PANAJI: Goa children's court on Wednesday held that St Cruz MLA Atanasio Monserrate was entitled for bail because police investigations had failed to prove that the survivor was a child at the time of the alleged offence. The court also rapped the investigation agency for the shoddy probe that helped the accused rather than the prosecution in the case.
The accused was charged under the Goa Children's Act, which deals with rape offences against a child who has not completed 16 years of age. But, police were unable to establish that the survivor was a child as her birth certificate and Aadhar card showed two different names and birthdates, while the ossification test showed her to be 17 to 18 years of age.
"In such circumstances it is also doubtful whether the Protection of Children from Sexual Offences Act , 2012, and Goa Children's Act, 2003, is applicable in the case at hand and, more particularly, in the light of the definition of a child under Section 2(d) and proviso (d), which defines that child shall mean any person who has not completed 16 years of age," additional session court judge Pramod Kamat, who is holding the charge of the children's court, observed.
The judge said that records also show that the child welfare committee (CWC), North Goa has itself admitted to discrepancies in documents that show the survivor's age.
Noting that statements of almost all witnesses recorded by the prosecution put the victim in a bad light, the court said, "The statements of the various witnesses recorded by the investigation officer, who are employees of Monserrate, in fact, prima facie belies the case of the prosecution and supports the claim or say of the defence of the accused herein and their false implication."
The court also pointed out to discrepancies in the survivor's statement made before the CWC and that recorded under Section 164 of CrPC. The statement before the CWC, which was treated as the FIR, was made on May 4 while the supplementary statement was made on May 5.
The statement of the victim alleging that a neighbour informed her that her mother sold her to Monserrate for 50 lakh does not find place in the statement taken under Section 164 of CrPC. "The statement/FIR made before the CWC, Merces, which is converted into an FIR, does not state that the victim saw Monserrate present in the house on that day," Kamat observed.
Another significant note to make from the survivor's statement was that no where was it said that she was served cakes, beverages, etc, in the presence of the MLA and neither was it said that he touched her, or removed her clothes, or had sexual intercourse with her, the court stated.
Further referring to the point where the survivor has mentioned the presence of a few more girls and a boy at Monserrate's house, the court said that the prosecution did not take pains either to ascertain their identity or examine any one of them. Their evidence would have been very material in unfolding the survivor's case, the court observed.
The investigation was also slammed for failing to ascertain the identity of the driver who dropped the survivor to her friend's house. "The white colour car with tinted windows that was used to drop the survivor to her friend's house was also not attached," the judge observed.
Referring to the FIR and supplementary statement Kamat said that there was no allegation of pain or bleeding from any part of the body.
TOI Goa News
The accused was charged under the Goa Children's Act, which deals with rape offences against a child who has not completed 16 years of age. But, police were unable to establish that the survivor was a child as her birth certificate and Aadhar card showed two different names and birthdates, while the ossification test showed her to be 17 to 18 years of age.
"In such circumstances it is also doubtful whether the Protection of Children from Sexual Offences Act , 2012, and Goa Children's Act, 2003, is applicable in the case at hand and, more particularly, in the light of the definition of a child under Section 2(d) and proviso (d), which defines that child shall mean any person who has not completed 16 years of age," additional session court judge Pramod Kamat, who is holding the charge of the children's court, observed.
The judge said that records also show that the child welfare committee (CWC), North Goa has itself admitted to discrepancies in documents that show the survivor's age.
Noting that statements of almost all witnesses recorded by the prosecution put the victim in a bad light, the court said, "The statements of the various witnesses recorded by the investigation officer, who are employees of Monserrate, in fact, prima facie belies the case of the prosecution and supports the claim or say of the defence of the accused herein and their false implication."
The court also pointed out to discrepancies in the survivor's statement made before the CWC and that recorded under Section 164 of CrPC. The statement before the CWC, which was treated as the FIR, was made on May 4 while the supplementary statement was made on May 5.
The statement of the victim alleging that a neighbour informed her that her mother sold her to Monserrate for 50 lakh does not find place in the statement taken under Section 164 of CrPC. "The statement/FIR made before the CWC, Merces, which is converted into an FIR, does not state that the victim saw Monserrate present in the house on that day," Kamat observed.
Another significant note to make from the survivor's statement was that no where was it said that she was served cakes, beverages, etc, in the presence of the MLA and neither was it said that he touched her, or removed her clothes, or had sexual intercourse with her, the court stated.
Further referring to the point where the survivor has mentioned the presence of a few more girls and a boy at Monserrate's house, the court said that the prosecution did not take pains either to ascertain their identity or examine any one of them. Their evidence would have been very material in unfolding the survivor's case, the court observed.
The investigation was also slammed for failing to ascertain the identity of the driver who dropped the survivor to her friend's house. "The white colour car with tinted windows that was used to drop the survivor to her friend's house was also not attached," the judge observed.
Referring to the FIR and supplementary statement Kamat said that there was no allegation of pain or bleeding from any part of the body.
TOI Goa News
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