1 IN THE HIGH COURT OF BOMBAY AT GOA. Criminal Application (Bail) No.208 of 2009 Mr. Lawrence Dias, Age 26 years, R/o. H. No.188, Mesta Bhat Vaddo, Merces, Tiswadi, Goa (presently in Judicial custody) Through his next friend Mrs. Sushma Dias, R/o. H. No.188, Mesta Bhat Vaddo, Merces, Tiswadi Goa. .. Applicant v/s. 1. S T A T E Through P.P. 2. Police Inspector, Panaji Police Station, Panaji. .. Respondents Mr. Arun Bras De Sa, Advocate for the Applicant. Shri C. A. Ferreira, Public Prosecutor for the Respondents. 2 Coram: N.A. BRITTO, J Date: 30th July, 2009 ORAL ORDER 1. Heard. 2. The applicant herein is charged under section 376, 323 and 506 I.P.C and is awaiting trial before the Learned Additional Sessions Judge, Panaji in Sessions Case No.20/2009. 3. The Learned Sessions Judge, by order dated 30.6.2009 has rejected his bail application. The Learned Sessions Judge has also rejected a submission made on his behalf, a submission which has also been repeated before this Court, that the present case is of mistaken identity. The Learned Sessions Judge has rejected the application after coming to the conclusion that the applicant was prima facie involved in raping a foreigner victim and as he is involved in heinous crime of rape he ought not be granted bail. The Learned Additional Sessions Judge also 3 observed that in case the applicant is released on bail, there are strong chances of the applicant tampering with the evidence specially of a material witness by name Preetam Rivonkar who is a friend of the accused. 4. Be that as it may, the offence of rape took place between 11.00 to 00.30 hours on 12.1.2008 and the accused was arrested on 17.2.2009 and since then has been in custody. Learned Counsel on behalf of the applicant submits that the case appears to be of mistaken identity but such a submission cannot be accepted at this stage for the complainant had clearly stated in her complaint that she would be able to identify her assailant/rapist and has subsequently identified the applicant. 5. Learned Counsel has further submitted that the F.I.R was filed with delay and therefore this is a fit case to admit the applicant to bail. In fact the F.I.R was filed in less than 24 hours and an explanation has been given by the victim. It is recurring feature in quite a number of cases that there could be some delay in lodging the F.I.R. to the police. It has to be 4 remembered that the law has not fixed any time for lodging the F.I.R. Prompt and immediate lodging of F.I.R is ideal but slight delay cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged F.I.R. is not an unreserved guarantee or genuineness of the version mentioned therein and when delay is properly explained it has no adverse effect on the case of the prosecution. As observed by the Delhi High Court in the case of Chaman Ali V/s. State (1992) (3) Crimes 767, delay by itself is no ground to grant the bail and moreover the question of delay will be looked into on merits by the trial Court. 6. Learned Counsel has further sought to put forward a plea of alibi. Alibi in latin means elsewhere and the contention which is raised is that the applicant who is animal rescue worker in the Forest Department had returned to Merces, as per the log book, at 11 p.m, after having gone out to answer a snake call at 10.15 p.m. and as such could not have been available at 10.30 pm at the Kala Academy to give lift to the victim. The log book entry is made by the applicant himself and could have been 5 made by the applicant not only after returning from the said call, but after the incident as well. That entry in the light of the identification of the applicant by the victim cannot be given much weight at this stage. 7. Learned Counsel further submits that in any event the case is one of consensual sex with the victim. This submission has been rejected by the Learned trial Court and in my view rightly because the medical report of the victim shows that not only there was evidence of recent forcible sexual intercourse but also other injuries suffered by the victim and which are in conformity with the statement given by her. In fact the victim has stated that there was a violent tussle during which the applicant had punched her, caught hold of her hair and caught her mouth, forcibly torn her clothes and whipped her underwear and had threatened to kill her. Not only the medical report but also Section 114-A of the Indian evidence Act 1872 are against the applicant. It, therefore, follows that there is strong prima facie evidence to show that the applicant is involved in the offences alleged against him. 6 8. Shri Arun Bras De Sa, Learned Counsel on behalf of the applicant has submitted that even if a case under section 376 I.P.C is prima facie proved against the applicant, the applicant has to be released on bail and to show that bail was granted in such case has referred to the decision of this Court in the case of Pratik s/o. Manikrao Fulzele and another V/s. State of Maharashtra (2007 All MR Cri 358). In fact the accused who was on bail in a case under section 376(2) (g), etc. was asked to surrender. Likewise, in Hanuman Prasad and others V/s. State of Rajasthan (2009) 1 SCC 507) the accused were on bail in a case under section 376 (2) (g) and 376 (2). The accused who were on bail, their bail bonds were discharged after they were acquitted by the Apex Court. Learned Counsel has further placed reliance on the case of Bhagirathsinh Judeja V/s. State of Gujarat (AIR 1984 SC 372) to show that the trend today was totally towards granting of bail because it is now well settled by a catena of decisions of that court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The Apex Court has stated that the only material considerations in such a situation are whether the accused would be 7 readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order of the High Court was silent on the aforesaid two aspects or relevant considerations and therefore the Apex Court proceeded to set aside the order of the High Court. 9. On the other hand Shri Ferreira, the Learned Public Prosecutor has sought to deny bail to the applicant as according to the Learned Public Prosecutor, the applicant's case is covered by the restrictions placed for grant of bail by Section 437 (1) (i) of the Code (Code of Criminal Procedure, 1973). The Learned Counsel has further submitted that cases such as this are on the increase therefore bail ought not to be granted and as such has placed reliance on the case of Moti Lal V/s State of M.P. (CDJ 2008 SC 1202) wherein the Apex Court stated as follows:- “Of late, CRIME AGAINST WOMEN in general and rape in particular is on the increase. It is an irony that while 8 we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal 9 nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. This position was highlighted in State of Punjab V/s. Gurmeet Singh (1996 (2) SCC 384). A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The 10 Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps in mind and feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short 'Evidence Act' similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the 11 testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. This position was highlighted in State of Maharashtra V/s. Chandraprakash Kewalchand Jain (1990 (1) SCC 55). It needs no emphasis that the 12 physical scar on a rape victim heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery”. 10. The aforesaid observations are quoted with approval by this Court in Balaji s/o Laxman Itkar & another V/s. The State of Maharashtra (CDJ 2008 BHC 479). 11. The main and the gravest offence committed by the present applicant is punishable for a term which shall not be less than seven years but which may be for life or for a term which my extend to ten years and shall also be liable to fine in terms of Sub section 1 of Section 376 of 13 I.P.C. 12. I am unable to accept the submission of Learned Public Prosecutor. The restriction placed for grant of bail by section 437 (1) (i) of th Code is for offences punishable with death or imprisonment for life. The first offence which immediately comes to mind is the offence under section 302 I.P.C. which is made punishable with death or imprisonment for life. Section 121 IPC is another which is again made punishable with death or imprisonment. An offence which is made punishable with death or imprisonment for life cannot be interpreted as synonymous with an offence which is made punishable with imprisonment which may extend for life. The two expressions are different. This Court in Santosh Bhaurao Raut V/s. State of Maharashtra (CDJ 1988 BHC 046) was considering the case under section 376 (2) (g) which is punishable with rigorous imprisonment for a term which was not to be less than ten years but which may be for life and shall also be liable to fine and in that context this Court observed that the offender who is an accused of non bailable offence is not deprived to the entitlement of bail merely because 14 the offence is punishable with life imprisonment. Such a disability is occasioned where the offence allegedly committed by the offender is punishable only with death or imprisonment for life. To put it differently, said Section 437(1)(i) of the Cri.P.C cannot be applied to the case of a person who can be punished with sentence of imprisonment for less than imprisonment for life. The Indian Penal Code prescribes a minimum sentence of ten years rigorous imprisonment for one, accused of the offence of gang rape. This is the punishment to be taken into consideration for the purposes of deciding on the applicability or otherwise of section 437(1)(i). It is not possible to agree with this submission. Section 437 (1)(i) says that a person accused of or suspected of the commission of an offence punishable with death or imprisonment for life, shall not be released on bail if there appears reasonable ground for believing that he has committed such an offence. Therefore, if the law prescribes death or imprisonment for life as the maximum imposable sentence, section 437(1)(i) is attracted and the offender is deprived of the right to get bail. This of course is on it being made to appear that there are reasonable grounds for believing that he has 15 committed an offence for which the prescribed punishment is death or imprisonment for life. 13. The case at hand, is covered under section 376(1) and is made punishable with imprisonment which shall not be less then seven years but which may extend to ten years or may be for life. This is certainly not a case which is covered by Section 437(1)(i) of the Code i.e. the case which is punishable with death or imprisonment for life. That being the position, after completion of investigations and filing of charge sheet the applicant could not ordinarily be denied bail on account of the restriction placed by Section 437(1)(i) of the Code. 14. Learned Sessions Judge, has denied bail to the applicant because of a statement recorded of a State's witness in which the applicant has been implicated. No doubt, the statement of his under section 164 of the Code has been recorded. The said witness is a friend of the accused and probably has ventured to give a statement because the accused is in custody. In this case, in case the applicant is released on 16 bail, the apprehension of the prosecution that the applicant will interfere with his said friend and make him not to adhere to the said statement appears to be more real than imaginary. In other words, the apprehension expressed by the prosecution that the accused, if released on bail, would tamper with the evidence appears to be reasonable. 15. The accused could always make a request for bail after the victim and the said witness are examined. For the present, in my view, on account of apprehension expressed by the prosecution, the applicant cannot be admitted to bail. 16. Application, therefore, is hereby dismissed. N. A. BRITTO oc. 17