Back
2014 Supreme(Bom) 121
In the High Court of Bombay at Goa
R.S. DALVI & F.M. REIS, JJ.
Rajesh Bin
Versus
State, Through Public Prosecutor.
Criminal Appeal No. 38 of 2012
Decided on: 21-01-2014
For the Appellant:Anthony D'Silva, Advocate.
For the Respondent: Mahesh Amonkar, Additional Public Prosecutor.
Headnote:GOA CHILDREN’S ACT, 2003 - Sections 2(y)(i) and 8 - Indian Penal Code, Section 376 - Conviction for sexual assault on abnormal child. - Where evidence of complainant-mother of victim that accused sexually assaulted her 12 years old daughter who was abnormal child, was corroborated by medical evidence as also with independent witness therefore accused rightly convicted for offence under Section 2(y)(i) punishable under Section 8(2) of Act. - The victim child herself has not been examined and hence, there is no direct evidence and the circumstantial evidence is not enough. The child is seen to be partially medically retarded as per the evidence and report of the Doctor who conducted the psychological test. This aspect finds support of other intrinsic evidence. The mother’s evidence shows that the victim child was abnormal and was not growing as per her age. Her evidence further shows that the victim child explained to her what transpired in the room of the appellant when she came out of the room crying, by signals which she understood as mother. This would show her medical condition. The brother’s evidence shows that though his younger sister was going to school, the victim girl was not going to school. The victim girl would, therefore, not be an eligible witness.
The other circumstantial evidence will be required to be seen. The most important corroborating evidence is the medical evidence, as also the evidence of the independent neighbour.
Upon such evidence, the conviction which is recorded would be in order. The Judge has considered, at length, the aforesaid evidence. He has also considered the special provision under the Children’s Act and has determined the issue with the required sensitivity. The marshaling of the evidence, as also consideration of law, is correct. The conviction for the offence of grave sexual assault on the abnormal victim child of 12 and half years under Section 2(y)(i), and punishable under Section 8(2) of the Goa Children’s 2003, therefore, is correct and maintained. The sentence of 10 years R.I. along with payment of fine of Rs. 2,00,000/- or in default, further six months R.I. is also appropriate, given the case of Dinesh alias Buddha v. State of Rajasthan, (2006) 3 SCC 771 : 2006 All MR (Cri) 1848 (SC), correctly considered for the sentensing policy that has been propounded therein. The direction with regard to payment of compensation to the victim from the fine recovered from the appellant in terms of Section 357(1)(a) of the CrPC, 1973 is also correct and accordingly maintained.
Smt. R.S. Dalvi, J.
1. This appeal is filed against the conviction of the appellant for the offence punishable under Section 376 of IPC, read with Section 8 of the Goa Children's Act, 2003. The accused-appellant was known to the victim He was her neighbour. He lived close by. The victim is stated to be partially mentally deficient. The victim girl was a minor. The appellant is stated to have taken the victim to his house, which was close to the house of the victim, for committing the aforesaid offence. The victim was not found in the house, upon which her mother caused search to be made. Her brother went to search for the victim. He banged on the door of the appellant and found the victim. The victim was injured. The victim was crying. The mother was shocked to see that her daughter was injured. She was enraged and shouted for help. She reported the incident to the police.
2. The mother has been examined as Complainant. Her brother is also examined to corroborate what transpired when he saw the accused and the victim girl. An independent neighbour has been examined to depose about what transpired soon after the appellant was apprehended. The victim girl has been medically examined. The medical report has been produced on record. The Doctor who examined the victim girl has deposed about her injuries. The deposition of another Doctor who conducted the ossification test to determine the age of the victim girl, as also the accused has been recorded. A doctor who conducted the psychological test of the victim girl is also examined. A panch witness of the scene of offence, has been examined who has produced the panchanama which shows the layout of the room of the appellant.
3. Upon such evidence, the prosecution has sought conviction of the appellant. The victim herself has not deposed since apart from being minor, she was also partially mentally retarded.
4. The conviction of the appellant will have to be considered upon the aforesaid circumstantial evidence alone.
5. The evidence of the mother, who was the complainant examined as PW.1 shows that she lived with her husband and four minor children, including the victim girl who was 12 years old. All other children were younger. Her husband was a tile fitter. On the date of the incident i.e. 2nd April, 2006, the husband of the complainant left home for his work. She left home for domestic work. She returned and prepared food. After having lunch, she realised that the victim child, her elder daughter, was not around. She searched for her, but could not find her near her house. She was worried because the victim girl was abnormal and not growing as per her age. She asked her son to search for her in the neighbouring rented room of the appellant as sometimes her daughter and son used to go to the room of the appellant to listen to music. On banging the door, he heard the appellant's voice stating that the victim girl was coming. Her son reported to her that the victim girl was in the room of the appellant. She rushed to the appellant's room which was behind her room. She saw her child crying and her hands were full of blood. She inquired from her as to who hurt her and she was told that the appellant forced her to sleep on the floor and sexually assaulted her by sleeping over her. The victim child explained this to her mother by signals, but she understood it as she was her mother. The victim girl complained of pains and difficulties in walking. The mother went to the room of the appellant and saw blood on the floor mat and also on the bed sheet, on the shirt of the appellant and on his handkerchief, which was near his pillow. She shouted and called the neighbours. The neighbours came and caught-hold of the appellant. She lodged her complaint. She identified the clothes of the victim child and the appellant, as also the mat in the room of the appellant. She also identified the appellant in the Court.
6. She has been cross examined on the layout of the rented room. She explained t
