DOMNIC MISQUITA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE three Appeals arise out of a Judgement passed by the Asst. Sessions Judge, South Goa, Margao dated 30th March, 1995 in Sessions Case No. 6/93, whereby the three accused were convicted under Section 376 of I. P. C. Consequently, the accused Nos. 1 and 2 were sentenced to suffer Rigorous Imprisonment for 10 years and to pay a fine of Rs. 2000/- each, in default to suffer R. I. for one year, whereas accused No. 3 was sentenced to undergo R. I. for five years and to pay a fine of Rs. 1000/-, in default to suffer R. I. for six months. The accused No. 2 filed Criminal Appeal No. 9/95, accused No. 1 filed Criminal Appeal No. 10/95 and accused No. 3 filed Criminal Appeal No. 12/95 assailing the aforesaid Judgement passed in Sessions Case No. 6/93. Since the appeals emerge from one judgement, we propose to deal with the Appeals by this common judgement.

(2.) ACCORDING to the charge, the allegations against the appellants were that during the period from 3rd September, 1991 to 11-10-91 the appellants had sexual intercourse with the minor servant girl named Fatima Agnelo Godinho in the house of the Complainant Shri Lume Mesquita amounting to rape on different occasions.

(3.) THE Court below examined eight witnesses. Except P. W. 4 Dr. Madhukar Usgaonkar, all other witnesses have spoken about the various circumstances of the incident. The complaint made by P. W. 1 reveals the details of the events which culminated to sexual intercourse with the prosecutrix by the appellants. The evidence of all these witnesses and the complainant will go to show that the prosecutrix was subjected to sexual intercourse by the accused of her own free will and consent. She showed no resistance to any of the accused. It seems that she was at their beck and call. The world knew about the occurrence at the instance of her employer. Before that she has not told anybody about the incident. It shows that she was willing to do such things with the accused. The learned Public Prosecutor before us also has not disputed this position of facts. The lower Court also proceeded with the case on the premise that the sexual intercourse had been done with the volition and free will of the prosecutrix. Needless to say that in such circumstances in order to establish the offence under S. 376, it is the bounden duty of the Prosecution to establish that at the time of occurrence the prosecutrix was below the age of 16 years. It is in this circumstance that the evidence of Dr. Madhukar Usgaonkar, P. W. 4 becomes very important and relevant. The Court below has solely and wholly relied on P. W. 4 and came to the conclusion that the prosecutrix was below the age of 16 years at the time of occurrence of the offence and based its judgement for convicting the appellants.