TARUN JIT TEJPAL Vs. STATE OF GOA

JUDGEMENT

(1.) Heard Shri A. Lekhi, learned Senior Counsel appearing on behalf of the Applicant and Shri S.D. Lotlikar, learned Special Public Prosecutor on behalf of the Respondents. By the present Application filed under Section 397 r/w 401 of the Code of Criminal Procedure, 1973 (Cr.P.C.,for short), the Applicant against whom charge has been framed by the learned Additional Sessions Judge, Mapusa vide her order dated 07/09/2017 is challenging the same pursuant to which the learned Additional Sessions Judge ordered charge to be framed against him under Sections 354, 354A, 354B, 341, 342, 376 (2)(f) and 376 (2)(k) I.P.C.

(2.) Heard Shri A. Lekhi, learned Senior Counsel for the Applicant who briefly alluded to the backdrop of the case and on adverting to the impugned order submitted that the CCTV footage which was the best evidence was not considered by the learned Additional Sessions Judge while passing the impugned order. The CCTV footage was relevant and material to understand whether the offence of wrongful restraint and wrongful confinement was attracted to the case. The learned Judge duly considered the factors relevant for framing the charge as laid down by the Hon'ble Apex Court but erred in recording an affirmative answer that there was material to frame charge against the Applicant. It was his contention while adverting to the CCTV footage that the statement of the prosecutrix (victim) was belied by the CCTV footage which was contradicted by her own conduct. He relied on Ram Kishan Singh v. Hermit Kaur and another [AIR 1972 SC 468] to buttress his case that the statement under Section 164 Cr.P.C., 1973 was not substantive evidence and that in Ram Charan and others v. State of U.P. [(1968) 3 SCR 354]. He next adverted to the e-mail sent by the victim to one Nikhil on 8th and yet the investigating agency had not examined the said Nikhil despite being an important witness. There was no attachment of the mobile phone of the victim nor of her laptop.

(3.) Shri A. Lekhi, learned Senior Counsel on behalf of the Applicant relied in Anvar P.V. v. P.K. Basheer and others 2014(4) R.C.R.(Civil) 504 : 2014(5) Recent Apex Judgments (R.A.J.) 459 : [(2014) 10 SCC 473]. He next submitted that there had to be due compliance with the mandate of Section 65B of the Evidence Act and in the absence thereof, none of these documents could be looked into on which reliance was placed by the prosecution against the Applicant. The server was not sealed nor the computer and the laptop too were seized. There was a reference to the apologies in the e-mail which could not have been considered in the absence of compliance with Section 65B of the Evidence Act. He next referred to paragraph 40 of the impugned order which referred to the informal and formal apology tendered by the Applicant and submitted that these were inconsistent with the ingredients of the offence particularly under Section 354 and 376 I.P.C. and by no stretch of the imagination could they be considered as an admission of the guilt of the Applicant. The formal apology was tendered by the Applicant on the demand of the victim and there was no element of willingness. The e-mail sent by the victim to one Shoma clearly indicated that she had made a demand on the Applicant for an apology and had indulged in falsity apparent in her statement recorded under Section 164 Cr.P.C., 1973 and which was negatived by the CCTV footage on her conduct. The Trial Court therefore could not have relied on both apologies to hold that there was a case to frame charge and proceed with the Trial.