PHILIP FERNANDES Vs. STATE

JUDGEMENT

(1.) ALL these appeals arise out of the same incident and from the same judgment passed by the Addl. Sessions Judge, Margao. The police had filed charge sheet against all the five appellants for offences under Sections 376 and 342 read with 34 I. P. C. The appellant Philip Fernandes in Criminal Appeal No.12/96 was accused no. 2 before the lower Court and he shall hereinafter be referred as accused no.2 . Appellant Agostino Fernandes in Criminal Appeal No.13/96 was accused no. 3 before the lower Court and he shall hereinafter be referred as accused no.3 . Appellant Francisco Fernandes in Criminal Appeal No.14/96 was accused no. 1 before the lower Court and he shall hereinafter be referred as accused no. 1. Appellant Anthony Goes in Criminal Appeal no. 15/96 was accused no. 5 before the lower Court and he shall hereinafter be referred as accused no.5 . Appellant Rama Vasu Sawant in Criminal appeal No.17/96 was accused no. 4 before the lower Court and he shall hereinafter be referred as accused no.4 .

(2.) THE prosecution case, as revealed by the prosecutrix (P. W. 1), who at the time of the commission of offence was 13 years and 8 months old, is that she was not being treated well by her mother and she had tried to commit suicide 5 to 6 years prior to this incident, but her mother had prevented her from doing so. THE prosecutrix complained that the treatment meted out to her at home remained the same and on 24-6-1993 she came to Colva beach at about 3 . 00 p. m. in order to commit suicide. She sat on a bench waiting for darkness as there were otherwise lot of people on the beach. As it became slightly dark, she went to the shore in water to commit suicide and at that time one boy came there and pulled her out of the water. THE said boy took her to a shade near the shore where there were many coconut trees and she identified this boy as accused no. 1 in the Court. THE said accused no. 1 asked her as to why she wanted to die and she told him that she had no parents, upon which accused no. 1 told her that he will marry her. THEreafter, accused no. 1 told her to remove her underwear. Accused no. 1 then removed her underwear and hugged her and thereafter accused no. 1 caught hold of her and had sex with her. Accused no. 1 was wearing red shirt and red pant. Accused no. 1 told her that he will come on the next day and will bring money and gold and he will marry her. Accused no. 1 then sent another boy inside the shade/hut and went away. This boy has been identified by the prosecutrix in the Court as accused no.2 . Accused no. 2 started hugging her and kissing her outside the hut. In the meantime, a van had come and she was taken in a fishing boat, which was nearby, by the accused no.2 . In the said van, there were three boys and two of them told her that they were policemen. THE third boy asked the accused no. 2 as to who she was and accused no. 2 replied that she was his sister. According to her, brother of accused no. 2 was amongst the said persons and she identified accused no. 3 as the brother of the accused no. 2 in the Court. THEreafter accused no. 2 told her that in case the persons from the van call her, she should not go and he told her to hide. THEreafter accused no. 2 forcibly took her in the said van in which there were three persons as well as the accused no.3 . She was taken in the said van to another beach but she did not know the name of the said beach. By this time it became dark. Accused no. 2 and 3 took her into a hut of palm leaves on the sea shore. Accused no. 2 removed his pant and started hugging her. He called his brother (accused no. 3) and informed him that she was not well and bleeding and he should leave her. Accused no. 3 told this fact to the persons sitting in the van. In the hut, except hugging by accused no. 2, nothing was done by any of them to the prosecutrix. She was then brought back to Colva where accused no. 2 arranged for a room in a hotel. In the said room, fourth man came, who was working in the hotel itself, and she has identified this fourth person as accused no. 5 in the Court. After sometime another boy came inside the room, who was taller than all the accused and was wearing green colour pant, and she identified the said boy as accused no. 4 in the Court. According to the prosecutrix, he came, removed his pant and shirt and thereafter put something like a baloon on his penis and had sex with her. THEreafter accused no. 4 went out and the prosecutrix slept. She was woken up by accused no. 5, who brought thumps up and something to eat and he also brought one whisper pad for her. He had a talk with the prosecutrix and he told her to remove her clothes which she refused. She informed him that she was not feeling well and he slept by her side. THEreafter accused no. 5 also put something like baloon on his penis and told her to take his penis in her mouth, which she refused and she kicked accused no.5 . THEreafter accused no. 5 caught hold of her and had forcible intercourse with her. After having sex, accused no. 5 slept with her in the said room on that night, but in the morning he woke up around 6.00 a. m. and told her to go away from the place, but she was not in a position to stand properly. Accused no. 5 lifted her and kept her on a beach on the sea shore. She slept on the bench and thereafter one person came there and asked her what had happened and she told him that nothing had happened. He found that she was cold and took her to his house and gave a cup of coffee. THEreafter one lady was called and she took her to her house, after which she went for work. THE prosecutrix was sleeping in the house, when the police came and made enquiries with her and she narrated the entire incident. Her complaint (Exh. P. W. 1/a) was recored by the police.

(3.) THE trial Judge accepted the version of the prosecutrix as trustworthy and found that Exh. P. W. 15/d. which is a report of the Chemical Analyser, provided clinching evidence as against accused no.5 . In respect of the involvement of accused no. 2 and 3 in the offence of rape, it was found that the same was not proved during the course of the evidence of the prosecutrix but the prosecution had been able to establish that the said accused no. 2 and 3 had committed the offence of outraging the modesty of the prosecutrix. In so far as accused no. 1, 4 and 5 are concerned, the Addl. Sessions Judge found that there was convincing evidence on record for the commission of the crime in question by them. Accordingly, the learned Addl. Sessions Judge had held accused no. 1 guilty for rape of the prosecutrix under Section 376 I. P. C. Accused no. 1 was sentenced to undergo R. I. for ten years and fine of Rs. 5,000/-, in default to undergo further imprisonment for an year. Accused no. 2 and 3 were given benefit of doubt on the charge of rape of prosecutrix under Section 376 I. P. C. , but he held them guilty for outraging the modesty of the prosecutrix under Section 354 read with 34 I. P. C. Accused no. 2 and 3 were sentenced to undergo R. I. for a period of two years and fine of Rs. 1,000/- each, in default to undergo further imprisonment for a period of three months. Accused no. 4 and 5 were held guilty under Sections 342, 376 read with 34 I. P. C. and were cumulatively sentenced to undergo R. I. for twelve years and also to pay fine of Rs. 5,000/- each, in default to undergo imprisonment for further period of one year. THE pre-trial detention of the accused was set off as against their substantive sentences.