Case Note & Summary
The High Court of Bombay at Goa heard a criminal appeal filed by Sajji Kumar against his conviction for rape under Section 376 of the Indian Penal Code. The appellant was convicted by the Additional Sessions Judge, Mapusa, in Sessions Case No. 15/2002, based on allegations that he raped a British national, Hazel Smith, who had come to Goa for tourism. The prosecution case was that the prosecutrix, seeking an Ayurvedic massage, was taken by the appellant to a room where he, posing as an Ayurvedic doctor, massaged her and then raped her despite resistance. She lodged an FIR the same night, was medically examined, and the accused was arrested. At trial, the prosecutrix appeared on some dates but could not be examined due to the appellant's absence; later she returned to the UK and stated she could not return due to financial constraints, requesting expeditious disposal through the British Embassy. The trial court, relying on the statement under Section 164 of the Code of Criminal Procedure recorded by the Special Executive Magistrate and the FIR, convicted the appellant and sentenced him to rigorous imprisonment for seven years and a fine. On appeal, the appellant's counsel argued that the conviction was unsustainable because the prosecution failed to prove the FIR since neither the complainant nor the scribe was examined, rendering it inadmissible; that the statement under Section 164 CrPC could not be treated as substantive evidence; that non-examination of the prosecutrix caused grave prejudice and warranted an adverse inference; that medical evidence showed no injuries, indicating consent; that the test identification parade was tainted; and that several material witnesses were not examined. The Public Prosecutor contended that non-examination was not fatal, that the FIR and statement were admissible for corroboration, and that prompt lodging of the FIR and medical evidence supported the prosecution. The judgment excerpt ends during the Public Prosecutor's submissions, and the final decision of the court is not recorded in the provided text.
Issue of Consideration
Whether the conviction under Section 376 IPC can be sustained based on the statement under Section 164 CrPC and the FIR when the prosecutrix was not examined, and whether the evidence on record is sufficient to prove the offence beyond reasonable doubt.
Law Points
- admissibility of FIR
- proof of FIR contents
- section 164 CrPC statement not substantive evidence
- non-examination of prosecutrix fatal to conviction
- adverse inference for non-examination
- medical evidence indicating consent
- test identification parade validity
- circumstantial evidence evaluation
Case Details
2005 LawText (BOM) (06) 26
Criminal Appeal No. 21 of 2004
Mr. Menino Teles for the Appellant, Mr. S. N. Sardessai, Public Prosecutor for the State
Sajji Kumar, S/o Pappu Kumar
State of Goa (Through Public Prosecutor, High Court)
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Nature of Litigation
Criminal appeal against conviction for rape under Section 376 IPC.
Remedy Sought
Appellant sought to set aside the conviction and sentence, and be acquitted of the charge.
Filing Reason
Alleged rape of a British tourist in an Ayurvedic massage parlour in Goa.
Previous Decisions
Additional Sessions Judge, Mapusa, convicted the appellant in Sessions Case No. 15/2002 on 25-03-2004, sentencing him to seven years rigorous imprisonment and a fine of Rs. 5000/-.
Issues
Whether the prosecution proved the FIR when neither the prosecutrix nor the scribe was examined.
Whether the statement recorded under Section 164 CrPC can be used as substantive evidence without examination of the prosecutrix.
Whether non-examination of the prosecutrix vitiated the conviction.
Whether medical evidence of absence of injuries indicated consent.
Whether the test identification parade was tainted.
Whether adverse inference should be drawn for non-examination of material witnesses.
Submissions/Arguments
Appellant's counsel argued that the FIR was not proved as the complainant and scribe were not examined, rendering it inadmissible and not substantive evidence.
Appellant contended that the statement under Section 164 CrPC could not be relied upon as substantive evidence and at best only for corroboration, which was impossible without the prosecutrix's testimony.
Non-examination of prosecutrix caused serious prejudice and warranted an adverse inference; she had been present in court on earlier dates but failed to appear later, preventing cross-examination.
Medical evidence showed no injuries on the accused or prosecutrix, suggesting lack of resistance and implying consent; the prosecutrix was a 35-year-old able-bodied woman.
The test identification parade was vitiated because the prosecutrix had seen the accused before arrest, and the police made all arrangements contrary to guidelines.
Material witnesses named in the statement were not examined, and the witnesses examined were pliable as they were dependent on police.
Even if the F.I.R. was read, it did not clearly state penetration by penis, thus no offence under Section 376 made out.
Public Prosecutor argued that non-examination was not fatal; the F.I.R. and statement under Section 164 could be used to establish the incident and prompt reporting, and medical evidence supported the prosecution with minor injuries.
Judgment Excerpts
The learned Counsel submitted that the First Information Report was not proved by the prosecution because neither the prosecutrix nor the person who had reduced the F.I.R. into writing had been examined by the prosecution. (Para 5)
The learned Counsel thereafter submitted that the statement which was recorded by the Magistrate under Section 164 of the Code of Criminal Procedure also should not be relied upon by the prosecution as a substantive piece of evidence... (Para 5-6)
The prosecutrix had appeared in the Court on 2 to 3 dates however on the actual date she chose to remain absent. (Para 6)
Procedural History
The prosecutrix, a UK citizen, lodged a complaint on 11-01-2002 alleging rape by the appellant in an Ayurvedic massage parlour. The appellant was arrested the same day. Sessions Case No. 15/2002 was registered. The prosecutrix appeared in court in March 2003 but could not be examined due to the appellant's absence; she returned to the UK. A letter via the British Embassy indicated she could not return due to financial constraints and requested expeditious disposal. The trial court recorded evidence of other witnesses and relied on the statement under Section 164 CrPC and the FIR. On 25-03-2004, the Additional Sessions Judge convicted the appellant under Section 376 IPC and sentenced him to 7 years rigorous imprisonment and fine. The appellant filed this appeal. He was initially in custody from 11-01-2002 to 25-03-2002 when he was released on bail, and later was in jail following conviction.
Acts & Sections
- Indian Penal Code, 1860: 376
- Code of Criminal Procedure, 1973: 164
