2024:BHC-GOA:204 CRIA 10 OF 2022.ODT Esha IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 10 OF 2022 Shri Sameer Sarkar, s/o Narayan Sarkar, aged – 47 years, married, labour, R/o H. No. 16, GRB Colony, Indiranagar, Chimbel, Tiswadi, Goa. … Appellant Versus State (through)

1. Public Prosecutor, High Court of Bombay at Goa, Porvorim, Goa.

2. Police Inspector, Old Goa Police Station, Old Goa. … Respondents *****

Mr. Pradip V. Sawaikar, Advocate for the Appellant under the Legal Aid Scheme.

Mr. Pravin Faldessai, Additional Public Prosecutor for the Respondents.

CORAM: BHARAT P. DESHPANDE, J.

RESERVED ON: 22^nd JANUARY 2024 PRONOUNCED ON: 29^th JANUARY 2024

JUDGMENT:

1.

Vide order dated 16.06.2022, the Appeal was Admitted and accordingly, records and proceedings were called. After the preparation of the paper book, the matter was placed for arguments.

2.

Heard learned Counsel Mr. P.V. Sawaikar appearing on a legal aid basis for the Appellant/Accused and the learned Additional Public Prosecutor, Mr. Faldessai for the State.

3.

The Appellant was chargesheeted for the offence punishable under Sections 376 and 506 (ii) of IPC and accordingly, was tried before the learned Additional Sessions Court. After the completion of the trial, the learned Additional Sessions Judge found the accused guilty for the offence punishable under Section 376 and 506 (ii) of IPC. After hearing the accused on the point of sentence, he has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.20,000/- for the offence punishable under Section 376 of IPC and to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 506(ii) of IPC.

4.

Being aggrieved by such conviction and sentence, the present Appeal is filed on various grounds as set out in the memo of Appeal.

5.

The Appellant/Accused is the stepfather of the victim. It has been alleged in the FIR dated 28.04.2019 that somewhere in the year 2018, the accused during odd hours and while other family members were sleeping in their rooms committed forcible sexual intercourse with the victim and thereafter sexually exploited her and threatened her with dire consequences. After the first incident, the accused repeated the same on several other occasions and the last of such incident of forcible sexual intercourse was in the third week of the month in which the complaint was filed. The complaint further shows that on 25.04.2019 at around 02:00 hours, the accused came again to the victim in her bedroom and tried to sexually abuse her, however, she pushed him and told him that she would inform her brother. On hearing this, the accused threatened to kill her if she informed the family members.

6.

Mr. Sawaikar would submit that the allegations in the FIR are totally concocted, false and only with a view to implicate the accused falsely as the accused being the father was against the relationship of the victim with a boy. He would further submit that there is absolutely no evidence except the version of the victim, which is also not of sterling quality so as to award a conviction. Mr. Sawaikar would then submit that there are major contradictions in the testimony of the victim herself and her statements contradict with the statements of the other family members.

7.

Mr. Sawaikar would then submit that first of all, charges framed against the accused are only in connection with the alleged sexual assault in the year 2018, however, this aspect has not been proved at all. Moreover, the learned Trial Court accepted the version of the victim with regard to the sexual assault in the year 2019, that too, when no charge to that effect was even framed or explained to the accused.

8.

Mr. Sawaikar would then submit that the statement of the victim recorded under Section 164 of Cr.P.C. is quite different and distinct, however, the same is not consistent with her first information report. He would further submit that there is no medical evidence supporting the contentions of the