Basic facts not proved: Goa court acquits Minister Atanasio Monserrate in POCSO case

A Goa court has acquitted Revenue Minister and BJP MLA Atanasio “Babush” Monserrate and co‑accused Rosaria Ferros in a case of raping a minor girl [State of Goa v. Atanasio Teoflio Martins Monserrate & Anr.].

In a judgment delivered on February 11, Sessions Judge Irshad Agha, of North Goa's Tiswadi–Merces held that the prosecution failed to prove the basic facts needed to sustain rape and charges under the Protection of Children from Sexual Offences Act (POCSO Act) and the Information Technology Act.

The judge stressed that even in child sexual assault cases, the State must first establish a factual foundation before it can rely on the statutory presumption of guilt under Section 29 of the POCSO Act.

To prove the offence of rape under the POCSO Act, the prosecution has to prove certain facts and circumstances, the court said.

“Although there is a presumption in favour of the prosecution, certain facts which were required to be proved by the prosecution are absolutely missing. Since some of the following facts are not proved, the case of the prosecution is deemed to have been rebutted,” the Court held.

​The case registered in 2016 alleged that Monserrate, with the help of Ferros, induced a minor girl to send them her semi‑nude photographs, wrongfully confined her to his farmhouse at Taleigao and had sexual intercourse with her.

Judge Agha concluded that the prosecution had not proved that Monserrate had sexual intercourse with the victim without consent, or that there was wrongful confinement, criminal intimidation or transmission of nude photographs.

The Court was equally critical of the prosecution’s case on the age of the victim.

While the prosecution projected the girl as 14, the medical board comprising a forensic expert and dental specialist fixed her radiological/dental age between 17 and 18, with an admitted margin of error of up to two years.

No reliable birth certificate or school record was produced.

The Court concluded that the prosecution had failed to prove that Monserrate had sexual intercourse with the victim girl and that her age was below 16 years.

“Prosecution has failed to prove the age of the victim. The benefit of two years minus would come in favour of Monserrate,” the court said.

The judge also noted multiple inconsistencies and retractions in the testimony of the prosecutrix, whose statements were recorded by the police, by the Magistrate under Section 164 CrPC, and by counsellors.

​At one stage, the girl admitted in cross‑examination that her earlier complaints were a “figment of imagination and there was no truth in the same”.

She also admitted that nothing untoward had happened in the farmhouse, the Court recorded.

Ultimately, the Court acquitted both accused of offences under Sections 376 (rape), 342 (wrongful confinement), 506 (criminal intimidation) read with Section 34 of the Indian Penal Code, Section 4 (penetrative sexual assault) of the POCSO Act, and Section 67B of the IT Act.

The State was represented by advocates Simoes, P Bharne, Nita Marathe, R D’Souza, L Fernandes, A Mendonza, VG Costa, S Mandrekar, A Talaulikar, Roy D’Souza and A Bhobe.

Monserrate was represented by advocates D Dhond and S Nasnolkar while Ferros was represented by advocate A Kurtarkar.

[Read Judgment]