Flags inconsistent testimony and evidentiary lapses
PANAJI
The North Goa Sessions Court on Wednesday acquitted BJP Minister Atanasio Monserrate of charges of raping a minor, bringing to a close a case that had stretched over a decade and led to his arrest and 13 days in jail in 2016.
Monserrate and co-accused Rosaria alias Rosy Ferros were cleared of charges of rape, wrongful confinement and criminal intimidation, as well as offences under the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology Act. A 250-page chargesheet was filed in 2018, and charges were framed in 2019.
In a 200-page judgment, Sessions Judge Irshad Agha held that the prosecution had failed to prove that Monserrate had sexual intercourse with the victim or that she was below 16 years of age at the time of the alleged incident.
“The prosecution in the present case has failed to prove that accused no. 1 (Monserrate) had sexual intercourse with victim girl and that the age of the victim girl was below 16 years. Prosecution has failed to prove the age of the victim. In view of the evidence discussed and case laws mentioned above the benefit of two years minus and plus would come in favour of accused no. 1,” the order stated.
Central to the court’s reasoning were inconsistencies in the statements of the prosecutrix, and that she admitted she was frustrated over situations at her place and while lodged in Apna Ghar.
“The most important fact which was required to be proved by the prosecution is whether the accused no. 1 had sexual intercourse with the victim girl. In one breadth PW5/victim girl stated that accused no. 1 had sexual intercourse with her twice during the intervening night, and suddenly, she has changed her version. The statement of PW5/victim girl was admittedly recorded 04 times by the police and twice before the Magistrate and the NGO had recorded her statement 03 times prior to recording her statement before the police... The victim girl admits that she has given inconsistent versions.”
The court also flagged serious lapses in the handling of electronic evidence related to allegations that nude photographs of the victim, and witnesses turning hostile.
“The mobile phones of accused Nos. 1 and 2 (Rosy) were seized, but the panch witnesses turned hostile. The attachment of the mobile phones of accused Nos. 1 and 2 itself is in doubt. PW6 and PW7, who were panchas to the attachment of the mobile phones of accused Nos. 1 and 2, turned hostile. PW8 and PW9, who were panchas to the attachment of the mobile phone from accused No. 2, also turned hostile,” the judge said.
The court observed that under Section 45A of the Indian Evidence Act, expert opinion on electronic evidence would carry value only if Section 79A of the IT Act was complied with. The prosecution’s expert witness, PW18 (then PI Rajesh Job), was found to lack detailed training and was unaware whether the forensic software used was updated. The court further noted that PW18 did not know what a “hash value” was — a crucial digital fingerprint used to ensure the authenticity and integrity of electronic evidence.
On the charge of wrongful confinement under Section 342 of the Indian Penal Code, the court held that the prosecution failed to prove that the victim was unlawfully restrained at the farmhouse. It also ruled that allegations that she was threatened with dire consequences and circulation of nude photographs were not proved beyond reasonable doubt.
Holding that the prosecution had failed to establish the charges, the court answered the relevant points in the negative and acquitted both accused of all offences. The two were directed to furnish bail bonds of Rs 25,000 each with one surety in the like amount, to remain in force for six months.
