14 school, have described the incident without any material discrepancy on the relevant aspect of the incident. The girls and the boys from the school who had been examined as witnesses, have consistently stated that the accused person misbehaved with them and in particular with PW. 3 and PW.6 in asmuch as that the accused not only touched the private part of those two girls, but also made the said girl to touch the private part of the accused. Though it was sought to be contended on behalf of the appellant-accused that there is discrepancy as regards description of the incident, as also the place of the alleged incident and the timing relating to the alleged incident, proper reading of the testimonies of all those witnesses would reveal that none of these contentions are borne out from the record. The testimonies of all these witnesses are consistent in relation to the timing of the incident, as also the place of the incident, so also in relation to the description of the incident. Four of the witnesses have described the manner in which the accused tried to outrage modesty of the girls, including the said girl and also that he had acted with the intention to insult modesty of the girls. All the four witnesses have consistently stated that the incident had occurred prior to the recess and the said girl was found crying during the time of recess and on being asked the reason for crying, she had narrated the incident. The evidence on record, therefore, as regards the acts which constitute the offences punishable under Sections 354 and 509 IPC, as also Section 8(2) of the said Act, is very clear and 15 cogent to establish the said offences and to hold the accused guilty of having committed the said offences. 16. Taking into consideration the above referred evidence on record, merely because there was some delay of 2 days in lodging the FIR or that prior to the lodging of the FIR there was discussion with the Villagers, that would hardly vitiate the findings arrived at on the basis of the cogent evidence regarding the offence which had been committed by the accused. It is true that the evidence on record also discloses that the parents of the girl witnesses had inquired with the girls regarding the behaviour and the conduct of the accused in the school and in particular about the incident in question, that itself also would not be sufficient to discredit the testimony of those girl witnesses who were subjected to thorough cross examination. Their testimonies could not be demolished nor discredited even by lengthy cross examination. 17. The grievance regarding the competency tests being not properly conducted is also without any substance. The Court having been satisfied that the witnesses were competent to narrate the incident which had occurred and were in a position to know the consequences of telling lies or making false statements, they were found competent to depose and therefore, their testimony could not be discarded. 16 18. As regards the grievance that the pancha witnesses were close relations of the said girl, in the facts and circumstances of the case, it hardly matters. The description of the location and the place of the incident has been described with necessary details by the students from the same school and the same corroborates the contents of the panchanama. Being so, merely because the panchas happened to be the relations of the said girl would not, in any, manner be said to have caused any prejudice to the appellant-accused. The contention that when it was to the knowledge of the Investigating Officer that the panchas were closely related to the said girl and that not only that he had also accompanied the complainant to the police station, it was highly improper on the part of the Investigating Officer to allow such persons to be panchas for the panchanamas, though cannot be rejected in toto, in the facts and circumstances of the case, merely because the panchas were relatives of the said girl, it does not make any difference as far as genuineness of the panchanama is concerned. Whatever has been stated in the panchanama regarding the description of the site, is fully corroborated by