Rajendra Datta Zarekar vs State Of Goa

2. The case of the prosecution, in brief, is that PW-2 Satyam Ahire along with his wife PW-1 Pushpa and three children was residing in Usgao in Ponda. He was working as a security officer in Bethora Industrial Estate. In the evening of 14.10.2003 his eldest daughter Supriya was studying at her home while the second daughter PW-8 Sonia, aged about six years, was playing in the courtyard of his house. PW-4 Mohandas Gaonkar, uncle of Pushpa, owned some rooms close by which were given on rent to some boys who were working in the Nestle factory. The accused Rajendra was living on rent in one of these rooms. At about 5.00 P.M. on 14.10.2003 PW-1 Pushpa heard cries of her daughter Sonia from inside the room, which was in occupation of the accused Rajendra. She went to the room and found it closed from inside and, therefore, she knocked at the door. After some time the accused Rajendra opened the door of the room. She enquired from the accused as to what he was doing inside the room along with her daughter but he kept quiet. On enquiry Sonia told her mother that the accused Rajendra took her inside his room while she was playing in the courtyard. He closed the door, switched off the light and forced her to lie down on the mat. Thereafter the accused removed her panty and also removed his own pant and lied down over her. He inserted his private part in the private part of Sonia and did some movement. Pushpa then brought Sonia to her own house and called her sister and other family members. After Satyam Ahire (father of Sonia) had come back, they went to the Police Station, Ponda where they reached at about 9.00 P.M. The PSI of Ponda Police Station sent them to Medical College where Sonia was medically examined and the doctor confirmed that she had been subjected to rape. Thereafter a formal FIR was registered at 11.45 P.M. on 14.10.2003 at P.S. Ponda.

3. After the case had been registered at the police station the same was investigated by PW-11 Shivram Vaigankar, PSI. He recorded statements of witnesses under Section 161 Cr.P.C. The accused Rajendra was arrested at 5.00 A.M. on 15.10.2003 and the clothes which he was wearing were taken into custody. He also took in custody the clothes of the girl Sonia. He prepared a site plan and panchnama of the scene of occurrence in presence of two witnesses and also seized a bed sheet and nylon mat. A photograph of the room was also taken. After completing investigation he submitted charge- sheet under Sections 342 and 376 IPC against the accused Rajendra.

4. The prosecution in support of its case examined 11 witnesses before the trial court and filed some documentary evidence. The learned Assistant Sessions Judge, after appraisal of the evidence, came to the conclusion that the case of the prosecution was not established beyond doubt against the accused Rajendra and he accordingly acquitted him by the judgment and order dated 28.7.2004. Feeling aggrieved by the judgment and order of the learned Assistant Sessions Judge the State preferred an appeal before the High Court. The High Court, after a detailed consideration of the evidence, allowed the appeal and reversed the judgment of acquittal recorded by the Assistant Sessions Judge. The High Court convicted the accused under Section 376(2)(f) IPC and sentenced him to ten years R.I. and a fine of Rs.10,000/- and in default to undergo six months S.I.. He was further convicted under Section 342 IPC and was sentenced to undergo one months R.I. and a fine of Rs.1,000/- and in default to undergo 15 days S.I.

8. PW-1 Pushpa has given a detailed version of the incident. She has deposed that she has three children and Sonia, who is aged about six years, is her second daughter. Her uncle Mohandas Gaonkar lives nearby and he had let out one of the rooms in his house to the accused Rajendra. In the evening of 14.10.2003 her elder daughter was studying at home while Sonia was playing in the courtyard near the house. While she was preparing some eatables she heard the cries of Sonia coming from the side of the house of her uncle Mohandas Gaonkar. She immediately rushed there and found that the room which was under the tenancy of the accused Rajendra was closed from inside. She also heard the cries of Sonia coming from inside the room. She then knocked at the door which was opened by the accused after about five minutes. She enquired from the accused as to what had happened but he kept quiet. Sonia, who had rushed to her mother, informed her that she was taken inside the room by the accused and thereafter he closed the room from inside and switched off the light. The accused forced her to lie down on the mat and after removing her panty also removed his pant and lied down over her. He inserted his private part inside her private part and did some movement. Pushpa then came to her own house and called her family members. After her husband had come back from the market she went to the police station to lodge the report. The FIR was lodged by her which is Exhibit 8. The police referred her daughter Sonia to Goa Medical College for her medical examination. She went there where Sonia was medically examined. She was cross-examined at length but nothing material has come out in the same which may throw any doubt regarding the prosecution version of the incident. In cross-examination she has said that her husband was not present and had gone to market and he returned from the market at about 5.30 P.M. Sonia was crying loudly and was having great difficulty in passing urine. She has further deposed that one day before her statement in court Sandesh, brother of the accused Rajendra, and his mother had come to her house pleading for mercy. She denied the defence suggestion that she had some kind of relations with the accused and used to borrow money from him and had falsely implicated him as she wanted some more money from him.

9. The prosecutrix Sonia was examined as PW-8. The learned Assistant Sessions Judge put questions to her in order to ascertain whether she was in a position to give statement in court. After being satisfied about her mental capacity, her statement was recorded. The learned Assistant Sessions Judge has noted that she wanted to be near her mother at the time of recording her statement and that the accused had been sent little away with the consent of his advocate so that the witness may be comfortable. Sonia stated that the accused Rajendra was residing in the room near her house. When she was near the house of her aunty the accused came near her and pulled her inside his room and closed it from inside. He removed her panty and his own pant and made her lie down on the mat. He lied over her, inserted his private part in her private part and did some movement. She cried out of pain. After few minutes her mother came and knocked at the door. After couple of minutes the accused opened the door. She then narrated the entire incident to her mother. She identified the panty and frock, which she was wearing at the time of the incident and were seized by police, during the course of her statement in court. She further said that she was taken to the hospital for her medical examination.

15. Learned counsel for the appellant further submitted that the sentence of ten years R.I. awarded by the High Court is very severe and the same may be reduced. It may be mentioned here that Section 376(2)(f) IPC specifically provides that where the victim is less than 12 years of age the sentence awarded shall not be less than 10 years but it may be for life and the accused shall also be liable to fine. The proviso, no doubt, says that the court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than ten years. Here the victim PW-8 Sonia was aged about six years and, therefore, the case is fully covered by clause (f) of sub-section (2) of Section 376 IPC and the sentence awarded cannot be less than ten years unless there are adequate and special reasons for doing so. We do not find any adequate or special reasons for imposing a sentence of less than ten years. Learned counsel for the appellant placed reliance on State of Chhattisgarh vs. Derha (2004) 9 SCC 699, for reducing the sentence. In the authority cited what weighed with the court was that the accused was hardly eighteen years of age and had already served about six and half years imprisonment. He was married and had a family. In these circumstances the court considered it proper to reduce the sentence to seven years. Such is not the case here and, therefore, we are legally bound to award a sentence of ten years R.I. However, we feel that the fine of Rs.10,000/- awarded under Section 376(2)(f) IPC is excessive and the same is reduced to Rs.1,000/- and the fine of Rs.1,000/- awarded under Section 342 IPC is set aside.

16. In the result the appeal is dismissed with the modification that the fine of Rs.10,000/- imposed under Section 376(2)(f) IPC is reduced to Rs.1,000/- and the fine of Rs.1,000/- imposed under Section 342 IPC is set aside. The substantive sentence of ten years R.I. awarded under Section 376(2)(f) IPC and one month R.I. under Section 342 IPC are maintained.