GAURISH SHAMBA HALDANKAR Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant was charged under Sections 363 and 376 of the Indian Penal Code and tried in Sessions Case No. 8/94. By judgment dated 28th April, 1995, the accused/appellant was found guilty of the offences for which he was charged and he was sentenced to undergo Rigorous Imprisonment for a period of five years and also to pay a fine of Rs. 1,000/- and, in default, to undergo three months of Rigorous Imprisonment under Section 363 of the Indian Penal Code and he was sentenced to undergo Rigorous Imprisonment for a period of seven years and also to pay a fine of Rs. 2,000/-, and in default, to undergo three months of Rigorous Imprisonment under Section 376 of the Indian Penal Code. The Court has ordered both the sentences to run concurrently. The appellant challenges this judgment in this appeal.

(2.) ACCORDING to the prosecution, on 22nd May, 1993, at 3 p. m. one girl by name Ujwala had left her house as usual in order to attend the stitching classes. She did not return home till 8 p. m. on that day. Thereupon, her father Shrikant Salgaonkar and mother Smt. S. Salgaonkar, enquired about her by visiting some of the friends houses, but could not find their daughter anywhere. Two or three days thereafter, they came to know that Ujwala was at a nun's home at Madel, Tivim. According to the prosecution, on 22nd May, 1993, at 3. 00 p. m. when Ujwala went to attend stitching classes at Duler, while she was standing there at stitching classes, the accused came on scooter, and had a talk with her and proposed that she should accompany him on scooter so that both of them would have cold drinks. She agreed to it and accordingly, she accompanied him to Mapusa where they had cold drinks. Thereafter, the accused took her to have drive on scooter to Calangute. When they reached Calangute they moved here and there for sometime. The accused then hired a room at the house of Trinidade Cardozo. According to the prosecution the accused and the girl had signed a note book on 22nd May, 1993, in the house and the accused then took the girl Ujwala inside the house and made her naked and had sexual intercourse with her three times after promising to marry her. The prosecution says that even on the early morning of the next day the accused had sexual intercourse with the girl Ujwala in the same room twice. Thereafter the accused took her to Madel, Tivim, where he dropped her and asked her to wait till he gets some money to go to Sawantwadi where they could get married. Though the girl Ujwala waited for some time till 12 O'clock the accused did not turn up. The girl then became thirsty and went to the nun's house situated on the opposite side of the road and had a glass of water and stayed there. After three or four days the parents of the girl came to know that their daughter is at the nun's place. Accordingly, father of the girl came to the house of the nun, sister Elizabeth and took Ujwala to the Mapusa Police Station, where he lodged his complaint.

(3.) THE prosecution examined altogether nine witnesses. P. W. 1 is the father of Ujwala and P. W. 3 is the prosecutrix's mother. P. W. 4 is the prosecutrix Ujwala. P. W. 2 is the panch witness for attaching the note book Exh. P. W. 2/b. P. W. 6 is the owner of the house. P. W. 8 is the doctor who examined the prosecutrix. P. Ws. 7 and 9 are the Investigating Officers. Examining the evidence of P. Ws. 1 and 3, the statements made by them are those which are told by P. W. 4, the prosecutrix. Therefore, the evidence of P. Ws. 1 and 3 alone cannot be relied upon for establishing the guilt of the accused unless there is some other independent evidence to corroborate. The only other witness who can corroborate this is none other than P. W. 4. P. W. 4 however, was declared hostile. She was thoroughly cross-examined by the prosecution after having been declared hostile. We have scanned through the evidence of P. W. 4 at the instance of the learned public prosecutor. Even if the statements before the Police which were made could be treated as evidence, they disclose no offence under Sections 363 and 376 of the Indian Penal Code. The evidence of P. W. 4 which was relied upon by the Court below cannot be treated as evidence. It is true that the statement made by her before the Court that she had gone with the accused at his instance offering her cold drinks and a ride on the motor cycle has been proved in this case. But this portion of the evidence of the prosecutrix however, does not lead us to a conclusion that necessary ingredients to constitute the offence of Section 363 have been established. The portion of statement of P. W. 4 relied upon by the Court below can be extracted here :