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2014 DIGILAW 2354 (BOM)

State of Goa v. Baloo Kumar Singh

2014-11-27

U.V.BAKRE

body2014
JUDGMENT:- Heard Mr. Rivankar, learned Public Prosecutor appearing on behalf of the appellant. 2. This is State appeal against acquittal. 3. The respondent (accused) was tried, by the learned Assistant Sessions Judge, Fast Track Court, South Goa, in Sessions Case no. 40/2001, for offences punishable under Sections 342, 323, 376 and 506(ii) of the Indian Penal Code (I.P.C., for short). 4. Case of the prosecution, in short, was that on 27 .08.2001 at around 03 :30 hours at Matel Verna, Salcete, Goa, the accused went to the house of the victim (PW-l), woke her up and called her at Hotel Leonora. on the pretext that she had a phone call from her husband, who was working in Dubai and after she came there he confined her in one of the guest rooms at the basement of the said hotel and assaulted her, committed rape on her and threatened to kill her if she disclosed the fact to anyone. The accused even hurled a chopper at her and thereafter, left the place on his Kinetic Honda scooter, bearing registration no. GA-02/B-9988. 5. Upon the charge being explained to the accused, he pleaded not guilty. The prosecution examined 15 witnesses. PW-1 is victim lady; PW-2, Shri Alcandro Fernandes, acted as one of the panchanama witnesses for the panchanama of attachment of the clothes of the victim; PW-3, Dr. Silvano Sapeco conducted the medical examination of the victim as well as the accused; PW-4, Shri Usman Suleman acted as one of the panch witnesses for the panchanama of the attachment of clothes of the accused; PW-5, Shri V. M. Mathew, Field Officer of the "Apex Security and Detective Force Limited" had also acted as one of the panch witnesses for the attachment of the Kinetic Honda scooter. He was a security guard posted at Leonara Hotel; PW-6 Shri Vinu Gopal Naik, was the Regional Manager of the "Apex Security and Detective Force Limited"; PW-7, Shri Baltazar Ratos was an employee of Hotel Leonora; PW-8, Shri Philip Pereira was a baker; PW-9, Shri Joseph Mendonsa, A.S.I conducted the attachment panchanama of the said Kinetic Honda scooter. He was a security guard posted at Leonara Hotel; PW-6 Shri Vinu Gopal Naik, was the Regional Manager of the "Apex Security and Detective Force Limited"; PW-7, Shri Baltazar Ratos was an employee of Hotel Leonora; PW-8, Shri Philip Pereira was a baker; PW-9, Shri Joseph Mendonsa, A.S.I conducted the attachment panchanama of the said Kinetic Honda scooter. PW-10, Shri Gurudas Naik was the Draughtsman who had drawn the sketch of the scene of offence; PW11, Shri Pravin Naik, was a Musician, playing band at Hotel Leonora; PW-12, Shri Nitin Chodankar had sold his Kinetic Honda scooter to the accused; PW-13, Shri Augustin Faria acted as one of the panchas to the scene of offence panchanama; PW-14, Shri Dinraj Govekar and PW-15, Shri Mohan S. Naik, were police officers, then attached to Verna Police Station, who investigated the case, The statement of the accused under Section 313 of the Criminal Procedure Code was recorded and the accused denied the case of the prosecution.The accused did not examine any witnesses in his defence. 6. Upon considering the entire evidence on record, the learned Assistant Sessions Judge (FTC), South Goa, Margao, held the accused guilty and convicted him of the offence punishable under Sections 376, 342 and 506(ii) of the I.P.C. The accused was sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 2,000/-, in default to undergo simple imprisonment for two months, under Section 376 of T.P.C. He was sentenced to undergo rigorous imprisonment for two months and to pay fine of Rs.500/- in default to undergo 15 days simple imprisonment for offence under Sectiory 342 ofJ.P.C, He was sentenced to undergo simple imprisonment for a period of three months, and to pay fine ofRs.1,000/-in default to undergo further one month's simple imprisonment, in respect of offence under Section 506(ii) of I.P.C. All the substantive sentences of imprisonment were ordered to run concurrently. 7. Aggrieved by the judgment, order and sentence passed by the learned Assistant Sessions Judge, the accused preferred Criminal Appeal No. 17/2004, before the Sessions Court, South Goa, Margao. By the impugned judgment and order dated 04.11.20014, the learned Sessions Judge held that the prosecution failed to establish the guilt of the accused beyond reasonable doubt and. therefore. The judgment passed by the learned Assistant Sessions Judge cannot sustain. By the impugned judgment and order dated 04.11.20014, the learned Sessions Judge held that the prosecution failed to establish the guilt of the accused beyond reasonable doubt and. therefore. The judgment passed by the learned Assistant Sessions Judge cannot sustain. The appeal was therefore allowed and the judgment of the Assistant Sessions Judge was quashed and set aside. The accused has been given benefit of doubt and acquitted of all the offences, for which be was convicted. The State is aggrieved by the impugned judgment and order passed by the learned Sessions Judge and has filed the present appeal. 8. Mr. Rivankar, learned Public Prosecutor read out the testimony of PW-1. The victim lady; PW-3, the medical officer and PW-8. the baker and submitted that the evidence of these witnesses was rightly assessed by the learned Assistant Sessions Judge and the accused was rightly convicted and sentenced for the offences for which he was charged. He pointed out that according to PW-3 there was forcible sexual intercourse in respect of the victim as well as in respect of the accused. He submitted that the medical evidence coupled with ocular evidence of prosecutrix which was supported by the evidence of PW-8, was sufficient to prove the guilt of the accused. Therefore, he urged that the impugned judgment passed by the learned Sessions Judge is perverse and cannot sustain and requires to be quashed and set aside and the judgment passed by the learned Assistant Sessions Judge to be restored. 9. I have minutely gone through the original records and proceedings vis-à-vis the impugned Judgment and I have also considered the arguments advance by the learned Public Prosecutor. 10. The point that arises for my determination is whether the prosecution had proved its case beyond reasonable doubt for the offences, for which the accused was charged. In my considered opinion the answer to the above point is in the negative. 11. Admittedly, the victim i.e. PW-1 was major and married at the time of the incident, with her husband working abroad at Dubai. PW-3, Dr. Silvano Sapeco, no doubt, opined that insofar as the victim was concerned, her physical genital examination revealed evidence of recent forcible sexual intercourse and the physical genital examination of the accused also revealed recent forcible sexual intercourse. According to PW3, there was 3/4th Cm. PW-3, Dr. Silvano Sapeco, no doubt, opined that insofar as the victim was concerned, her physical genital examination revealed evidence of recent forcible sexual intercourse and the physical genital examination of the accused also revealed recent forcible sexual intercourse. According to PW3, there was 3/4th Cm. bruise, red in colour, within the patulous and roomy vaginal cavity of the victim and hence he opined that there was recent forcible intercourse. In my view, the evidence which PW3 found could lead to the conclusion that there was forceful sexual intercourse and the evidence of the main witness, namely prosecutrix (PW-1) read with other evidence would lead to the conclusion that this forceful intercourse was by consent. 12. PW-1 deposed that she knew the accused since last six months prior to the incident which took place on 26.08.2001 at about 22:00 a.m. However, in her cross examination PWI stated that her husband had left Goa for Dubai in May 2001 and she was knowing the accused even at that time. Thus, PW 1 falsely stated that she was knowing the accused only since six months prior to the incident. PW 1 categorically stated that she never gave any room in her house to the accused on rent. She stated that her complaint was read over and explained to her in konkani by one lady police constable and it was correctly recorded as per her say. She denied that she stated to the police that she had given her room on rent to the accused. But PW I was confronted with her complaint at Exhibit PW1/A, wherein it has been recorded that sometime in the month of May, 2001, one of the rooms of her house was rented out to the accused for 3 days. Thereafter, PW1 deposed that she might have stated so to the police. PW14, Shri Dinraj Govekar, who had recorded the said complaint, specifical1y stated that the victim had told him that the accused was residing in one of the rooms behind her house. The above conduct of the victim in hiding some facts throws doubt on the veracity of her testimony. 13. PW14, Shri Dinraj Govekar, who had recorded the said complaint, specifical1y stated that the victim had told him that the accused was residing in one of the rooms behind her house. The above conduct of the victim in hiding some facts throws doubt on the veracity of her testimony. 13. PW 1 deposed that when she was sleeping in the house, and in early hours at about 2:00 a.m., she was awakened from her sleep and she heard that the accused was calling her and after opening the door, she came outside the door and she was in her night dress and therefore, wanted to change the dress, but the accused told her that she should come immediately to take the phone call of her husband. PW-1 further deposed that outside the hotel there was STD booth, but the accused told her that the phone cal1 had come from inside the hotel due to which she went inside the hotel. According to her when she lifted the receiver, she could not hear any voice and the accused told her that the phone might have disconnected and she had to wait for some time and the phone cal1 may come again. PW-1 further stated that the accused then brought 'Maaza' drink for her which she refused and then he brought two cups of ice-cream and started pushing ice cream inside her mouth, when she refused the same. First of all, it would be difficult for a prudent man to believe that a woman would leave her house at a call of a male person at such dead hours of night i.e. 2:00 a.m. and go inside the hotel that also in a night dress. 14. PW-I, in her deposition, stated that the accused started touching her shoulders and she pushed him away and told not to touch her. She deposed that the accused caught hold of both her hands and started pulling inside the hotel and removed a knife from back side of his waist and threatened her. Here again the question arises as to why PW1 kept quite and did not run away from the hotel and did not even raise alarm, when the accused started touching her shoulders. This conduct of the prosecutrix leads to believe that she is not disclosing the whole truth and that the truth must be something different. Here again the question arises as to why PW1 kept quite and did not run away from the hotel and did not even raise alarm, when the accused started touching her shoulders. This conduct of the prosecutrix leads to believe that she is not disclosing the whole truth and that the truth must be something different. 1t is pertinent to note here that PW-1 has been confronted with the report, which is on record at Exhibit-PW1/A, wherein she has not at al1 mentioned that the accused had removed knife while pulling her inside the hotel and had started threatening her. No knife is recovered. This material omission creates further doubt about the truthfulness of PW1. 15. PW -1 then proceeded to state that the accused assaulted her with fist blows on her body. PW-1 stated that the accused dragged her into one room and started pulling her night dress as a result of which her dress was torn and thereafter he removed his pant, lifted her nighty and slept on her and thereafter started biting her cheeks and breasts, though she was resisting and then had forcible sexual intercourse with her. According to PW-l she remained in the said room of the said hotel for about half an hour and the accused had locked her inside the room and had gone out. Here also it is pertinent to note that the evidence of PW3, Dr. Silvana Sapeco as well as the medical certificate issued by him in respect of the victim did not indicate any injury sustained by PW-1 on her body on account of fist blows given to her by the accused and on account of biting. 16. PW-l deposed that she heard the sound of the baker on the road and then the accused came inside the room where she was to take some keys and when he opened the room, she forcibly ran out. She deposed that the accused went to buy bread from that baker and she ran behind him and pleaded with the baker to help her saying that the accused had assaulted her. She further stated that at this time, the accused caught hold of her hair and hurled one koita at her but she escaped from it as she ducked under one bullock cart. She further stated that at this time, the accused caught hold of her hair and hurled one koita at her but she escaped from it as she ducked under one bullock cart. She further deposed that the accused came there and caught hold of her hair and took her near one motorcycle but she escaped and ran to the house of one neighbour by name Alcandra. She stated that there she cried and the neighbours phoned the police and the accused went away on one scooter. 17. PW-8, Shri Philip Pereira is the said baker. He deposed that he used to sell bread to the accused every day and that on 27.08.2001, at 05.00 hours he gave signal to the accused by blowing horn and the accused came out followed by a fat lady who was trying to run away. PW-8 stated that the accused threw some weapon at her which did not hit her and thereafter the accused caught hold of her hair and dragged her inside after which he left. What is relevant is that according to PW8, the said fat lady did not see him and did not speak any thing to him but was saying to the accused that "podder eilo, podder eilo". What is relevant is that even the said baker did not find the incident to be unusual. 18. There is no corroboration between PW-l and PW-8. According to PW-1, She ran behind the accused and pleaded with the baker to help her saying that the accused had assaulted her, but according to PW-8, the baker, PW-1 did not even see him and did not say anything to him and on the contrary was saying to the accused that "podder eilo, podder eilo". PW-] further stated that at this time, the accused caught hold of her hair and hurled one koita at her but she escaped from it as she ducked under one bullock cart. But PW-8 has not stated so. According to PW-1, the' accused took her near one motorcycle and was forcing her to sit on the same. But according to PW-8, the accused was dragging her inside the hotel. From the evidence of PW-8, it can also be said that since podder had come, PW-I was afraid of having been seen by somebody and therefore wanted to run away by telling to the accused that "podder eilo". But according to PW-8, the accused was dragging her inside the hotel. From the evidence of PW-8, it can also be said that since podder had come, PW-I was afraid of having been seen by somebody and therefore wanted to run away by telling to the accused that "podder eilo". A suggestion has been put to PW- I that she was worried that the baker would tell everyone in the village that she and the accused had come out of the hotel together in the morning hours. A suggestion has also been put to PW-l that she was worried that her husband and the daughter would come to know about her affairs with the accused and hence she filed a false complaint. It is pertinent to note that the accused had gone to the baker and had brought bread from the baker. This also is not normal thing to be believed in case there was rape. A person who has raped would not go to a baker and buy bread and permit the victim to run after him, in order to allow the victim to tell to the baker about something that had happened. It is not understood as to why instead of running elsewhere and raising alarm, the victim had to run after the accused and tell him that "podder eilo, podder eilo". 19. PW-2, Alcandra Fernandes deposed that on 27.08.2001PWI came running to her house around 5.30 to 5.35 a.m. and she was crying and told that one security man by name Babloo had raped her. According to PW2, she then informed the Verna Police Station. Hence there was no serious reaction from PW8.She just phoned the police. PW-14, the Investigating Officer does not say that any such phone call was received at the Verna Police Station. According to PW-I4, PW-1 came to the police station at 07.00 hours and lodged her report. In her cross examination, a suggestion was put to PW-2 that there was common knowledge in the village that PW- was having an affair with the accused. Instead of denying the said suggestion, PW-2 answered that she was surprised. At one stage PW-l has stated that she was in the room with the accused for half an hour and at the other stage she stated that she was for about one hour and that also on the bed. Instead of denying the said suggestion, PW-2 answered that she was surprised. At one stage PW-l has stated that she was in the room with the accused for half an hour and at the other stage she stated that she was for about one hour and that also on the bed. However, PW- I has nowhere stated as to what had prevailed her from running away from the bed. 20. According to PW-7, Shri Baltazar Ratos, the Assistant Restaurant Manager of Leonora Hotel, except the key of the main door, all other keys were with the management of the hotel and were not accessible to the accused. Therefore the question arises as to how the accused could take PW-1 forcibly in some room of the said hotel. 21. Considering the above evidence of the prosecutrix, and other witnesses, consent of the prosecutrix in the act of intercourse cannot be ruled out. Other evidence on record is not relevant. The accused was entitled for benefit of doubt and the same has been rightly given to him by the learned Sessions Judge. In any case, this appeal is against acquittal. The view taken by the learned Sessions Judge is probable, in the facts and circumstances of the case and even if, another view is possible, this Court cannot substitute the same. The above is a settled principle of criminal law. 22. In view of the above, the impugned judgment and order is in accordance with settled principle of law and no interference with the same is warranted. 23. In the result, the appeal is appeal dismissed. Appeal dismissed.