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2020 Supreme(Bom) 912
IN THE HIGH COURT OF BOMBAY AT PANAJI BENCH
M.S. Sonak, J.
Janak Bishu Karma - Appellant
Versus
State Of Goa - Respondent
Criminal Appeal No. 8 of 2019
Decided On : 24-09-2020
Vivek Rodrigues, Advocate, Gaurish Nagvenkar, Advocate
The main legal point established is the competency of child witnesses, the need for corroboration, and the burden of proof on the accused in cases of sexual offences against children.
Headnote:
Sexual Offences - Conviction under Sections 354, 354-A, 354-B, 323, 324, 506(ii), 375, 376(2)(i) and (n) of IPC, Section 3, 4, 5(l), (m), (n), 6, 7, 8 of the Protection of Children from Sexual Offences Act, 2012, and Section 2(y)(i), (ii), (iii), 8(2) of the Goa Children's Act, 2003
Fact of the Case:
The accused was convicted for various sexual offences against minor victims, including grave sexual assault, sexual assault, and incest. The accused denied the charges, claiming false implication by his wife due to her affair. The accused did not lead any defense evidence.
Finding of the Court:
The court found the accused guilty based on the testimonies of the child victims, which were found to be credible and reliable. The court also noted medical evidence and the absence of defense evidence. The court rejected the defense's contentions of discrepancies and lack of corroboration.
Issues: The issues included the framing of charges, competency of child witnesses, discrepancies in testimonies, and the absence of medical evidence of penetrative sexual assault.
Ratio Decidendi: The court held that the charge was understood by the accused, and there was no prejudice in the framing of the charge. The court also emphasized the competency of child witnesses and the need for corroboration. The court ruled that discrepancies in child witnesses' testimonies were not material and did not warrant rejection. The court also considered the absence of medical evidence and the burden of proof on the accused.
Final Decision: The appeal was dismissed, and the accused was to serve the remaining sentence. No costs were awarded to either party.
JUDGMENT
M. S. Sonak, J. - Heard Mr. V. Rodrigues, learned counsel for the Appellant under Legal Aid Scheme.
2. Heard Mr. G. Nagvenkar, learned Additional Public Prosecutor for the State.
3. This appeal is directed against the judgment and order dated 14th March, 2017 made by the learned Children's Court for the State of Goa in Special Case No.130/2015 convicting the Appellant (accused) for offences punishable under Sections 354, 354-A and 354-B, 323, 324, 506(ii) and Section 375, punishable under Section 376(2)(i) and (n) of IPC, under Section 3, punishable under Section 4, under Section 5(l), (m) and (n), punishable under Section 6 and under Section 7, punishable under Section 8 of the Protection of Children from Sexual Offices Act, 2012 and under Section 2(y)(i), (ii) and (iii), punishable under Section 8(2) of the Goa Children's Act, 2003 and sentencing the accused as follows :-
(i) Rigorous imprisonment for a term of 3 years and pay fine of Rs. 1,00,000/- and in default to undergo simple imprisonment for a term of one year for the offence punishable under Sections 354, 354-A and 354-B of IPC, under Section 2(y)(ii), punishable under Section 8(2) of the Goa Children's Act, 2003 and under Section 7, punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012;
(ii) Rigorous imprisonment for a term of 10 years and pay a fine of Rs. 2,00,000/- and in default to undergo simple imprisonment for two years for the offence under Section 375, punishable under Section 376(2)(i) and (n) of IPC, under Section 2(y)(i) and (iii), punishable under Section 8(2) of the Goa Children's Act, 2003 and under Section 3, punishable under Section 4 and under Section 5(l), (m) and (n), punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012;
(iii) Rigorous imprisonment for a term of one year and pay a fine of Rs. 1000/- and in default to undergo simple imprisonment for a term of one month for the offence punishable under Sections 323 and 324 of IPC;
(iv) Rigorous imprisonment for a term of two years and pay a fine of Rs. 2000/- and in default to undergo simple imprisonment for a term of two months, for offence punishable under Section 506(ii) of IPC.
4. In this case, there is no serious dispute that the victims were minor i.e. below 16 years of age and therefore, the learned Children's Court took cognizance of the matter and framed the following charge :
" CHARGE
I, Ms. Vandana Tendulkar, President, Children's Court for the State of Goa, at Panaji, hereby frame charge against you, Janak Bishu Karma, s/o. Ban @ Man Bahadur Bishu Karma, aged 39 years, occupation: Security Guard, r/o Behind Cottage, Hospital, Chicalim, Vasco-Goa, N/o Rajhena, Ward No.04, Zilla-Banke, Aanchal, Behri, Nepal, as under:
That prior to 02.07.2015, behind Government Hospital, Chicalim, Vasco - Goa, at different times, you have assaulted or have used criminal force to two minor victim girls, aged 7 to 8 years and aged 11 to 12 years, intending to outrage or knowing it to be likely that you will thereby outrage their modesty.Thereby you have committed an offence punishable under Section 354 of I.P.C.
That during the same period, at the same place and at different times, you have made physical contacts and advances involving unwelcome and explicit sexual overtures to two minor victim girls, aged 7 to 8 years and aged 11 to 12 years. Thereby you have committed an offence punishable under Section 354-A of I.P.C.
That during the same period, at the same place and at different times, you have assaulted and have used criminal force to two minor victim girls, aged 7 to 8 years and aged 11 to 12 years, with intention of disrobing or compelling them to be naked. Thereby you have committed an offence punishable under Section 354-B of I.P.C.
That during the same period, at the same place and at different times, you have voluntarily caused hurt, except in the case provided for by Section 334 of I.P.C., to the two minor victim girls
