JOAQUIM CONSTANTINHO CARVALHO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant is the accused in Sessions Case No. 28/92 who was charge-sheeted in the Court of Assistant Sessions Judge, South Goa, Margao, for offences punishable under sections 366-A and 376 of the Indian Penal Code. The appellants case is that on 30th March, 1991, at about 1 p. m. , the appellant kidnapped a minor girl by name Fernanda Quadros who was at that time 15 years of age and took her to Alnawar wherein he maintained intercourse with her. The appellant pleaded not guilty to the charge but the learned Sessions Judge after recording evidence acquitted the appellant of the offence under section 366-A but convicted him under section 376 of the Indian Penal Code and sentenced him to undergo 7 years of Rigorous Imprisonment and pay a fine of Rs. 500/- or in default to suffer three months further Simple Imprisonment. While convicting the accused the learned Assistant Sessions Judge recorded the finding that Miss Fernanda Quadros at the relevant time was a minor of less than 16 years of age and that the overall circumstances of the case were sufficient to convince him that after taking her away from the custody of her parents the appellant had gone alongwith her to Alnawar where he maintained sexual intercourse with her.

(2.) SHRI Dessai, learned Counsel for the appellant, has firstly submitted that in a love affair/rape case it is incumbent on the prosecution to clearly establish the date of sexual intercourse in order to bring the accused under the offence of rape and such a date should be prior to the date the girl attains the age of 16 years. It was urged that this date can be established either through the evidence of the prosecutrix in her deposition in Court or by circumstantial evidence. According to the learned Counsel in this case the prosecution has failed to indicate the actual date of the intercourse allegedly maintained by the appellant with the prosecutrix. The learned Counsel took us through the deposition of the prosecutrix, being P. W. 3 Fernanda Quadros, to show that during her cross-examination she had clearly stated that she did not have any sexual intercourse with the accused/appellant before going to Alnawar. It was contended that the evidence on record shows that before going to Alnawar and after leaving Goa the appellant stayed with the prosecutrix for about 3 days in Belgium and in this regard the evidence shows that during that time the appellant did not maintain any illicit relations with her. The learned Counsel admitted that the prosecutrix during her examination-in-chief has made a statement that during the three months time she stayed with the appellant she had sexual intercourse with the said appellant on many occasions. In this regard it was contended that between the 30th March, 1991, which is the date when purportedly the appellant took away the prosecutrix from her parents custody, till 11th July, 1991, which is the date when admittedly the prosecutrix returned home, the prosecutrix attained the age of 16 years. The learned Counsel submitted that the date of birth of the prosecutrix has been established by the certificate of Baptism produced by P. W. 2, the mother of the prosecutrix, Analia Quadros which shows that the prosecutrix was born on 19th June, 1975. According to the learned Counsel this certificate should be accepted by this Court as it was accepted by the trial Court inspite of another certificate issued by the Bombay Municipal Council showing the date of the prosecutrixs birth as being 19th July, 1975. For that purpose the learned Counsel submitted that the deposition of both the prosecutrix and specially the statement given by her mother Analia Quadros goes to show that there was a clear mistake on the part of the Bombay Municipal Council to register the birth of her daughter Fernanda on 19th July, 1975. It was contended that admittedly the Baptism Certificate shows that Fernanda was baptised on 20th July, 1975 and her date of birth is shown in the said certificate as being 19th June, 1975. Being so, the learned Counsel urged, it was necessary for the prosecution to prove that the alleged intercourse between the appellant and the prosecutrix should have been done prior to 18th June, 1991 bearing in mind that on 19th June, 1991 the prosecutrix completed 16 years of age and therefore no offence of rape would have been committed by the appellant if the sexual intercourse had been maintained after that date. The learned Counsel urged the prosecutrix had lived with the appellant by abandoning the parental house on her own volition and therefore any sexual intercourse maintained by her after the age of 16 years on her own could not attract any criminal liability on the appellant, namely, under section 376 of the Indian Penal Code.

(3.) IN order to appreciate the submissions of the learned Counsel a brief reference to the evidence recorded by the prosecution may be helpfully extracted.