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IN THE HIGH COURT OF BOMBAY
Sajji Kumar
Versus
State of Goa
Decided on 10.6.2005
Evidence Act, 1872 - Sections 3, 8 and 9 - Accompanying evidence - Rape of foreigner - Complaint lodged through a friend and other accompanying evidence showed that she wanted to have an ayurvedic massage - Accused took her to room asked to undress rape committed on her - Evidence as to committal or rape not fully supported she could not visit the country again to give evidence - Case tried on other evidence other witnesses and Investigating Officer’s report. - Held, in given facts rape not proved, yet fact are sufficient to show that accused did commit offence under Section 354 of IPC.
[Indian] Penal Code, 1860 - Sections 354 and 376 - Rape of foreign lady lodged the complaint through a friend and other accompanying evidence indicate that she wanted to have an ayurvedic massage - Accused did take her to room asked her to remove all clothes and then alleged rape committed on her - Evidence as to committal of rape not fully supported because she could not visit the country again to give evidence and case tried on other evidence other witnesses and Investigating Officer’s report. - Held, in given facts though rape is not proved, but facts are sufficient to show that accused did commit offence under Section 354 of IPC.
[Indian] Penal Code, 1860 - Section 376 - Rape of a foreign lady - Court adjourned the case at about 3 dates without recording her evidence and finally left and could not attend case further - She was represented by an Advocate. - Contention conviction without examining the prosecution could not sustain on basis of FIR and statements before the Magistrate under Section 164 of Cr PC prosecutrix was not in a position to attend the Court, application for recording additional evidence could be solved useful purpose. Investigating Officer has given cogent reasons for why prosecutrix was not in a position to write FIR. Contention FIR is lodged cannot be taken as substantive piece of evidence, fact that it was lodged promptly within hours of incident, there is no reason to disbelieve testimony of Investigating Officer that FIR lodged by her friend while she accompanied her to the police station. But these facts do not form substantive evidence but only can be used for purpose of contradiction. In the instant case there were no injuries on person of prosecutrix nor any signs of resistance. There is also no evidence to suggest that accused had committed rape on her. Accused cannot be convicted under Section 376 of IPC.
Criminal Jurisprudence - Conviction. In a moral conviction, the Court has to give a finding from legal evidence placed before it by prosecution and by the defence and not to be influenced by gravity of crime.
( 1 ) THE appellant is challenging the Judgement and Order passed by the Additional Sessions Judge at Mapusa in Sessions Case No. 15/ 2002. By the said Judgment and Order dated 25-3-2004 the Additional Sessions judge convicted the appellant for the commission of offence of rape which is punishable under section 376 (1) of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for a term of seven years and also to pay fine of Rs. 5,000/- in default to undergo Simple Imprisonment for a period of six months.
( 2 ) THE prosecution case in brief is that the prosecutrix Ms. Hazel Smith who is a citizen of Untied Kingdom had come to Goa in the month December, 2001. She was having her Travel Agency in United Kingdom and she had come to Goa for finding a new destination. Accordingly, she decided to stay here for a period of one month. The prosecution case is that one day prior to her departure to her native country she decided to take a massage at an ayurvedic Massage Parlour as she was thoroughly exhausted after her stay in goa. She, therefore, took a taxi and came on Tito's road to have a massage at the Ayurvedic Centre. Three persons were standing on the road when she made inquiries about the Ayurvedic Centre. She was informed by one of the persons that the Ayurvedic Centre was closed. He further represented to her that he was an Ayurvedic doctor and was in a position to give her an Ayurvedic massage. The Prosecutrix relied on his representation and she was taken to a room. The accused bolted the door from inside and thereafter asked her to remove her clothes. Accordingly, she removed her clothes and was asked to lay down on a bedsheet which was laid on the floor. The accused started giving her massage and after some time, he asked her to sleep on her back. Initially, she was embarrassed because she was not wearing anything on her upper body. However, the accused assured her that he had given massage to several ladies and therefore, she should not be embarrassed but she should close her eyes and relax. The prosecution case is that with great hesitation the prosecutrix followed the directions given by the accused. It is alleged that thereafter the accused started massaging her leg and thigh and pubic portion at which point of time she got up. The accused however, pushed her down and committed rape on her. The prosecution case further held that the prosecutrix thereafter came out of the room, took a taxi and told her friends as to what had happened. They advised her that she should lodge a Police complaint. Accordingly, she lodged a Police complaint on the same day and she was accompanied by a friend to the Police Station. Thereafter, she was examined by the doctor. The Police thereafter went to the place where the offence had taken place and arrested the accused. A spot panchanama was prepared. The accused was also examined by the doctor and the blood samples and other samples of the prosecutrix were sent to the Chemical Analyser. The investigating Officer recorded the statement of the witnesses and a charge-sheet was filed against the accused. Thereafter a charge was framed against the accused. He, however, pleaded not guilty to the charge. The prosecutrix attended the Court in March, 2003. However, since the accused was not present initially she could not be examined and she had to return back to her native place. Thereafter, a letter was sent through the British Embassy stating therein that it was not possible for the prosecutrix to come to Goa on account of financial contraints and therefore, in the letter it was stated that the case should be disposed of expeditiously. The trial Court, therefore, proceeded to record the evidence of the other witnesses on which reliance was placed. Since the prosecutrix could not be examined her statement which was recorded under section 164 of the Code of Criminal Procedure by the special Executive Magistrate was brought on record and the prosecution
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