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2007 DIGILAW 1583 (BOM)

Anant Siddil alias Adkil v. State

2007-11-01

N.A.BRITTO

body2007
ORAL JUDGMENT N.A. Britto. J.-This appea1is filed by the accused who has been convicted under Sections 323, 341, 506(ii) and 376, IPC and sentenced to different punishments to run concurrently. The accused has been sentenced under Section 376, IPC for a term of 7 years RI and fine of Rs. 5000/- in default 6 months RI. 2. The victim/PW 7 is a widow of about 38 years of age having two minor children, her husband having expired about 3 years prior to the incident. She made both the ends meet by buying and selling coconuts in the village Velsao. It appears that she was from ward Mordi of Velsao village while the accused, aged 23 years, was a worker employed by PW 10/Jose Baretto and who is residing at Fabricavaddo in the same village where the incident took place. 3. The case of the prosecution is that on 9.7.2004 between 17.30 to 18.45 hours at Fabricavaddo, Veller, Velsao, the accused wrongfully restrained the victim/PW 7 while she was on her way back to her residence and thereafter had sexual intercourse with her against her will and consent and thereafter assaulted her, hitting her head on a stone pillar and threatened her to cause her death. In support of the charge, prosecution examined 11 witnesses including the Investigating Officer. Police Inspector Shri Madkaikar. 4. The case of the accused as projected in the cross- examination of the victim/PW 7 was that the victim/PW 7 was a willing partner and accompanied the accused to the hut and that only because she had seen PW 1/Nicolau who was a toddy tapper and because he had seen them in the said hut and he would tell the people in the village what he had seen that she had come with a story of forceful sexual intercourse. However, the accused in his statement recorded under Section 313 of the Code stated that he was falsely implicated in the case. In other words, the accused abandoned the plea that the victim/PW 7 had consensual sex with him. 5. The learned trial Court after considering the evidence led by the prosecution came to the conclusion that the version of the victim/ PW 7 was (a) corroborated by PW 1/Nicolau; (b) that the medical evidence also corroborated the case of the victim/PW 7 of forceful sexual intercourse and the medical evidence also supported. 5. The learned trial Court after considering the evidence led by the prosecution came to the conclusion that the version of the victim/ PW 7 was (a) corroborated by PW 1/Nicolau; (b) that the medical evidence also corroborated the case of the victim/PW 7 of forceful sexual intercourse and the medical evidence also supported. her story of assault by banging her head over a piller; (c) that her version was also supported by an extra-judicial confession made by the accused e to his employer the said PW 10/Jose Baretto which was voluntary and (d) that the towel (Exh. D) and ghagra (Exh. E) were found with human blood, when examined in CFSL which indicated that sexual intercourse had taken place on the night of 9.7.2004. The learned trial Court therefore proceeded to convict and sentence the accused as aforesaid. 6. Even if the last circumstance i.e., (d) is taken out from consideration there is sufficient evidence against the accused for upholding his conviction under Section 376, IPC. 7. The parameters for appreciation of evidence in case of rape cases is by now well settled. In Karnel Singh v. State of M.P., (1995) 5 SCC 518 , the Apex Court has stated that a woman who is a victim of sexual assault is not an accomplice to the crime but is a victim of another person's dust and therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice and that there is no rule that her evidence is required to be corroborated in material particulars and all that is required is that the Court may only look for some evidence which lends assurance. Again, in B.B. Hirjibhai v. State of Gujarat, AIR 1983 SC 753 , the Apex Court stated that the evidence of the girl or the woman who complains of rape or sexual molestation cannot be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion and to do so would be to justify the charge of male chauvinism in a male dominated society. The Apex Court also held that the principle on sexual assault stands on par with evidence of an injured witness and just as an injured witness is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. Evidence of corroboration cannot be expected in sex offences, having regard to the very nature of the offence and if the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities-factors' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming particularly in a case where a woman having attained majority is found in a compromising position and there is likelihood of her having levelled such an accusation on account of the instinct of self-preservation. In State of Rajasthan v. N.K., (2000) 5 SCC 30 , the Apex Court has again stated that when a victim of rape states on oath that she was forcibly subjected to sexual intercourse or that the act was done without her consent, her testimony has to be believed and accepted like any other testimony unless there is material available to draw an inference as to her consent. The same principle is restated in 2007 AIR SCW 5845. 8. As far as the facts of this case are concerned, it must be stated at the very out-set that there is corroboration to the victim/PW 7’s evidence at every step and therefore the defence version either of consent or false implication cannot be accepted. 9. As per the victim/PW 7, after purchasing the coconuts from the house of Mariano she was carrying the coconuts in a cement bag on her head and was returning home and when she was walking along the pathway and was away at a distance of 50 metres from the tar road, one person came from behind and then came in front of her and caught her and the coconuts fell on the ground and then the said person dragged her near one cashew tree and although she shouted for help nobody came to her rescue. She stated that it was drizzling at that time and the man who dragged her spoke Hindi and a little Konkani and was from Karnataka State and was wearing a black T-shirt without sleeves and black shorts with red stripes and then he took her below the cashew tree and removed his clothes and forcibly took her clothes and laid her on the ground and had forcible sexual intercourse with her after threatening her not to shout or else he would finish her. She stated that he was holding her hand and was not allowing her to go from there and after he raped her, she managed to cover her body with her clothes and then he dragged her to the main road. after wearing his clothes and thereafter he hit her head on the laterite stone pillar and as she was shouting, he was saying that she should not shout or he would finish her and thereafter he dragged her near one hut near the beach and in the said hut made her lie down on the ground, again and in the meantime one person appeared and at the entrance of the hut who was a toddy tapper and who was holding one "kati' (toddy tapping implement). in his hand and he peeped inside the hut and saw the accused pulling her clothes and threatening her and the said toddy tapper tried to interfere and asked the said person whether she was his wife and the said person spoke something to the toddy tapper and went away. She stated that she was totally nervous and disturbed and the accused removed his clothes and had forcible sexual intercourse with her and thereafter the accused took her clothes and hid them somewhere outside and she was crying. She stated that she was totally nervous and disturbed and the accused removed his clothes and had forcible sexual intercourse with her and thereafter the accused took her clothes and hid them somewhere outside and she was crying. She stated that the accused threatened her saying "Awaz math karo, idharhi khallas karke dariya me udaega" and then insisted that she should stay overnight with him in the hut and she pretended that she was hungry and requested for food and then the accused went outside the hut and taking this opportunity she wrapped the towel around her body and made use of the polythene bag found in the hut and ran to one house for shelter where she met one girl of around 18 years of age who gave her water to drink and one dress to cover the body and at about 6 p.m. the parents of the aid girl arrived and the girl's father introduced him as the Panch of Velsao village by name Camilo to whom she narrated about the incident and also told him about the toddy tapper who had witnessed the incident and thereafter the said Camilo along with the other person accompanied her to the hut and the cashew tree and the hut where she searched her clothes and found them hidden in another hut under the fishing net and she came along with the said clothes to the residence of the said Camilo and wore her earlier clothes including the saree and thereafter proceeded to Mordi, on the scooter of the said Camilo. 10. She further stated that at about 8 a.m. on the next day i.e., 10.7.2004 one of her neighbour by name Nayian Naik was informed by her of the previous day's incident and at about 10.30 hours one Camllo and two other persons came to her residence and requested her to come with them to Fabricawado at Velsao to show the person who had raped her on the previous evening and she went along with a Camllo and two others at Fabricawado where there was a large number of persons there and they had detained one man and she identified the accused as the said person who had committed rape on her. The toddy tapper was also there and the said Camllo told her the name of the toddy tapper as Nicolau and the accused disclosed that his name was Anand and that he was from Karnataka and the said Camilo advised her to lodge a complaint to the police after she had identified the accused person and in the meantime the police reached there and at around 2 p.m. she lodged a complaint at the police station. 11. In cross-examination she admitted that during the incident she was not tied by the accused, in the hut. She also stated that when the accused first came near her he held her right hand and threw her and at that time she had shouted for help and had continued shouting while she was being dragged near the cashew tree and when she reached near the cashew tree she suspected a danger and she was screaming but the accused was holding his hand over her mouth and while with the other hand he was dragging her. She further stated that after the incident below the cashew tree, the accused dragged her c towards the road and as she was wrapping the saree over the body the accused continued to hold her hand and she continued to shout whilst being dragged towards the beach and for that the accused banged her head over the stone pillar and dragged her towards the hut. She further stated that after she saw the toddy tapper she did not shout for help as the accused had given threats to finish her earlier and before the toddy tapper had reached there the accused had removed her saree. In further cross-examination she denied that she knew the said Nicolau, the toddy tapper, earlier. She also denied the, suggestion that because she was knowing Nicolau earlier and because he had seen her with the accused in the but and he may tell the people in the village what he had seen. she came with the story of forceful intercourse. She stated that she did not go to the police station on the night of 9.7.2004 because she was upset of what had happened and was ashamed and did not think of going to the police station. she came with the story of forceful intercourse. She stated that she did not go to the police station on the night of 9.7.2004 because she was upset of what had happened and was ashamed and did not think of going to the police station. In further cross-examination she stated that he did not tell the details to Savia (PW 3) before her parents had reached home and had only briefly told her as to what had happened. She stated that whilst shouting for help she was pleading with the accused to release her hut he was very violent and she was afraid that he would kill her was concerned of her two minor children. She denied the suggestion that as the accused was not releasing her, she co-operated with him in his acts of intercourse with her. She stated that she had not suffered any external injury on her body on that evening but her head was paining due to the banging on the wall. 12. The prosecution examined Nicolau/PW 1, the toddy tapper, and he stated that on 9.7.2004 at about 5.45 p.m. he was tapping coconut trees at Fabricawado, Velsao and since there was strong wind and rain he climbed the coconut tree and went near the hut which belonged to one Jose (PW 10) who is a fisherman and when he saw inside he saw the accused who was totally naked. He stated that the accused was working for one Jose Baretto (PW 10) and he also noticed one lady inside the hut and the accused was removing the clothes of that lady by pulling her saree. He, stated that he inquired with the accused as to what he was doing and the accused told him to go away and he also saw the accused was assaulting the said lady and he inquired with the accused whether the lady was his wife and the accused replied in Konkani that she was his wife. He stated that he got scared and thinking that they are husband and wife, he went away for further tapping and he had seen the lady was crying and she was pleading in Konkani for help. He stated that he got scared and thinking that they are husband and wife, he went away for further tapping and he had seen the lady was crying and she was pleading in Konkani for help. He stated on the next day at around 9.30 a.m. that one Camilo come to Fabricawado and told him that one lady informed him about an incident of sexual assault and it was seen by a toddy tapper and asked him whether he had noticed one lady being sexually assaulted by any person and thereupon he narrated to him about the incident which he saw in the hut of Jose (PW 10) and also informed him that the said Anand was working for the said Jose Baretto and the said Camilo told him that Anand was detained by the local people and around 10.30 a.m. on 10.7.2004 the victim lady came at Fabricawado and identified the accused before the public and she also gave her name as Mrs. Asha Naik, resident of Mordem, Cansaulim. In cross-examination he stated that no other toddy tapper goes in that area and the incident was observed by him at 6 p.m. when there was brightness. He stated that the house of Jose is at a distance of 5 minutes walking distance from the hut and that he had not heard any shouts for help before he had reached the hut. He also stated that the lady was fallen on the ground and the said lady was asking him to save her and that when he questioned the accused he had become furious and had shouted at him to go away. In further cross-examination he stated that it had appeared to him that the man and the woman were both there out of their free will and so he did not tell anybody what he had seen on that night. 13. It is contended on behalf of the accused by learned counsel Mr. J.A. Lobo that this statement of Nicolau/PW 1 is an indication that the victim/PW 7 was a willing partner in the sexual intercourse. Learned counsel Mr. Lobo has also submitted that the victim/PW Ts consent also could be gathered from the fact that she had co-operated with the accused in his acts whilst having intercourse with her. In my view, neither of the submissions made on behalf of the accused can be accepted. Learned counsel Mr. Lobo has also submitted that the victim/PW Ts consent also could be gathered from the fact that she had co-operated with the accused in his acts whilst having intercourse with her. In my view, neither of the submissions made on behalf of the accused can be accepted. As regards the last submission, it is to be stated that the victim/PW 7 only denied the suggestion that as the accused was not releasing her, she had co-operated with the accused with his acts of intercourse with her. The said suggestion cannot be taken to be an admission that she had co-operated in his acts of intercourse with her. As far as the first submission is concerned, it appears that the opinion formed by Nicolau/PW 1 that man and woman were there out of their free will is not an opinion which could follow from the other facts stated by him. Nicolau/PW 1 was a natural and probable witness who happened to see the accused and the victim/PW 7 in the said hut and what he saw and narrated does not at all give an impression that the victim/PW 7 was in the hut by choice. If she was there by choice, Nicolau/PW 1 would not have seen the accused pulling the saree of the victim/PW 7 nor would he have seen the accused assaulting her. It may be true that the victim/PW 7 did not react when the accused stated that the victim/PW 7 was his wife. It is quite probable that either she had not heard what the accused had stated or as stated by her she was shocked and that in itself is insufficient to discard the evidence either of the victim/PW 7 or Nicolau/PW 1. If at all, Nicolau/PW 1 went away it is because he got scared as the accused was violent as stated by him and thought it was a husband and wife quarrel. Nicolau/PW 1 had also stated that the woman was crying and was pleading for help and that would not have been the case in case the victim/PW 7 was a consenting party to go along with the accused, in the said hut. It is not the case of the accused that he was previously known to the victim/PW 7. This militates against the plea of the women being a consenting party. 14. It is not the case of the accused that he was previously known to the victim/PW 7. This militates against the plea of the women being a consenting party. 14. Savia/PW 3 has corroborated the version of the victim/PW 7 stating that the victim had come to her house wearing one plastic bag and towel and she had asked for a glass of water which she had given and she asked for a saree and she gave her mother's dress and she wore the same. She also stated that after some time one Raymond reached there and he questioned the lady and thereafter her father, to whom she told as to what had happened and that a man of dark complexion wearing a short black pant and a sleeveless shirt had raped her. She also stated that the victim/PW 7 along with her father and Raymond went to see the place where the incident had taken place and subsequently the lady came with her sack of coconuts and her clothes. 15. Further corroboration to the version of the victim/PW 7 has come from Custodio/Camilo/PW 2. Custodio/PW 2 stated that he returned home at about 7 p.m. on 9.7.2004 when Raymond, and his, daughter Savia, informed him that a lady had come running to their house and covered with plastic. He stated that Savia told him that the lady had informed him that one man had raped her and assaulted her and the lady gave her name as Asha Naik, resident of Mordi, Velsao and she and Raymond went with the said lady to show the place and on the way she found one slipper belonging to her which was missing and there was a bag containing coconuts which was on the pathway. He stated that the victim/PW 7 informed them that the a accused had attacked her from behind on the pathway and that she showed near the cashew tree the place where she was raped and thereafter she pointed out the house where the accused had banged her head to the pillar of the house whilst pulling her towards the beach and thereafter she took them to the hut where the accused had removed her clothes and hid them in a fishing net in the other hut and had hidden the clothes expecting that she may not go away and there they found one saree, one blouse, one umbrella and one slipper in the said hut. He also stated that he and the said Raymond reached her to her house at Mordi. velsao. He stated that on the next morning he inquired with Nicolau/PW 1 who was a toddy tapper and he confirmed the same and told that a man who was working for Jose Baretto had been seen assaulting the lady in the hut and removing the clothes and thereafter went and met Jose Baretto and informed him that his man was involved in an incident of rape and thereafter he and Jose went to bring the victim/PW 7 to the house and brought her to Fabricawado and by then Anand, the accused who was identified by the said Nicolau/PW 1 was tied near the spot and the victim/PW 7 identified the accused as the man who had raped her on the previous evening and whereupon he phoned the Verna Police Station as to what had happened and the Verna Police came and took the accused for the spot. 16. Presumably, the victim and the accused were picked up by the police from the place where the accused was tied and where he was identified by the victim/PW 7 and were sent for medical examination where they were examined by Dr. Andre/PW 4. The victim/PW 7 and the accused were requested to be examined by letter-Exh. 18 and letter-Exh. 20 respectively. Dr. Andre/PW 4 after examination of both the victim/PW 7 and the accused has• come to the conclusion that there was evidence of recent forceful sexual intercourse. He submitted the reports of their examination. The reports show that the victim/PW 7 was examined at 5.25. 18 and letter-Exh. 20 respectively. Dr. Andre/PW 4 after examination of both the victim/PW 7 and the accused has• come to the conclusion that there was evidence of recent forceful sexual intercourse. He submitted the reports of their examination. The reports show that the victim/PW 7 was examined at 5.25. p.m. on 10.7.2004 and the accused at 4.15 p.m. and their respective reports are at Exhs. 19 and 21, respectively. Learned counsel on behalf of the accused submits that the opinion of Dr. Andre/PW 4 that there was forceful recent sexual intercourse cannot be accepted because Dr. Andre/PW 4 has not given any reasons in support of his opinion. In my view, the reasons for the opinion given by him are not very far to be found. The certificate of medical examination of the victim/PW 7 shows that there was a reddish fresh bruise 1.8. cms. x 1.2 cms. on the left labia majora. lower part adjacent to the vaginal opening, the inner margin of bruise corresponding to the inner margin of left labia majora. It also shows that she had complained of pain in the head since the accused had banged her head on the laterite stone pillar in the hut. The medical certificate of the accused shows that the frenulum was reddened with multiple superficial abrasions on the glans penis and on the corona in the dorsal aspect. The abrasions were multiple. Small, reddish and fresh. If at all Dr. Andre/PW 4 opined that there was evidence of recent forceful intercourse it is because of the injuries found on the genitals of the victim/PW 7 and the accused which completely rules out the story sought to be put forward, on behalf of the accused that the victim/PW 7 was a consenting party. 17. There is also extra-judicial confession of the accused made to Jose Baretto/PW 10 who is the employer of the accused. Jose Baretto/PW 10 stated that the accused was working for him from June. 2004 as a labourer and on 9.7.2004 at around noon time the accused had t told him that he was going to Colva to visit his friends and had promised to return at 8 p.m. and when he had questioned him as to why he had not come earlier the accused told him that he was in Colva with his friends. He stated that on the next day Mr. He stated that on the next day Mr. Camilo who is a panch member of the village came to his house and stated about the incident which had taken place in one hut on the beach at Velsao where one man had reportedly raped a woman. He stated that Nicolau/PW 1 had identified Anand who was one of his labourers as the said person and thereafter he questioned Anand but he denied his involvement and thereafter Camilo told him that he would bring the lady from Mordi and then the lady was brought and she narrated about the incident which had taken place on the previous day and he questioned the accused in the presence of the said lady and at that time the accused admitted that he had raped the lady on two occasions by threatening her. once under the cashew tree and once in the hut and thereafter the said Camilo called the Police who came to the spot and had taken away the accused. On behalf of the accused, it is contended that Custodio/PW 2 nor the victim/PW 7 have spoken of this incident. It is also contended that when the victim/PW 7 reached the place the accused was already tied and therefore the confession could not be said to be voluntary. It is quite probable that the victim/PW 7 was making a mistake as to the time when accused was tied. Jose Baretto/PW 10 is very clear that when he admitted the incident, the accused was tied but was sitting in one place, surrounded by people. It sounds more probable that he was tied only after the victim/PW 7 identified him. In fact, no reason good enough has been suggested on behalf of the accused as to why his own employer should have deposed falsely against him. 18. The learned trial Court has observed that the presence of the human blood on the towel-Exh. D and the frock-Exh. I which were used by the victim/PW 7 soon after the incident also indicated the sexual intercourse had taken place on the night of 9.7.2004. 19. I have already stated that this circumstance could be kept out of consideration since Dr. Adnre/PW 4 opined that the victim/PW 7 was on her last day of her menses. 20. This case is not without its share of lapses committed by the a Investigating Officer. 19. I have already stated that this circumstance could be kept out of consideration since Dr. Adnre/PW 4 opined that the victim/PW 7 was on her last day of her menses. 20. This case is not without its share of lapses committed by the a Investigating Officer. As per Kavlekar/PW 5 the aforesaid clothes were seized from the residence of the victim on 10.7.2004 at 10 p.m. The panchanama of the said seizure was carried out between 10 p.m. to 11 p.m. Braz Fernandes/PW 6 was the pancha to the panchanama of the seizure of clothes of the accused from his hut. As per him, the clothes were seized at 10 a.m. on 10.7.2004 but the panchanama of seizure shows that it was carried out between 10.30 p.m. and 10.45 p.m. These timings conflict the timings of the earlier panchanama carried out at the house of the victim/PW 7. If earlier panchanama was carried out between 10 p.m. and 11 p.m., this panchanama could not have been falsified by Braz Fernandes/PW 6. 21. Learned counsel on behalf of the accused has placed reliance on the following cases. 22. The Apex Court in State of H.P. v. Shrikant Shekari, 2004 AIR SCW 5162, has stated that the question of consent is really a matter of defence by the accused and it is for him to place materials to show that there was consent. Although in this case the theory of consent was taken in the cross-examination of the victim/PW 7 it was abandoned c by the accused in his statement under Section 313 of the Code and in fact the case under Section 313 of the Code was of complete denial and false implication and being so it cannot be said that the accused had discharged the onus that the victim/PW 7 was a consenting party to the, sexual intercourse. That plea even if independently looked at appears to be highly improbable. The fact that both of the them were not at all known to each other prior to the incident is a strong circumstance which militates against the story of consent. The injuries found on their genitals completely rules out the plea that sexual intercourse by the accused with the victim was consensual. The fact that both of the them were not at all known to each other prior to the incident is a strong circumstance which militates against the story of consent. The injuries found on their genitals completely rules out the plea that sexual intercourse by the accused with the victim was consensual. The victim/PW 7 has given a version which is cogent and reliable and corroboration to her version has come from various other sources or witnesses to which reference has been made. Her story that her head was banged against the pillar is also substantially corroborated by the medical evidence. Her entire story has a ring of truth around it and therefore the learned Sessions Judge could not be faulted in convicting and sentencing the accused for all the offences. I find there is no merit in this appeal and consequently the same is hereby dismissed. Appeal dismissed.