Alfred Fernandes, Presently Lodged In Central Jail At Colvale vs The State Of Goa, Thr. The Public Prosecutor And Anr
- Court
- Bombay High Court
2026:BHC-GOA:911
2026:BHC-GOA:911
CRIA(F) 1042 of 2024
Uma
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO.1042 OF 2024 (F)
Mr. Alfred Fernandes
S/o Mr. Antonio Fernandes,
aged about 38 years,
r/o Porta Vado, Siolim,
Bardez Goa,
Presently lodged
in Central jail at Colvale ... APPELLANT
Versus
1. The State
Through The Public Prosecutor,
High Court of Bombay,
Porvorim - Goa.
2. Police Inspector,
Anjuna Police Station,
... RESPONDENTS
Anjuna, Goa.
Mr. Pradeep Sawaikar with Ms. Jay Sawaikar, Advocate under the Legal Aid
Scheme for the Appellant.
Mr. S. Karpe, Additional Public Prosecutor along with Ms. S. Gaonkar
and Ms. S. Parodkar, Advocates for the State.
CORAM:- ASHISH S. CHAVAN, J.
Reserved on : 16th March 2026
Pronounced on : 27th April 2026
JUDGMENT :
1. By way of the present Appeal, the Appellant has challenged the
judgment and order dated 01.10.2024 and 05.10.2024 passed by the
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Fast Track Special Court, POCSO, Panaji, Goa, in Sessions Case (ORS)
No. 43/2023 convicting him for offences punishable under Sections
448, 354 and 376 of IPC. The substantive sentence under Section 448
of IPC is one year rigorous imprisonment with fine of Rs.1,000/-
(Rupees One Thousand Only) and in default to undergo one month
rigorous imprisonment. The substantive sentence under Section 354
of IPC is Five Year rigorous imprisonment with a fine of Rs. 10,000/-
(Rupees Ten Thousand only) and in default to undergo one month
rigorous imprisonment. The substantive sentence under Section 376
of IPC is 10 years of rigorous imprisonment with a fine of Rs.25,000/-
(Rupees Twenty Five thousand only) in default to undergo one month
rigorous imprisonment. If the fine amount is realized, the same is
directed to be paid to the victim after the appeal period is over. All
sentences are to run concurrently.
2. It is the case of the prosecution that on 15.05.2023 at about
14.30 hrs, the victim lodged a written complaint with the Anjuna
Police Station. In the said complaint, she states that on 14.05.2023 at
about 21.30 hrs., she had dinner in the living room of her house and
at about 23.00 hrs., she went to sleep in the bedroom. At about 00.30
hrs., she sensed someone’s presence in the bedroom and therefore
woke up. Upon waking, she noticed that someone was crawling on the
floor next to her bed. She panicked and screamed at the person. The
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person jumped on her bed and tried to cover her face with the pillow
and bedsheet. The victim continued screaming and tried to escape
from his clutches. However, the Appellant further started removing
his pants. He pulled the pants from the body of the victim and touched
his hand on her vagina, trying to insert his fingers to which the victim
screamed and begged him to stop. However, the Appellant did not
stop and continued touching her private parts inappropriately. The
victim in self-defence put up a scuffle with the Appellant while
shouting for help loudly. In a couple of minutes, the victim heard
someone banging at the main door. She pushed the Appellant, rushed
towards the main door and opened it. Her neighbour along with three
others were standing there. They all managed to apprehend the
Appellant. In the complaint, the victim has identified the Appellant as
someone who washed cars, including her car for a living.
3. Acting on the aforesaid complaint, the Anjuna Police Station
registered FIR bearing No. 82/2023 under Sections 448 and 376 of
IPC.
4. The accused was arrested on 15.05.2023 under an arrest
panchanama. Medical examination of both the accused and the
victim was conducted. The scene of offence panchanama was drawn
up by the Investigating Officer and he also recorded the statements of
the witnesses. The investigation was concluded and chargesheet was
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filed before the Learned Judicial Magistrate First Class, Mapusa, Goa.
The charge was framed against the Appellant for offences punishable
under Section 448, 354 and 376 of IPC. The Appellant pleaded not
guilty and claimed to be tried. The prosecution examined eight
witnesses. No defence witness was examined by the accused.
5. PW1 victim, deposed in terms of her complaint. She stated that
she had been residing in a flat situated on the second floor of the
house belonging to PW7 on rental basis since February, 2023. She
further stated that she runs a Beauty Parlour on the first floor and she
resides on the second floor. She deposes that her flat consists of two
bedrooms and one living room. The rooms have attached balconies.
The door of the living room was kept open to allow her pet cats to
move in and out of the balcony. While narrating the incident dated
14.05.2023 she stated that after having dinner in the living room, she
went to sleep in her bedroom at about 11.00 p.m. Her bedroom door
was locked. Each room had a separate balcony, and one could not
access another balcony without passing through the bedroom or the
living room. She further narrates that on 15.05.2023 at about 00:30
hours, she sensed someone presence in her bedroom. Upon waking
up, she noticed that somebody was crawling on the floor next to her
bed. When the victim screamed, the said person jumped on her bed
and tried to cover her face with a pillow and bedsheet. She tried to
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escape from the clutches of the accused, however, the accused
continued touching her inappropriately and also tried to insert his
finger into her private parts. The victim, in self-defence, tried to
strangle him with the chain he was wearing around his neck, but the
chain broke and the accused continued attacking her. Hearing her
screams, the owner of the house, PW7 and other persons rushed to
the door of her flat. She somehow managed to open the door of the
house. When PW7 and others came inside the house and put on the
lights than she realized that the person assaulting her sexually was
none other than her car cleaner whom she identified as the Appellant,
who was washing her car since March, 2023. When he tried to run
away from the balcony, they caught him, and thereafter called the
police, who took the Appellant with them to the Anjuna Police Station
where she recorded her complaint. Thereafter the victim, at about
3.40 a.m., was sent for medical examination. After her initial medical
examination at a Primary Health Center (PHC), she was taken to the
Goa Medical College (GMC) for further medical examination. She
deposed about the clothes, bedsheet and broken chain which were
attached by the police under panchanama. Her statement was
recorded under Section 164 CrPC. In her evidence, she has proved the
same. In cross-examination, she admitted that she knew the accused
since she started living in the said building, where he was doing odd
jobs. She admitted that at the time of the incident there were no CCTV
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cameras in the building, they were installed later subsequent to the
incident. She also stated that it is possible for anyone to enter her
living room balcony through the common wall of the PW7’s house.
She further stated that it is possible for anyone to climb the common
balcony between the PW7’s house and her living room balcony, and
that she might not have noticed any person entering. She admitted
that on the next day, male and female police officers came to her
residence to conduct the panchanama. She further admitted that she
saw the accused only on the day of the incident at the police station.
She also identified one damaged silver-coloured, round-shaped metal
chain.
6. PW2, Medical Officer, deposed in terms of hurt certificate
issued by her. According to her, in the month of May 2023, while she
was attached to PHC as a Medical Officer, on 15.05.2023 at about 3:45
a.m., she examined the victim who was brought by the police. Upon
examination, the victim gave history of assault that (i) she was
sexually assaulted by being touched inappropriately on her vagina
(Appellant tried putting hand into her vagina) and (ii) she had
suffered blunt trauma to the rest of her body. PW2, on examination,
she did not notice any external injuries suggestive of forceful
penetration on the person of the victim.
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7. PW3, Senior Resident Doctor, attached to Department of OBG
GMC, deposed in terms of the Medico Legal Examination Report
along with the consent form of the victim and forwarding letters. She
deposes that on 15.05.2023, after obtaining consent for medical
examination of the victim, she examined the victim and referred her
to the blood bank. She also produced on record the Medico Legal
Examination Report in respect of sexual violence upon the victim. At
the time of examination, the victim narrated the history of the
incident. Upon gynecological examination, she noted that there were
multiple old healed hymeneal tears. As per her opinion, there was
evidence of vaginal penetration in consonance with the oral history of
the victim. The narration of the incident is in consonance with the
complaint of the victim, her statement under Section 164 of Cr.P.C.
and her oral evidence before the Court. The oral history mentions
digital penetration in the vagina by the Appellant. In cross-
examination, save and accept for the admission that the victim was
sexually active there are no other admissions elicited from this
witness.
8. PW4, Lecturer, Forensic Medicine and Toxicology (FMT),
attached to the Department of Forensic Medicine, GMC, deposed in
terms of the Report of Medical Examination of the Appellant and the
consent form. He deposed that on 16.05.2023, at the request of the
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.
police, he examined the Appellant at about 4:00 p.m , after obtaining
his consent. As per his opinion, (i) there were no signs suggestive of
recent sexual intercourse; however, the same could not be ruled out,
and (ii) there was nothing to suggest that the accused was incapable
of performing sexual intercourse. He identified the accused as well as
his signature. Except bare denials, there was no cross examination of
the witness.
9. PW5, panch witness deposed in terms of the Arrest cum
Attachment Panchanama. He deposed that on 15.05.2023, at the
request of the police, he acted as a panch witness for a panchanama
conducted at the police station, where one black coloured short
having vertical lines was shown in the presence of the accused. The
person present at the police station was given another set of clothes
and the clothes worn by him were attached under the panchanama.
He admitted that, in the presence of the Appellant and another
person, the arrest panchanama was conducted. He identified the
Appellant, following which the Appellant was arrested and one mobile
phone was found in his possession. He stated that the contents of the
panchanama were read over and explained to him in his language and
they were correctly recorded. He identified the Appellant as well as
one long-sleeved shirt, and one grey coloured long jeans pant seized
under panchanama. Since the witness was deviating from the
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panchanama, the learned Public Prosecutor has asked questions in
the nature of cross examination to the witness. During cross
examination although some suggestions were put up to the witness,
nothing of substance was elicited from the witness.
10. PW6, panch witness to the Scene of Offence panchanama has
deposed in terms of the said panchanama. He deposed that on
16.05.2023 he acted as a panch witness to the scene of offence
panchanama conducted at the victim’s bedroom situated on the
second floor of the building. He has described the room of the victim
which is the first room of the said flat. The room had one wooden bed,
table, windows, air-conditioners, curtains and an attached balcony.
He further deposed that on the bed, bedsheet, pillows and clothes
were found scattered. He also noticed mud fingerprints on the wall of
the balcony. During the panchanama, various articles including grey
coloured underwear, pillow cover, blue and red bedsheet, short
sleeves T-shirt with designs, underwear of the victim, one silver
coloured chain of the Appellant and a crystal rosary with metal cross
were seized, sealed and labelled, and his signatures were obtained.
The panchanama was written at the scene of offence. He knows the
owner as they are neighbours. He denied the suggestions put to him.
11. PW7, is the owner of the premises. He deposed that he knew
the victim as she was residing in his flat on the second floor as a tenant
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since February 2023 and had started a beauty parlour on the first floor
of the same building. On the intervening night between 15.05.2023
and 16.05.2023 at about 12:00 to 12:30 a.m., he heard the victim
screaming for help from her apartment while he was checking the
doors and gates of his house. After confirming that the sound was
coming from the victim’s flat, he sought help from two unknown
persons on the main road and went to the second floor with sticks.
They then rushed to the second floor and tried to open the apartment
door of the victim. PW7 then went to his house to get the spare key of
the apartment of the victim, but by the time he reached her
apartment, she had already opened the door. He saw that the victim
was wearing only a top, was without pants, her lip was bleeding and
she was crying. On entering the bedroom, they did not see the
Appellant there, but upon checking the balcony they found the
Appellant standing in one corner of the balcony without wearing
pants. Neighbours gathered and he was apprehended and taken to the
Police Station. He identified the Appellant as he used to do odd jobs
in the vicinity and had also worked at the victim’s parlour and washed
her car. In cross-examination, he admitted that the victim’s
apartment had a separate entrance, that the parlour used to remain
open till 9:00 p.m., the restaurant in the building remained open till
about 1:00 a.m., and that the accused used to frequently come to work
in the vicinity. He denied the defence suggestions.
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12. PW8, Investigating Officer deposed that on 15.05.2023, she
registered Crime No. 82/2023 under Sections 448 and 376 of IPC
based on the complaint of the victim, who alleged that on 14.05.2023
s
at about 00:30 hour , the accused criminally trespassed into her
bedroom and sexually assaulted her. PW8 further deposed that on the
same day, the Appellant was arrested in the presence of panch
witnesses under the arrest panchanama. All relevant articles,
including his mobile phone, were seized. She also arranged for the
medical examination of both the victim and the Appellant and
collected all the necessary medical reports. She stated that the
statement of the victim under Section 164 Cr.P.C. was recorded before
the Judicial Magistrate First Class at her request, and upon
completion of the investigation, she filed the charge-sheet before the
Court. In cross-examination, she admitted that there were no
eyewitnesses to the incident and that PW7 reached the spot after
hearing the victim’s shouts for help. She stated that CCTV cameras
were installed in the surrounding area but not at the place of incident.
She further admitted that the accused is a resident of the same area,
works in the vicinity as a daily wage labourer, and that no
documentary proof was produced to show that the accused had a low
IQ, though she had inquired with the family members of the
Appellant.
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13. The Appellant, in his statement under Section 313 of Cr.P.C.,
took up a defence of denial and false implication.
14. The impugned judgment and order dated 01.10.2024 relies
upon the oral testimony of PW1 (victim), the panchanama of the scene
of offence, the medical evidence, and the material objects seized
during investigation, to conclude that the accused committed the
offences punishable under Sections 448, 354 and 376 of IPC. The
learned Sessions Judge (Fast Track Special Court) has observed that
the testimony of PW1 is cogent, consistent and trustworthy, and
inspires confidence. The Court has further observed that conviction
can be based on the sole testimony of the victim if the same is found
reliable and free from material contradictions. The learned Sessions
Judge has observed that the circumstantial and medical evidence
clearly establishes the case of the prosecution beyond reasonable
doubt. Dealing with the defence of the appellant, the learned Sessions
Judge has observed that the defence put up by the appellant that he
might have entered into the flat of the victim for committing theft
cannot be believed. The contradictions and omissions as regards to
the injury to the victim do not go to the root of the matter in view of
the testimony of the victim and the medical evidence on record.
15. Heard Mr. Pradeep Sawaikar, learned Advocate with Ms. Jay
Sawaikar, learned Advocate under the Legal Aid Scheme for the
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Appellant. Mr. S. Karpe, learned Additional Public Prosecutor along
with Ms. S. Gaonkar and Ms. S. Parodkar, learned Advocates for the
State. Perused the records along with the paper book.
16. The rival submissions can be summed up as under.
17. On behalf of the Appellant, it was strenuously argued that the
sole testimony of the victim is not reliable. The witnesses examined to
support the case of the victim are either unreliable or have deposed
falsely. The material evidence is not collected by the Investigating
Agency. Elaborating further the Advocate for the Appellant has
argued that charge under Section 376 of IPC was wrongly framed by
the learned Sessions Judge. It is the case of the Appellant that the
charge which is framed against the Appellant is framed for the offence
of attempting to commit rape. It was also submitted that the offence
of house trespass is not proved by the prosecution. Relying on certain
parts of the deposition of the victim PW1, it was urged that
considering the topography of the premises where the offence has
taken place, it is not possible for any person to enter any other balcony
to the premises unless he goes through the living room. In the light
of the fact that the victim had specifically claimed that when she went
to sleep, her bedroom door was locked, it is difficult to believe that the
Appellant could have entered her bedroom from outside. Also, the
evidence of the panch witness reveals that he saw finger prints on the
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wall of her balcony, which is in consonance with the prosecution
theory that the Appellant had entered the bedroom through the
balcony of the bedroom. However, the victim has deposed that it is
not possible for anyone to climb into the balcony of her bedroom, and
hence, the case of the prosecution that the Appellant entered her
bedroom through the balcony cannot be established. Thus, the
offence of house trespass is not proved as per the submissions on
behalf of the Appellant.
18. Further, an attempt was made to discredit the testimony of the
victim on the basis of several inconsistencies between her testimony,
her complaint and her statement under 164 Cr.P.C. The inconsistency
is on the aspect of the time when the victim identified the Appellant.
In her evidence, the victim states that when PW7 came inside, they
put on the lights and then she identified the Appellant as her car
cleaner. This is contrary to her 164 statement where she states that
she noticed the Appellant and identified him immediately prior to the
incident.
19. The Appellant has also assailed the prosecution case on the
basis of the injuries on the body of the victim. It was sought to be
argued on behalf of the Appellant that the evidence of PW2 the
Medical Officer attached to the Primary Health Centre to examine the
victim has not spoken about any external or internal injuries suffered
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by the victim either in her opinion or in her testimony. However, the
evidence of PW3 the Doctor attached to Department of OBG, GMC,
who has prepared the Medico Legal Report of the victim, records the
oral history given by the victim regarding digital penetration. The said
Medico Legal Report further notes the presence of bruises on the
inner aspect of the right arm, right elbow and swelling of the left knee
joint. The Appellant has argued that the opinion given by PW2 is
contrary to the opinion given by PW3 on the crucial aspect of digital
penetration and external injuries to the victim.
20. On behalf of the Appellant it was also pointed out that there is
a discrepancy between the ocular evidence of PW7 (the owner of the
premises) and the medical evidence. PW7 deposes that when the
victim opened the door, her lip was bleeding whereas this injury is not
reflected in the evidence of either PW2 or PW3. The Appellant has
also argued on the aspect of non-collection of material evidence. It
was urged on behalf of the Appellant that the Investigating Agency
has not made any attempt to collect the evidence which was material
to the prosecution case. It is submitted that although the prosecution
case rests on the foundation of vaginal penetration by the Appellant
with his fingers, no efforts were made to take any swab/slide of the
fingers of the Appellant. Similarly, although the panch witness
deposes about the presence of human finger prints on the wall of the
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balcony, the Investigating Officer has not made any effort to collect
this valuable piece of evidence.
21. It is also argued on behalf of the Appellant that the testimony
of the victim speaks only about ‘attempt’ at digital penetration and
that the prosecution cannot establish its case merely on the basis of
the medical evidence. It was also sought to be argued by the Appellant
that the PW8 i.e. the Investigating Officer has admitted that she has
inquired about the IQ level of the Appellant. It was argued that
normally during the course of investigation, such inquiry is not made
unless the Investigating Officer finds something strange about the
accused or there was any material that prompted the Investigating
Officer to make such inquiries. It was argued that despite having a
doubt, the Investigating Officer did not refer the Appellant for
medical examination. This creates a serious infirmity in the
prosecution case and the benefit of doubt has to be given to the
Appellant.
22. The Appellant has relied on the judgments of Prakash Nayi
1
alias Sen Vs. State of Goa and in the case of Ajay Ram Pandit
2
Vs. State of Maharashtra . In conclusion the Appellant has
submitted that the prosecution suffers from several inconsistencies
1
2023 (5) SCC 673
2
2022 SCC Online Bom 3920
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and infirmities which raises a serious doubt on the genuineness of the
prosecution case and leads to the conclusion that the Appellant has
been falsely implicated. In view thereof, the Appellant has prayed that
the Appeal may be allowed and the conviction may be set aside.
23. The learned Additional Public Prosecutor for the State has
opposed the grant of relief in the Appeal. He has submitted that going
by the statements of the victim and her oral evidence in Court, it is
clearly established that the offence punishable under Section 376 of
IPC is proved beyond reasonable doubt. From a conjoint reading of
the complaint, the deposition and the statement under Section 164
Cr.P.C., it is evident that there is a clear act of digital penetration
attributable to the Appellant, attracting the offence defined under
Section 375(b) of the IPC which is punishable by Section 376 of the
IPC. The learned APP has submitted that the victim has withstood the
cross examination and her credibility is not shattered. The Appellant
was found in the said Apartment in the balcony of the bedroom. The
testimony of PW7 and other witnesses who rescued the victim also
corroborates the case of the prosecution. The evidence of the victim is
corroborated by the medical evidence in the nature of the medico legal
examination report dated 15.05.2023 and the examination of PW3
who is the author of the said report. The Medico Legal Report and the
findings therein have not been challenged by the Appellant in his
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cross examination. Similarly, the opinion of the doctor has also not
been controverted by the Appellant during cross examination. It was
argued that when a particular witness is not cross examined on a
material aspect of his testimony, the defence cannot subsequently
dispute the contents of the medical reports or dispute the medical
evidence on record. It was submitted that by its very definition the
offence of rape defined under Section 375(b) of IPC extends to
insertion “to any extent” , “any object” or “a part of the body” and is
not restricted only to penile penetration as is sought to be argued by
the Appellant. Dealing with the argument of the Appellant that the
non collection of material evidence i.e. DNA is fatal to the case of the
prosecution, learned APP has strenuously rebutted the same by
pointing out that Section 53(A) of Cr.P.C. enables medical
examination of a person accused of rape for the purpose of collecting
scientific evidence such as semen, blood, hair samples or DNA profile.
However, the provision is facilitative in nature and not mandatory
and therefore, failure to conduct DNA profiling cannot by itself be
treated as fatal to the prosecution case. It is a settled principle of
criminal jurisprudence that defects or shortcomings of the
investigation cannot by themselves be a ground for acquittal
particularly when the prosecution has otherwise produced reliable
and cogent evidence establishing the guilt of the accused. The learned
APP has relied on the judgments of Karnel Singh Vs. State of
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3 4
M.P. , Veerendra Vs. State of Madhya Pradesh , Sunil Vs.
5
State of Madhya Pradesh in support of the aforesaid
submissions.
24. The learned APP submitted that the statement of the
Investigating Officer as regards the mental status of the Appellant at
the best establishes the fact that during the course of the
investigation, the Investigating Officer had made inquiries with
family members as well as the persons acquainted with the Appellant
regarding his mental condition and IQ level. The Investigating Officer
further states that none of them have produced any document
suggesting that the Appellant was suffering from any mental illness or
that his IQ level was low. This fact has been recorded by the
Investigating Officer in his case diary. Under Section 84 of IPC the
plea of insanity can be availed by an accused only when it is
established that, at the time of the commission of the offence he was
incapable of knowing the nature of the act or that what he was doing
was either wrong or contrary to law. Learned Additional Public
Prosecutor argued that even in this case the burden of proving the
plea of insanity rests on the Appellant and the Appellant has failed to
discharge this burden. Additionally, it was also argued that during his
3
(1995) 5 SCC 518
4
(2022) 8 SCC 668
5
(2017) 4 SCC 393
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statement under Section 313 of Cr.P.C. the Appellant was given full
opportunity to explain the circumstances appearing against him and
to put forth his defence. However, the Appellant merely answered in
the negative and did not raise any plea of mental illness and
unsoundness of mind. Consequently, the benefit of Section 84 IPC
cannot be extended to the Appellant. The learned APP has placed
reliance on the judgments of Mohd. Anwar Vs. State (NCT of
6 7
Delhi) and Surendra Mishra Vs. State of Jharkhand in
support of his submissions.
25. Lastly, the learned Additional Public Prosecutor has refuted
the argument of the Appellant on the aspect of house trespass by
submitted that the suggestions put forth by the Appellant during the
cross examination of the victim clearly admit and acknowledge his
presence and hence, he cannot now conveniently argue that the fact
of house trespass is not proved.
26. Appreciating the rival contentions, two fold issues arise for my
consideration. Firstly, whether the conviction of the Appellant for
offences punishable under Sections 448, 354 and 376 of IPC is in
accordance with law and secondly, whether the sentence imposed by
6
(2020) 7 SCC 391
7
(2011) 11 SCC 495
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the impugned judgment is proportionate to the offence for which the
conviction is accorded.
27. To examine the first issue the evidence must be analyzed
meticulously. At the very outset, it would not be out of place to
reproduce the definition of Section 375 of the IPC.
[375. Rape.—A man is said to commit “rape” if
he— (a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person;
or
(b) inserts, to any extent, any object or a part of
the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so
with him or any other person; or
(c) manipulates any part of the body of a woman
so as to cause penetration into the vagina,
urethra, anus or any part of body of such woman
or makes her to do so with him or any other
person; or
(d) applies his mouth to the vagina, anus, urethra
of a woman or makes her to do so with him or any
other person, under the circumstances falling
under any of the following seven descriptions:—
First.—Against her will.
Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has
been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt.
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Fourthly.—With her consent, when the man
knows that he is not her husband and that her
consent is given because she believes that he is
another man to whom she is or believes herself to
be lawfully married.
Fifthly.—With her consent when, at the time of
giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him
personally or through another of any stupefying
or unwholesome substance, she is unable to
understand the nature and consequences of that to
which she gives consent.
Sixthly.—With or without her consent, when she is
under eighteen years of age.
Seventhly.—When she is unable to communicate
consent.
Explanation 1.—For the purposes of this section,
“vagina” shall also include labia majora.
Explanation 2.—Consent means an unequivocal
voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal
communication, communicates willingness to
participate in the specific sexual act: Provided
that a woman who does not physically resist to the
act of penetration shall not by the reason only of
that fact, be regarded as consenting to the sexual
activity.
Exception 1.—A medical procedure or intervention
shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by
a man with his own wife, the wife not being under
fifteen years of age, is not rape.”
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28. It is pertinent to note that after 2013 in the wake of the
recommendations of Justice Verma Committee constituted post
December, 2012 Delhi gang rape case recommending the broadening
of the definition of rape. Section 375 underwent substantial
amendments. In the post 2013 amendment scenario, the definition of
rape includes insertion, to any extent, of any object or part of the body,
not being the penis into the vagina the urethra or anus of a woman as
is evident from a bare perusal of Section 375(b) of IPC.
29. Appreciating the evidence of PW1, the victim, while deposing
about the incident she narrates that she sensed someone present in
her bedroom. Upon waking up she noticed that somebody was
crawling on the floor next to her bed. When she screamed, the said
person jumped on her bed and tried to cover her face with a pillow
and bedsheet. She tried to escape from the clutches of the assailant.
However, the assailant tried to insert his finger into her private part.
The victim, in self defence tried to strangle him with a chain that he
wore around his neck but the chain broke and the assailant continued
attacking her. Hearing her screams, the owner of the house, PW7 and
other persons rushed to the door of her flat. The victim somehow
managed to open the door of the house. When PW7 and others came
inside the house and put on the lights then she realized that the
person assaulting her sexually was none other than her car cleaner
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whom she knew to be the Appellant who was washing her car since
March, 2023. When he tried to run away from the balcony, they
caught him, called the police and took the Appellant to the police
Station where the statement of the victim was also recorded.
Thereafter the victim was sent for medical examination.
30. PW7, the owner of the premises where the victim was residing
on the second floor as a tenant is also an important witness. He heard
the screams of the victim and after confirming that the sound was
coming from the victim's flat, he along with other persons went to the
second floor armed with sticks. They tried to open the apartment door
of the victim’s flat. PW7 went to his flat to get the spare key of the
apartment of the victim but by the time he reached the apartment, the
victim had already opened the door. On entering the bedroom, they
did not see the Appellant but upon checking the balcony they found
the Appellant standing in one corner of the balcony. He was
apprehended and taken to the police station. PW7 has also identified
the Appellant since the Appellant used to do odd jobs in the vicinity
and had also worked at the victim’s parlour and washed her car.
31. In the background of the oral deposition of the victim, it is
pertinent to examine the medical evidence with respect to the medico
legal examination of the victim. It is pertinent to note that the victim
lodged the complaint at about 2.30 a.m. on 15.05.2023. The victim
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was examined for injuries by PW2, a Medical Officer attached to the
PHC at about 3.45 a.m. on the same day. The medical examination of
the victim was conducted by PW3, Senior Resident attached to the
Department of OBG, Goa Medical College. The examination was
conducted on the same day at 5.45 p.m. PW2 deposes that there were
no external injuries suggestive of forceful penetration or perineal tear.
On behalf of the Appellant, the evidence of PW2 was relied upon to
support his argument that the sexual assault was limited to the
Appellant ‘trying’ to put his fingers in the private part of the victim
and that such attempt could not fall within the definition of Section
375 of the IPC. It was on the basis of the deposition of this witness
that the Appellant canvassed the theory that the allegations against
the Appellant can be at the highest categorized as an attempt to
commit rape.
32. It is in this light that the evidence of PW2 assumes significance.
However, before adverting to the same, it would be necessary to
examine the deposition of PW3, the Senior resident doctor who
medically examined the victim on the very same day. She deposes that
she was in receipt of a letter dated 15.05.2023 addressed by Anjuna
Police Station requesting her to conduct the medical examination of
the victim. She has proved and exhibited the medico legal
examination report of sexual violence issued under her signature by
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the Department of OBG, Goa Medical College. The deposition of PW3
corroborates the aforesaid medico legal report. In her deposition PW3
states that there was evidence of vaginal penetration. The victim was
examined on the day of the incident. She further deposes that the
victim had given the oral history of “inserting the finger in the vagina”.
Co-relating this deposition with the medico legal report, it is seen that
the chart at Point No.15(f) thereof titled “Details regarding sexual
violence” clearly reflects that there was penetration by finger.
Similarly, the checklist at Point No.17 titled “Examination for
injuries on the body if any” mentions two bruises on the inner
aspect of upper arms and swelling of left knee joint. Finally, the
medical opinion reflected at Point No.22 clearly indicates evidence of
“ vaginal penetration upon gynecological examination”.
Thus, the evidence of PW3 clearly establishes penetration by fingers
co-relating to medical finding of vaginal penetration. On behalf of the
Appellant, inviting the attention of this Court to the following excerpt
from the deposition of PW1, it was sought to be argued that at the best
the allegations would constitute an attempt to commit rape.
“On 15.05.2022 at about 00.30 hrs., I sensed
someone present in my bedroom and I woke up
and found that somebody was crawling on the
floor next to my bed. When I screamed, the said
person jumped on my bed and tried to cover my
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fact with pillow and bedsheet. I tried to escape
myself from his clutches. He continued touching
inappropriately, he tried to put his fingers into
my vagina. I managed to free myself and I
continued screaming loudly. In my self defence,
I tried to strangulate him with his chain which
he was wearing around his neck but the same
broke and he continued attacking me. I
continued fighting back and screaming.”
33. However, upon a holistic reading of the evidence of PW1 and
PW3 i.e. the evidence of the victim and the Doctor who conducted
medico legal examination on the victim, two aspects clearly stand out.
Firstly, that the victim has described the sexual assault in vivid and
clear details. She has described the shock which she underwent
realizing that someone was crawling on the floor next to her bed in
the dead of the night. She was further horrified when that person
jumped up on her bed and smothered her with the pillow and
bedsheet. Her desperate struggle to extricate herself from the clutches
of the assailant is also described. She has clearly stated that the
Appellant touched her inappropriately by trying to put his fingers into
her vagina. This oral deposition cannot be read in isolation but must
be read along with the medico legal report. As noted above the medico
legal report establishes that there was penetration by finger into
vagina and a clear opinion was given by PW3 that there is evidence of
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vaginal penetration upon gynecological examination. By its very
definition the offence of rape includes insertion of any part of the
body, to any extent into the vagina of a woman. Thus, the very
definition of the offence of rape includes penetration by fingers or
. The definition of the offence of rape does not
‘digital penetration’
stipulate any . In fact, even before the 2013
“degree of penetration”
amendment, the Hon’ble Supreme Court has held in a catena of
judgments that even partial or slightest penetration into the private
part of the victim would be sufficient to attract the offence of rape.
Useful reference can be made to the observations of the Hon’ble
8
Supreme Court in the case of State of U.P. Vs. Babul Nath ,
9
Koppula Venkat Rao Vs. State of U.P. and Aman Kumar
10
Vs. State of Haryana . Thus, there is no hesitation in the mind of
this Court to hold that the complaint, the oral deposition of the victim
and the corroborating medical evidence clearly establish the offence
of rape committed by the Appellant against the victim.
34. Dealing with the cross examination of the victim, it is pertinent
to note that the Appellant has put up a case that the victim had falsely
implicated him since there were arguments between the victim and
the Appellant due to unpaid wages. This defence is not only
8
(1994) 6 SCC 29
9
(2004) 3 SCC 602
10
(2004) 4 SCC 379
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improbable but also not in consonance with the 313 statement of the
Appellant. Although it was suggested during cross examination that it
is possible for any person to enter into the living room balcony of the
victim through the common wall of the PW7, the very fact that the
Appellant was apprehended on the spot in the corner of the balcony
and identified by PW1 and PW7 demolishes the area of doubt sought
to be created by the Appellant by way of the aforesaid suggestion.
35. Dealing with the alleged discrepancy between the evidence of
PW2, a Medical Officer and PW3, Senior Resident Doctor, it is to be
noted that PW2, the Medical Officer has not examined the victim for
sexual assault. Hence, her gynecological examination was not done by
PW2. This is borne out by the Hurt Certificate produced at the
instance of PW2 vis-a-vis the Hurt Certificate. The medico legal
examination report notes the gynecological examination done by
PW3 in respect of sexual assault committed upon the victim. The said
report is exhaustive inasmuch as it deals with the history of sexual
violence, type and details of violence, examination of injuries on the
body and finally opines that there is evidence of ‘vaginal penetration’.
Thus, the Hurt Certificate and the medico legal examination report
are not at variance with each other as sought to be made out by the
Appellant. They are opinions operating in different spheres. PW2 has
examined the victim for external injuries. This examination was done
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in a Primary Health Centre by a Medical Officer, whereas PW3 has
gynecologically examined the victim for history of sexual assault and
this examination was done by a Senior Resident Doctor attached to
the Department of OBG i.e. Obstetrics and Gynecology. Needless to
state, PW3 is not only competent but also qualified to undertake a
gynecological examination of a victim of sexual assault. Hence, the
opinion of PW3 is more relevant for the purpose of medical
corroboration of the offence of rape. Here it would be relevant to add
that the credentials of PW3 have not been assailed by the Appellant in
his cross examination. Neither has the Appellant challenged the
findings of the medico legal examination report.
36. Dealing with the ancillary arguments on behalf of the
Appellant, firstly , that the non-collection of material evidence i.e.
DNA is fatal to the case of the prosecution, I find force in the
submissions of the learned APP that Section 53(A) of Cr.P.C. is
facilitative in nature and not mandatory and therefore, failure to
conduct DNA profiling cannot by itself be treated as fatal to the
prosecution case. This is more so, in the wake of the evidence of the
victim corroborated by medical reports. Secondly , it was sought to be
argued by the Appellant that the Investigating Officer admitted that
she has inquired about the IQ level of the Appellant and that normally
such inquiry is not made unless the investigation finds something
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strange about the Appellant that prompted his inquiry. This argument
must be discarded for the reason that the deposition of the
Investigating Officer, on the contrary, establishes that during the
course of investigation she had made inquiries with the family
members and the persons acquainted with the Appellant regarding
his mental condition and IQ level. The Investigating Officer further
states that none of them have produced any document suggesting that
the Appellant was suffering from any mental illness or that his IQ level
was low. This fact has been recorded by the Investigating Officer in
her case diary. Under Section 84 of IPC the plea of insanity can be
availed by an Accused only when it is established that, at the time of
the commission of the offence he was incapable of knowing the nature
of the act or that what he was doing was either wrong or contrary to
law. Even in this case, the burden of proving the plea of insanity if any,
rested with the Appellant and from a perusal of the record it is evident
that the Appellant has failed to discharge this burden. It must be
noted that the Appellant was given full opportunity to explain the
circumstances appearing against him and to put forth his defence by
way of his statement under Section 313 of Cr.P.C. However, the
Appellant merely answered in the negative and did not raise any plea
of mental illness or unsoundness of mind.
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37. Thirdly, insofar as the argument on behalf of the Appellant
that the charge framed against the Appellant is not framed for the
offence of rape but for the offence of ‘attempt to rape’, a bare perusal
of the charge indicates that it is, inter alia, framed for offence
punishable under Section 376 of IPC. The offence punishable under
Section 376 of IPC is proved by the prosecution. The Appellant has
not demonstrated prejudice caused to him by the purportedly
‘incorrect’ framing of charge occasioning a failure of justice. It is a
settled position of law that where there is substantial compliance with
the requirements of law and the accused had a fair trial with full
knowledge of the case against him, mere procedural errors or
omissions would not vitiate the trial unless prejudice is demonstrated.
Therefore, this argument of the Appellant also deserves to be rejected.
38. Lastly, examining the offences punishable under Section 448
(punishment for house trespass) and Section 354 of IPC (assault or
criminal force on woman to outrage her modesty), it was sought to be
argued on behalf of the Appellant that considering the topography of
the premises where the offence has taken place, it is not possible for
any person to enter any other balcony to the premises unless he goes
through the living room and hence, it is difficult to believe that the
Appellant could have entered the bedroom of the victim from outside.
Analysis of the suggestions put forth on behalf of the Appellant during
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the cross examination of the victim clearly admit and acknowledge the
presence of the Appellant. Coupled with the fact that the Appellant
was apprehended on the spot and except for denials the Appellant has
not come out with any alternative explanation of his presence, the
offence of house trespass is proved by the prosecution. Although the
Appellant has not specifically assailed his implication for offence
punishable under Section 354 of IPC in the submissions before this
Court, an independent analysis of the evidence yields that the offence
punishable under Section 354 has also been proved by the
prosecution.
39. Examining the proportionality of the sentence imposed vide
the impugned order and judgment it is to be noted that the learned
Judge has heard arguments of rival sides on the point of sentence and
then sentenced the Appellant to undergo substantive sentence of one
year rigorous imprisonment for offence under Section 448 of IPC, five
years rigorous imprisonment for offence under Section 354 of IPC and
ten years rigorous imprisonment for offence under Section 376 of IPC.
Since all sentences are directed to run concurrently, the
proportionality of the sentence will have to be examined in respect of
the sentence of ten years rigorous imprisonment. Section 376 of IPC
which provides for the punishment of the offence of rape stipulates
that the punishment shall not be less than ten years but can extend to
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imprisonment for life. The learned Judge has considered the fact that
there were no prior convictions against the Appellant and sentenced
him to the minimum substantive sentence of rigorous imprisonment
for ten years. Thus, the sentence imposed vide the impugned
judgment and order is proportional to the gravity and heinousness of
the offence.
40. In the light of the aforesaid facts and discussions, this Court
has no hesitation in holding that the conviction of the Appellant for
offences punishable under Sections 448, 354 and 376 of IPC is in
accordance with law and that the sentence imposed by the impugned
judgment is proportionate to the offence for which the conviction is
accorded. In view thereof, the Appeal deserves to be dismissed.
41. Criminal Appeal No.1042 of 2024 (F) is dismissed .
42. The Registry to waive the office objections and register the
matter.
ASHISH S. CHAVAN, J.
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