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2004 DIGILAW 557 (BOM)

Rajesh Kumar Verma v. State of Goa

2004-04-23

P.V.HARDAS

body2004
JUDGMENT By the Court.- The appellant has filed the present appeal challenging his conviction for offences punishable under Section 452 of the Indian Penal Code and sentence of fine of Rs.1,000/-, in default simple imprisonment for one month, under Section 376 (1) of the Indian Penal Code and sentence of rigorous imprisonment for 7 years and fine of Rs.5,000/ -, in default simple imprisonment for 6 months and under Section 605 of the Indian Penal Code and sentence of rigorous imprisonment of 6 months and fine of Rs. 1,000/-, in default simple imprisonment for one month, as passed by the Additional Sessions Judge, Mapusa, by judgment, dated 10th December, 2003, in sessions case No. 47 of 2001. 2. The facts, in brief, as are necessary for the decision of this appeal are set out hereunder ;- PW 7 Naresh Mhamal was the Police Inspector in-charge of Ponda Police Station. On 17th October, 2001, he received a complaint from PW 1, Baby Maradkar, at Exhibit 14, complaining that the accused had forcible sexual intercourse with her on that day in the morning. On the basis of the said complaint, offences under Sections 376 and 506 (ii) of the Indian Penal Code came to be registered vide crime No.220 of 2001. PW 7 Mhamal visited the scene of offence and recorded the scene of offence panchanama at Exhibit 28 in the presence of PW 3 Narayan Naik. By the letter, at Exhibit 17, PW 1 Baby was referred for medical examination and was examined by PW 2 Dr. E.J. Rodrigues, on 18th October, 2001, at 1.00 am. On examination PW 2 Dr. Rodrigues found that there was no injury on her body. Her gait was normal. Her genital development was good. Her public hair was neither matted with blood or semen. There was no injuries on the inner aspect of the thigh. There were no injuries on her genital. The vaginal walls and vaginal contents' were normal. There were old healed hymenal tears present at 4, 6 and 9 O'Clock position. They were not tender, not edemaous, not congested and did not bleed on touch. The vaginal opening admitted two fingers. PW 2 Dr. Rodrigues, therefore, opined that in the absence of any positive sign for recent forcible sexual intercourse no positive opinion to that effect could be given. The said certificate of Dr. Rodrigues is at Exhibit 18. PW 2 Dr. The vaginal opening admitted two fingers. PW 2 Dr. Rodrigues, therefore, opined that in the absence of any positive sign for recent forcible sexual intercourse no positive opinion to that effect could be given. The said certificate of Dr. Rodrigues is at Exhibit 18. PW 2 Dr. Rodrigues collected the vaginal swabs and smears for transmission to the Central Forensic Science Laboratory, Hyderabad, alongwith the covering letter at Exhibit 19. Specimen seal impression letter is at Exhibit 20 Colly. PW 1 Baby was referred to the Blood Bank for detection of her blood group, which was determined as A Rh Positive. The certificate in that behalf is at Exhibit 21 Colly. Meanwhile the accused was arrested and was also referred for medical examination alongwith the letter at Exhibit 22. PW 2 Dr. Rodrigues examined the accused on 18th October, 2001 at about 1.45 am. He did not notice any injuries to the genital, no smega, no stains and no lacerations. He, therefore, opined that there was nothing to suggest that the person was incapable of sexual intercourse. The report of the examination of the accused is at Exhibit 23. The accused was also referred to the Blood Bank for determination of his blood group, which was determined as B Rh Positive and the certificate in that behalf is at Exhibit 25 Colly. 3. The clothes which PW 1 Baby was alleged to be wearing on the day of the incident were seized at the time of execution of the scene of offence panchanama. The clothes of the accused came to be attached on 21st October, 2001, under the attachment panchanamaat Exhibit 29. 4. After recording the statements and after receipt of the report of the Central Forensic Science Laboratory, at Exhibit 42, a charge against the appellant/accused came to be filed. 5. On committal of the case to the Court of Sessions, charge at Exhibit 9 was framed by the Additional Sessions Judge, Mapusa, against the accused for offences punishable under Sections 452, 376 and 506 (ii) of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 7 witnesses while the accused examined Pundalik B. Gadkire as his defence witness. The learned trial Judge, on consideration of the evidence tendered by the prosecution, convicted and sentenced the accused as aforestated. 6. The accused pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 7 witnesses while the accused examined Pundalik B. Gadkire as his defence witness. The learned trial Judge, on consideration of the evidence tendered by the prosecution, convicted and sentenced the accused as aforestated. 6. The defence of the accused as per his statement under Section 313 of the Code of Criminal Procedure is that this is a false prosecution which has been launched against him. Balkrishna Marathe had approached him for sale of wood and the accused had told him that he wanted a pass/permit but Balkrishna Marathe had told the accused that he did not possess a forest pass. Balkrishna Marathe had then a fight with the accused and had told the accused that he would 'finish me' and, therefore, the present case. 7. Mr. Lotlikar, the learned senior counsel appearing on behalf of the appellant, has urged before me that it is no doubt true that it is not necessary in law to seek corroboration before accepting the testimony of the prosecutrix/victim of sexual assault. However, according to the learned senior counsel, the evidence of the prosecutrix and its tenor suggests that the prosecutrix is not a reliable witness and, therefore, her evidence ought not to have been accepted by the Court without independent corroboration as the' prosecutrix is not corroborated even by the medical evidence. It is also urged before me by the learned senior counsel for the appellant that the conduct of the prosecutrix completely belies her version and alternatively it was submitted that the appellant has been successful in making out a case of consent. S. Mr. Sardessai, the learned Public Prosecutor appearing on behalf of the State has defended the judgment of the learned trial Court and has urged for dismissal of the appeal. 9. The pivot on which the entire prosecution revolves is the testimony of PW 1 Baby. PW 1 Baby in her evidence states that on the day of the incident she was working as a maid servant in the house of one Sandhya Marathe. Sandhya Marathe has been examined by the prosecution as PW 4. PW 4 Sandhya had a four year old son and was residing with her husband. PW 1 Baby in her evidence states that on the day of the incident she was working as a maid servant in the house of one Sandhya Marathe. Sandhya Marathe has been examined by the prosecution as PW 4. PW 4 Sandhya had a four year old son and was residing with her husband. PW 4 Sandhya would normally leave her home at about 8.30 am in the morning alongwith her son and husband and would return at about 2.00 pm. On the day of the incident, at about 9.00 am there was a knock on the door and, therefore, PW 1 Baby opened the door slightly and on espying the accused attempted to close the door. The accused pushed the door open and entered the house. On entering the house the accused closed the door from inside and in that process she dashed her head against the wall and sustained some injury on her head. At that time the accused was carrying a knife in his hand and had threatened PW 1 Baby that he would kill her in case she shouted. PW 1 Baby was at that time wearing a green colour churidhar top and a panty. The appellant/accused denuded her by removing both her clothes and laid her on the floor. The accused removed his clothes and committed forcible sexual intercourse with PW 1 Baby. PW 1 Baby has further stated that she knew the accused as he was staying in the neighbourhood and also visited the house of PW 4 Sandhya and he often used to tease PW 1 Baby when PW 1 Baby used to take the son of PW 4 Sandhya outside the house. PW 1 Baby further states that at about 2.00 pm PW 4 Sandhya returned home and she narrated the incident to her. PW 4 Sandhya informed her husband at Karwar and he returned home at about 8.30 pm and took her to the Police Station for lodging the complaint. 10. In the cross-examination she has admitted that the building in which PW 4 Sandhya had her flat, there were four other Oats, two on the ground floor and two on the first floor. She has also admitted that there are godowns opposite the road. She further states that she knew the accused and his family after about one year of working with PW 4 Sandhya. She has also admitted that there are godowns opposite the road. She further states that she knew the accused and his family after about one year of working with PW 4 Sandhya. She also admits that she had once visited the house of the accused for Pooja accompanied by Sandhya. According to her, the family of the accused and the family of Sandhya were not on visiting terms with each other. She has further admitted that on one occasion the accused had approached the husband of Sandhya in connection with 'wood'. She has further admitted that the accused and his family members are building contractors. She has denied that there was friendship between her and Vaman Naik and they were meeting each other every day. She has also denied the suggestion that the accused had warned her not to meet Vaman Naik or he would inform Sandhya and her husband. She has also denied the suggestion that she was sexually intimated with other persons earlier. She has stated I had handed over a towel to the police which was used to wipe the floor after the incident probably on the next day if I correctly recall. 11. PW 4 Sandhya states that PW 1 Baby was residing in her house as a maid servant about a year and a half prior to the incident. On 17th October, 2001, she had gone for some work in a school at Ponda, where she was working as an Accountant, leaving the house alongwith her husband at about 8.30-8.45 am. She had dropped her son at his school and her husband at the bus stand. On that day, at about 12.00 noon, she came home after collecting her son from the school and kept her son at the gate after seeing PW 1 Baby coming to collect her son. She then returned to her school and came home at about 2.30-2.45 p.m. When she entered the house she observed PW 1 Baby crying and inquired as to what had happened. PW 1 Baby informed her that accused had come to the flat and had committed rape on her at about 9.00-9.30 a.m. PW 1 Baby further disclosed that accused had told her that he knew where our gold was and whether we wanted it. PW 1 Baby informed her that accused had come to the flat and had committed rape on her at about 9.00-9.30 a.m. PW 1 Baby further disclosed that accused had told her that he knew where our gold was and whether we wanted it. She, therefore, contacted her husband on phone and her husband returned home at about 8.00-8.30 pm from Karwar and took PW 1 Baby to the Police Station for lodging her complaint. 12. In the cross-examination she states that she knew the accused since he resides behind her building. She has further stated that they do not have any contact with him, She has admitted that on the next day the police drew the panchanama of the house and recorded her statement at about 3.45 pm. She has further admitted that the gate of the building is at a distance of about 8 to 10 metres from the place where she had stopped her vehicle for keeping her son. She has denied the suggestion that her husband was dealing in wood business and supplying wooden poles to the construction sites. She has admitted that she knew the family of the accused since 4 to 5 years as neighbours. Their business is taking building contracts. She denied the suggestion that there was some confrontation between her husband and the family of the accused on account of sale of wood without issue of any receipt. Omission has been proved vis-a-vis her previous statement in respect of PW 4 Sandhya observing PW 1 Baby crying when she entered the house. Omission has also been brought out in respect of PW 1 Baby informing her about the statement made by the accused in respect of the gold. Omission was also brought out in respect of PW 1 Baby stating that the accused had pushed her on the ground. 13. PW 1 Baby was examined by PW 2 Dr. E.J. Rodrigues. PW 2 Dr. Rodrigues had noticed that there were old healed hymenal tears present at 4, 6 and 9 O'Clock position and the vaginal opening admitted two fingers. He had not noticed the public hair to be either matted with blood or semen. He had not noticed any injuries on the inner aspect of the thigh. He also had not, noticed any injuries in the genital. He observed that the vaginal walls and the vaginal contents well normal. He had not noticed the public hair to be either matted with blood or semen. He had not noticed any injuries on the inner aspect of the thigh. He also had not, noticed any injuries in the genital. He observed that the vaginal walls and the vaginal contents well normal. In view of this, he could not give any positive opinion about the recent forcible sexual intercourse. He had, however, taken the vaginal slides, swabs and smears for serological examination. 14. In the cross-examination he has admitted that spermatozoa can remain in the vagina in motile condition for 100 hours while in non-motile state for 17 days. He has further admitted that, with the help of a microscopic examination, the age of the sperm can be determined. He has further admitted that PW 1 Baby was used to sexual intercourse. 15. The scene of offence panchanama was drawn on the next day, that is, on 18th October, 2001, in the presence of PW 3 Narayan Naik and the clothes of the prosecutrix and a towel came to be attached. The report of the Central Forensic Science Laboratory, at Exhibit 42, reveals that in the vaginal swabs, semen and spermatozoa were detected. Semen could not be detected on the clothes comprising of churidhar and underwear of PW 1 Baby and the piece of cloth used to wipe the floor. In order to prove the report, the prosecution has examined Dr. N.R.K. Rao as PW 6. 16. It is true that the law does not require the testimony of the victim of sexual assault to be corroborated. To insist that there should be independent corroboration to the victim of sexual assault before her testimony can be accepted, is not a correct approach at appreciation or evaluation .of the testimony of the victim of sexual assault. If the testimony of the victim inspires confidence of the Court and her version appears to be probable, a conviction can be based on her solitary testimony. In the present case. according to me, the testimony of PW 1 Baby appears to be incredible. There are several factors which render it unacceptable. These factors are (1) PW 1 Baby states that on opening the door slightly and on seeing the accused she attempted to close the door. There is no reason for PW 1 Baby to have re-acted in this manner. according to me, the testimony of PW 1 Baby appears to be incredible. There are several factors which render it unacceptable. These factors are (1) PW 1 Baby states that on opening the door slightly and on seeing the accused she attempted to close the door. There is no reason for PW 1 Baby to have re-acted in this manner. The accused is alleged to have only teased PW 1 Baby and had never made any advances or tried to get familiar with PW 1 Baby; (2) PW 1 Baby states that the accused pushed the door and. as a result. she dashed her head against the wall and sustained an injury on her head. PW 2 Dr. Rodrigues has not noticed any injury on the head of PW 1 Baby. Neither does he state that PW 1 Baby had complained of any injury received by her; (3) She stated that the accused denuded her of the churidhar top and pant. which she was wearing. According to her, the accused was armed with a knife. The attachment panchanama of the clothes of the prosecutrix do not reveal that there were any tears. According to her the accused then removed his own clothes and committed forcible sexual intercourse. In the absence of any injury either on the genital or on the inner aspect of the thigh or in the absence of any tear to the clothes, which normally would occur in a forcible attempt to remove them. renders the version of the prosecutrix extremely doubtful; (4) According to her, she had wiped the floor with a towel. The report of the Chemical Examiner does not reveal either semen or spermatozoa on the clothes of the prosecutrix or on the towel. The prosecutrix does not claim not to have worn the same clothes after the incident; (5) PW 1 Baby does not state that at 12.00 noon she had attempted to inform PW 4 Sandhya about the incident. The conduct of the prosecutrix in not immediately rushing to inform PW 4 Sandhya or the neighbours but staying in the flat is a factor against her. The conduct of the prosecutrix in not immediately rushing to inform PW 4 Sandhya or the neighbours but staying in the flat is a factor against her. That she was crying has been brought out by way of omission in the evidence of PW 4 Sandhya and in any event PW 1 Baby does not claim that she was crying when PW 4 Sandhya came home; (6) The medical evidence completely rules out the case of forcible sexual intercourse. Mere presence of semen and spermatozoa in the vaginal swabs is no indication that on the day of the incident there was a case of forcible sexual intercourse. According to PW 2 Dr. Rodrigues. PW 1 Baby was accustomed to sexual intercourse and spermatozoa and sperm can be found in the vagina for 100 hours in motile condition and for 17 days in non-motile condition. There is nothing to indicate that the microscopic examination of the spermatozoa indicated them to be in a motile condition. If the prosecutrix was accustomed to sexual intercourse, the presence of spermatozoa and sperms as found in the vaginal swabs, therefore, is not indicative of rape nor of sexual intercourse on the day of the incident; (7) The prosecutrix states that while leaving the accused had extended some threat in respect of knowing the place where the gold ornaments were. What is stated by PW 1 Baby in respect of the threat is not coherent and, therefore, is not indicative whether it was a threat to the prosecutrix or a threat to the family of PW 4 Sandhya. In any event if the prosecutrix states that it was a threat to her. that is a factor which would impel the prosecutrix to complain of forcible sexual intercourse against the accused as the factors indicate that if the prosecutrix had sexual intercourse on the day of the incident it was with her consent; and (8) It is extremely surprising and difficult to believe that the accused all of a sudden on the day of the incident would effect a forcible entry into the flat armed with a knife and ravish PW 1 Baby in the absence of any earlier overtures made on this behalf by the accused. It was not as if the prosecutrix was waylaid at some secluded place and was ravished. 17. It was not as if the prosecutrix was waylaid at some secluded place and was ravished. 17. The learned trial Court in respect of the factors pointed out above has not appreciated the evidence of PW 1 Baby correctly. The learned trial Court in paragraph 68 of the judgment holds the version of the prosecutrix as inspiring the confidence of the Court on the basis of the immediate disclosure made by the prosecutrix to PW 4 Sandhya, the learned trial Court also negatived the plea of alibi taken by the accused. 18. The accused examined Pundalik Gadakire as DW 1, who states that on the day of the incident he had gone for work at about 8.00-8.15 am and the accused was at his construction site before him and continued to be there till the lunch break. In the cross-examination of this witness it has been brought out that the accused was standing in front of him all the time and the accused was supervising the cutting of steel. There is nothing in the cross-examination of DW 1 to disbelieve him. The learned trial Court in paragraph 69 of the judgment, in respect of alibi of the accused, has stated :_ “This plea was taken up only when the case of the prosecution was put to him in his statement recorded under Section 313. Cr PC. It was not suggested either to the victim herself or for that matter Sandhya PW 4 in particular. It is not that the accused cannot take up such a plea at a later stage nor is the accused required to discharge the burden of proving his alibi unless and until the prosecution discharges its burden of proving its case against him beyond all reasonable doubt." The learned trial Court drew an. adverse inference on the plea of alibi because the accused did not examine his father but examined only Pundalik DW 1. DW 1 Pundalik was further disbelieved because he was an employee of the accused for the last two years and yet the accused should supervise the work. The plea of alibi was further disbelieved on account of failure to produce plans in respect of the construction. The learned trial Court found that there was no element of improbability in the presence of the accused at the scene of offence. The plea of alibi was further disbelieved on account of failure to produce plans in respect of the construction. The learned trial Court found that there was no element of improbability in the presence of the accused at the scene of offence. Defence witnesses are entitled to have their evidence judged with the same yardstick which is employed of judging the evidence of the prosecution witnesses. The evidence of defence witnesses cannot be jettisoned on mere fanciful reasons. If at the close of the examination the defence witness emerges out as unscathed. his evidence should not be discarded for some fanciful reason. In the present case there is no worthwhile examination of the defence witness on behalf of the prosecution to entail the defence witness to be striped off his status as a reliable witness. Even otherwise, according to me, since the prosecution has not been able to prove the offence beyond reasonable doubt, the acceptance of the plea of alibi or otherwise is immaterial. 19. For the reasons stated above, the prosecution has not proved the offence beyond reasonable doubt and, thus, the accused is entitled to be acquitted. The Criminal Appeal is allowed. The conviction and sentence of the appellant for offences punishable under Sections 452, 376 (1) and 506 of the Indian Penal Code, passed by the Additional Sessions Judge. Mapusa, by judgment, dated 10th December, 2003, in sessions case No. 47 of 2001, are, hereby, quashed and set aside and the appellant is acquitted of the offences for which he was charged and convicted. Fine, if paid, be refunded to the appellant. Appellant be released forthwith. if not wanted in any other case. Appeal allowed.