VINCENT FERNANDES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is by an accused who has been convicted and sentenced u/s. 376 of the Indian Penal Code to undergo R.I. for a period of seven years and to pay a fine of Rs. 5,000.00 in default to undergo S.I. for one year.

(2.) The accused was charged and tried with the allegation that on 31.3.1999, at about 9.30 hours, at Vanxem, Loutolim, the accused committed rape on victim/P.w.3, daughter of Joao Roque Fernandes and Ana Maria Fernandes (P.w. 1 and P.w. 12 respectively), aged 14 years.

(3.) The victim/P.w.3, was little over 14 years of age as on the date of incident. She was a student of Std. IX studying in the Saviour of the World High School at Loutolim. On 31.3.1999 she went to Church to attend 8 O'Clock mass and whilst returning, she met the accused, her acquaintance for about two years and friend of her brother Joaquim/P.w.13 and who had earlier on 22.3.1999, borrowed an English audio cassette from him. According to the victim/P.w. 3, the accused made fun of her and told her about the said cassette having been given by her brother and she in turn told the accused to bring the said cassette and she returned home. The accused at about 9.30 went to the house of victim/P.w.3, where she was alone with the pretext of returning the said cassette. The accused has admitted, when he was examined u/s. 313 of the Code of Criminal Procedure, 1973, that he did go to the house of P.w.3 to return the said cassette but according to him, when he went to the house of victim/ P.w.3, he entered the said house by the rear door and handed over the said cassette to the victim/P.w.3, but he did not molest or rape her. According to victim/P.w.3, the accused entered her house by the rear door, where there was a wooden box in the room next to the kitchen, where the victim/P.w.3, sat on the box and then the accused lifted her and took her to the other room and made her sleep on the bench in that room, pressed her breasts and forcibly removed her knicker and then opened the pant zip and then slept over her and then put his penis into her private part and got up after about two minutes and then went away. According to her, she started bleeding from her private part and she washed the said blood and cleaned everything and as she was to go to the post office at Loutolim to collect her sister's money, she started going there but could not proceed as she started bleeding again from her private part and then she started feeling giddy and therefore she started to return to her house when she met her neighbour Umelina/ P.w.5, who asked her as to what had happened and she told her that the accused had forcible intercourse with her at her house, and Umelina/P.w.5 called her sister Filomena/ P.w.6 and the latter gave her a piece of cloth to put on her private part, as she was bleeding and she was given lime soda to drink and was made to lie down on the bed and then Doctor (Mrs. Corina/P.w. 14) was called, who examined her and advised that she be taken to Hospicio Hospital. The victim/P.w.3, was first taken to Borkar Nursing Home at Margao, where she was treated by the Gynaecologist. Dr. Shilpa Gude/ P.w. 15, has confirmed that the victim/ P.w.3, was brought to the said hospital and at the time she was brought, there was no bleeding but she was kept under observation. The victim/P.w.3, did not remember having been taken to Dr. Borkar Nursing Home but, according to her, she was taken to Hospicio Hospital, at Margao. According to Dr. Gude/P.w. 15, the victim/P.w.3 revealed at night time that the bleeding bout was due to an act of forced sexual intercourse and therefore the victim/P.w.3, was referred to the Government Hospital for further medical treatment. The victim/P.w.3, has confirmed this by stating that she was taken to Hospicio Hospital, Margao, where she was examined and was discharged on the same day and the Doctor at Hospicio Hospital, Margao, told them that they should lodge a complaint, which was in fact lodged by Natalina/P.w.2, at about 01.30 hours of 1.4.1999.