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BOMBAY HIGH COURT
PANAJI BENCH, GOA
T.K. Chandrashekhara Das, J.
Mercier Bento Morenas - Appellant
versus
State of Goa - Respondent.
Criminal Appeal No.5 of 1995
Decided on 22-9-1995
Counsel for the parties:
For the Appellant: M.S. Usgaonkar, Sr. Advocates, with Miss Shabnam Agha, Advocate.
For the Respondent: G. U. Bhobe, Public Prosecutor.
Held: On going through the evidence of P.W.4 one cannot come to a conclusion that the accused has committed rape against the prosecutrix. Then, we have the evidence of Dr. Audi, P.W.2. As I pointed out earlier, before he examined P.W.4, she had admitted in evidence that she had been taken by P.W.1 to Dr. Angelo Gracias at Benaulim and a suggestion was put to P.W.4 in cross-examination as to whether Dr. Angelo Gracias is the person who accompanied P.W.1 to the Police Station to take the girl. Therefore, it is an admitted case that before P.W.2 examined P. W.4 she was examined or she was taken to another Doctor at Benaulim and the case of the accused therefore probabilities that before P. W.2 examined P.W.4 she has been examined by-another Doctor which might have disturbed the lower part of P.W.4. A medical examination is to be tested in the circumstances in which the victim was examined. If before that medical examination the victim was meddled by another Doctor and if such fact was suppressed from the Doctor who examined the victim and whose evidence was relied upon by the Court, such medical examination cannot be solely relied upon for establishing the guilt of the accused. Another circumstance is that P. W.4 was always being tutored by P.W.1. It is admitted by P.W.4 that even at Bal Niketan, P.W.1 used to come and instruct her how to depose before the Court. In fact the story of rape must have originated in the mind of P.W.1 first. She suspects that accused might have committed rape against P.W.4 even before P.W.1 took custody of P.W.4 from Police Station. It is admitted by P.W.1, she made the complaint even before she was given custody of P.W.4. In such circumstances, the lower Court is not justified in relying on P.W.4 for the conviction of the accused for rape. As I pointed out earlier, if we fully believe P. W.4, her own statement does not show that the accused has committed any offence for which he is charged. (Para 11)
Further Held: Admittedly, P.W.4 is alleged to have been in custody of accused only on afternoon of 13th February, 1990 and till the morning of 15th February, 1990. But the prosecutrix says the accused called her to his house at 8.00 A.M. and then accused closed the door of the house, gave food and Rs. 5/- and removed her clothes and she says that at about 4.00 P.M. on the same day the police came. These contradictions in the evidence of P. W. 4 would also go to show that the prosecution has not established the offence against the accused beyond all reasonable doubt. It cannot be ruled out as contended by the counsel for the appellant that the whole prosecution story developed due to estrangement between Mrs. Linda Dias, P.W.1, and the accused for having kept the girl in accused’s house when P.W.4 was running away from the house of Mrs. Linda Dias because of ill-treatment. The only fact that has been proved in this case is that she was running away from the ill-treatment of Mrs. Linda Dias as admitted by P.W.4. The fact that the accused touched her stomach and lower part will not alone be sufficient to establish the offence of rape. (Para 12)
(ii) Evidence - Rape - Medical examination to be tested in circumstances in which victim was examined - If before that examination, victim was meddled by another Doctor - If such fact suppressed from Doctor who examined the victim and whose evidence was relied upon by Court - Such medical examination cannot be solely relied upon for establishing guilt of accused. (Para 11)
Result: Appeal allowed.
JUDGMENT
T.K Chandrashekhara Das, J. - The appellant is the accused in Sessions Case NO.6 of 1991 on the file of Assistant Sessions Judge (A) South Goa, Margao. He was convicted and sentenced under Sections 342 and 376 of Indian Penal Code by the Court below.
2. According to the prosecution, on 14-21990 and 15-2-1990, the prosecutrix Kum. Meenakshi, who is a mentally retarded girl, was subjected to wrongful confinement and raped by the appellant. In convicting the appellant, the Court below has mainly relied upon the statement given by the appellant under Section 313 Cr. P.C. According to that statement, he admits that on 13-2-1990 when he was expecting some guests in his house, he saw this girl Meenakshi at around 10.00 A.M. sitting at the balcony of neighbouring house belonging to Serafio Luis and the said girl was talking to one Serafio's wife. At 11.30 A.M., on the same day, while he was returning from the market he saw the girl through his window at a distance having a small bundle in her hand and after around 12 noon his guests arrived and they had meals and left his house at around 3.00 P.M. to go to Margao to his brother's house. After sending off the guests he returned home and on his way he met Mrs. Linda Dias, P.W.1, who asked him if he had seen Meenakshi to which he told her that he had seen her in the morning and not thereafter and, according to the appellant, Mrs. Linda Dias then told him that she was proceeding to Police Station in order to lodge a complaint of missing of Kum. Meenakshi.
3. On 14-2-1990 when he got up in the morning he saw Kum. Meenakshi is sitting on his balcony and crying. He asked her to go to her house, i.e. to house of Mrs. Linda Dias to which she refused saying that she would get more beating. He also stated in 313 Cr. P.C. statement that she was telling him that she had pain in her neck and some bruises at which time he called her inside his house and gave her some breakfast after which he left to Margao as he had to go to Mamlatdar's Office. However, he has chosen to report the matter to the Parish Priest about the precarious situation in which the girl was put. The Priest in turn told him to report the incident to the Police Station. He then returned home, took his food and a1so gave food to Meenakshi and came to Margao Police Station at around 4.00 P.M. According to him, Margao Police Station gave him a note written in Marathi which he could not read nor understand and asked him to report the matter to Maina-Curtorim Police Station which he could not do on the same day because it was late and as such he thought of giving the said note on the subsequent day. He stated that Meenakshi slept in one room that night and he in the other.
4. On 15-2-1990 he went to the Church for Mass, at which time the Priest asked him what he had done to which he showed the note that the Margao Police had given and, accordingly, proceeded to Chandor Out-Post which comes under the Maina-Curtorim Police Station. The police came along with him to his house and took some statements from him and from Meenakshi after which the said girl was taken to Margao Police Station. On the same evening, the same policeman came to his house at about 7.30 P.M. and called him to Margao Police Station for his statement to which he said that as it was too late he would come on the subsequent day i.e. on 16-21990. Accordingly, on 16-2-1990 he went to Margao Police Station. When he went to Margao Police Station the police started shouting at him accusing him that he had committed rape and it was revealed by medical examination, which fact he denied. At this time, P.W.1, Mrs. Linda Dias, also started insulting him at the Police Station and asked the Margao Police to return the girl to her, to which the police said that the medica1 report was awaited and as such she could not be released. The police told her to go away and return on 20-2-1990. What had happened subsequently need not be repeated here. Subsequently the Police arrested
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