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Farish Rebello & Others v/s State of Goa, Through PP

    Criminal Appeal No. 65 of 2015

    Decided On, 09 July 2018

    At, In the High Court of Bombay at Goa

    By, THE HONOURABLE MS. JUSTICE NUTAN D. SARDESSAI

    For the Appellants: Arun Bras De Sa, Advocate. For the Respondent: S.R. Rivankar, Public Prosecutor.



Judgment Text

1. The appellants have taken exception to the impugned judgment and sentence of the learned President of the Children's Court dated 9/11/2015 pursuant to which they were sentenced to undergo simple imprisonment for a term of 6 months each for the offence punishable under Section 504 IPC read with 34 IPC, simple imprisonment for a term of 6 months each and to pay a fine of ₹1,00,000/- each in default to undergo simple imprisonment for a period of 6 months each for the offence under Section 2(m)(i) punishable under Section 8(2) of the Goa Children's Act, Act for short, and which were ordered to run concurrently. The case of the prosecution against them was that on 4/08/2012 at 11.00 hrs. at Khursawaddo, Zuvari, Goa Velha, all the three appellants in furtherance of their common intention had intentionally insulted the minor victim (name withheld) Pw1, by abusing her in filthy language with intent to provoke breach of peace and also committed criminal intimidation by threatening to commit rape on the minor victim which acts constituted child abuse and thereby attracting the offences punishable under Section 504 IPC and Section 8(2) of the Act.

2. Heard Shri Arun Bras De Sa, learned Advocate for the appellants who submitted that the entire case against the appellants was motivated looking to the conduct of the Investigating Agency which had not registered an FIR on the complaint lodged by the appellants while registering the FIR promptly acting on the complaint lodged by the mother of the victim which was much after the incident complained of by them. He adverted to the evidence of the victim, her moth

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er apart from the so called eye witness and submitted that there was a material variance and which did not at all make out the offence either under Section 504 IPC or under Section 8(2) of the Act. He also adverted to the evidence of the Investigating Officer and submitted that the entire prosecution against the appellants was a fallout of false implication and that being a case of abuse and misuse of the Police machinery to falsely implicate them, they were entitled to a reversal and a clean acquittal in the case.

3. Shi S.R. Rivankar, learned Public Prosecutor submitted to the contrary, adverted to the evidence on record and submitted that there was no reason to reverse the findings rendered by the learned Children's Court. The appeal was therefore liable to be dismissed.

4. I have heard Shri Arun Bras De Sa, learned Advocate for the appellants and Shri S.R. Rivankar, learned Public Prosecutor for the respondents and besides examined the evidence threadbare including that consequent to the order of remand passed by this Court dated 17/07/2017 pursuant to which the Children's Court was directed to record the evidence in terms of Section 391 Cr.P.C. and resubmit the same to this Court for further appreciation of the material. Be that as it may, having considered the same and the contentions of the learned Advocate for the appellants and the learned Public Prosecutor on behalf of the State, i would now proceed to examine the same and decide the appeal considering whether the offence under Section 504 IPC and that under Section 8(2) of the Act had been made out against the appellants.

5. The victim (name withheld) Pw1 had revealed that she was knowing all the appellants being their neighbours and was aware of the complaint filed against them by her mother. She had left her house at 8.00 hrs. to answer her paper and came back home at 11.00 hrs. by which time her mother had left for work. While she was at the gate, the appellant no.2 started abusing her by saying "chedi" and then started abusing her mother. After hearing these words she entered her house and found her mother's friend Sabina in the house who had come to her house as it was her birthday. She noticed while looking through the open window of her house facing that of the appellants, that the appellant no.2 again started abusing her and saying that she should go and sleep with her father so that she could cover up for her mother who was burnt. Both the appellants no.1 & 3 joined the appellant no.2 and all started abusing her and on hearing the abuse she felt hurt and increased the volume of her TV. This incident as per her version took place at around 11.00 hrs. and at which time Sabina was present in the house.

6. The victim (name withheld) Pw1 also brought on record that 2 to 3 days earlier all the appellants had said that she should be raped one day by someone or the other so that she could learn a lesson as she had filed a case against them. As per her version she had informed about the incident to her mother on the same day and who had lodged the complaint. Her cross-examination makes interesting reading and from which it is borne out that her mother was a social worker and Sabina and Madhuri Rao were her friends. This is the very same Madhuri who was present at the time when her statement was recorded by the Police. It was nowhere brought on record by her that the said Sabina was present when the appellant no.2 started abusing her by saying "chedi". It is only subsequently while she was looking out of the window of her house that she claimed that the appellant no.2 started abusing her, again joined by the appellants no.1 & 3, but without spelling out what were the abuses used by them thereby taking the case out of the ambit of Section 504 IPC.

7. The victim's cross-examination had otherwise borne out that they were not in talking terms with the appellants for the last 2 to 3 years. Moreover, the version of the victim that the appellants having said that she should be raped by somebody was never reported by her to the Police which again weakens her case and raises a doubt as to how the learned Children's Court could at all have convicted the appellants for the commission of the offence under Section 2(m)(i) read with Section 8(2) of the Act. Besides, consequent to the remand of the file for further recording of the evidence, the victim revealed that they did not have any landline telephone connection in their house in the year 2012. She claimed that she had a mobile phone but did not remember the sim card number and was also otherwise not using the same but was prompt enough to state that her mother was using the mobile phone with sim card no.9923925838 and which she continued to use till date.

8. Besides, as per her version and assuming to be true, that she had communicated to her mother immediately on her mobile it is surprising how the mother did not react to lodge a complaint promptly, when she was a so called social activist and in fact waited till around sunset to lodge a complaint, 7 hours later. It raises serious doubts whether the incidents as alleged by her at all took place looking to their strained relationship and otherwise on the basis of the evidence of Sabina and the complaint of her mother particularly which was totally silent on having received any phone call from the victim to convey her distress on the abuses given to her by the appellants. Besides, the victim was quite familiar with the Police Station, was aware of the Police helpline 100 and yet surprisingly had not dialed 100 during or after the incident nor did her mother guide her after her conversation on the phone. Sabina too who was present had not dialed 100 in whose presence purportedly the abuses were given by the appellants. Therefore, the testimony of the victim is riddled with doubt.

9. Shri Arun Bras De Sa, learned Advocate for the appellants had put a pointed question to the victim (name withheld) Pw1 whether she had informed the Police while recording her statement that she had contacted her mother on her mobile immediately after the incident. Surprisingly, the learned Children's Court in her wisdom disallowed the question as she was earlier cross-examined. Moreover, when she was asked about the complaint being lodged by her mother as a counter blast to that dated 03/08/2012 lodged by the appellants against her mother, the learned Judge in her wisdom disallowed this question too on the premise that it had no significance. One fails to understand how the learned Judge could adopt such an interpretation while appreciating the evidence and despite the order of this Court directing additional evidence to be taken.

10. Sabina Pw2 stated that she had visited the house of the complainant as it was the birthday of the victim (name withheld) on 04/08/2012. She had reached her house at about 10.45 hrs. prior to which the victim had gone to college. The victim came home around 11.30 to 12.00 noon when all the three appellants started abusing her with filthy words such as 'chedi' and that she must sleep with her father as her mother was burnt. They came inside the gate of her house and at which time the victim was inside the house and started crying on hearing the abuses and filthy words. Nowhere was a reference made by her to the actual abuses used by the appellants when they had supposedly entered the gate of the victim's house. It was also not the case of Sabina unlike that stated by the victim that they started abusing her again. Moreover, the victim was clear in her statement that she had reached home at 11.00 hrs. when the appellant no.2 started abusing her but Sabina claimed that the victim came home around 11.30 to 12.00 noon and then abuses were given. This is a material discrepancy in the version of the victim and Sabina Pw2 giving rise to a serious doubt whether such an incident as claimed by the victim at around 11.00 hrs. ever took place or as claimed by Sabina around 11.30 to 12.00 noon or within her hearing range.

11. Sabina Pw2 was unable to account for the omission in her statement that the three appellants had come inside the gate of the victim's house and earlier abused the victim saying 'chedi' when again a material omission to that effect was found in her statement. Even after her further examination consequent to the direction of this Court, an attempt was made to find out whether she had a mobile phone during the incident of 04/08/2012 and she had informed the Police or the complainant. But surprisingly, the learned Judge disallowed this question. Maria Pw3, mother of the victim stated that on 04/08/2012 she had a meeting and had called her friend Sabina Pw2 to come over to her house who came at around 10.45 hrs. to 11.00 hrs. and then she left for work. She reached home only at about 5.30 to 5.45 p.m. and found the victim crying. On inquiring, she was told by the victim and Sabina Pw2 that all the appellants abused her in filthy words in the morning when she had reached home. Thereafter she went to the Police Station and filed a complaint. She also revealed that there was a dispute between the appellants and her over the way and the victim was traumatised and disturbed. She admitted at the outset that she was not in talking terms with the family of the appellants since 2001 onwards and there were matters going on in the Court in respect of the property. At the threshold, she was unable to account for the omission in her complaint that she had a meeting at 09.30 hrs. and could not reach in time as she was waiting for Sabina Pw2.

12. Maria Pw3 was equally unable to account for one more omission that Sabina had reached her house at 11.00 hrs. There was not a word or whisper at her instance that the victim had contacted her telephonically and told her about the filthy abuses given by the appellant no.2 in particular and followed by the other appellants. She was not an ordinary lay person but a social activist who was coming in regular contact with the Police and knew the Police Officers of the Agassaim Police Station in August 2012. She was also assisting the Police at their request to record the statements of the victims. She was asked as to what time she had reached her residence on 04/08/2012 and the time when she went to the Police Station to register her complaint and yet the learned Children's Court in her wisdom disallowed this question on the premise that she had been cross-examined earlier and this was not within the purview of the Trial Court to record the evidence under Section 391 Cr.P.C.

13. Maria Pw3 had otherwise admitted that there was a standing dispute between her and the appellants who were her neighbours and which had started around a year prior to the complaint. It was pertinently suggested to her that there were previous complaints lodged by the appellants against her to which she voluntarily said that she had filed an NC complaint against the appellants on 02/08/2012. It was also suggested to her that the appellant no.2 had lodged a complaint against her at the Agassaim Police Station on 02/08/2012 which came to be registered as NC Case No.341/12 to which she claimed want of knowledge. She had no independent witness to substantiate her case which is besides the fact that the learned Judge had declined a fair opportunity to the appellants to cross-examine the witness. The last witness was PSI D. Gadekar Pw4 who had registered an offence based on the complaint of Maria Pw3, recorded the statement of the victim Pw1 in the presence of an NGO Madhuri Rao and recorded the statement of Sabina Pw2.

14. PSI D. Gadekar, Pw4 was confronted with a letter dated 04/08/2012 issued by the Agassaim Police Station but claimed that he was not the author of the letter. It was he who revealed that Maria Pw3 came to the Police Station only at around 6.30 p.m. i.e. more than seven and half hours after the alleged incident and despite the intimation from the victim. He too had learnt during his investigation that the relations between the appellants and the complainant were not good. He claimed want of knowledge if the appellants no.1 & 3 had filed any complaint against the complainant upon being confronted with the complaint of August 2012 filed against Maria, her husband and others by many persons, including the appellant no.3, bearing the seal of the Agassaim Police Station. He claimed want of knowledge about this complaint but confirmed that it bore the seal of the Agassaim Police Station.

15. PSI D. Gadekar Pw4 was also confronted with a carbon copy of the NC complaint dated 02/08/2012 when again he claimed want of knowledge but relented that it was written at the Agassaim Police Station and bore the name of Vishwanath. The learned Judge had disallowed all the questions on the delay, whether the victim had made the phone call to the complainant after the incident, whether any entry was made by him in the Case Diary, inquiries made by him with regard to the mobile records and if at all he had called for the mobile records of the complainant, victim and Sabina Pw2. The learned Judge had disallowed all these questions on the specious premise that there was earlier cross-examination and subsequent cross-examination was restricted to the previous complaint dated 03/08/2012.

16. No independent witness was examined on behalf of the State nor the statements recorded of any independent witnesses. The social worker Madhuri Rao in whose presence the statement of the victim was recorded was also not examined nor her statement recorded by the Police. A serious doubt is created whether the incident as narrated had at all transpired on the morning of 04/08/2012. Rather, the strained relations between the parties has given enough reason for speculation as rightly contended by Shri Arun Bras De Sa, learned Advocate for the appellants that the lodging of the complaint by the appellants was a precursor to the complaint being lodged by the complainant and as a counter blast to their complaint. The testimony of the victim which is uncorroborated does not inspire any confidence nor that of Sabina Pw2 who was purportedly present in the house. There are material discrepancies in the version of Sabina Pw2 and Maria Pw3 and therefore the case of the prosecution fails to inspire confidence.

17. In the result therefore the appeal succeeds. i therefore pass the following:

ORDER

(i) The appellants are acquitted of the charges under Section 504 read with 34 IPC and Section 2(m)(i) read with Section 8(2) of the Act.

(ii) The bail bonds stand discharged.

(iii) The amount of fine, if any, paid by them shall be refunded in their favour.
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