SAJJI KUMAR Vs. STATE OF GOA

JUDGEMENT

(1.) The appellant is challenging the Judgement and Order passed by the Additional Sessions Judge at Mapusa in Sessions Case No. 15/ 2002. By the said Judgment and Order dated 25-3-2004 the Additional Sessions judge convicted the appellant for the commission of offence of rape which is punishable under section 376 (1) of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for a term of seven years and also to pay fine of Rs. 5,000/- in default to undergo Simple Imprisonment for a period of six months.

(2.) The prosecution case in brief is that the prosecutrix Ms. Hazel Smith who is a citizen of Untied Kingdom had come to Goa in the month December, 2001. She was having her Travel Agency in United Kingdom and she had come to Goa for finding a new destination. Accordingly, she decided to stay here for a period of one month. The prosecution case is that one day prior to her departure to her native country she decided to take a massage at an ayurvedic Massage Parlour as she was thoroughly exhausted after her stay in goa. She, therefore, took a taxi and came on Tito's road to have a massage at the Ayurvedic Centre. Three persons were standing on the road when she made inquiries about the Ayurvedic Centre. She was informed by one of the persons that the Ayurvedic Centre was closed. He further represented to her that he was an Ayurvedic doctor and was in a position to give her an Ayurvedic massage. The Prosecutrix relied on his representation and she was taken to a room. The accused bolted the door from inside and thereafter asked her to remove her clothes. Accordingly, she removed her clothes and was asked to lay down on a bedsheet which was laid on the floor. The accused started giving her massage and after some time, he asked her to sleep on her back. Initially, she was embarrassed because she was not wearing anything on her upper body. However, the accused assured her that he had given massage to several ladies and therefore, she should not be embarrassed but she should close her eyes and relax. The prosecution case is that with great hesitation the prosecutrix followed the directions given by the accused. It is alleged that thereafter the accused started massaging her leg and thigh and pubic portion at which point of time she got up. The accused however, pushed her down and committed rape on her. The prosecution case further held that the prosecutrix thereafter came out of the room, took a taxi and told her friends as to what had happened. They advised her that she should lodge a Police complaint. Accordingly, she lodged a Police complaint on the same day and she was accompanied by a friend to the Police Station. Thereafter, she was examined by the doctor. The Police thereafter went to the place where the offence had taken place and arrested the accused. A spot panchanama was prepared. The accused was also examined by the doctor and the blood samples and other samples of the prosecutrix were sent to the Chemical Analyser. The investigating Officer recorded the statement of the witnesses and a charge-sheet was filed against the accused. Thereafter a charge was framed against the accused. He, however, pleaded not guilty to the charge. The prosecutrix attended the Court in March, 2003. However, since the accused was not present initially she could not be examined and she had to return back to her native place. Thereafter, a letter was sent through the British Embassy stating therein that it was not possible for the prosecutrix to come to Goa on account of financial contraints and therefore, in the letter it was stated that the case should be disposed of expeditiously. The trial Court, therefore, proceeded to record the evidence of the other witnesses on which reliance was placed. Since the prosecutrix could not be examined her statement which was recorded under section 164 of the Code of Criminal Procedure by the special Executive Magistrate was brought on record and the prosecution relied on the said statement and also the F. I. R. which was reduced into writing by the friend of the prosecutrix. The trial Court on the basis of available evidence on record convicted the accused for offence punishable under section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years and also to pay fine of Rs. 5000/- and in default to suffer further imprisonment for six months. The accused initially was arrested on the same day i. e. on 11-1-2002. He was later on released on bail on 25-3-2002. He thereafter continued to be in Jail.

(3.) I have heard the learned Counsel appearing on behalf of the appellant/ accused and the learned Public Prosecutor appearing on behalf of the State at length. The learned Counsel appearing on behalf of the appellant has taken me to the evidence adduced by the prosecution in the course of the trial and on the judgment and order of the trial Court. The learned Counsel submitted that the First Information Report was not proved by the prosecution because neither the prosecutrix nor the person who had reduced the F. I. R. into writing had been examined by the prosecution. He, therefore, submitted that though the F. I. R. had been executed after it was produced by the Investigating Officer the contents of the F. I. R. could not be read in evidence as the contents had not been proved. He has relied on a Judgment of the Bombay high Court reported in A. I. R. 1983 Bombay and has also relied on other judgements in support of the said submission. The learned Counsel thereafter submitted that assuming without admitting that the F. I. R. had been proved by the prosecution even then no reliance could be placed on the F. I. R. as it was not a substantive piece of evidence but could be only used for the purpose of corroboration or contradiction of the complainant and other witnesses examined by the prosecution. In support of the said submission he has also relied on Judgments of the Supreme Court and High Courts which will be dealt with at the subsequent stage. The learned Counsel thereafter submitted that the statement which was recorded by the Magistrate under section 164 of the Code of Criminal Procedure also should not be relied upon by the prosecution as a substantive piece of evidence but at the highest the statement could have been used only for the purpose of contradiction and corroboration. He submitted that since the prosecutrix was not examined by the prosecution her statement which was recorded under section 164 of the Code of Criminal Procedure, therefore could not be of any assistance to the prosecution. The learned Counsel submitted that the non-examination of the prosecutrix in the present case was an irregularity which could not be cured and which was fatal to the prosecution case. He submitted that the prosecutrix had appeared in the Court on 2 to 3 dates however on the actual date she chose to remain absent. He submitted that if the prosecutrix had been examined the learned Counsel for the accused could have cross-examined her on a number of aspects and, therefore, by not examining the prosecutrix serious prejudice was caused to the accused. He submitted that on this ground alone the entire prosecution case was liable to be dismissed. He submitted that this court should draw an adverse inference on account of the non-examination of the prosecutrix. The learned Counsel thereafter submitted that P. W. 6, S. D. Sapeco, was a doctor who examined the prosecutrix as also the accused found that there was no injuries on the person of the accused or the prosecutrix. He submitted that assuming that the incident in question as alleged by the prosecution had taken place the absence of injuries indicate that there was absolutely no resistance when the said incident happened and this indicated that the prosecutrix was a consenting party to the incident which had taken place. He submitted that the prosecutrix was an able healthy woman of 35 years of age and could have raised a hue and cry and could have resisted the accused. He submitted that the medical evidence, therefore, in fact did not support the prosecution case. He further submitted that the doctor could not give the exact time when the sexual intercourse had taken place. He submitted that it had come in the evidence that the prosecutrix had a boy friend named Daniel and that it had come in the evidence that Daniel had thrown her out of his room on 13-1-2002. He submitted that even if it is held that there was a sexual intercourse it could not be said that accused had committed the said act. He thereafter submitted that even if the F. I. R. is read in its totality it did not constitute an offence punishable under section 376. It is submitted that in the F. I. R. the complainant has not stated that either she was raped or that the accused had inserted his penis in her private part. He submitted that in the F. I. R. it is recorded that while the massage was going on the complainant felt that the accused was licking her private part and when she got up he pushed her down and penetrated her. He submitted that thus even if the F. I. R. is read as a whole it could not be said that he had penetrated his penis in her private part and, therefore, no offence punishable under section 376 was made out. The learned Counsel appearing on behalf of the appellant thereafter submitted that several persons who were named by the complainant in the statement under section 164 of the Code of Criminal Procedure were not examined by the prosecution and, therefore, adverse inference should be drawn against the prosecution. He thereafter submitted that all the witnesses who are examined by the prosecution are liable witnesses inasmuch as all these witnesses are carrying on business and are practically at the mercy of the Police Officers. He thereafter submitted that even otherwise the prosecution had not been in a position to establish that the said offence had taken place as there were several defects in the manner in which spot panchanama was taken. No arrest panchanama was prepared by the prosecution. He pointed out to the several lapes in the investigation made by the Investigating Officer. The learned Counsel appearing on behalf of the appellant further submitted that the test Identification Parade could not be relied upon firstly because all the arrangements were made by the Investigating Officer though the guidelines prepared by the high Court clearly indicated that the Special Executive Magistrate is required to take every precaution to ensure that the Test Identification Parade is held in an independent manner and there is no possibility of any interference by the Police Officer. He further submitted that the Test Identification parade was vitiated by the fact that the prosecutrix had seen the accused before he was arrested. He submitted that this fact has been stated by P. W. 4, joanita Fernandes, who in her evidence has stated that she along with the prosecutrix and the Police had gone to place where the accused stayed and they noticed the accused there and thereafter he was arrested by the Police. He submitted that, therefore, it was not necessary to hold the Test Identification parade and the said evidence was, therefore, liable to be discarded. He thereafter invited my attention to the evidence of P. W. 5, Alerio Lobo and P. W. 8, Liliya Lobo and pointed out the various infirmities in their evidence and submitted that their evidence did not support the prosecution case and also was not of any assistance to come to the conclusion that the accused had committed the said offence. The learned Counsel appearing on behalf of the appellant relied on a number of Judgments of the Supreme Court and the high Court in support of these submissions.