Obi Okoroafor Vs. The State of Goa, Through the CID Crime Branch - Court Judgment

Excerpt:
1. heard mr. menezes, learned advocate for the appellant and mr. amonkar, learned additional public prosecutor for the respondent. 2. this appeal is directed against the judgment and order dated 09/07/2010 passed by the learned additional sessions judge, ftc-i, margao (trial court, for short) in sessions case no. 14/2010/ftc-ii. the appellant was the accused in the said case and shall herein after be referred to as the accused. 3. the accused was tried by the trial court for offences punishable under section 343 and 376 of the indian penal code (i.p.c., for short). the allegation against him was that on 18/04/2010 between 03.00 hours to 06.00 hours, at hut no.1, laughing buddha hotel, palolem, canacona, goa, the accused wrongfully confined the victim girl, an australian national, major in.....

Judgment:

1. Heard Mr. Menezes, learned Advocate for the appellant and Mr. Amonkar, learned Additional Public Prosecutor for the respondent.

2. This appeal is directed against the judgment and order dated 09/07/2010 passed by the learned Additional Sessions Judge, FTC-I, Margao (trial Court, for short) in Sessions Case No. 14/2010/FTC-II. The appellant was the accused in the said case and shall herein after be referred to as the accused.

3. The accused was tried by the trial Court for offences punishable under Section 343 and 376 of the Indian Penal Code (I.P.C., for short). The allegation against him was that on 18/04/2010 between 03.00 hours to 06.00 hours, at hut no.1, Laughing Buddha Hotel, Palolem, Canacona, Goa, the accused wrongfully confined the victim girl, an Australian national, major in age, and forcibly committed rape on her.

4. The prosecution had examined 17 witnesses in support of its case and statement of accused was recorded under Section 313 of Criminal Procedure Code (Cr. P.C., for short). No defence evidence was led on behalf of the accused.

5. Upon appreciation of the entire evidence on record, the learned trial Court, vide impugned judgment dated 09/07/2010, observed that the “Truth Lab” reports proved the sexual intercourse by the accused with the victim girl and that the same was admitted by the learned Advocate for the accused in his arguments, who had argued that the sexual intercourse took place with the consent of the victim. The trial Court therefore held that the only point in the instant case was whether the sexual intercourse by the accused with the victim girl was forcible or with her consent. The trial Court observed that instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, the accused only stated one sentence in the entire statement under Section 313 of Cr.P.C. to the effect that “I am not aware” and hence by his aforesaid adamant attitude he lost the opportunity to rebut the legal presumption arising under Section 114-A of the Evidence Act, in favour of the victim girl, whose evidence was other wise cogent and reliable. The trial Court held that the prosecution proved beyond reasonable doubt that the accused wrongfully confined the victim in hut no.1 and committed rape on her. For the offence under Section 376 of I.P.C., the accused was sentenced to undergo rigorous imprisonment for 7 years and also to pay fine of Rs. 10,000/- in default to undergo rigorous imprisonment for 6 months and for the offence under Section 342 of I.P.C., the accused was sentenced to pay fine of Rs. 500/- in default to undergo rigorous imprisonment for 1 month. The trial Court further directed that if the total fine amount of Rs. 10,500/- was realised, then out of the same, an amount of Rs. 10,000/- be paid to the victim as compensation. The period during which the accused was in custody has been set off as per Section 428 of Cr. P.C.

6. The above judgment and order is challenged by the accused in the present appeal. On 08/01/2014, this Court in Criminal Miscellaneous Application No. 163 of 2013 filed by the State, allowed the same and directed that the matter be sent back to the Sessions Court for recording evidence of the experts mentioned in the application with regard to Serological and DNA reports, after following procedure laid down under Section 391 of Cr.P.C. and that the records be sent back to this Court within 60 days from the date of receipt of records. Accordingly, the trial Court examined PW18, namely Vani Sachdev, the Assistant Director of TRUTH Labs, Hyderabad, who proved the Serological report, DNA report and biological report which were earlier produced as Exhibit–78 Colly. Subsequently, the accused filed Criminal Miscellaneous Application No. 158 of 2014 before this Court by which he prayed for leave to examine himself in the said Sessions case since additional evidence was produced by the prosecution. The said application was also allowed and directions were given to the learned Sessions Judge to examine the accused under Section 313 of Cr.P.C. and to take the said additional statement only on the additional evidence recorded on the directions of this Court and thereafter allow the accused to give his own evidence as defence witness and to forward the records to this Court. Accordingly, further statement of the accused under Section 313 of Cr. P.C. was recorded by the trial Court and the accused examined himself as DW1.

7. Mr. Menezes, learned Counsel appearing on behalf of the accused submitted that on one side there is a version given by the victim as PW1 whereas on the other side there is a different version given by the accused as DW1. He pointed out that insofar as the evidence of DW1, the accused, is concerned, in his cross-examination mere denial have been put. He further submitted that the perusal of the evidence of PW1, the victim and other circumstantial evidence on record, read with the evidence of DW1, would certainly go to establish that the incident had taken place with the consent of the victim. He pointed out various instances to support his contention that there was consent on the part of the victim. Learned Counsel pointed out that the defence evidence was not there before the trial Court. He therefore submitted that the presumption under Section 114-A of the Evidence Act was sufficiently rebutted and benefit of doubt is bound to be given to the accused and the accused who is now in custody for the last more than four years should be acquitted.

8. On the other hand, Mr. Amonkar, learned Additional Public Prosecutor, read out the deposition of the victim girl (PW1) and submitted that the incident of sexual intercourse by the accused with the victim had not been denied. He submitted that even otherwise the reports of 'TRUTH Labs' proved sexual intercourse by the accused with the victim. According to him, the evidence of PW1 sufficiently proved beyond reasonable doubt that there was forcible sexual intercourse committed by the accused on the victim girl and this was done by wrongful confinement of PW1 in hut no.1 located in 'Laughing Buddha', taken on rent by the accused. Learned Prosecutor submitted that the evidence of the accused (DW1) is by way of an afterthought and nothing of that type was stated by him in his statement under Section 313 of Cr.P.C. Learned Additional Public Prosecutor submitted that the presumption under Section 114-A of the Evidence Act is in favour of the victim and the same has not been rebutted. He contended that the offence has been fully proved. He therefore urged that no interference is called for with the impugned judgment and sentence.

9. I have minutely gone through the original record and proceedings of Sessions Case No.14 of 2010 and considered the submissions advanced by the learned Counsel for the parties.

10. Section 114-A of the Evidence Act lays down that in a prosecution for rape under Cl.(a) or Cl. (b), or Cl. (c) or Cl (d) or Cl. (e) or Cl. (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. From the above, it is evident that the presumption under Section 114-A of the Evidence Act is attracted only to cases that fall under Section 376(2) of I.P.C., which provides for punishment of rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. In the present case, inter alia, the accused was charged for offence punishable under Section 376 of I.P.C. and not for an offence punishable under Section 376(2) of I.P.C. The accused has been held guilty and convicted for the offence under Section 376 of I.P.C. and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 10,000/-, which is the punishment provided for by Section 376(1) of I.P.C. Thus, the presumption under Section 114-A of the Evidence Act was not attracted in the present case but the trial Court has wrongly taken recourse to it.

11. The evidence of PW18, Vani Sachdev, the Assistant Director of 'TRUTH Labs', Hyderabad sufficiently proves the Serological report, DNA report and Biological report which are at Exhibit-78 colly. The vaginal swabs, smear slides etc. of the victim were preserved by PW4 Dr. E. Jose Rodrigues, Associate Professor in Forensic Medicine, GMC, for Serological examination and urethral swabs, smears slides etc. of the accused were also preserved by him for Serological examination. Liquid blood samples of the victim and the accused, for the purpose of DNA examination were also collected on 27/04/2010 by PW4 and were sealed and forwarded for onward transmission to 'TRUTH Labs', Hyderabad. Necessary correspondence is at Exhibit – 38 colly. Two samples of fresh blood collected from the victim and the accused and the other articles were sent to said Laboratory. Victim's blood group was identified as of 'B' group in item no. 20. Blood group of the accused was identified as of 'O' group marked in item no. 21. The presence of blood group 'O' was detected on victim's clothing marked as Item No. 11 (b). Presence of blood of group 'O' was detected on the clothing of the accused marked Item No. 4(c). Presence of semen was detected in the vaginal swab of the victim marked as Item no. 8. Transfer of blood of the accused having blood group 'O' was detected on the clothing of the victim marked as Item no.11 (b) and presence of the blood from the accused having blood group 'O' was detected on the clothing of the accused marked as Item No. 4(c). Item No. 14 was the vaginal swab of the victim whereas item no. 20 was the blood of the victim and item no. 21 was the blood of the accused. It was concluded that the DNA profile of Item No. 4 i.e. vaginal swab of the victim consisted of the DNA profile of item no. 20 i.e. the blood of the victim as well as Item No. 21 i.e. the blood of the accused. The profile of Item No. 14 was found to be a mixed profile of Items No. 20 and 21. The entire reports which are at Exhibit–78 colly have been duly proved by PW18.

12. In the cross-examination of PW1, the victim, there is a specific suggestion put to her that she did not sustain any visible injury because she had consented to the sexual intercourse with the accused. It is therefore proved beyond reasonable doubt that the accused had sexual intercourse with the victim.

13. The only point for determination is whether the prosecution has proved beyond reasonable doubt that the accused had wrongfully confined the victim girl and had committed rape on her.

14. The deposition of PW1, the victim, in her examination-in-chief reveals as under:

The incident had taken place in the evening of 17/04/2010. she was not knowing the accused before the incident and only after the incident she came to know of him. On 17/04/2010 at about 10.30 p.m., she along with her friend had been to hotel Intercontinental by auto rickshaw to attend the dance party and had reached there by about 11.00 p.m. When they were dancing, the victim girl met the accused and they started talking and became friendly. The party ended at 2.00 a.m. and the victim along with her friend decided to go for another party and at that time the accused told the victim that he would be taking her out. The accused told her that he has come to Goa often and knows all the bars and restaurants and that he would take care of her. PW1 agreed to go with the accused on his motorcycle. The accused passed by the house where the party was going on and told the victim that he will take her to the said house where the party was going on, subsequently and took the victim to a bar at Palolem, where they talked with each other and had lemon iced tea. The accused talked about Nigeria and his house there and also told that he and his family is rich and that his mother would like her and he would like to introduce her to his mother. The friend of the accused who was also at the party in Hotel Continental was present in this bar also but was drunk. The accused then told the victim that he did not like the behaviour of his drunk friend and told her that his friend never gave respect to women and then told her that he would take her to some other safer place. The accused told the victim that he would take her to his hut because the said hut is very beautiful. The victim wanted to go to the party but the accused told her that they should go to his hut first. The accused took her to his hut and there they talked with each other for a while and since she wanted to leave she told the accused to take her to the party but the accused told her that she will not go anywhere. The victim told the accused to take her home but he refused. Thereafter, the accused started to become aggressive with the victim. She was arguing with him to allow her to go home but the accused was standing at the door and blocking her way and told the victim that she cannot go out from the said hut. The victim was arguing with the accused and raised her voice but the accused told her that the surrounding huts are empty and nobody would hear her shouts. The accused locked the door from inside with padlock. The accused was trying to get out of the hut and saw one window and thought of getting out from the said window but the said window was at a high level and very small and she thought that the accused would catch her if she tries to run out of the said window. The victim then told the accused that she wants to go to the toilet as she was trying to find out a way to run out of the bathroom but did not find any way since there was no window in the bathroom. She came back to the bedroom. The accused told her that if she kissed him he would allow her to go out of his hut. She kissed him but still the accused told her that he will not allow her to go out of the hut. The accused then told the victim that he will not allow her to go anywhere else until he had sex with her but she told him that she would not have sex with him. The accused then told her that she was making him angry and threatened to hurt her unless she agreed to what he said. The victim told him that she did not want to get herself hurt. Then the accused forced her to get on the bed. The accused then took off his clothes and told her to do the same but the victim refused. The victim and the accused were arguing and wrestling as the accused physically pinned her down on the bed by catching hold of both her wrists. The victim was trying to get away and tried to catch hold of him but he had held both her wrists and as she was trying to get away from him they were wrestling. The accused eventually got himself on top of her stomach and twisted her arms behind her back. Then the accused forced the victim to turn and lie on her back and since she was trying to release her hands from behind, her shoulder was getting injured. The victim told the accused not to hurt. The accused removed her bikini pant. In order to hold her down, the accused had held her hands at her back and he was on the top of her back with his chest against her back. The accused was lying on top of her and she was trying to release herself from the accused. The accused told her to stay still and if she does not stay still, he would hurt her and that he had wires and would use them on her. The victim therefore stayed still and the accused then proceeded to rape her. The accused then forced his penis into her vagina while she laid still in fear of being hurt and the victim felt his ejaculation. The accused raped her without any condom and thereafter went into the bathroom and washed himself. While the accused was in the bathroom she was thinking as to how she would prove that the sex took place without her consent and so she just bit her finger nails and dropped them in the room as evidence to show that she was present there. The accused then came back from the bathroom and told her to wash her private part. The accused then noticed some blood on her thighs and asked her about the same and then she told him that she was not bleeding and that the blood was of the accused and then the accused noticed that he was bleeding from the left side of his stomach. The said blood of the accused stained her dress when he pinned her down and put himself on her back. The victim then washed herself and got dressed. The accused told her that he would take her to her house. The accused then changed his attitude and pretended to be sorry. The accused then told her that he did so because he liked her and that she made him angry. Then accused told her not to tell anybody about the incident. The accused in order to show that he was sorry offered his mobile phone to the victim and told her that he would buy a sim card for her so that he would keep contact with her. As the victim wanted to go out of the hut she agreed to whatever he said and he told her that he would take her back to her residence. On the way out of the hut the victim noticed a sign on the back of the door “Laughing Buddha” and then she came to know the name of that Hotel where there were huts. The accused took her to his motorcycle bearing no. GA-03/K-1474 which was blue and silver in colour. The victim did not know the way to go to her home, nor the accused knew the way to her house. Hence, while going on the motorcycle of the accused, on the way they stopped to ask for direction from a rickshaw driver. She got off from the motorcycle of the accused and begged with the rickshaw driver to take her back home but the accused slammed the door of the rickshaw which was opened by the driver and shouted at the rickshaw driver to go away. The rickshaw driver drove off. The victim also noticed a man standing outside the shop and gestured to him to help her but she did not speak loudly as she did not want the accused to hear her. However, the said man could not know what to do. The accused then told her to get back to his motorcycle but she was afraid that instead of taking her home the accused would take her somewhere else and kill her. To the surprise of the victim the accused took her to Patnem where she was residing. Since the victim wanted the accused to go away from her residence, she pretended that the she would meet the accused at 2.00 p.m. but she had no intention to meet him. The accused then went away and she walked to her hut. She woke her friend Miss Alycia and told her about the entire incident and the said friend helped her to contact the police. Thereafter, she went to Canacona Police Station and lodged her complaint on 18/04/2010. (The complaint is at Exhibit 26). The statement of the victim was also recorded by the Magistrate after about 2 days of the incident and the statement of the friend of the victim was also recorded by the Magistrate.

15. PW1, the victim girl, further deposed that after lodging the complaint, the police took her to the Hotel Laughing Budda and she pointed out to the police the hut which was the scene of offence and the police conducted the panchanama there. She deposed that the accused at the time of incident was wearing blue colour jean pant and white T shirt and Black cap with golden design and she was wearing black and white bikini and a blue dress and there was purple colour nail polish on her nails. She deposed that the mobile given to her by the accused was of Nokia, and she handed over the same to the police. According to her, the police attached her clothes. She stated that the bed sheet on the bed, where the accused raped her was multi coloured. She stated that she had cut five finger nails and dropped them at the scene of offence to prove her presence there. PW1 identified the jean pant and white T Shirt of the accused as also bikini and blue colour dress as belonging to her. She identified the blue colour jean pant and the cap which the accused was wearing at the time of party. She also identified bed sheet and her finger nails. The photographs were shown to PW1 and she identified the hotel as also the place where she was standing along with rickshaw driver, the window and hut where the offence had taken place, the bed sheet on which the offence had taken place, the jean pant of the accused lying on the bed, padlock of the door of the hut, the cap worn by the accused at the time of offence, the wire which was under the bed, etc.

16. The cross-examination of PW1, inter alia, reveals as under:

The victim met the accused for the first time on 17/04/2010. Before she came to India she had done her personal insurance and under the said insurance if anything happens to her body for instance if she was physically hurt then only medical expenses can be reimbursed but no specific insurance in respect of rape or similar offence was done by her. After the present incident the victim had immediately contacted Australian Embassy and had also contacted the said embassy prior to lodging complaint with the police. Before going to Hotel Intercontinental, along with dinner, the victim had taken liquor. At about 1.30 a.m. she met the accused in the party and after leaving the Intercontinental Hotel she spent about 1 hour with the accused at the said bar where she took lemon iced tea. When the victim and the accused left Intercontinental Hotel the accused only told her that he was taking her out without specifying the place and he directly brought her to the bar in Palolem and reason for leaving the said bar at Palolem was because the friend of the accused was drunk and not behaving properly. While walking back to his motorcycle after leaving the bar at Palolem, the accused told her that he would take her to his hut. The victim spent time in the hut of the accused at “Laughing Buddha” somewhere between 3 a.m. to 6 a.m. The said hut at “Laughing Buddha” had three windows i.e. one close to the door and the other two on the other sides and when they entered the hut, the said windows were closed. The said hut was not a permanent structure but was having thatched roof and walls of bamboo matting. The victim did not shout because the accused had told her that nobody would hear her as the other huts were empty. The victim did not see where the accused kept the keys of the padlock put to the door. The accused did not show to the victim any wire. There were no physical injuries on the body of the victim after the incident. The accused did not hit the victim or hurt her at the time of incident. After the victim informed about the incident to her mother, her sister came down to Goa. The victim started consuming liquor on 17/04/2010 probably at 6.00 p.m. She left with the accused from Intercontinental Hotel because the accused seemed to her to be a nice person and was polite and he told her not to worry and he would take care of her. The victim could not remember to say anything to the suggestion that at the party at Intercontinental Hotel the accused was wearing short jean pant. She opened the window of the hut at “Laughing Buddha” after the arguments with the accused and accused did not hurt her at the time when she opened the window but only laughed. The incident of rape occurred on the bed and there was mosquito net surrounding the bed and it was tied with four poles. The rape took place inside the net which had to be lifted up. The accused first entered the net. At the time of incident, the victim did not give any scratch marks or tooth bites to the accused. When they were fighting, the accused got injured on his stomach on the left hand side and the victim believed that it must be a boil on the accused which must have burst and started bleeding. The accused blamed her for hurting him. After the incident of rape, the victim did not sleep or take rest in the hut. The sexual intercourse by the accused took place once in the hut. At the time of incident she was not completely undressed but was wearing bikini top but he was not wearing anything and had removed her bikini bottoms. After the incident of rape the accused opened the padlock in 15 to 20 minutes. The victim did not notice as to from where the accused removed the key for opening the padlock. The victim only gestured with her mouth to the person standing outside the shop to help her but she did not yell or shout. Approximately six persons were seen on the way while going to her residence from Laughing Buddha Huts excluding the rickshaw driver and the person outside the shop. The victim did not have her mobile prior to the accused giving his mobile to her. When the victim came back to the hut at Laughing Buddha alongwith the police the accused was inside the hut and was sleeping there. The victim had a boy friend even prior to the incident and used to have physical relations with him. She had a boy friend when she was 15 years of age and prior to the incident she had 5 boy friends. At the time of removing the bikini the accused had not held her hands. It is false that the victim had not sustained any physical injury because she consented to the sexual intercourse with the accused and that she has falsely implicated him in the case in order to claim insurance.

17. The deposition of DW1, the accused, reveals as under:

The accused knows PW1, the victim, from the time he met her at the Intercontinental Hotel in Goa. The accused did not go to the victim but she came to him and started talking to him and both talked with each other. The victim told the accused that she is from Australia and also requested him to come outside the Intercontinental Hotel where the party was going on. When they came outside the hotel the victim told him that she had no money to purchase drinks. Before the victim had come to accused she had already asked money from the friend of the accused by name Valentine Sonde. The accused gave money to the victim and she purchased beer for herself and thereafter came outside the hotel where the accused was present and they sat somewhere in the lobby area where the victim drank beer and the accused drank pineapple juice and they started talking with each other. The victim girl asked the accused for money for cigarette and he gave her money and she purchased cigarette. The victim told the accused that they should go somewhere else i.e. in some bar and that she did not want to go back to her place so soon and wanted to be with him. The accused agreed and they went to Palolem beach by the motor cycle taken by him on rent and thereafter to a bar and at the request of the victim the accused gave her money to purchase beer and she purchased the same for herself and the accused purchased for himself pineapple juice. The victim then told her that they should go to the place of accused as she did not want to go to her place and accordingly the accused took her to the hut near Palolem beach. The accused entered the hut and thereafter the victim entered the hut. The accused kept the door of the hut open. The accused removed his shoes and sat on his bed and at that time she jumped on him and started removing his shirt and removed his shirt. Thereafter she stood up and went outside and started talking with somebody on the phone. After the victim finished talking, she came inside and came on top of the accused. The accused has a childhood injury at the left hand side of his abdomen and the said injury started bleeding. Hence, the accused stood up, went to the bathroom and washed the blood and again came inside and lied on the bed. The victim again came on the top of the accused and told him that she liked him and she wanted to have sex with him. The accused told her that they both knew each other just for sometime and not even for one or two days and, therefore, he is not willing to have sex with her. The victim told him that she liked him and she did not want to leave him. The accused asked the victim whether she had a boy friend and she told him that she had five boy friends but nobody wanted to be with her and she does not know as to why they had broken relations with her. The accused then told the victim that he would not do anything with her since he knows her for a short time only. The victim then again asked for money to buy cigarettes and the accused gave her money. The victim went outside and purchased cigarettes for herself. The accused was sitting on his bed with his phone and she again jumped on him and again stated that she liked him and wanted to have sex with him. The accused said “OK as you wish”. Thereafter, they had sexual intercourse with each other. Before the victim went out to purchase cigarettes she was wearing only her inner wear/bikini. After having sex with him, the victim told him to drop her at her place which is close to Palolem beach. The accused dressed up and dropped her at her place on the said motorcycle. At her place the victim again asked him to give her money and he gave her Rs. 4,000/- and told her that he was going back to his hut to sleep. The accused also gave to the victim his mobile number and told her that whenever she requires he would take her out for lunch. The accused came back to his hut and slept there and thereafter at about 11.00 a.m. to 11.30 a.m. police came to his hut and woke him up. At that time when the accused came outside his hut he saw the victim with a lady friend who was also a foreigner. The accused started asking her as to what had happened but she did not tell anything and only looked at her friend. Thereafter, police took him to the police station. The accused never forced the victim to have sex with him and that she imposed herself on him and willingly had sexual intercourse with him. The accused did not force her to come to his hut. There were about 16 huts in the neighbourhood and many foreigners were staying in those huts at the time of incident and he knows Valentine and Khalid who were residing in the neighbouring huts and they had came out when the police came there and had asked the police as to what had happened. The accused is wrongly implicated in the present case and after the judgment was pronounced by the Court and when the accused was coming out the victim saw him and said sorry to him.

18. It is noticed that in the cross-examination of DW1, only suggestions have been put which have been denied by him. Nothing special has come forth in the cross-examination of DW1 so as to render his testimony in his examination-in-chief, unreliable.

19. Section 315 of Cr.P.C. enables the accused to be a competent witness for the defence to testify in disproof of the charge made against him or any other person charged together with him at the same trial. DW1, the accused has given testimony on oath and the same has to be treated as evidence. The evidence of the accused was not considered by the trial Court. Statement of the accused, under Section 313 of Cr.P.C., which was before the trial Court, was not evidence, though it could be considered in conjunction with other evidence on record.

20. According to PW1, before the main incident, the accused had locked the main door of the hut with a padlock. Her cross-examination reveals that she did not see as to where the accused kept the keys of the padlock put to the door. The cross-examination further reveals that according to the victim, after the incident of rape the accused opened the padlock in 15 to 20 minutes, but here also she did not notice as to from where the accused removed the key for opening the padlock.

21. PW15, Shri Ajay Pagi acted as one of the panch witnesses for the panchanama of arrest of the accused and the panchanama of the Scene of Offence which are at Exhibits 66 and 67, conducted one after the other. PW15 exaggerated by deposing that the room was locked from inside. In fact, the arrest panchanama does not mention that the room was locked from inside but it says that upon being knocked at the main door, the said door was opened by one male person. Similarly, the Investigating Officer, namely Shri Raju Raut Dessai (PW-16) also deposed that on knocking the door, one black Nigerian male person opened the door. PW16 did not say that the door was locked from inside. According to PW15, the panch witness, in the said room while entering, on the right hand side, they found a pad lock with key and the same were attached and sealed and marked as Exhibit 1. PW15 identified the said pad lock and key which were shown to him in the open Court as the same, after they being removed from sealed envelope. The panchanama at Exhibit 67 also mentions about the existence of pad lock with key inside the said hut. However, neither PW15 nor PW16 stated that the said key was tried on the said pad lock and that the pad lock was tried on the latch of the main door to see if the door could be locked from inside. The panchanama also does not mention that such experiments were carried out. The same becomes relevant on account of the testimony of PW3.

22. PW 3, Shri Agnelo Fernandes, was running the business in the said 14 huts at Palolem Beach by name “Laughing Buddha” by giving them on rent to foreigners. He stated that in each hut there is one bed room and a toilet and there are cemented floors, and walls are of plywood and the front side wall is made of mango tree wood and the ceiling is of bamboo sheets covered with plastic. He stated that there are three windows in the hut at the height of 4 feet from the floor. All the windows are of 2 x 2 feet. PW3 stated that on 15/04/2010, he had given four huts on rent, to the accused and others including one male foreigner by name Khalid. He stated that the accused was given hut no.1 and Khalid was given hut no. 3. Though in his examination-in-chief, he stated that the doors of the said huts open both sides and could be locked from outside and also from inside, however, in his cross-examination, PW 3 specifically stated that the door of the hut could only be latched from inside but it could not be locked from inside. Now, PW3 was an independent witness fully acquainted with the huts since the business of giving those huts on rent was conducted by him. No re-examination of PW3 was sought for by the prosecution to clarify the said statement of PW3 in cross vis-a-vis his statement in chief.

23. The trial Court disbelieved the statement of PW3, in his cross-examination, firstly because PW3 stated in his examination-in-chief that the door could be opened on both sides and could be locked from both sides; secondly because the testimony of PW1 was allegedly not shaken and thirdly because of the testimony of PW15, who saw the pad lock and the key, inside the said hut. But, the testimony of PW1 can be said to have been shaken since she neither saw as to where the accused kept the key after locking the door and also she did not see as to from where he took out the key while opening the same. The Panchanama of Scene of Offence proved by PW15 can also be said to have been shaken since the key was not tried on the pad lock and the pad lock was not tried on the latch to establish that the door could be locked from inside. Hence, in my considered view, benefit of doubt had to be given to the accused.

24. PW1, the prosecutrix, stated in her cross-examination that before she came to India she had done her personal insurance and under the said insurance if anything happens to her body for instance if she was physically hurt then only medical expenses can be reimbursed but no specific insurance in respect of rape or similar offence was done by her. A suggestion has been put to her that she falsely implicated the accused in this case in order to claim insurance. In her examination-in-chief, PW1 stated that the accused committed rape without using contraceptive i.e. condom. If condom is not used, there is possibility of contacting sexually transmitted diseases, including the worst one namely HIV or AIDS. Fearing that PW1 may get infected with any such disease, she might have lodged complaint so that if anything happens to her body in future, she can claim insurance amount. It is pertinent to note that according to DW1, after the judgment was pronounced by the Court and when DW1 was coming out of the Court, the victim saw him and said sorry to him. It may be that since nothing had happened to her, she might have repented and said sorry to DW1. Therefore, the finding of the trial Court that there was no motive for PW1 to falsely implicate the accused, may not be correct.

25. The incident of sexual intercourse had taken place on 18/04/2010 sometime between 3.00 hours to 06.00 hours. The arrest panchanama (Exhibit 66) and the panchanama of the scene of offence (Exhibit 67) which were done one after the other at the said hut no. 1 reveal that by about 12.00 hours on 18/04/2010, the accused was found quietly sleeping in the same hut no. 1 and PW1 had identified him and he was arrested. Thus, the accused had reached the victim to her residence at Patnem and had come back to his hut and had slept there. The question arises as to why, if it was rape, DW1, the accused did not run away. The accused was found wearing the same clothes which he was wearing at the time of incident and there were blood stains on the left side of his T-shirt and blue stains on the front right side of the said T-shirt. He was wearing the same banian on which there were blood stains on the left side. The accused had not cleaned the floor or changed the bed sheet, etc. The pieces of finger nails thrown by PW1 on the floor were found there. The question arises as to why the accused left incriminating material at the site and same clothes on his body without destroying the same when he had all the opportunity in the world to destroy the same. The accused also left the victim after the incident at her residence at Patnem with her clothes on which there was blood of the accused. The above conduct of the accused throws reasonable doubt on the case of the victim to the effect that there was forcible sexual intercourse, without her consent. If really, the accused had behaved in a clever way, as observed by the learned trial Court, by changing his behaviour after the incident and pretending to be sorry, then he would have certainly been further clever by taking care to destroy all the incriminating circumstances against him. The answer of the trial Court regarding the above conduct of the accused, does not appear to my mind to be convincing.

26. According to PW1, she did not have her own mobile and after the incident, the accused gave his mobile to her. PW1 handed over this mobile phone of the accused to the police. A question arises as whether the accused deliberately would create evidence against him, if really there was rape.

27. After the incident, the accused had left the victim at her residence at Patnem, on his motorcycle. According to PW1, the victim, neither the accused nor she herself knew the way to her residence from the hut no. 1. The question arises as to how then the accused could reach PW1 to her residence. The observation of the trial Court, in this regard, that it was for the Advocate of the accused to clarify the said discrepancy from the victim in her cross-examination, is not proper since it was for the prosecution to prove its case beyond reasonable doubt.

28. PW1, the prosecutrix deposed that after the accused started becoming aggressive to her, she was arguing with him to allow her to go and she raised her voice but the accused told her that the huts surrounding his hut are empty and nobody would hear her shouts. The question arises as to why the victim flatly believed the accused and did not shout to see if really nobody was there in the huts surrounding the hut of the accused.

29. According to PW1, the victim, the accused forced her to get on the bed and that they were arguing and wrestling and the accused had physically pinned her down on the bed by catching hold of both her wrists. PW1 stated that her arms were twisted and as she was trying to release her hand from behind, her shoulder was getting injured. In short, according to PW1 she had struggled a lot. PW4, Dr. E. Jose Rodrigues, had examined the victim between 4.15 p.m. to 5.20 p.m. on 18/04/2010 and he did not find any injuries on the inner aspect of her thighs. There were no bruises or abrasions on genitals. There were old healed hymenal tears present at 3, 6 and 9 O'clock position of hymen. There was no congestion, no edema, no tenderness and no bleeding. As per the opinion of PW4, in the absence of any positive signs for recent sexual intercourse no positive opinion to that effect could be given. On the same day between 5.25 p.m. to 7.00 p.m. PW4 examined the accused. Here also in the absence of any positive signs for recent sexual intercourse, no positive opinion to that effect could be given. In his cross-examination, PW4 stated that he had found one pedenculated swelling in left lumber region of the accused of the size 1 x 1cms and superficial skin necrosed in the centre with presence of red soft scab. He stated that no active bleeding was present and the said injury was normally called as wart. According to PW4, the said wart must have got hurt on trauma which might have resulted in its bleeding and bleeding had stopped during his examination. PW4 stated that pedenculated swelling is not an injury by itself but it is benign growth and such kind of growth can usually bleed as a result of trauma. PW4 stated that on examination of the victim he found that there was tenderness on the back of left shoulder but no tenderness around the wrist. He stated that the hymen of the victim had ruptured. The evidence of PW1 reveals that she was habitual to sexual intercourse as she was having physical relationship with her boy friends. PW1 had a boyfriend when she was 15 years of age. Prior to this incidence, PW1 had five boy friends. The question arises as to why there were no injuries sustained by PW1 on any part of the body in spite of the fact that she had struggled with the accused and they were wrestling. Tenderness on back of the shoulder was obvious since she was lying down and the accused was above her.

30. In her cross-examination, PW1 admitted that there was mosquito net surrounding the bed and the same was tied with four poles. She deposed that the rape took place inside the said net, which had to be lifted up. She further deposed that the accused first entered the net. PW1 did not state as to how she entered the net. There is no evidence that the accused lifted the net and forcibly pulled the victim inside the net and on the bed.

31. According to the trial Court, the statement of the victim girl to the effect that she wanted to go away in auto rickshaw and the accused did not allow her to go in auto rickshaw and told the rickshaw driver to go away, is corroborated by PW2. In fact nothing turns out of this since admittedly after the incidence, the accused did not take the victim to any place but quietly reached her to her residence, on his motorcycle.

32. PW2, Shri Monu Kumar Dhaked, was working as a waiter in Cleopatra Bar and Restaurant at Palolem beach, at the relevant time. His testimony reveals as under:

He was working in night shift from 8:30 p.m. to 8:30 a.m. and on 18.04.2010 at around 7:00 a.m. he was washing glasses in the said bar when he heard sound so he turned back and saw that there was hot discussion between a negro man and a foreigner lady, and there was an auto rickshaw infront of the said bar. While he was at the door of the bar, he saw that the negro man was telling the said foreigner lady to accompany him whereas, the lady was telling him that she would go by rickshaw. The negro man was standing near the motorcycle and earlier he was on the motorcycle. The negro man told the rickshaw driver in English language, to go away and thereafter he spoke to the rickshaw driver in mixed language of Hindi and Konkani, after which the rickshaw driver went away without taking the foreigner lady. The negro man then took the lady and at that time the lady had the expression of weeping and while going the said lady gestured to him, which he could not understand. On 17.04.2010 at 10:30 a.m. he had seen the accused with another person and he asked the address of hotel Intercontinental and he had showed the way to them. He was called on 28.04.2010 for identification parade. PW1 did not state that any person was seen by her inside any bar washing glasses. According to PW1, she had seen one person standing outside a shop who witnessed the said incident and she had gestured to him to help her. PW2 did not say that the accused had slammed the door of the auto rickshaw which was opened by the driver and had shouted at him to go away. But PW1 stated so. Thus, it cannot be said that there is corroboration between PW1 and PW2.

33. PW8, Shri Mahesh Pagi is the auto rickshaw driver. He has deposed as under:

He owns an auto rickshaw and drives the same. The number of the auto rickshaw is GA-09/U-1880 and plies the same from KTC stand, Canacona. On 18.04.2010 between 9:00 a.m. to 9:30 a.m. when he was in his auto rickshaw at Patnem, two fair foreigner ladies and one fair foreigner male came and requested to reach them to Canacona police station and accordingly, he reached all the three foreigners to Canacona police station and came back. From the above, it could be understood that this was not the same auto rickshaw and its driver, who was referred to by PW1 and to whom the accused had asked for directions to go to the residence of PW1. The said relevant auto rickshaw driver has not been examined.

34. In the circumstances above, the evidence of the above witnesses namely PW2 and PW8 is not convincing to prove that PW-1 was wanting help from any one and was weeping, etc. The main witness namely, Miss Alycia Michele Chapple, the friend of the victim girl, from Australia, has not been examined by the prosecution.

35. From the above evidence on record, following glaring facts emerge:

(a) There are two versions of the incident: one given by the victim girl and other given by the accused. The version given by the accused does not appear to be shaken in the cross-examination.

(b) The accused had given his mobile phone to the victim, who did not have one of her own. Normally, no one would do so to leave evidence against himself.

(c) The victim girl had boy friend since the age of 15 years and she had five boy friends with whom she had kept relations. She was habituated to sex.

(d) In the deposition of PW1, there were various instances which spoke of force used by the accused but surprisingly there were no injuries and not even tenderness on the body of the accused except on back side of her shoulder, which was natural.

(e) The accused had taken the victim to his own hut and had allowed the victim to go with her clothes having his blood stains and was found sleeping in the same hut with the same clothes which he was wearing at the time of incident. The accused had himself reached the victim to her residence at Patnem and had come back to his hut and had quietly slept, without destroying incriminating evidence. This does not stand to reason if there was forcible sexual intercourse.

(f) The victim girl did not shout only because the accused had told her that there was nobody in the surrounding huts. It is not understood as to why she had not made an attempt to shout and see whether anyone comes for her rescue.

(g) While the accused was reaching back the victim to her house at least six persons had came across but the victim did not shout or did not tell them anything.

(h) According to PW1, the accused had latched the door from inside and had put a lock to it. However, PW1 could not say as to where the accused kept the key and also from where the accused took out the key for opening the lock. There is nothing in the panchanama of the scene of offence to show that the latch of said door could be locked. It is pertinent to note that the owner of the hut has specifically stated that the door of the said hut could be latched from inside but could not be locked from inside. Thus, there was possibility of a deliberate lie told by the victim to the effect that the accused had locked the door from inside in order to make the Court believe that she had no chance to run away. The accused did not carry with him condom.

(I) The victim had insured herself before coming to India and under the said insurance medical expenses could be reimbursed if anything happens to her body for instance if she was physically hurt. The accused had not used contraceptive like condom and hence  there was fear of contactingsexually transmitted  decease or even worst like HIVor AIDS.

(J) The prosecution did not examine the friend of the victim as also the rickshaw driver.

36. In view of the above, there is reasonable doubt about the case of the prosecution and it is not proved beyond reasonable doubt that the sexual intercourse between the accused and the victim was forcible. The possibility of the same being done with consent cannot be ruled out. Benefit of doubt has to go to the accused.

37. In all the circumstances above, the impugned judgment and order of the conviction for the offence punishable under Sections 342 and 376 of I.P.C. rendered by the trial Court cannot sustain. In my view, the accused is entitled for benefit of doubt and acquittal.

38. In the result, I pass the following:

ORDER

(a) The impugned Judgment, order and sentence dated 09/07/2010 passed by the learned Additional Sessions Judge, FTC-I, Margao in Sessions Case No. 14/2010 FTC-II is quashed and set aside.

(b) The accused is directed to be set at liberty, if he is not required in any other case. The order of the Trial Court regarding muddemal properties is maintained.

39. Appeal stands disposed of accordingly.