R.C. Chavan, J.@mdashThis appeal is directed against the appellant''s conviction by the learned Sessions Judge, Panaji for the offence punishable
u/s 376 of the Penal Code and sentence of Rigorous Imprisonment for 7 years with fine of Rs. 25,000/- and in default, further imprisonment for
two months imposed upon the appellant, on the conclusion of trial of Sessions Case No. 30/2009 before the learned Judge. The facts, which are
material for deciding this appeal, are as under:
The victim was residing in village Shiroda with her elder and younger sisters after the demise of her mother in 2005. Victim''s father had expired on
1998. Victim''s elder sister Dipa, who was examined as PW8, got married in 2007 and from 2007 onwards, the victim was residing with her
younger sister in their family house. In 2005, the victim was studying in 12th standard. In November, 2005, the victim was standing at the bus
stand for returning to her home. The appellant met her and took her on his scooter to his house telling her that there was some function in the
house. There, the appellant committed rape upon the victim and threatened the victim with death, should she disclose this to anyone. He also
allegedly took some photographs of the victim without her consent. Thereafter, the appellant used to frequently visit the victim''s house around
midnight, force her to come out of the house and used to have forcible sexual intercourse with her on several occasions. The appellant also
frustrated the victim''s attempt to get married with PW13-Raya Bandodkar some time in 2007. When a neighbour, PW10-Ulhas Parwar noticed
that the appellant used to visit the victim''s house frequently, he tried to accost the appellant. Then, the appellant forced the victim to lodge a
complaint against the said Ulhas some time in May, 2008. In April, 2009, police were investigating the case of murder of one Yogita Naik. In the
course of that investigation, police came to find about the use of mobile phone with No. 9922015347 which stood in the name of Victim''s elder
sister Dipa. The police, therefore, knocked the door of the victim''s house and, thereafter, the victim came to report about her being subjected to
sexual assault by the appellant, since November, 2005 till she gave the report. An offence was registered and the investigation commenced.
2. On the same day i.e. on 21/04/2009, the police went to the house of the appellant which was locked, made his wife open the house, performed
the panchanama of spot and seized, among other things, five photographs showing the victim scantily dressed. The police also performed
panchanama of the house of the victim and the places shown by the victim. Nothing was, however, seized from the victim''s house. No clothes of
the victim or bed-sheets from the house of appellant were seized or sent for Forensic Science Laboratory. The victim and the appellant were
referred for medical examination which, as was to be expected, did not reveal that any forcible sexual intercourse had taken place. Since the
appellant was arrested for his involvement in murder case, he was produced before the Special Judicial Magistrate for recording his confessional
statement and in the course of that confessional statement, he also stated that he had sexual intercourse with the victim under duress. The police
recorded the statements of witnesses, collected relevant material and on completion of the investigation, sent the charge-sheet to the Court of
Judicial Magistrate, First Class, Ponda, who committed the accused the Court of Session at Panaji.
3. The learned Sessions Judge heard the parties and by an order dated 26/10/2008 held that there was enough material to charge the appellant for
the offence punishable u/s 376 of the Penal Code. On 30/11/2009, she proceeded to frame charge against the appellant mentioning that on or
about November, 2009 and thereafter, the appellant committed rape upon the victim. The appellant pleaded not guilty and was put on trial. At the
trial, the prosecution examined in all 15 witnesses in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence
in the light of the defence of false implication, the learned Sessions Judge convicted and sentenced the appellant as aforementioned. Aggrieved
thereby the appellant is before this Court.
4. I have heard learned counsel for the appellant and learned Public Prosecutor for the State, and with the help of both, I have gone through the
entire evidence on record.
5. PW1- Dr. Andre Fernandes states about the examination of the victim as well as the appellant and has proved the certificates issued by him at
exhibits 20 and 23. As already observed, these certificates do not show any evidence of forcible sexual intercourse.
6. PW2- Dr. D'' Mello did blood grouping of the appellant and the victim. The appellant was found to have blood group of ''0+'' whereas the
victim had ''B+'' blood group. However, this evidence is of no use, since the clothes of the victim or the appellant were not seized nor bedsheets
etc. were seized and sent to Forensic Science Laboratory. PW3-Mushtak Shaikh is a panch at the arrest panchanama of the appellant drawn up
vide exhibit 33. The evidence of these two witnesses is unhelpful to connect the appellant to crime.
7. PW4- Joel Fernandes was a panch at the panchanama of spot and this panchanama was drawn up vide exhibit 37 between 3.30 p.m. and 5.00
p.m. at the house of the appellant and between 5.00 p.m. and 6.15 p.m. at the house of the victim. PW4-Fernandes stated that the victim showed
the house of the appellant. The house was locked and, therefore, PW15-P.S.I.- Sanjay Dalavi contacted the appellant''s wife, who came with a
key. The house was then opened and panchanama was drawn up. As the victim had shown the place in the house where she had been subjected
to rape, the panchas and police noted the particulars of that place and since the victim had stated that the appellant had taken some nude
photographs, they searched for those photographs. Five such photographs were found in the appellant''s house which were seized and which have
been admitted in evidence vide exhibit 35. Nothing incriminating was seized at the house of the victim. The fact about drawing up of this
panchanama has been duly corroborated by the victim, who was examined as PW11 as also the Investigating Officer, who was examined as
PW15.
8. PW5-Dr. Gawade and PW6- Dr. Dessai state that on 05/06/2007, they had occasion to examine and treat the victim, who had come to the
Hospital with history of consumption of lizol, a detergent. They proved the medical record. PW6- Dr. Dessai stated that the victim left the Hospital
against the medical advice on 06/06/2007. The evidence of PW7-Head Constable Vishnu Jadhav is about the attempt of the victim to commit
suicide by consuming lizol on 05/06/2007. He states that on receiving such information on 06/06/2007, he had gone to the Hospital and on learning
that victim had been discharged from the Hospital, he went to her house and recorded the victim''s statement in the presence of the appellant. The
victim told him that she had consumed lizol by mistake mistaking it to be soft drink by name dew.
9. PW10-Ulhas Parwar claims to be residing in the neighbourhood of the victim. He stated that the appellant used to visit the victim''s house. In
May, 2008, when he saw the appellant going to the victim''s house at night, he accosted the appellant, whereupon the appellant threatened the
witness that he would teach the witness lesson. He states that thereafter, the victim lodged a complaint at against him at Police Station, Ponda.
10. PW13-Raya Bandodkar stated that he knew the victim and he was threatened some time in 2007 by a caller, who identified himself as
Mahanand and told to keep away from the victim. PW14- P.I Chetan Paul had received a report of the victim on 21/04/2009 and registered an
offence vide exhibit 55. He also proved the other 10 F.I.R.s registered against the accused appellant which are irrelevant. PW15-P.S.I. Sanjay
Dalavi carried out the investigation.
11. This takes me to the evidence of PW8-victim''s elder sister, PW9- victim''s young sister and PW11- victim herself. Their evidence shows that
the three sisters were residing together till 2007 when PW8 got married. PW8 stated that she had noticed that the appellant used to visit their
house around midnight frequently and used to call the victim outside. She also stated that she had mobile phone with No. 9922015347 and that
she had given sim card to the victim after her marriage. This sim card was allegedly taken by the appellant who was using it and it is possibly, the
use of this sim card that enabled the Investigating Machinery to reach to the appellant and then to the victim. PW8 had also stated in cross-
examination about the gold chain being snatched by the appellant from the victim. The victim, however, did not make any such statement.
12. PW9- victim''s younger sister stated that the appellant used to come to their house late night and used to bang the door. The appellant used to
call the victim out. Once the victim refused to go out, but then left the house. PW9 stated that she followed the victim and found the appellant
having sexual intercourse with the victim. The victim reported to PW9 that there were several such incidents in the past. She also stated that the
appellant had threatened them that in case they opposed him, the victim''s photographs would be shown to all. She also stated that the appellant
used to physically assault the victim, if the victim did not accede to the appellant''s demand. She also corroborated the story of the victim of
consumption of lizol. In her cross-examination, she admitted that she had been shown the photographs by her sister.
13. The victim herself stated about the incident of first rape in the appellant''s house in the year 2005. She stated that the appellant took her
photographs without her knowledge. The victim admitted in her cross-examination that the appellant''s house is also surrounded by the houses of
the appellant''s parents and brothers. The house of the appellant is just two metres away from the parents'' house. The brothers of the appellant are
residing in a room adjacent to the house of the parents. She stated that she had gone to the house of the appellant on the incidental afternoon at
about 2.15 p.m. from her school wearing school uniform. She claimed to have raised an alarm and stated that nobody came to her rescue. She
claimed that she had reported about this incident to the appellant''s wife, who, however, flared up stating that the victim was behaving in an
ungrateful manner towards the appellant.
14. She stated that the appellant then started troubling her by coming to her house during late night hours and committing rape upon her outside her
house and away from neighbours'' houses. She stated that the appellant used to threaten her by saying that he would throw her nude photographs
on the road. She stated that she was fed up with this harassment and, therefore, consumed lizol in November, 2007. She also stated that she had
received proposal of marriage from PW13-Raya Bandodkar. She admitted that she had not lodged any complaint about the incident of 2005 or
even thereafter, but claimed that she had not filed a complaint because the appellant had threatened her and her younger sister that the appellant
would throw the victim''s nude photographs on the road. She stated that on 04/06/2007, the appellant came to her house during night time and
demanded sex though she was having fever. The appellant then assaulted her and had forcible sexual intercourse with her. She claimed to have
purchased lizol on the next day and drank it on the night of 05/06/2007 and then stated that she telephoned the appellant and told him that she was
ending her life whereupon the appellant came to her house and took her to Primary Health Centre at Shiroda from where she was shifted to
Hospicio Hospital at Margao. She stated that the appellant got her discharged from the Hospital forcibly and once again threatened her. Therefore,
she made a false statement to the police that she had consumed lizol by mistake.
15. She admitted having made false complaint against PW10-Ulhas Parwar at the instance of the appellant, again because the appellant allegedly
threatened her that he would throw the victim''s photographs on the road. She claimed that she had told PW10-Ulhas Parwar that the appellant
was visiting her at late hours and harassing her and rather than taking help of PW10-Ulhas Parwar, she had lodged complaint against PW10-
Ulhas at the instance of the appellant.
16. In cross-examination, she stated that the appellant had never shown the photographs to her from close distance. She stated that the appellant
had taken some additional photographs in night dress which she had handed over to her sister-PW9. She admitted that the house of paternal uncle
is at a distance of only 3 metres from her house. PW15- Sanjay Dalavi, the Investigating Officer has stated that he did not record the statement of
paternal uncle of the victim because the paternal uncle refused to make a statement saying that his relations with nieces were not good. Another
paternal uncle of the victim was residing just across the road at a distance of 15 to 20 metres, but his statement was also not recorded for the same
reason. She admitted that her uncle Kamlakant Parwar used to come to their house and stay in their house, but she does not seem to have made
any grievance to her uncle. She stated that the appellant used to take her out of the house for forcible sexual intercourse, because her sister was in
the house. She denied the suggestion that the photographs could have been fabricated to suit the case. She proved her report at exhibit 55 in which
she had referred to only semi nude photographs. There is no reference to nude photographs.
17. Learned counsel for the appellant submitted that this evidence was far too inadequate to hold the appellant guilty of rape. First, he submitted
that the charge itself was defective, since it refers to rape from November, 2009 onwards when the charge itself was framed on 30/11/2009. He
submitted that since the appellant was misled by the charge framed, the appellant was entitled to a fresh trial or at least further cross-examination of
the prosecution witnesses. Learned counsel for the appellant submitted that the facts alleged against the appellant in the course of trial showed that
the incidents were spread over for a considerable period of time which was not reflected in the charge framed, if the charge was to be read to
convey that the victim was raped from November, 2009 onwards. The learned Counsel for the appellant as well as the learned Public Prosecutor
for this purpose relied on the judgment of the Supreme Court in Main Pal Vs. State of Haryana, . Learned counsel for the appellant submitted that
as in the reported judgment, the appeal ought to be allowed and the matter might have to be remitted back to the trial Court for fresh trial. In that
case, the question was whether a fresh trial was necessary, because the charge was specifically about the use of criminal force to Prakashi Devi
when the evidence in fact disclosed that criminal force was used to Prakashi Devi''s daughter-in-law Sheela Devi. The Court observed that if only
Sheela Devi was present in the house at the time of incident, the accused had assaulted and outraged the modesty of said Sheela Devi and in the
charge the name of Sheela Devi was erroneously stated as Prakashi Devi instead of Sheela Devi, the Court could infer that the accused was not
misled and what was in the charge was immaterial. Since two women were present in the house and charge referred to use of criminal force against
one of them-Prakashi Devi-when in fact it was Sheela Devi, whose modesty had been outraged, a fresh trial was warranted. After considering the
various judgments, including the one in Willie (William) Slaney Vs. The State of Madhya Pradesh, upon which the learned Public Prosecutor
placed reliance, the Court had elicited the following principles in paragraph No. 9 of the judgment:
9. Next comes a class of case for which there is no express provision in the Code, or where there is ambiguity. In that event, the question is
whether the trial has been conducted in substantial compliance with the Code or in a manner substantially different from that prescribed.
When a trial is conducted in a manner different from that prescribed by the Code as in N.A. Subramania Iyer v. King Emperor, 28 Ind app 257,
the trial is bad and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but
some irregularity occurs in, the course of such conduct, the irregularity can be cured u/s 537, and nonetheless so because the irregularity involves,
as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. AIR 1947 67 (Privy Council) .
18. The learned counsel for the appellant submitted that the question of prejudice would have to be judged with a broad vision and since in this
case, the charge was defective, a fresh trial was warranted. As rightly submitted by the learned Public Prosecutor, there is no error in the charge
which could be said to have prejudiced the appellant. There is only typographical error. Instead of the year 2005, year 2009 has been printed. The
appellant had been served with entire charge-sheet and, therefore, he knew that he was to face trial on the charge of repeated sexual assaults on
PW11 commencing from November, 2005. Therefore, there is no question of conviction being set aside on this ground or the matter being
remanded back to the trial Court.
19. The learned counsel for the appellant next submitted that the first incident of rape itself is not possible, since it is alleged to have taken place at
about 2.15 p.m. in the month of November, 2005 in the house of the appellant which is surrounded by the houses of the appellant''s parents,
brothers etc. It is impossible to imagine that a college going girl could be raped without her being able to raise any alarm. In fact, she states in her
cross-examination that she did try to raise an alarm, but none came. If she did raise an alarm and yet was raped there is no reason that she did not
inform her elder sister, who was very much residing with her at that time, or take the matter to elders or to the police. Her silence is enigmatic. She
had stated that some photographs were taken on that day. She does not state that any nude photographs were taken on that day. Incidentally, no
nude photographs have surfaced in the trial and the photographs, which have been placed on record at exhibit 35 are semi nude photographs taken
inside a house in the sense that the victim is wearing either undergarment or something else, possibly, cycling shorts. As rightly pointed out by the
learned counsel for the appellant, the victim does not state about any photographs being taken outside the house. All the incidents about which she
speaks except the first, took place outside her house. Therefore, it is difficult to imagine as to when the appellant could have taken her photographs
inside the house. As far as the photographs at exhibit 35 which were allegedly found in the appellant''s house, it should have been possible for the
Investigating Officer to cause the house of the appellant to be photographed to show that the place seen in the photographs at exhibit 35 was the
house of the accused. Further, while the victim states that her photographs were taken without her knowledge, as rightly pointed out by the learned
counsel for the appellant, at least in one of the photographs, the victim is staring at the lens of camera. After the first incident in the house of the
appellant, it is alleged that the appellant committed further assaults on the victim by terrorising her by saying that her photographs would be thrown
on the street. Now if there are really no nude photographs and no nude photographs at all had been taken, it is not clear as to what terrorised the
victim into submission.
20. The learned counsel for the appellant is also right in submitting that the victim''s elder sister was very much residing with the victim for almost
two years after first rape. She stated in her deposition that the appellant used to frequently visit their house during midnight and call the victim
outside. She claimed to have witnessed this incident, yet, it seems the elder sister was not concerned about the younger sibling and allowed the
things to happen without reporting the matter to the police or even bringing it to the notice of the elders. Therefore, the behaviour of the sister in
allowing the alleged incidents of rape to continue, is strange. It is also difficult to conceive that the appellant could have been in a position to commit
rape on the victim outside her house, possibly, in open area which is inhabited by the victim''s own relations. Therefore, the story given by the
victim appears to be suspicious, as rightly submitted by the learned counsel for the appellant.
21. So far as the photographs are concerned, the learned counsel for the appellant submitted that the photographs were shown to have been
seized from the house of the appellant in house panchanama drawn up on 21/04/2009 between 3.30 p.m. and 5.00 p.m. He submitted that the
house was allegedly locked and the appellant''s wife was called and made to open the lock. If certain things were seized from the house, which
was opened by the appellant''s wife, ordinarily, the Investigating Officer should have taken signature of the appellant''s wife on the panchanama.
The learned counsel, therefore, submitted that the panchanama is suspicious. The learned Public Prosecutor submitted that seizure of photographs
from the house of the appellant, is perfectly natural, since soon after the report of the victim was recorded, the police had proceeded to the spot
and in the course of search, the photographs were discovered. The story about these photographs is indeed curious. The victim claimed that the
appellant had taken her photographs without her knowledge. The victim states that her nude photographs were shown to her by the appellant from
the distance i.e. she was not allowed to actually see the photographs. The victim is not an illiterate girl. She was studying in 12th standard at the
relevant time. The victim states that some photographs taken in night dress were given by the appellant to her and she handed them over to her
younger sister-PW9. The possibility of these photographs surfacing in the house of the appellant is not ruled out, since the panchanama is not
signed by the appellant''s wife. The possibility of nude photographs not at all being in existence is strong and the victim may be making up a story
that she was threatened with disclosure of these nude photographs, since she has to explain her silence over a long period of time.
22. The learned counsel for the appellant submitted that the evidence of the victim and her younger sister is riddled with considerable
improvements and omissions which have been noted by the learned trial Judge, therefore, according to him, the evidence of these two witnesses
should not have been believed by the trial Judge. The learned Public Prosecutor on the other hand, submitted that these are small omissions which
surfaced only in the cross-examination for which the prosecution could not be blamed. He also submitted that it would not be within the control of
the witness as to what should go in the statement recorded by the Investigating Officer as it would be Investigating officer, who would decide as to
what question he may be putting. There cannot be doubt that the Investigating Officer would decide as to what questions he may be putting. An
intelligent Investigating officer would obviously be entitled to put all sorts of possible questions and not leave anything to chance.
23. The learned counsel for the appellant submitted that the conduct attributed to the appellant is contrary to the modus operandi attributed to the
appellant. The appellant seems to have been tried for several cases of murder of the victims. In this case, rather than allowing the victim to die of
lizol poisoning, the appellant seems to have taken her to Hospital, got her treated and discharged, and saved her life. He also points out to the fact
that there is no evidence about the victim being made to part with any ornaments and money except, possibly, the evidence of PW8, who claims
that the victim had lost her golden chain and the victim had stated that the appellant had taken the same, but the victim herself does not say so. In
any case, the fact that the appellant was prosecuted for other offences itself being irrelevant, the modus operandi which could be derived from such
prosecution has to be kept out of consideration for determining the complicity of the appellant in this crime.
24. The victim had several opportunities of reporting the matter to the police. First, when she was allegedly ravished in the appellant''s house, her
elder sister was very much staying with her, therefore, she could have reported the incident to her elder sister and the sisters could have reported
the matter to the police. They, however, chose to keep quiet. Thereafter, the sisters had noticed the appellant forcing the victim to come out of the
house in the dead of night and committing rape upon the victim. Yet, though three sisters were staying together, they neither reported the matter to
elders or police nor did they thrash up the appellant when the appellant made such an attempt or collect the neighbours for having him thrashed up.
At the cost of the repetition, it has been pointed out that the victim''s uncle was staying just two metres away from the I victim''s house. The
Investigating Officer has I cleverly avoided to record the statement of the victim''s uncle saying that he was reluctant to give the statement.
Thereafter, in 2007, when the victim attempted to commit suicide, in fact the police had been informed and the victim had opportunity to narrate to
the police as to what happened. Again, the victim echoed the line, which the appellant allegedly dictated. The story which the victim gives may or
may not be correct, but it cannot be overlooked that around same time, the victim had received a proposal for marriage from FW-13-Raya
Bandodkar. PW13 stated that the appellant threatened him on telephone. Now, this could be a cause for the victim to attempt to commit suicide
rather than the cause, which the victim now deposes in the Court. There was another occasion for the victim to report the matter to the police
when PW10-Ulhas Parwar tried to help the victim by accosting the appellant. Again, rather than taking help of PW10-Ulhas, the victim chose to
accuse Ulhas of meddling with her affairs by filing complaint to the police.
25. Though the learned Public Prosecutor submitted that the victim had to maintain silence because of the threats of victim''s nude photographs
being thrown on the street, since there are no such nude photographs, the version appears to be imaginary. There were ample opportunities for the
victim to proceed to the appropriate authorities, yet the victim continued with the relationship with the appellant for four years. Rather than taking
help of PW10-Ulhas, she chose to accuse him by making a complaint against him. Further, if the victim and the appellant were in fact having sexual
intercourse for a long period of time, there is no reason as to why the victim''s clothing''s and/or the appellant''s clothing''s were not seized and sent
to Forensic Science Laboratory to establish that there was intercourse between the two. Though the case, which the victim seeks to make out may
be true, it cannot be said that the allegations can be accepted at their face value in the face of discrepancies discussed above. In view of this, the
appellant is entitled to benefit of doubt. The appeal is, therefore, allowed. The conviction of the appellant for the offence punishable u/s 376 of
I.P.C. and sentence of Rigorous Imprisonment for 7 years with fine of Rs. 25,000/- is set aside. He be set at liberty, if not wanted in any other
case. Fine amount, if paid, may be refunded to the appellant.
