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2020 Supreme(Bom) 1319
IN THE HIGH COURT OF BOMBAY AT GOA
M.S. SONAK, J.
Janak Bishu Karma - Appellant
Versus
State of Goa, Through the Public Prosecutor, Panaji Goa - Respondent
Criminal Appeal No. 8 of 2019
Decided On : 24-09-2020
For the Appellant :Vivek Rodrigues, Advocate under Legal Aid Scheme.
For the Respondent: Gaurish Nagvenkar, Additional Public Prosecutor.
Headnote:
Sexual Offences - Conviction under multiple sections of IPC, Protection of Children from Sexual Offences Act, 2012, and Goa Children's Act, 2003 - Sections 354, 354-A, 354-B, 323, 324, 506(ii), 375, 376(2)(i) and (n), 3, 4, 5(l), (m), (n), 6, 7, 8(2), 2(y)(i), (ii), (iii) - The court evaluated the evidence of child witnesses and found the accused guilty of grave sexual assault and incest, leading to the dismissal of the appeal.
Fact of the Case:
The accused was convicted for multiple sexual offences against minor victims, including grave sexual assault and incest. The accused denied the charges, claiming false implication by his wife due to her affair. The prosecution presented evidence from 17 witnesses, including the child victims and the accused's wife.
Finding of the Court:
The court found the accused guilty of grave sexual assault and incest based on the credible testimonies of the child witnesses and corroborating evidence from a counsellor and the accused's wife. The court dismissed the accused's defense and upheld the conviction by the Children's Court.
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. The court addressed these issues and found the testimonies of the child witnesses to be credible and reliable.
Ratio Decidendi: The court relied on the testimonies of the child witnesses, the corroboration from other witnesses, and the legal provisions defining sexual offences to establish the guilt of the accused for grave sexual assault and incest. The court also emphasized the burden of proof on the accused in cases involving offences against children.
Final Decision: The appeal was dismissed, and the accused was ordered to serve the remaining sentence as awarded by the Children's Court. No costs were imposed on the appellant. The court appreciated the efforts of the defense counsel in the matter.
JUDGMENT :
M.S. Sonak, J.
1. 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 1,00,000/- and in default to Rs. 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 1000/- and in default to undergo Rs. 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 ½ to 8 ½ 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 ½ to 8 ½ 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 ½ to 8 ½ 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,
