Acquitting Goa Revenue Minister Atanasio Monserrate and another accused in a rape case, the Sessions court in Goa observed that certain facts which were required to be proved by the prosecution in the case are “absolutely missing”. The court said the prosecution failed to prove that Monserrate had sexual intercourse with the victim girl and also failed to prove her age.
The complainant had alleged Ferros instigated and provoked the victim to send her nude photographs to Monserrate in 2016. Thereafter, one day, she was taken to Monserrate’s farm house sometime in the evening, where she was offered soft drink and snacks, following which she fell unconscious and alleged she was sexually assaulted by him, she alleged.
In an order, Sessions Judge, North Goa, Merces, Irshad Agha said the most important fact which was required to be proved by the prosecution is whether accused number 1 [Monserrate] had sexual intercourse with the victim girl. The court said the victim’s statement was recorded four times by the police and twice before the magistrate and an NGO recorded her statement thrice prior to the police statement.
The court said medical evidence also does not support the case of prosecution.
“In one breadth [sic]…victim girl has stated that the accused no. 1 had sexual intercourse with her twice during the intervening night, and suddenly, she has changed her version. The victim girl admits that she has given inconsistent versions. Thereafter she has taken a summersault that she has not stated nor told anyone that accused no.1 had sexual intercourse with her twice in the night. She admits that the complaints which she had given to the police as well as to the magistrate about her mother selling her to the accused no.1 and accused no.2 [Ferros], were false complaints,” the court said.
The complainant, according to the court, states that nothing had happened to her and she had made up a false story.
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“She further states that she had filed complaint against accused no.1 out of frustration and depression as she was kept in Apna Ghar where she was feeling mentally tortured.,” the court said.
The most vital fact which was required to be proved by the prosecution is the age of the victim at the time when offence was committed, it said. The prosecution “utterly failed” to prove that the girl was a “child” on the date of incident within the provisions of the POCSO Act, it goes on to say.
“The prosecution has failed to prove the age of the victim. In the absence of credible evidence to prove that the victim was below 18 years of age in the said case and in view of serious doubts surrounding lack of consent the essential ingredient of the offence under Section 376 of IPC are not proved beyond reasonable doubt and hence benefit was given to the accused,” the court said.
The court said the case of the prosecution is deemed to have been rebutted since there was no clarity on certain facts, including to whom the victim disclosed the facts for the first time or who took her to Monserrate’s house.
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“In one breadth [sic] the victim states that she was conscious, and in another breadth [sic] she states that she was unconscious. As per the initial report…she was taken in mid-March, however…girl has stated that she was taken to the house of accused no.1 in March or April. Out of the 60 days, she could not give the exact date. Therefore, we do not know the date of the incident. According to the prosecution, after having the drink and after consuming the snacks, she fell unconscious. It is the consistent case of the investigating officer that when she was taken to the house of accused no.1, she was not unconscious and she never became unconscious. Therefore, the prosecution has failed to prove who actually offered the drink and snacks to the victim,” the court added.
