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2020 Supreme(Bom) 765

IN THE HIGH COURT OF BOMBAY AT PANAJI BENCH
M.S. Sonak, M.S. Jawalkar, JJ.
Osban Fernandes - Appellant
Versus
State - Respondent
Criminal Appeal No. 52 of 2019, 55 of 2019, 6 of 2020
Decided On : 07-08-2020

Advocates Appeared:
Arun Bras Dsa, Advocate, S. Sardessai, Advocate, S.R. Rivonkar, Advocate, G. Nagvenkar, Advocate, Vibhav Amonkar, Advocate

Headnote:(A) Goa Children's Act, 2003 - Sections 2(m) and 2(y)(i), Protection of Children from Sexual Offences Act, 2012 - Sections 16, 17, and 8(2) - Convictions for murder and grievous sexual assault of minors - Accused sentenced to life imprisonment and fines for various offences including culpable homicide and sexual assaults. (Paras 5, 150, 129)

(B) Evidentiary burden - When a child is the victim, accusations imply significant evidential scrutiny under the Act, as it transmutes the burden upon the accused regarding proof of innocence. (Paras 127, 132)

(C) Evaluation of child witness testimony - Testimony of child witnesses must inspire confidence and be corroborated by other evidence for conviction. (Paras 90, 141)

Facts of the case:
A.1 and A.2 were convicted for the murder of a minor victims' mother, attempted murder of the minors, and sexual assault on a minor child. The minors, aged 5 and 7, were found abandoned and covered in injuries. A.1 and A.2 allegedly committed these acts after the minors' father was killed. (Paras 8, 64, 148)

Findings of Court:
The evidence provided by minor witnesses and medical reports was deemed credible and conclusive against the accused. The testimony of the victim girl was corroborated by eyewitness accounts and expert medical testimony. The court's overall assessment maintained that the crime warranted severe punishment, affirming the conviction of the accused. (Paras 90, 142)

Issues: The main questions included the reliability of child testimonies in accusations of sexual offences, the burden of proof, and whether the leniency in sentencing was justified given the gravity of the crimes. (Paras 148, 151)

Ratio Decidendi: The court held that for the convictions to be sustained, the testimonies of child witnesses must be corroborated by material evidence, and any reasonable doubt surrounding their evidence must be adequately addressed in light of the extreme nature of the charges. It was concluded that adherence to due process in assessing child testimony was vital for justice. (Paras 152, 153)

Result: Appeals dismissed; convictions upheld.

JUDGMENT

M.S. Sonak, J. - Heard Mr. Arun Bras D'Sa for the Appellant in Criminal Appeal No. 52/2019 (A.1).

2. Heard Mr. Vibhav Amonkar for the Appellant in Criminal Appeal No. 55/2019 (A.2).

3. Heard Mr. S.R. Rivonkar, the learned Senior Advocate/ Public Prosecutor for the State in all the three appeals.

4. These three appeals are directed against the Judgment and Order dated 30th April, 2019, made by the learned Children's Court in Special Case No.73/2013, convicting A.1 and A.2 for some serious offences and sentencing them, inter alia, with life imprisonment and fine.

5. The operative portion of the impugned Judgment and Order, which gives details of the precise provisions under which the A.1 and A.2 came to be convicted and the sentences therefor, is transcribed below for reference of convenience :

    " The accused No.1 and 2 are sentenced to imprisonment for life and are directed to pay fine of Rs.1,00,000/- each, in default, to undergo simple imprisonment for 2 years each, for the offence punishable under Section 364 , r/w Section 34 of I.P.C.

    The accused No.1 and 2 are sentenced to imprisonment for life and are directed to pay fine of Rs.1,00,000/- each, in default, to undergo simple imprisonment for 2 years each, for the offence punishable under Section 307 , r/w Section 34 of I.P.C.

    The accused No.1 and 2 are sentenced to undergo rigorous imprisonment for a term of 7 years each and are directed to pay fine of Rs.25,000/- each, in default, to undergo simple imprisonment for 6 months each, for the offence punishable under Section 354-B, r/w Section 34 of I.P.C.

    The accused No.1 and 2 are sentenced to undergo rigorous imprisonment for a term of 5 years each and are directed to pay fine of Rs.20,000/- each, in default, to undergo simple imprisonment for 4 months each, for the offence punishable under Section 354, r/w Section 34 of I.P.C.

    The accused No.1 and 2 are sentenced to undergo rigorous imprisonment for a term of 3 years each and are directed to pay fine of Rs.1,00,000/- each, in default, to undergo simple imprisonment for 2 years each, for the offence punishable under Section 2(m), punishable under Section 8(2) of the Goa Children's Act, 2003.

    The accused No.1 is sentenced to imprisonment for life and is directed to pay fine of Rs.2,00,000/-, in default, to undergo simple imprisonment for 3 years, for the offence under Section 16 , punishable under Section 17 of the Protection of Children from Sexual Offences Act, 2012.

    The accused No.2 is sentenced to imprisonment for life and is directed to pay fine of Rs.2,00,000/-, in default, to undergo simple imprisonment for 3 years, for the offence under Section 2(y)(i), punishable under Section 8(2) of the Goa Children's Act, 2003 and under Section 3(b), punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012.

    The substantial sentences of imprisonment imposed on the accused no.1 and 2 to run concurrently.

    The fine amount, if any, recovered from the accused no.1 and 2 shall be deposited jointly in the names of the victim children in Fixed Deposit in any Nationalized Bank, till they attain majority.

    In addition to that, it is held reasonable to recommend the award of compensation in the amount of Rupees ten lakhs each to the victim children, who were in the age group of 5 years to 7 years at the time of offence, under the provision of Section 357-A(3) of Cr.P.C., read with Rule 7(2) of the Protection of Children from Sexual Offences Rules, 2012, read with the Goa Victim Compensation Scheme, 2012, further read with the Goa Victim Compensation (First Amendment) Scheme, 2015.

    The matter shall be referred to the District Collector, South Goa, at Margao, for award of compensation to the victim children within 30 days from the date of receipt of this order, under the provisions of 357-A(3) of Cr.P.C., read with Rules 7(4) and (5) of the Protection of Children from Sexual Offences Rules, 2012, and to report compliance.

    The I.O. Shall furnish the infor

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