State vs Mr. John Fernandes

U.D. Salvi, J.—The State has moved this application for cancellation of the anticipatory bail granted to the respondent accused in C.R.No.155/2009 dated 02.12.2009 registered at Colva Police Station under Sections 354, 509, 504, 323 and 376 read with Section 511 of I.P.C. by the learned Sessions Judge, South Goa, Margao on 08/12/2009. Undisputed facts leading to the impugned order dated 08/12/2009 are as under :

A Russian national, the victim, aged about 25 years presently working at Hotel Leela situate at Mobar Cavlosim lodged the complaint with Colva Police Station against the respondent accused around 4.15 p.m. on 02.12.2009. Crime u/s 354, 509, 504, 323 and 376 read with Section 511 of the I.P.C came to be registered against the respondent accused thereafter. The victim complainant was referred to Hospicio Hospital, Margao for her medical examination. Medical examination of the victim revealed 12 injuries - bruises and scratch marks on various parts of the victim''s body such as wrist, thighs and knees. Case was transferred to C.I.D., Crime Branch Dona Paula on 05/12/2009 for further investigation. Supplementary statement of the complainant was recorded on that day and she was subjected to further medical examination before the Medical Board at Goa Medical College. In mean while, the respondent accused moved anticipatory bail application No. 315/2009 before the learned Sessions Judge, South Goa, Margao. This application was duly replied and the parties were heard on 07/12/2009. On 08/12/2009, the impugned order was passed.

The learned Sessions Judge observed that there was prima facie material showing prior acquaintance of the respondent accused with the victim, consumption of excessive liquor by the victim and the victim accompanying the accused in the car used for rape. According to the learned Sessions Judge, F.I.R. failed to disclose any ingredients of rape, and other offences disclosed were bailable one; and following such complaint the victim had made total volte-face with supplementary statement made before P.I., Crime Branch, C.I.D. On 05/12/2009. This fact coupled with absence of injuries on the private part of the victim and inability of the Medical Board to give opinion as to the recent sexual intercourse, the learned Sessions Judge observed, raised serious doubt about the prima facie case of rape alleged against the applicant/ respondent accused. Affidavit tendered by the female friend of the victim, who happened to accompany the victim complainant in the said car at the material time, the learned Sessions Judge further observed, deepened the mystery of the allegation of rape made by the complainant further. According to the learned Sessions Judge, there existed no need for any custodial interrogation as the respondent accused was willing to submit himself to medical examination and to produce all such things in his custody for the purposes of investigation. The learned Sessions Judge further observed that there was no evidence on record that the underwear of the victim was taken away by the applicant. As regards the possibility of the applicant/ respondent accused threatening the witnesses and applying undue pressure on the witnesses by means of political clout, the learned Sessions Judge observed, such possibility / apprehension was not serious as the things desired by the respondent accused must have already been done. Finally the learned Sessions Judge expressed that anticipatory bail granted was to remain restricted to a limited period and the police would have opportunity to arrest the applicant and take him in custody if reasonable prima facie evidence regarding commission of rape was to come up against the applicant either in the form of DNA test report or otherwise.

Learned Public Prosecutor Ferreira for the State presented before the Court the case papers. Ld. Adv. Arun De Sa for the respondent accused did not have any reservation about hearing the present application merely on the basis of case papers and choose to go on with hearing without any say to the application. Parties were, therefore, heard and the case papers were perused.

Ld. P. P. Ferreira for the State pointed out from the case papers how the case against the respondent accused of the commission of the offence of rape had taken shape and crystallised before the impugned order was passed. He submitted that the victim had disclosed in her complaint all that was indicative of her rape committed by the respondent accused while she was rendered defenseless .He further submitted with reference to the medical certificate dated 02.12.2009 that the nature of the injuries found on the person of the victim were indicative of struggle / resistance put up by the victim to protect herself from the rape and such injuries could not have been caused for any other reason. According to him, supplementary statement dated 05.12.2009 of the victim was merely of an elaborative nature and made no departure from the central theme of the complaint regarding the act of rape.

Relying on the judgments reported in CDJ 2009 SC 1350 - Rajindar @ Raju Versus State of Himachal Pradesh and 1992 Cri.L.J. O 1917 Gurumurti Digal Versus Ashokkumar Digal and another he submitted that even uncorroborated evidence of prosecutrix was sufficient to bring home the charge of rape against the accused and the absence of injuries on private part of the victim would not by itself falsify the case of rape; and in such matters, the release of the accused on bail was improper. He further argued that the learned Sessions Judge had completely ignored material evidence on record and led himself to perversity in passing the order granting anticipatory bail in a crime which touches the social fabric - a crime against the human dignity. To support his arguments, he quoted observations of the Apex Court recorded in the following judgments :

i. CDJ 2001 SC 318 - Puran Versus Rambilas

ii. State of M.P. Vs. Bablu Natt, .

Learned Public Prosecutor for the State further submitted that by granting anticipatory bail the learned Sessions Judge had helped the respondent accused to preempt the investigation, which could have been done in the atmosphere free of any malign influence of the respondent accused. How such influence had played role in prejudicially affecting the course of investigation, he argued, can be seen from the fact of an affidavit sworn in by one of the witnesses - Ms. Ksenia contrary to her statement given before the police as well as the other material on record. Learned Public Prosecutor Ferreira for the State further submitted that lack of sensitivity to the heinous crime of rape leading to perversity on the part of ld. Session Judge is found writ large in the impugned order and pointed out perversity in the impugned order.

Countering these submissions made on behalf of the State, learned Advocate Arun Bras De Sa cited judgments/ orders both reported and unreported - 2006 All M R(Cri.) 1412 Satish Dhond Versus State of Goa, order dated 14.08.2009 in Criminal Writ Petition No. 52/2009 - Audumber @ Shubham Pednekar Versus State of Goa, in order to advance a proposition that rejection of bail stands on one footing but cancellation of bail being a harsher remedy interfering the liberty of the individual stands on other footing, which must not be lightly resorted to unless grant of bail is unjustified, arbitrary or otherwise vitiated by serious infirmity or wrong exercise of discretion. According to him there existed a large gap between the offence of attempt to rape and rape, and this can be gathered from the judgment of the Apex Court reported in Aman Kumar and Another Vs. State of Haryana, . Learned Advocate Arun Bras De Sa for the respondent accused submitted that the victim had initially given complaint not of rape, but of attempt to rape and later on made improvements to allege rape by giving statement dated 05/12/2009. Medical history recorded by the Medical Officer on 02/12/2009, he argued, also depicted the nature of the sexual assault on the victim. This dichotomy of version, according to learned Advocate De Sa for the respondent accused legitimately formed the basis of the observations made by the learned Sessions Judge and, therefore, the impugned order was perfectly justified. Dwelling for some time on the observations made by the Apex Court in Bharwada Bhoginbhai Hirjibhai Versus State of Gujrat 1983 STPL (LE) 11289 (SC), he submitted that considering the fact that the complainant belongs to the western society, there existed possibility of she falsely implicating the respondent accused -a politician in the case of rape for the purpose of extracting from him economic rewards; and possibly the political opponents of the applicant had forced the victim and the other witnesses to change their version for the purpose of destroying the political career of the respondent accused.

Inviting attention of the Court to the judgment reported in 2007 All M R (Cri.) 2283 - Mohd. Sajid Husain Mohd. Shakir Husain Versus State of Maharashtra & Anr. and unreported order dated 30.07.2009 in Criminal Application (Bail) No. 203/2009 Mr. Royston Gomes Versus State, learned Advocate De Sa for the respondent accused urged for the objective view of the matter instead of moralistic approach. He submitted that material in support of the charges levelled against the applicant are equally important as the gravity of the charge and severity of the punishment stipulated therefor. Even in the cases, he argued, wherein the impugned order granting bail suffered from various infirmities, the Hon''ble Apex Court refrained from interfering in such orders as could be seen from the judgment reported in Ashok Kumar Vs. State of U.P. and Another, . He further submitted that nothing worthwhile remains to be recovered or discovered at the instance of the respondent accused and, therefore, the need for custodial interrogation does not exist. In such circumstances, he submitted that interference with the discretionary order of the learned Sessions Judge granting bail was not called for. To further his submissions, he relied on the judgment reported in Bhagirathsinh Judeja Vs. State of Gujarat, .

In Ashokkumar''s case (supra) the Hon''ble Apex Court refrained from interfering in the order granting bail which suffered from various infirmities, only for the reason that the accused therein continued to be on bail for considerable length of time and applications for adjournments filed by the accused were liberally granted. Presently, before the Court is the order of granting anticipatory bail which has been assailed without any loss of time. This signifies the earnest intention of the Investigating machinery to secure what has been denied to it with the grant of anticipatory bail.

It is true that the discretion exercised by the learned Sessions Judge in granting bail should not be lightly interfered with. However, on referring to the judgments in Satish Dhond''s case and Audumber @ Shubham Pednekar''s case (supra), there is no difficulty faced in accessing the guiding principles laid down by the Hon''ble Apex Court in the matter of cancellation of bail in three broad situations in following terms :

that bail once granted could be cancelled in three broad situations; (i) when the grant of bail is unjustified, arbitrary or otherwise vitiated by serious infirmities or wrong exercise of discretion (ii) post bail conduct of the accused being not conducive for further investigation or for fair trial (iii) change of circumstances which would require the accused to be in custody.

First situation arises when the order of grant of bail suffers from vice of perversity. What is against the entire evidence (in the present case the entire material) is perverse or in other words unjustified, arbitrary or otherwise vitiated by serious infirmity or wrong exercise of discretion. It would, therefore, be necessary to examine the impugned order vis-a-vis the entire material on record and assess its worth.

At para 6 of the impugned order the learned Sessions Judge has virtually reiterated the contents of the F.I.R. / complaint dated 02.12.2009. However, the learned Sessions Judge totally misconstrued the circumstances which led to crime with the observations that the victim herself went to the restaurant for party, remained there till 2.00 a.m. the next day, consumed excessive alcohol to the extent of disabling herself from riding the bike (her bike). In considering these circumstances, the learned Sessions Judge completely overlooked the fact that the respondent accused had prompted the complainant and her friend to consume excessive liquor by continuing to offer them liquor between 11 p.m. on 01.12.2009 and 2 a.m. on 02.12.2009. This conduct of the respondent accused reveals his design, which he was planning to effect ruthlessly. F.I.R. dated 02.12.2009 reveals that the respondent accused after dropping the friend of the complainant instead of proceeding in right direction, removed his clothes,, lowered skirt and underwear of the complainant and jumped on the complainant to rape her and he remained on the complainant for about 10 minutes despite the pleadings of the complainant not to rape her. F.I.R. dated 02.12.2009 further reveals that the complainant had received scratches and marks over her body as she tried to prevent the rape. F.I.R. further reveals that the complainant was completely disoriented. Supplementary statement dated 05.12.2009 gives details of what had happened while the respondent accused remained on the complainant for about 10 minutes. Graphic picture of rape during those 10 minutes is available in the supplementary statement dated 05.12.2009. For the purpose of granting anticipatory bail in the matter of such kind, the learned Sessions Judge ought not to have embarked on the course of entering into threadbare analysis of the facts. Total prima facie view of the material placed before the Court ought to form the basis of the order granting bail. Prima facie, there is no material inconsistency between the revelations made in the F.I.R. dated 02.12.2009 and the revelations made in the supplementary statement dated 05.12.2009. Supplementary statement dated 05.12.2009 is merely of an elaborative nature and the learned Sessions Judge clearly erred in making observations that the F.I.R. failed to disclose any ingredients of rape and the complainant in giving supplementary statement had made total vote-face.

Victim in the instant case is a Russian national i.e. she belongs to a nation under western influence. Permissiveness of the western society degenerates into tolerance for immoral excesses but certainly such tolerance is for promoting individual liberty. Rape as commonly understood is a sexual intercourse with an adult female without her consent - violation of individual liberty. In the instant case, there is a clear medical evidence of the resistance put up by the victim in form of 12 to 13 injuries, some of them on thighs and knees. Obviously, the victim was not consenting party to the sexual assault made by the respondent accused. Her supplementary statement brings forth all details of what happened with her. There is nothing before this Court to suggest that the victim had any political interest or was prompted by any politician to make allegations of rape at the cost of her stay in foreign land and the honour in the eyes of her own people abroad. Affidavit of her friend Ksenia dated 04.12.2009 only hints at the invisible influence the presence of the applicant / respondent accused free from the clutches of law could cast on ongoing investigation. Ms. Ksenia revealed in her affidavit the presence of the respondent accused John Fernandes at the dinner table with the victim and herself at the material time. It also reveals that the respondent accused had dropped the victim in his car at the house at Benaulim. Material shift in her version occurs when she reveals in her affidavit that the victim was dropped first and later on she was dropped at her house and a false complaint had been filed against the respondent accused at the instance of the boyfriend of the victim. Observations of the ld. Sessions Judge that the respondent accused must have already done all things such as threatening and pressurising the witnesses, actually acknowledge such malefic influence of the accused.

Supplementary statement of the victim speaks of underwear of the victim being left in the car of the respondent accused. Statement of Vithal Lamani, barman at Boomrang Restaurant reveals that the respondent accused was wearing a white coloured collar short sleeves T shirt with a writing on the back www.boatcraft.com. These articles have not yet been recovered or discovered. It would, therefore, be folly to say that custodial interrogation of the respondent accused is not necessary. By any standard, the impugned order is unjustified and passed in wrong exercise of discretion. Lack of sensitivity on the part of the learned Sessions Judge to the crime of such nature is apparent from the face of the impugned order. In the result, cancellation of anticipatory bail granted by the Sessions Judge, South Goa at Margao is called for. Impugned order dated 08.12.2009 granting anticipatory bail is set aside. Criminal Application (Main) No. 370/2009 stands disposed of accordingly.

Authenticated copy of this order be furnished to the parties as per usual procedure.