State vs Jimmy Cruz

N.A. Britto, J.—By this application, the State is seeking leave to appeal against the acquittal of the accused u/s 376 and 506(i) IPC and Section 8(2) of the Goa Children''s Act, 2003. Heard Shri Ferreira, the learned Public Prosecutor on behalf of the applicant.

The respondent-accused was charged and tried with the allegation that in the first week of December, 2003, during the evening hours at Chirknoli, Kakoda, Quepem, the accused took the victim girl/PW3, who was 9 years, 3 months old, to his house, in the clothes room and had forcible sexual intercourse with her and, thereafter, threatened her not to disclose the incident to anybody and thereby committed the aforesaid offences.

A perusal of the judgment/order reveals that in the trial, the prosecution had examined 8 witnesses including the mother of the child by name Lourencina Costa/PW1, who had filed a complaint on or about 3/01/2004. The learned trial Court after referring to various authorities on the subject of appreciating evidence of raped victims came to the conclusion that the evidence of the victim girl/PW3 did not inspire confidence as she did not emerge as a truthful witness. The learned trial Court also noted the fact that child victim had not reported to her mother, on the day of the incident, or soon thereafter, about the acts attributed by her to the accused and further the medical evidence did not corroborate that she was victimised by the accused. The learned trial Court also referred to the evidence of child witnesses, as given by Dr. Kenny Downing (Professor of the Laws of England, Cambridge University) wherein at page 386, the learned Professor had observed that;

Children are a most untrustworthy class of witnesses, or when of a tender age as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and desire of notoriety.

The victim girl/PW3 at the relevant time was studying in standard 7th in Guardian Angels High School at Sanvordem and was residing with her aunty Minguelina. Learned Public Prosecutor points out to the observation of the trial Court that the victim was very slow in answering the questions put to her and, from her appearance, it appeared that the intellectual capacity of the witness was less as compared to her age. However, the said observation, in my view, cannot advance the case of the prosecution in any manner.

In addition to the evidence of the said victim girl/PW3, prosecution had examined the forensic expert Dr. E.J. Rodrigues/PW4, who in turn had examined the victim girl on 3/01/2004 and had opined that no opinion as to sexual intercourse could be given by him, since the victim girl was having a marginal type of hymen. The opinion given by Dr. Rodrigues/PW4 appears to be in consonance with the opinion expressed by Modi at page 431 which is as follows:

Where a marginal hymen is found at examination, the medical examiner is not entitled to express an opinion as to whether intercourse has taken place or not, unless there are signs of local recent injury, such as bruising, scratching and bleeding.

Dr. Rodrigues/PW4 had found no such injuries and although he had explained as to what was meant by the marginal type of hymen i.e. hymen having a small fringe or tinge of membrane and which allows frequent sexual intercourse without any injuries and the opening is wide, the fact remains that there were no injuries on the private part of the victim girl/PW3, as well as, on her inner aspect of the thighs. In other words, this is a case where medical evidence was of no assistance to the case of the prosecution and the case of the prosecution was essentially based on the solitary evidence of the victim girl/PW3, who had also stated that prior to the accused, one Clint Carvalho had taken her inside his house and violated her and on the next day another boy by name Vicky had done same thing, as was done by said Clint Carvalho.

Admittedly, the prosecution chose not to investigate the case with reference to the said Vicky as well as the said Clint and chose to file charge sheet against the present accused only. Corroboration is a rule of prudence and not a rule of law. Although the evidence of the victim of a sexual offence is considered at par with evidence of injured witness, some corroboration was certainly necessary to lend assurance to the version given by the victim and considering that there was no such corroboration, in my view, the acquittal of the accused could not be faulted. As stated by the Apex Court, there must be some evidence to lend some assurance to her version. (See Karnel Singh Vs. State of M.P., ). There is none in this case except the bare version of the victim which is even otherwise unconvincing because of her reference to two other boys previously. This is not a fit case to grant special leave to appeal. Application rejected.