Oral Judgment:
By this appeal, the appellant (herein after referred to as âthe accusedâ) takes exception to the Judgment and Order dated 1st April, 2009, passed by the Children's Court, Panaji in Special Case No.1/09, convicting the accused for the offence punishable under Section 8(2) of the Goa Children's Act, 2003 (âthe Actâ for short), read with Section 376 of Indian Penal Code (IPC) and sentencing him to undergo Simple Imprisonment for a period of 10 years and to pay a fine of Rs. 2,00,000/-, in default, to undergo further six months' Simple Imprisonment. The entire fine has been ordered to be paid to the victim girl.
2. Pursuant to the FIR lodged by PW.2 Sunita Moolya, at Quepem Police Station on 23.3.2008, alleging that the accused had kidnapped her minor daughter, FIR was registered under Section 363 IPC and Section 8(2) of the Act at Quepem Police Station. Pursuant to the said FIR, investigation was taken up. In the course of investigation, it was revealed that the accused had taken the minor girl to Poona and between 18th March, 2008 and 21st June, 2008 in one room at Poona had forcible sexual intercourse with her on many occasions. After conclusion of the investigation, charge-sheet was filed against the accused for the offences punishable under Section 363 IPC and Section 8(2) of the Act, read with Section 376 IPC.
3. The Children's Court, by order dated 2/2/2009, discharged the accused of the offence punishable under Section 363 IPC, relying upon the Judgments of the Apex Court in the case of Varadarajanvs. State of Madras, (AIR 1965 SC 942) and in the case of Gaurishvs. State of Goa, (1997 Cri. L.J. 1018). Consequently, the charge was framed against the accused for the offence punishable under Section 8(2) of the Act, read with Section 376 IPC. The charge was that between 18.3.2008 to 21.6.2008 the accused in one room at Poona had sexual intercourse with the victim girl on many occasions, as per her statement recorded by Quepem Police on 26th April, 2008.
4. The prosecution examined five witnesses, namely, PW.1 Dr. Panag Kumar, PW. 2 Sunita Moolya, PW.3 Chaitrya Moolya, PW.4 Dr. Siddhartha Banaulikar, and PW. 5 Naresh Mhamal, the Investigating Officer. Though the defence of the accused was of denial, in his statement under Section 313 Cr.P.C. the accused in answer to Question No.7 that in the room at Poona, after 18.3.2008 he had forceful sexual intercourse with her on several occasions, admitted that he had sexual intercourse with her, but claimed that it was not forceful.
5. The evidence of the victim girl PW.3 discloses that on 18th March, 2008 she left her house in the morning and met the accused and she along with the accused went to West Bengal from where they came to Poona and in the said room in Poona, the accused had sexual intercourse with her on several occasions. She further claimed that the accused did not allow her to telephone her mother, nor did he allow her to come back to Goa. She further claimed that on 22.6.2008, she came back to Goa along with the accused and she went home which was at Tilamol, Quepem. She disclosed her date of birth as 19.10.1992. In the cross examination, she admitted that she was in love with the accused, but denied that she left the house to get married with him, or that her religious marriage with the accused was solemnized at Calcutta and thereafter, they stayed in one room at Calcutta and then in Poona as husband and wife. She admitted that after 25.6.2008, she again started staying with the accused at Karaswada, Mapusa and the accused used to tell his friends at Mapusa that she was his wife. She denied that the accused did not have forceful sexual intercourse with her several times when they stayed in one room at Poona.
6. The evidence of the prosecutrix is substantially corroborated by her mother PW.2 Sunita Moolya and the medical evidence of PW.4 Dr. Siddhartha Banaulikar. PW.5 Naresh Mhamal, has deposed about the investigation carried out by him.
7. Mr. Menezes, learned Counsel appearing for the appellant appointed under Legal Aid Scheme, at the outset, submitted that neither offence under Section 376 IPC nor under Section 8(2) of the Act is made out against the accused inasmuch as the evidence led by the prosecution itself discloses that the accused did not have forceful sexual intercourse with the prosecutrix and that both of them stayed as husband and wife at Poona and thereafter, at Karaswada, Mapusa. Learned Counsel further submitted that the prosecution evidence itself suggests that the accused and the prosecutrix were in love with each other and, as such, the offence under Section 8(2) of the Act or under Section 376 IPC is not made out. Learned Counsel further submitted that even assuming that the accused had committed an offence, it cannot be said that the accused committed any offence under the Act inasmuch as according to the prosecution itself, the alleged forceful sexual intercourse was committed by the accused at Poona and not in Goa. Learned Counsel further submitted that the accused having been discharged of the offence punishable under Section 363 IPC, the alleged offence of rape committed by the accused cannot be made punishable under Section 8(2) under the provision of the Act, inasmuch as in order to attract the penal provision of the Act, the offence has to be committed within the State of Goa. Placing reliance upon Section 3 of the Act and Article 20 of the Constitution of India, learned Counsel submitted that the accused cannot be convicted for the offence under the Act and at the most he can be held liable for the offence punishable under Section 376 IPC inasmuch as the substantive sentence and the fine prescribed under Section 8(2) of the Act are much onerous than the one prescribed under Section 376 IPC.
8. Learned Counsel placed reliance upon the following Judgments:
(1) PulinKrishna Dutt and another vs. Satyaranjan Bhattacharjee, AIR 1953 CAL 599; and
(2) DineshKumar vs. State of M.P., AIR 2005 SC 1480.
9. Per contra, Mr. Rivonkar, learned Public Prosecutor submitted that the Children's Court had jurisdiction to try the offence of rape, punishable under Section 8(2) of the Act, read with Section 376 IPC inasmuch as the victim was taken by the accused to Poona from Goa and, as such, a part of the offence of rape can be said to have taken place within the State of Goa. Placing reliance upon Section 178 of Cr.P.C., Mr. Rivonkar submitted that the Children's Court in Goa had jurisdiction to convict the accused under Section 8(2) of the Act, considering the factual background in the present case. Mr. Rivonkar also placed reliance upon Section 4(2) of Cr.P.C. which provides that all offences under any other law shall be investigated and tried according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating into such offences. According to Mr. Rivonkar, the act of the accused taking the victim from Goa to Poona amounts to child abuse as provided under the Act and, therefore, no fault can be found with the impugned order convicting the accused for the offence punishable under Section 8(2) of the Act. Mr. Rivonkar relied upon the following Judgments:
(1) NavinchandraN. Majithia vs. State of Maharashtra (2007) 7 SCC 640; and
(2) RajendraRamchandra Kavlekar vs. State of Maharashtra and another (2009) 11 SCC 286
10. I have carefully considered the rival submissions, perused the record and the Judgments relied upon.
11. The questions which arise for determination in this appeal are:
(1) Whether the prosecution has proved that the accused had sexual intercourse with the victim who was a minor, at Poona on several occasions?
(2) Whether the Children's Court had jurisdiction to convict and sentence the accused for the offence punishable under Section 8(2) of the Act?
12. Coming to the offence of having sexual intercourse by the accused with the victim girl is concerned, the evidence of PW.3, victim girl discloses that on 18th March, 2008, she met the accused and went along with him to West Bengal and thereafter, to Poona where they stayed in one room. Her evidence further discloses that in the said room, the accused had sexual intercourse with her on several occasions. It is her case that the intercourse was forceful. In the cross examination she admitted that she was in love with the accused, but she denied that she left the house to get married with him or that religious marriage ceremony was conducted at Calcutta. She also admitted that after 25/6/2008, she started staying with the accused at Karaswada, Mapusa. She denied that the accused did not have forceful sexual intercourse with her several times when she stayed in the room at Poona. It is pertinent to note that in answer to Question No.7 put to the accused under Section 313 of Cr.P.C., the accused admitted that he had sexual intercourse with the victim, but denied that the same was forceful. In other words, the accused clearly admitted that after 18/3/2008, the accused had sexual intercourse with the victim girl on several occasions when they were staying together at Poona in a room. Her evidence stands corroborated by the evidence of her mother PW.2 Sunita Moolya. Similarly, the medical evidence tendered by the prosecution through PW.4 Dr. Siddhartha Banaulikar also confirms the version of the prosecutrix. Evidence of PW.4 discloses that there was evidence of sexual intercourse when she was examined by him. Thus, the version of the prosecutrix that the accused had sexual intercourse with her on several occasions after 18.3.2008 is corroborated by the evidence of her mother, as well as by the medical evidence tendered through PW.4 Dr. Benaulikar.
13. There is no dispute that the victim was born on 19.10.1992 as stated by the victim PW.3. Thus, admittedly, on 18.3.2008, the victim girl was less than 16 years' of age. In terms of Section 375 IPC, sexual intercourse by a man with a woman who has not completed the age of 16 years, amounts to rape and is punishable under Section 376(1) IPC with imprisonment of 7 years and also fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Therefore, in the present case, the alleged consent of the victim girl is totally irrelevant considering that admittedly, the victim was less than 16 years of age. Therefore, the offence of rape under Section 375 IPC, punishable under Section 376(1) IPC is clearly made out against the accused.
14. The main question which arises for consideration is whether the conviction and sentence imposed on the accused under Section 8(2) of the Act is sustainable in law inasmuch as under Section 8 of the Act the minimum sentence prescribed for grave sexual assault is 10 years imprisonment and fine of Rs.2,00,000/-; whereas for the offence punishable under Section 376(1) IPC the minimum sentence is 7 years which may extend to Life and the accused is also liable to pay a fine as may be imposed by the Court.
15. In the present case, the prosecution initially filed chargesheet under Sections 363 and 376 IPC, read with 8(2) of the Act against the accused and the accused was discharged of the offence punishable under Section 363 IPC. The question, therefore, is whether the Children's Court in Goa would have jurisdiction to convict and sentence the accused for the offence punishable under Section 8(2) of the Act There is no dispute that sub-section (2) of Section 1 of the Act provides that it shall extend to the whole of the State of Goa. It appears that in no other State or any Union Territory in India has enacted any such Act and there is no corresponding Act in any State, or Union Territory, more particularly in the State of Maharashtra. Admittedly, in the present case, according to the prosecution itself, the accused had sexual intercourse with the victim girl on several occasions at Poona.
16. In the case of NavinchandraN. Majithia (supra), the Apex Court was concerned as to whether the High Court had territorial jurisdiction to deal with the matter if any part of cause of action had arisen within the territorial limits of its jurisdiction although the seat of Government or authority or residence of person against whom direction was sought was not within the said territory. The Apex Court held that the High Court has jurisdiction to issue appropriate writ.
In the case of RajendraRamchandra Kavlekar (supra), the Apex Court was dealing with the territorial jurisdiction of a court regarding criminal offence. In the said case, the Apex Court held that the jurisdiction of a Court would be decided on the basis of place of occurrence of the incident and not on the basis of where complaint was filed. The Apex Court further held that mere fact that FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another court.
In the case of DineshKumar (supra), replied upon by Mr. Menezes, the Apex Court held that the accused could not have been convicted for breach of Rule 44-A of the Prevention of Food Adulteration Rules, 1955 since the said rule was not in operation in the concerned State i.e. State of Madhya Pradesh on the date of collection of samples.
In the case of PulinKrishna Dutt and another (supra), the Apex Court held that by virtue of Article 20 of Constitution of India, a person cannot be prosecuted under Section 40 for an act of taking pugree or selami committed in 1948 as the Calcutta Rent Ordinance, 1946 which was in force when the act was committed, did not make the act an offence for which a person could be prosecuted but only provided for imposition of penalty.
17. In the present case, it is the case of the prosecution itself that the offence of rape was committed by the accused at Poona, as is evident from the charge framed against the accused. Under Section 8(2) of the Act, grave sexual assault, which includes rape, is punishable with imprisonment of either description for a term not less than 10 years, but which may extend to Life Imprisonment and shall also be liable to pay a fine of Rs.2,00,000/-. As stated above, in the present case, the accused was discharged in respect of an offence punishable under Section 363 IPC and the accused was only tried for the offence punishable under Section 376 IPC, read with Section 8(2) of the Act.
18. I find merit in the submission of Mr. Menezes that in order to convict the accused for the offence punishable under Section 8(2) of the Act, the offence must have been committed within the territorial jurisdiction of Goa since the Act was enacted by the legislatures of Goa. In the present case, after discharging the accused of the offence punishable under Section 363 IPC, the Children's Court framed charge under Section 376 IPC read with 8(2) of the Act. Mr. Menezes has not rightly challenged the jurisdiction of the Children's Court to deal with the matter, inasmuch as after the entire trial is over the accused could not have challenged the jurisdiction of the Children's Court to try him, because such a point ought to have been raised by the accused after the charge was framed, so that the prosecution could have followed appropriate procedure to put the accused on trial. The accused having not taken such a stand is not entitled to urge that the whole trial is vitiated and, therefore, rightly Mr. Menezes has not challenged the jurisdiction of the court to try the offence punishable under Section 376 IPC which could have been very well tried by the Children's Court in terms of Section 30(1) of the Act. I find merit in the submission of Mr. Menezes that the Children's Court in Goa dealing with charge of having committed offence of sexual intercourse at Poona by the accused with the victim who was admittedly less than 16 years could not have convicted the accused for an offence punishable under Section 8(2) of the Act, more particularly having regard to the fact that the minimum sentence which can be imposed under Section 8(2) of the Act is much onerous and harsher than the one prescribed under Section 376 IPC. In terms of Section 1(2) of the Act, the Act extends to the whole of the State of Goa. Therefore, the necessary sequitur is that, the offence punishable under the Act must have been committed within the State of Goa. Therefore, in my considered view, the conviction of the accused for the offence punishable under Section 8(2) of the Act and the minimum sentence of 10 years Simple Imprisonment and fine of Rs.2,00,000/- imposed on the accused are unsustainable in law and therefore, deserve to be quashed and set aside.
19. However, no fault can be found with the order convicting the accused for the offence punishable under Section 376 IPC in view of Section 30 of the Act. At the time the accused had sexual intercourse with the prosecutrix, she was less than 16 years' of age. As such, her consent is irrelevant under Section 375 IPC. Consequently, the conviction of the accused for the offence punishable under Section 376 IPC deserves no interference.
20. The next question which arises for consideration is what would be the appropriate sentence which should be imposed on the accused. From the record itself, it appears that the victim was friendly with the accused and she was about 15 and half years old at the time when she went along with the accused to West Bengal and thereafter to Poona. Considering the facts and circumstances of the case, in my opinion, interest of justice would be served if the accused is sentenced to 7 years simple imprisonment and to pay a fine of Rs.10,000/-, and in default to undergo simple imprisonment for six months.
21. The appeal is partly allowed. The conviction of the accused for the offence punishable under Section 8(2) of the Act and the sentence imposed on him are set aside. The accused is convicted for the offence punishable under Section 376 IPC and sentenced to undergo 7 years simple imprisonment and to pay a fine of Rs.10,000/-, and in default, to undergo simple imprisonment for six months. In case of payment of fine by the accused, the same shall be paid to the victim girl. The accused will be entitled to set off the period of detention in terms of Section 428 of Cr.P.C.
22. The appeal stands disposed of in aforesaid terms.