CEDRICK MARTINS Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant were tried for house trespass, rape, assault and criminal intimidation under Sections 452, 376, 323, 506 read with 34 of I. P. C. The prosecution had, in all, examined 15; witnesses in support of the said charges after the appellants had pleaded not guilty to the said charges. The learned Addi. Sessions Judge, Margao, accepted the prosecution evidence and held the appellants guilty for house trespass, rape and criminal intimidation under Sections 452, 376, 506 read with 34 of I. P. C. and sentenced them to undergo three years rigorous imprisonment and fine of Rs. 1,000/-, in default to undergo simple imprisonment for one month under Section 452 nw 34 I. P. C. ; to undergo ten years rigorous imprisonment and fine of Rs. 2,500/-, in default to undergo simple imprisonment for six months for the offence under Section 376 (g) nw 34 I. P. C. and to undergo rigorous imprisonment for one year and six- months and also fine of Rs. 500/-, in default to undergo simple imprisonment for 45 days under Section 506 (Part II) nw 34 I. P. C. The appellants challenge the said conviction and sentences imposed on them by the impugned judgment by way of this appeal.

(2.) THE prosecution case, as revealed by the prosecutrix (P. W. 5), Shalini (P. W. 1) and Tereza (P. W. 3), is that on 2nd December, 1992, at about 9. 30 p. m. , someone knocked the door of their house, upon which enquiries were made as to who was knocking the door and someone stated from outside that he was their father. P. W. 3 Tereza told the persons who were outside that she would not open the door, upon which one person who was standing outside the house stated that he would put fire to the house if the door was not opened and so saying the said person lighted two match sticks, which was seen by P. W. 5 prosecutrix, and P. W. 1 Shalini, and P. W. 3 Tereza from inside the house. P. W. 3 Tereza once again told that they would not open the door upon which one of the said persons kicked the door, but the door did not open. In the meantime, Tereza (P. W. 3) decided to open the door and the door was opened. Thereupon, one person entered the house, followed by two persons and the first person had covered his face by tying a white colour T-shirt around his face, covering the face below his eyes, but P. W. 3 Tereza pulled the T-shirt and it was found that the said person was accused No. 1 Cedrick (who is the appellant No. 1) who was living in their neighbourhood. The other two persons were subsequently identified by the prosecutrix as accused NO. 2 Jackaris (who is the appellant No. 2) and accused No. 3 Rumaldo (who is the appellant No. 3) during the course of identification parade. Of course, the evidence of P. W. 1 Shalini and P. W. 3 Tereza discloses that accused No. 2 and 3 were shown to them at the police station. The prosecution case further is that accused No. 3 had a button knife in his hand. After P. W. 3 Tereza enquired with the accused as to whey they had come, accused No. 1 Cedrick took the matteress which was lying in the entrance room and went with the same to the bedroom. Thereafter accused No. 1 pushed prosecutrix (P. W 5) aged 43 years into that room and had sexual intercourse with her. After the accused No. 1 had taken prosecutrix (P. W. 5) into the said room, one of the accused put off the main electric switch, after which Shalini (P. W. 1) lightened kerosene lamp and kept it in the entrance room. According to the prosecutrix, the accused No. 1 had held her hands over her head, pulled her nighty and thereafter forcibly spread her legs and had intercourse with her. After he finished, he called accused No. 2 Jackaris by name and after having called him by the said name, accused No. 1 is reported to have said sorryt and then he referred to accused No. 2 as Seby, Accused No. 3 was standing at the main door with the knife. Accused No. 2 Jackaris went into the bedroom and had sexual intercourse with the prosecutrix. Thereafter, accused No. 1 Cedrick told Tereza (P. W. 3) to prepare tea, which was prepared by her and was given to the accused. The tea was also taken by P. W. 3 Tereza as well as the prosecutrix (P. W. 5 ). Thereafter accused No. 1 Cedrick again took the prosecutrix into the room and once again had forcible intercourse with her. Thereafter accused No. 2 Jackaris had sexual intercourse second time with the prosecutrix. After this accused No. 1 Cedrick slept with the prosecutrix in the room for the whole night. Accused No. 2 Jackaris slept alongwith Shalini (P. W. 3) but did not touch her. Accused No. 3 Ram Autar for Banda for taking necessary steps for taking out Dwarika on bail. It could have been done by Ram Autar and others but normally Jagdish, with the immediate background of suspected preparation for dacoity, should have tried to hide himself from public view. The dead- body was found at point D and on that side of the canal jungle was not far away. No explanation has come as to why his muffler and sleeper would be found not near his dead-body, rather at some distance. The evidence on record not only makes the prosecution story doubtful but also makes the defence suggestion probable that Jagdish might have been killed by some other enemy during night and when the dead-body was discovered the known enemies were named in the FIR. There is also no good explanation for the delay in the FIR and the story made out for the delay that the accused persons were lying in wait on the way was not at all proved as the/complainant accepted that it was only a hearsay version and he never earlier named the persons from whom he got that story.

(3.) IN view of what has been discussed above, it must be held that the prosecution has failed to prove its case beyond reasonable shadow of doubt and the benefit thereof must go to the accused persons. The appeal, in the result, stands allowed and the appellants, are acquitted and are discharged from their bail bonds. Appeal allowed.