Hanumanta @ Mutu Harijan vs State of Goa

N.A. Britto, J.—This appeal is filed by the accused who has been convicted and sentenced by the learned Children''s Court, Panaji, for grave sexual assault u/s 8(2) r/w Section 2(y)(i) of the Goa Children''s Act, 2003 r/w Section 376 I.P.C. by Judgment/Order dated 12-1-2009.

The accused was charged and tried with the allegation that on 6-11-2007 during night time, behind the Sulabh toilet on Baina beach at Vasco-da-Gama, the accused had committed grave sexual assault and rape on the victim (name withheld) who was of 10 years of age while she was sleeping outside her house.

To prove the charge, prosecution had examined 8 witnesses. The accused had examined none and it was his case that he was falsely implicated.

PW1, the victim, aged about 10 years and the accused aged about 22 years are first cousins being children of two brothers. They were hutmen dwellers residing near Baina beach, in huts. The incident took place on the night of 6-11-2007 when PW1, the victim was sleeping outside the hut along with her cousin sister Pooja; But nothing came to light until 12-11-2007. As per the records, PW1, the victim, told her mother PW2/Sangavva on or about 8-11-2009 that PW1, the victim was getting burning sensation whilst passing urine, and PW2/Sangavva tried to apply coconut oil to her private part but she did not allow to do so. On 11-11-2007, PW2/Sangavva took PW1, the victim to PW6/Dr. Santanu Dessai. At that time history of burning sensation and pain whilst urinating was given to him and upon examination, he found that there was inflammation, redness and whitish discharge on the private part of the victim, and, therefore he advised the mother that the victim be taken to a consultant gynaecologist.

As PW2/Sangavva did not have enough money, she took her daughter, the victim to Goa Medical College at Bambolim on 12-11-2007 where she was admitted with history of fever, abdominal pain and burning sensation while passing urine. She was admitted under the care of PW4/Dr. Bandodkar. PW3/Dr. Sunita Amonkar was then called. PW3/Dr. Amonkar was a Senior Resident in the Department of Gynaecology and Obstetrics of Goa Medical College. PW3/Dr. Amonkar, upon examination of the victim, found that there was foul smelling vaginal discharge which is normally not found in such young girls. This examination was done by her in the presence of Dr. Ekta Naik and Dr. Grevita Bandodkar, besides the mother, relatives and brother of the girl. PW3/Dr. Amonkar thereafter sent the mother and the relatives out of the examination room and talked to the victim whereupon the victim gave the history of being sexually abused by her "bhai" that is to say her cousin brother, about 6 days before, when she was sleeping outside the house during the night time. The victim further told PW3/Dr. Amonkar that she was scared to disclose that to her parents whereupon PW3/Dr. Amonkar suggested to Dr. Ekta Naik to make a medico legal case, whereupon PW8/P.I. Sammy Tavares came at G.M.C. at Bambolim and recorded the complaint of PW2/Sangavva and registered the same on 13-11-2007 at about 01.00 hours.

Thereafter, P.I. Tavares proceeded to "Zopadwadi area" and arrested the accused who was found sleeping in an open place and under the panchanama, attached the clothes the accused was wearing, namely, a long sleeves shirt (MO.4), brownish pant (MO.2) and safron colour underwear (MO.3). This was between 7.55 to 8.30 hours. On the same day, between 9.00 and 9.45 hours, and in the presence of PW7/Irfan Khan, a scene of offence panchanama was carried out and MO.4 green colour frock and MO.5 a pink colour underwear of the victim were attached. Subsequently, the clothes of the accused and the victim were sent to CFSL, Hyderabad and the underwears of both were found to be stained with human blood of which blood group could not be determined. On the same day, a request was made for the examination of the accused and the victim to Goa Medical College, Bambolim and they were examined by PW5/Dr. Kantak. Upon examination of the accused, PW5/Dr. Kantak was of the opinion that there was nothing to suggest that he was incapable of having sexual intercourse but no positive opinion could be given of recent sexual intercourse by the accused. PW5/Dr. Kantak found certain abrasions on him which could have even been caused with scratching of nails. The blood group of the accused was got determined and found to be B Rh positive. PW5/Dr. Kantak then examined PW1, the victim in the presence of PW4/Dr. Bandodkar. The victim gave the history to him including that the victim had not told her mother anything about the incident because she was scared. PW5/Dr. Kantak opined from the gait of the victim while walking that she was having pain in the genital area and upon genital examination he found that there were multiple nodules (growth which could be due to some disease process like sexually transmitted disease) in the area of 5 x 4 cms over the mons (upper part) of the pubic area extending to the inner upper aspect of the labia majora and minora, which were reddish and tender to touch with blood and pus discharge. The labia majora and minora were congested. The clitoris and frenulum appeared congested. There were two tears on the hymen, and considering the said injuries, PW5/Dr. Kantak opined that there was evidence of recent forcible sexual intercourse. By recent, he meant that the injuries were not healed. The blood group of the victim was got determined as O Rh positive. In cross-examination PW5/Dr. Kantak stated that the victim did not complain to him of any itching in the vaginal area and denied the suggestion that the injuries could have been due to scratching by the victim, and further denied that the injuries were old injuries. PW5/Dr. Kantak further denied that the victim could have had V.D. which was transferred to her, through her mother.

The learned Children''s Court, upon considering the evidence produced, came to the conclusion that the victim was a child, as defined u/s 2(d) of the Goa Children''s Act, 2003, she having been of the age of 10 years as on the date of incident on 6-11-2007. The learned Children''s Court also came to the conclusion that the victim had identified the cousin brother as the accused whose name was Hanumantappa but everybody referred to him as Muttu, and, therefore the accused is the very same person referred to as Muttu, being her cousin brother. The learned Children''s Court also came to the conclusion that the evidence of the victim was corroborated by PW4/Dr. Bandodkar as well as PW5/Dr. Kantak. The learned Children''s Court further held that there was nothing to suggest that the victim had anything against the accused to falsely implicate him and further held that the finding of blood on the underwears of both strengthened the case of the prosecution that it was the accused who was involved in the rape of the victim on 6-11-2007 outside the house, and proceeded to convict the accused, and sentence him to R.I. of 10 years and fine of Rs. 2,00,000/-, and in default to undergo further R.I. of 6 months.

Shri J.A. Lobo, learned Counsel appearing on behalf of the accused, has submitted that the application filed on behalf of the accused on 2-5-2008 was wrongly rejected by the learned trial Court, and, therefore the case be remanded to enable the accused to further cross-examine PW1, the victim, and her mother PW2/Sangavva. Learned Counsel submits that the deposition of PW1, the victim, was interrupted on 14-3-2008 for want of availability of MO.4 and MO.5 to be identified by her, and the deposition was resumed thereafter on 12-4-2008 when the said MO''s were identified by her before the Court. Likewise, the deposition of PW2/Sangavva was interrupted on 24-3-2008 for the same purpose and was resumed on 12-11-2008 when the said MO''s were identified by her, as well. Learned Counsel submits that further cross-examination was therefore absolutely necessary for the defence of the accused.

8.1 I am not inclined to accept the said submission. The cross-examination of PW1, the victim, was completed on 14-3-2008, and that of PW2/Sangavva was completed on 24-3-2008, and their evidence was adjourned for the identification of MO.4 and MO.5 which by then were not returned from the CFSL, Hyderabad. The accused was then represented by Advocate S.N. Kerkar who had cross-examined the said witnesses. On 21-4-2008, the brother of the accused filed an application for time to engage a new advocate. The application dated 2-5-2008 was filed by Advocate Shri Rajan D. Naik and then w.e.f. 2-5-2008 Advocate Shri Rajan D. Naik came on the scene and filed the said application, inter alia, stating that some of the facts which were informed by the accused to his earlier advocate Shri S.N. Kerkar were not put to PW1, the victim and PW2/Sangavva in their cross-examination, and that the accused desired to put the said facts which would prove that the accused was innocent. That application dated 2-5-2008 came to be rejected by the learned Children''s Court with an observation that both PW1, the victim and PW2/Sangavva were exhaustively cross-examined and the change of an advocate could not be a ground for recall of the witnesses for further cross-examination. The learned Children''s Court also took note of Section 32 of the Goa Children''s Act and observed that their recall for identification had nothing to do with their cross-examination. I find no infirmity with the said Order of the learned Children''s Court dated 26-5-2008. PW1, the victim and PW2/Sangavva were exhaustively cross-examined by the accused through advocate Shri S.N. Kerkar who was then appearing for the accused. Their cross-examination was not at all adjourned for further cross-examination but was postponed only for the identification of the MO''s which were then not available. Only because the accused had changed his advocate that could not have given the accused a further opportunity to cross-examine the said two witnesses. The prayer for remand of the case for further cross-examination of the said witnesses is therefore rejected. The accused was later represented by advocate Shri Luis D''Souza w.e.f. 29-8-2008 under the Legal Aid Scheme.

Shri Lobo, the learned Counsel next submits that the age of PW1, the victim was in dispute, and in this regard has referred to the opinion given by Dr. Rodrigues on the basis of letter dated 14-11-2007 addressed to him by the Investigating Officer. Learned Counsel submits that by letter dated 14-11-2007-Exh.46, the Police Surgeon was requested to give the age of the victim as the victim did not have any proof of her age, and, therefore learned Counsel submits that Dr. Rodrigues could not have based his opinion on the birth certificate. This submission also needs to be rejected. On 14-11-2007 when the said letter was made by the Investigating Officer to the Police Surgeon it appears that there was no birth/leaving certificate produced but when the report was given by Dr. Rodrigues on 28-11-2007 a birth certificate/leaving certificate was made available to him and after perusing the same Dr. Rodrigues opined that "based on physical, dental and radiological examination, the age of the victim is consistent with the school leaving certificate which states that her date of birth is 22-7-1997".

9.1 Admittedly, as per the said leaving certificate which is based on a record of a Government Primary School at Baina, the victim was born on 22-7-1997. Her age has been ascertained to be of 10 years. This is not a case where no age has been assessed by Dr. Rodrigues independent of the said birth certificate but on the contrary, Dr. Rodrigues after carrying out necessary tests has come to the conclusion that the age of the victim is in conformity with the age shown on the said birth/leaving certificate. No fault can be found with the said opinion. In fact, it was not at all necessary after the prosecution was able to secure the birth/leaving certificate of PW1, the victim to medically determine her age, who was of about 10 years of age at the time of the incident. The copy of the said birth certificate was also produced by PW2/Sangavva and the same is at Exh.10. Learned Counsel on behalf of the accused then submits that no original of the said certificate was produced. It is rather too late in the day to take such objection. What was produced is a photo copy of the said leaving certificate which was taken on record and exhibited without any objection from the accused and having been taken on record, it only means that the accused had no objection for production of the photo copy in lieu of the original. It is well settled that an objection as regards mode of proof has to be taken when the document is tendered and not later in appeal or revision. This objection also needs to be rejected.

Next, Shri Lobo, learned Counsel pointing out to the F.I.R. - Exh.11 submits that the thumb impression of PW2/Sangavva was taken in the corner of the page which suggests it was taken on a blank paper. A suggestion was put to PW2/Sangavva that she had put the thumb impression on a blank paper which she denied. She further stated that she did not know in what language the complaint was written down as she is illiterate. PW8/the then P.I. Shri Tavares has confirmed the complaint as having been lodged by PW2/Sangavva and he has indentified her signature thereon. The complaint on the face of it shows that it was read over and explained to PW2/Sangavva, and, therefore there is no room for any doubt that it was not recorded in the manner stated by PW2/Sangavva and PW8/P.I. Shri Tavares.

The next submission made by Shri Lobo is regarding the washing of the clothes of the victim. Both PW1, the victim, as well as PW2/Sangavva, her mother, have maintained that the clothes the victim was wearing on the date of incident were not washed till the time they were handed over to the Police. Learned Counsel on behalf of the accused points out to the evidence of the panch witness, namely PW7/Irfan Khan who stated that PW2/Sangavva had told them that she had washed the green colour frock and pink colour underwear. The said clothes were attached from the place where they were hanging on a rope, inside their hut. At the same time, PW7/Irfan Khan maintained that he had noticed stains on the said clothes. In my view, the versions of PW1, the victim, and PW2/Sangavva need to be accepted that the clothes were not washed in preference to the statement made by PW7/Irfan Khan that he was told by PW2/Sangavva that the clothes were washed. In any event, PW7/Irfan Khan has also categorically stated that there were stains on the clothes, and, therefore no importance can be given to the statement of PW7/Irfan Khan that PW2/Sangavva had told that the said clothes were washed. The pink colour underwear (MO.5) was found with human blood.

Shri Lobo then submits that there are various contradictions in the evidence of PW1, the victim and PW2/Sangavva. Shri Lobo has tried to highlight the timings given by PW1, the victim and PW2/Sangavva as to the time the former had gone to sleep and regarding the mother being there or not in the hut when PW1, the victim returned to the hut after the incident. In my view, no much importance can be given to such minor details considering the social background from which PW1, the victim and PW2/Sangavva come from. PW2/Sangavva is a scrap collector. It would hardly matter if the victim stated that she went to sleep at 8.30 p.m. and PW2/Sangavva, the mother had stated that she had gone at 10.00 p.m.

Next, Shri Lobo refers to the medical evidence of PW6/Dr. Dessai and by pointing out to the certificate issued by him at Exh.31 submits that it has been written in different ink, and, therefore it casts a doubt as to when exactly the said certificate was issued. In case it was written in a different ink, PW6/Dr. Dessai would have been the best person to explain. There is absolutely no cross-examination on that aspect of the case to PW6/Dr. Dessai. True, PW2/Sangavva stated that PW1, the victim was not allowing the male doctor to examine her but it does not mean that PW6/Dr. Dessai did not examine her at all. It is quite possible that PW1, the victim was hesitant to be examined internally by a male doctor, but I have no reason good enough to disbelieve PW6/Dr.Dessai when he stated that he examined her private part and found inflammation, redness and whitish discharge. It is to be noted that PW6/Dr. Dessai was a Medical Practitioner practicing at Sanjivani Hospital at Baina and had nothing to do either with the prosecution or with the accused except to treat the patients who came to him for treatment and advice. PW6/Dr. Dessai referring to the certificate issued by him Exh.31 explained that the date was wrongly mentioned as 11-11-2009 which should be read as 11-11-2007. Learned Counsel on behalf of the accused submits that if there was to be a mistake it ought to be in relation to the previous year and not a subsequent year. I am not inclined to accept that submission as well since PW6/Dr. Dessai has admitted his mistake and he was not to gain anything from the said mistake. In my opinion, therefore, the evidence given by PW6/Dr. Dessai cannot be discarded. It is corroborated by PW2/Sangavva, and I find that Exh.31 was not at all issued in any doubtful circumstances.

Shri Lobo, learned Counsel lastly submits that it was necessary for the prosecution to have produced V.D. reports not only of PW1, the victim but also of the accused, for that could rule out the complicity of the accused. Learned Counsel submits that these reports have been withheld.

14.1 However, I am not inclined to accept this submission, as well. The evidence shows that PW1, the victim was referred to Skin and V.D. Department of Goa Medical College but no report was received. The accused was not referred to the said Department. Learned Counsel submits that it is quite probable that in case PW2/Sangavva was suffering from V.D. and the accused was not, that would not have connected the accused with the alleged incident. This can only be termed as a surmise for the fact remains that it is nobody''s case that PW2/Sangavva was suffering from V.D. or the accused was not suffering from V.D. If at all PW2/Sangavva was referred to Skin and V.D. Department, it was part of medical investigation and the fact that no report of PW1, the victim was collected by the prosecution from Skin and V.D. Department of G.M.C. cannot go against the prosecution or in favour of the accused. Nothing prevented the accused from calling for such a report during the course of the trial.

As rightly submitted by Shri C.A. Ferreira, learned Public Prosecutor, the version of PW1, the victim is corroborated in all material particulars by the version given by her mother. The accused is none other than her first cousin, and there is no reason put forward by the accused as to why PW1, the victim or for that matter PW2/Sangavva should implicate him. PW1, the victim did not even narrate the incident to her own mother and she opened out for the first time to PW3/Dr.Amonkar, and that too after the mother and the relative were sent out. PW2/Sangavva came to know of the incident through PW3/Dr.Amonkar. This only shows that PW1, the victim was really in fear of the accused because of the threats given by him so much so that she was even frigthened to relate the incident to her own mother till 12-11-2007. But thereafter, her version has been consistent and the same was repeated before PW5/Dr. Kantak, on the next date. Further corroboration comes from the fact that the underwears of both had human blood on them. The learned Children''s Court therefore was right in concluding that human blood stains were found on the clothes of the accused and the victim girl and this strengthened the case of the prosecution that it was the accused who was involved on the rape of the victim outside her house. Here it may be noted that this circumstance which was not put to the accused by the learned Children''s Court, was put to the accused by recording his additional statement u/s 313 of the Code, by this Court. Learned Public Prosecutor has placed reliance on the case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain, wherein the Apex Court has observed that ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution. The Apex Court has stated that if for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. In the case of State of Rajasthan Vs. Om Prakash, it is stated that child rape cases are cases where even innocent children are not spared in pursuit of the sexual pleasure, and there cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of social stigma attached thereto. There was a case of rape of a child of 8 years. Although, PW1, the victim out of fear remained silent and suffered the consequences in silence till they became unbearable yet she did not confide in her own mother but confided in PW3/Dr. Amonkar, and that too in the absence of her mother. The evidence of PW1, the victim is supported by the corroborative as well as the medical opinion of two Medical Officers as well as the circumstantial evidence of the underwears of both having been found with human blood stains. The Apex Court in Hayat Singh Vs. The State, has held that in law the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible in case where her evidence is natural, truthful and inspires confidence.

Before concluding, it must be observed that the facts alleged and proved by the prosecution disclosed two separate and distinct offences under two separate enactments, namely Section 376 I.P.C. and Section 8(2) of the Goa Children''s Act, 2003. That being the position, the accused ought to have been charged and tried for both the offences. Whether the accused could be sentenced separately is another matter. This Court in the case of Nagraj Bajannath v. State unreported decision dated 20-11-2009 in Criminal Appeal No. 54 of 2008 observed that "the two offences with which the accused has been charged with are u/s 376 I.P.C. and u/s 8(2) of Goa Children''s Act, 2003". The Division Bench further observed that "if one and the same act of a person constitutes two different or distinct offences, then the prosecution and punishment for one offence would not bar prosecution and punishment for the other offence, and if the same set of facts constitute offences under more than one provision of law, then it will not attract the principle of double jeopardy.

Considering the facts of the case, in my view, the impugned Judgment/Order convicting and sentencing the accused u/s 8(2) r/w 2(y)(i) of the Children''s Act, 2003 cannot be faulted.

I find there is no merit in this appeal, and consequently the same is hereby dismissed.