AUSTIN ANTON DECUNA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE present appeal arises from the judgment and order dated 12-4-1994 passed in Sessions Case No. 27/93 whereby the appellant herein has been held guilty for the offence punishable under sections 363 and 376 (2) (f) and is ordered to suffer rigorous imprisonment for six months and seven years respectively, besides to pay a fine of Rs. 100/- and 1000/- respectively.

(2.) THE case of the prosecution is that the complainant Gorate Gilbert Ghonsalvis resides with her husband and two children namely Genavi and Gleni at Vasai. On 19-9-1992 at about 5-30 p. m. while the complainant was attending household work inside her house, her daughters were playing alongwith some other girls of their age outside the house. After attending to the house hold work when the complainant came out of the house at about 5-45 p. m. She noticed her elder daughter Genavi was playing with her neighbouring girls. However, she saw that her younger daughter Gleni was coming to the house crying. On inquiry with Gleni as regards the reason for crying, the complainant was informed by Gleni that the accused called her to his house saying that he would offer a chocolate to her and then he took her inside the house from the place where she was playing. It was further informed by Gleni that after taking her inside the house the accused closed the door and made her to lie down on the cot inside the room and on pulling her frock he removed her underwear and also of his own and tried to insert his penis in her vagina, but since it was paining she tried to push him, but he did not get himself aside and therefore, she started crying. The accused then asked her not to disclose the said fact to anyone and then she was left free and thereafter she came out of his house. Thereupon the complainant took her inside the house and noticed some semen stains on her underwear. She also noticed some redness on her private part, Gleni was also finding some difficulty in easing. The complainant, however, did not file her complaint to police station immediately, as she was unable to take any decision in the matter in the absence of her husband, who was out of station at the relevant time. On the evening of 21-9-1992 at about 7 p. m. on return of her husband, she narrated the incident to him and on the next day they approached the police and lodged the complaint i. e. Exh. 18 against the accused and pursuant to that her daughter Gleni was referred for medical examination at Vasai Municipal Dispensary and thereafter to J. J. Hospital, Bombay. She was also referred to Obstetrics and Gynaecology and Forensic Medicine Department for confirmation of the attempt of rape or rape. Dr. P. K. Kamal Gynaecologist, who examined her with the help of her junior colleague, had collected cotton swab from the discharge which Gleni had and it was subjected to the test by Chemical Analyser. After completing investigation, which included drawing of panchanama and recording of statements, the Police Inspector filed the charge sheet in the Court of J. M. F. C. Vasai against the accused for the commission of offence punishable under section 363 and 376 (2) (f) of the Indian Penal Code. The case was duly committed to the Court of Sessions and after recording the evidence, the learned Addl. Sessions Judge, Thane passed the impugned judgement which is the subject matter of the present appeal.

(3.) IN order to establish the offence against the accused, the prosecution examined 10 witnesses, which included the complainant the prosecutrix Gleni, panchas and three doctors.