1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 48/2009 Mr. Bhau Valve, r/o. Manddal, Curtorim, Salcete-Goa. Presently lodged at Central Jail, Aguada – Goa. ........ Appellant. V/s. State Through the Public Prosecutor, High Court of Bombay at Goa, Panaji-Goa. ........ Respondent. Mr. Nigel Costa de Frias, Advocate for the appellant. Mr. C. A. Ferreira, Public Prosecutor for the State. CORAM :- A.S. OKA & F.M. REIS, JJ. Date of reserving the Judgment : 14/07/2010 Date of pronouncing the Judgment : 27/07/2010 J U D G M E N T : (Per A.S. OKA, J.) 1. This is an appeal preferred by the accused for taking an exception to the Judgment and Order dated 26th September, 2008, by 2 which the appellant has been convicted for the offence of incest and grave sexual assault on his own daughter. The offences are punishable under section 8(2) of the Goa Children’s Act,2003(hereinafter referred to as the said Act). The appellant has been sentenced to suffer life imprisonment. He has been directed to pay a fine of Rs.1,00,000/- or in default, he has been directed to undergo Rigorous Imprisonment for three years. 2. The First Information Report was registered at Maina Curtorim Police Station on 5th August, 2007. The allegation against the appellant is that for a period of 5 years till 5th August, 2007, at his residence at Maddel, Curtorim he committed the offence of grave sexual assault and rape on his minor daughter the victim aged 17 years. The said victim gave birth to a baby girl. The allegation is that the appellant committed an offence of grave sexual assault in terms of Section 2(y)(i) and punishable under Section 8(2) of the Goa Children's Act 2003 (hereinafter, referred to as “the said Act”), read with Section 376 of the Indian Penal Code, 1860 (hereinafter, referred to as “the Penal Code”). 3 3. The prosecution examined 6 witnesses. PW.1 is the victim of the offence. PW.2 is one Miss Vincy Fernandes who is the first informant. PW.3 is one Savlo Naik who is the pancha witness to the scene of offence panchanama. PW.4 Dr. Madhu Ghodkirekar, is a Medical Officer. PW.5 is a Police Officer who recorded some statements and PW.6 is the Investing Officer. 4. The learned Counsel appearing for the appellant has taken us through the notes of evidence and other material on record. He submitted that on the date on which the alleged offence was committed, the age of the prosecutrix was admittedly more than 16 years. He submitted that according to the prosecution case, the appellant committed sexual intercourse with the prosecutrix on several occasions spanning over few years. He pointed out that the prosecutrix had a younger sister and several friends. He pointed out that there were neighbours, but till 5th August, 2007 the prosecutrix never disclosed to anyone of them about the alleged sexual intercourse by her father. He pointed out the evidence of PW.2 Miss Vincy Fernandes who stated that when in the first week of August, 2007 while she was having talk with the prosecutrix she noticed that the prosecutrix was pregnant, and 4 when she inquired with her, the prosecutrix disclosed to her that the accused was having sex with her over last 5 years and that she was pregnant. He invited attention of the Court to the evidence of PW.4 Dr. Madhu who stated that on 5th August, 2007 when the prosecutrix was examined, she was found to be of 28 weeks' pregnant. He submitted that apart from PW.2, no other neighbour was examined. He submitted that the conduct of the prosecutrix shows that the sexual intercourse by the appellant was with her consent. He submitted that the only inference which can be drawn is that there was a clear consent on the part of the prosecutrix. He invited our attention to Section 8(2) of the said Act. He also invited our attention to definition of “Grave Sexual Assault” incorporated in Section 2(y)(i) of the sad Act. He pointed out that the first part of clause (i) which refers to different types of intercourse has application only in case of child whose age is below 16 years. He submitted that the offence of rape is not established as the prosecution has failed to prove that the sexual intercourse was without the consent of the prosecutrix. He pointed out clause sixthly of Section 375 of the Penal Code. He submitted that as the offence of rape is not proved, the offence of Grave Sexual Assault is not made out. He submitted that there was no charge framed against 5 the appellant for the commission of offence of incest, but the appellant has been convicted for the said offence. He submitted that as the offence of rape has not been proved, the case of grave sexual assault is not proved and, in any event, there is no charge framed for the offence of incest and, therefore, the appellant could not have been convicted for the offence of incest. 5. The learned Public Prosecutor submitted that this is not a case where the consent on the part of the prosecutrix is established. He submitted that the appellant being father was in fiduciary capacity and admittedly mother of the prosecutrix was staying away from the house for a period of 5 years. He submitted that looking to the position in which the prosecutrix was placed, she could not make any grievance as regards the acts of her own father. He submitted that it was not expected of the prosecutrix to have disclosed the facts to her younger brother and her younger sister. He pointed out that the result of the DNA tests shows that the appellant is the biological father of the child born to the prosecutrix. He submitted that no corroboration is required to the evidence of the prosecutrix, but, in the present case the evidence of PW.2 sufficiently corroborates the testimony of the 6 prosecutrix. He invited attention of the Court to the definition of “incest” in sub-clause (iii) of clause (y) of Section 2 of the said Act. He submitted that though the charge specifically does not refer to the offence of incest, there is a specific charge framed of commission of offence in terms of Section 2(y)(i), which is punishable under Section 8(2) of the said Act. He submitted that all circumstances have been put to the appellant in his statement under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as “the said Code of 1973”) and, therefore, there is no prejudice caused to the appellant. He relied upon a decision of the Apex Court in the case of Dalbir Singh vs. State of Uttar Pradesh, (2004 (5) SCC 334). He submitted that there is no illegality committed for convicting the appellant for the offence of incest. He submitted that no interference is called for. 6. Learned Counsel appearing for the appellant reiterated that the offence has not been established. He submitted that without prejudice to his contention that the offence has not been proved the fact that the appellant was having children who were in the custody of neighbours will have to be taken into account. He submitted that the sentence be reduced to minimum permissible in the interests of the 7 children of the appellant. 7. We have given careful consideration to the submissions. The first question to be considered is whether the offence of rape has been established. Exhibit 35 which is a certificate issued by the School where the prosecutrix was studying shows that the date of birth of the prosecutrix is 18th September, 1990. The evidence of PW.4 Dr. Madhu who examined the prosecutrix on 5th August, 2007 shows that on that day she had completed about 28 weeks of pregnancy. It is alleged that the appellant indulged in sexual intercourse with the prosecutrix for a period of over 5 years. Going by the fact that on 5th August, 2007 the prosecutrix had completed 28 weeks of pregnancy, the last act of the offence can be safely said to be in or about January, 2007 when the prosecutrix had completed age of 16 years. 8. It is true that there is a delay in lodging the First Information Report, but in the present case, we are dealing with the allegation of sexual offence committed by the appellant against his own daughter. For such an offence, the delay, by itself, is not fatal. 8 9. The prosecutrix (PW.1) stated that she was residing in a house with the appellant, her younger sister Vidya and younger brother Sachin. She stated that she was studying in IXth Standard in St. Xavier's High School at Curtorim. She stated that her mother left the house 5 years back. As far as the offence is concerned, she stated thus: “ My father, Bhau Vale, has been working as a Matka Bookie at the Curtorim bazaar. He is also an alcoholic. At night time, he used to sleep next to me and used to sexually abuse me by having intercourse with me on several occasions. He used to remove his clothes and remove my underwear and insert his private part in my private part. Out of fear of my father, I had not spoken to anybody questioning me as they found that my symptoms were suspicious. I could not bear the sufferings and went and narrated the facts to my neighbour Miss Vincy Fernandes. She took me to the City Hospital at Margao and on examining me, it was confirmed by the Doctor that I was pregnant. On 5.8.2007, my said neighbour Vincy lodged a complaint at Maina Curtorim Police Station. I also had gone to the Police Station and my statement was recorded but I do not recollect who else was 9 present. I was then taken for medical examination to GMC, Bambolim and it was confirmed that I was pregnant. I have now delivered a baby girl on 3.10.2007.” She further stated in the examination-in-chief that she had narrated her father's acts to four of her neighbours named therein. In the cross examination, she stated that when her mother left the house she was 12 years old. She stated that the mother was not taking her care after she left the house. She stated that when the mother was living in the house she had no problems with her father. She stated that after the mother left, he started consuming more alcohol and his attitude underwent a change. She admitted that on some occasions she used to remain alone in the house. She admitted that she used to attend the school functions and picnics and used to reach home late on some occasions. She denied the correctness of the suggestion that she was against her father as her father used to like her brother. She admitted that she had many friends, both boys and girls and she used to attend the birthday parties of her friends who were girls. She admitted that her father never used to object to her visiting houses of the neighbours. She admitted that between February and August, 2007 she was having normal visits to 10 the houses of neighbours. Various suggestions were given to the prosecutrix which she denied. 10. PW.2 Vincy Fernandes was staying in the neighbourhood of the house of the appellant. She disclosed that the appellant was staying with the prosecutrix and his another daughter and a son. She stated that in the year 2007 the prosecutrix was around 16 years' of age. The witness further deposed : “ (Name not not printed) The victim used to come along with her sister and brother to our house, as they were staying close by. Sometime in the first week of August of 2007, there was talk in the village that (name not printed) the victim was pregnant, as her stomach was fattened. I inquired with her and she started crying and told me that her father Bhau Valve used to have sex with her over the last 5 years and as such she is pregnant. As she was fearing her father, she requested me not to speak of the incident to anybody. However I spoke to some of my neighbours, namely Inacinha and Filu and then we took her for medical check-up at the City Hospital at Margao of Dr. Madkaikar. He confirmed that she was seven months pregnant. Accordingly on 5.8.2007, at the Maina Curtorim police station I lodged the complaint against the 11 said Bhau Valve. I am producing the complaint on which I identify my signature at the point now indicated as PW2 and the complaint is taken on record and marked as Exhibit 13. When I went to lodge the complaint, the above neighbours, along with Auda Viegas were present along with me.” The witness admitted that the prosecutrix was her friend and she used to regularly speak to her. She stated that people in the ward used to help the prosecutrix and her siblings, financially as well as by providing books and other things as they were from a poor family. She admitted that the prosecutrix had visited her house regularly between January and August, 2007 and she disclosed about the pregnancy only when she questioned her. She denied the correctness of the suggestion that the prosecutrix did not tell her that her father was having sex with her for last about 5 years. 11. PW.4 deposed about the pregnancy of the prosecutrix of about 28 weeks. She stated that she noticed old healed tears present on the hymen at 5, 6 and 11 O'clock position. In the cross examination she stated that she was not able to state what was the age of the tears. It must be noted here that there is hardly any dispute that the 12 prosecutrix delivered a baby girl on 3rd October, 2007. Thereafter, blood samples of the appellant, the prosecutrix and the baby girl were drawn for the purposes of DNA tests. The report of DNA tests is at Exhibit-36 (collectively). The conclusions recorded by the Senior Scientific Officer (Biology) of Central Forensic Science Laboratory are as under : “ Conclusion :- On the basis of the above observation it can be concluded that :- 1. (Name not printed) The victim (source of Exhibit – Y) is the biological mother of Baby Sanjana (source of Exhibit– Z). 2. Mr. Bhau Gangaram Valve (source of Exhibit – X) is the Biological Father of the Baby Sanjana (source of Exhibit – Z). The probability of Mr. Bhau Gangaram Valve contributing the non maternal alleles to the said Sanjana is 99.999 % than any person at random.” 12. Thus, it can be safely held that the appellant had intercourse with the prosecutrix in or around January, 2007 and the appellant is the biological father of the baby girl delivered by the 13 prosecutrix on 3rd October, 2007. Thus, the case made out by the prosecutrix that the father had sexual intercourse with her has been established. It must be stated here that the prosecutrix completed age of 16 years on 19th September, 2006. The version of the prosecutrix of the acts of the appellant has been already reproduced above. She has deposed that the appellant had sexual intercourse with her on several occasions. Therefore, the allegation of commission of sexual intercourse is not confined to only one act in or around January, 2007. PW.2 Vincy stated that the prosecutrix told her that her father used to have sex with her over last 5 years. The Apex Court has repeatedly held that in a tradition bound non-permissive society in India, a girl would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity has occurred being conscious of the danger of being ostracized by the society or being looked down by the society. In the normal course of human conduct, a girl would not like to disclose her traumatic experience. In the present case, we are dealing with the sexual assault committed by the father against his own daughter. What is brought on record is that the mother of the prosecutrix left the house 5 years prior to the year 2007 and the prosecutrix and her two siblings were staying with the father. The 14 prosecutrix has described as to how the behaviour and attitude of the appellant that changed after her mother left. It must be reiterated here that the version of the prosecutrix that the appellant had sexual intercourse with her has been established beyond a reasonable doubt on the basis of the DNA test. As pointed out earlier, the prosecutrix has deposed about several acts of intercourse by the appellant with her, spreading over a length of time. In fact she disclosed to PW.2 that the acts of intercourse were spread over for a period of 5 years. The failure of the prosecutrix to disclose the said deplorable conduct on the part of her own father to her several friends and others is consistent with the natural course of conduct of woman in India. The prosecutrix had no support of her mother. Reluctance on the part of the prosecutrix to disclose such incidents can be justified considering the tradition bound non-permissive society in which the prosecutrix is living. There is sufficient corroboration to the version of the prosecutrix in the form of evidence of PW.2 Vincy. Thus, what has been established are the acts of intercourse by the appellant for few years. Thus there were act of intercourse with the prosecutrix even before September 2006 which were during the period when the prosecutrix had not completed age of 16 years. For the acts of sexual 15 intercourse committed upto to September, 2006 the consent is irrelevant in view of clause sixthly of Section 375 of the Penal Code. For the reasons which we have recorded, it is impossible to come to a conclusion that even the act of intercourse of January, 2007 was by consent of the prosecutrix. Thus, this is a case where the offence of rape within the meaning of Section 375 of the Penal Code has been established beyond reasonable doubt. 13. The other question which arises is about the conviction for the offence of “incest” and “grave sexual assault”. The operative part of the impugned order reads thus : “For the offence of Incest, and Grave Sexual Assault, committed by the accused on his own daughter, I sentence him to life imprisonment and pay fine of Rupees 1,00,000/- (Rs. one lakh), or in default further rigorous imprisonment of three years.” For dealing with the submissions made on this aspect, it will be necessary to consider the definition of “Sexual Offences” under the said Act. Clause (y) thereof reads thus : “(y) `Sexual Offences' for the purposes of awarding appropriate punitive action means and includes, - 16 [(i) “Grave Sex Assault” which covers different types of intercourse; vaginal or oral or anal, use of objects with children, forcing minors to have sex with each other, deliberately causing injury to the sexual organs of children, making children pose for pornographic photos or films, and also includes rape;] (ii) 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; (iii) Incest which is the commission of a sexual offence by an adult on a child who is a relative or is related by ties of adoption.” The section Section 8 provides for punishment to aforesaid offences. Sub-section (2) of Section 8, reads thus : “(2) Whosoever commits any [child abuse 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 17 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 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 of the IPC, as laid down by the Supreme Court of India.” An argument was canvassed by the learned Counsel appearing for the appellant that the first part of the offence of Grave Sexual Assault in sub-clause (i) of Clause (y) of Section 2 is applicable when the offence alleged is committed against a person who has not completed 16 years of age. However, in the present case, we need not go into this aspect for the simple reason that the offence of rape has been included Grave Sexual Assault and in the present case, the commission of the offence of rape has been proved. Under sub-section (iii), clause (y) of Section 2 of the said Act “incest” is defined to mean the commission of a sexual offence by an adult on a child who is a relative or is related by ties of adoption. Thus, any sexual offence which is covered by sub- 18 clause (i) and sub-clause (ii) of clause (y) becomes incest when the offender is an adult and the victim is a child who is relative of the offender. In the present case, there is no dispute that the victim is the daughter of the appellant-accused. Incest is not a separate offence in the sense that when an offence of grave sexual assault is committed by an adult on a child who is relative, it becomes incest. It is stated that the offence of grave sexual assault and rape was committed by the appellant on his own minor daughter. The ingredients of the offence of incest are already set out in the charge. Moreover, all the acts constituting offence of incest, were put to the appellant in his statement under Section 313 of the said Code of 1973. On this aspect, the learned Public Prosecutor has relied upon a decision of the Apex Court in the case of Dalbir Singh (supra). The Apex Court referred to Section 464 of the said Code of 1973 and in paragraph 17, the Apex Court held thus : “There is a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 CrPC, it is possible for the appellate or revisional court to convict an accused for an offence for which no 19 charge was framed unless the court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangaraboina Sreenu2 was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC.” 14. In the present case, the charge itself indicates that the accused was made aware about the basic ingredients of the offence alleged against him and the acts sought to be established against him were explained to him and later on put to