CAMILO FERNANDES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) - Camilo Fernandes appeals against his conviction under section 354 of I.P.C. and sentence of six months of Rigorous Imprisonment and Ii fine of Rs. 2000/- and in default to undergo further six months of R.T. in Sessions Case No. 3/87. The appellant was charge-sheeted by the Police under Section 376 of I.P.C. and accordingly a charge framed against him was for having committed the offence of rape on Smt. Rosalina Gomes (P. W. 1) for short Prosecutrix on 11tui April, 1986 at 17.30 hours in an open property belonging to one Shri K.B. Naik in the ward called Sonarbag, Usgao, Goa. Though charged for rape however the learned Sessions Judge held him Julty for outraging the modesty of the Prosecutrix: on that eventful day.

(2.) The prosecution examined as many as 10 witnesses in this case but having regard to the controversy raised vis-a-vis the conviction and sentence and regard being had to the arguments it is sufficient to notice the evidence of the Prosecutrix Rosalina Gomes (P. W. 1), Frank Rodrigues (P. W. 2) and Antonio Rosario Dias (P. W. 3), alleged to be the eye witnesses and the medical evidence tendered by Dr. M.S. Ugaoncar (P.W. 7).

(3.) In the first instance I may set out what the prosecution unfolds against the appellant. On 11th April, 1986 at about 5 pm. the prosecutrix came to her Uncles house in order to get a boat, must be a canoe to carry dried coconuts from the property belonging to K.S. Naik situated at Sonarbag. Usgao. Her brother P.W- 3 Antonio Rosario Dias accompanied him for this operation of getting the coconuts from other side of the river. After gathering coconuts they were sacked and being transported to the other side of the river. At some stage appellant appeared there, talked about some tender coconuts and suddenly caught hold of the Prosecutrix first by her face then held her by the neck, threw her down on the ground, held her tightly on the ground by catching her shoulders, undressed himself and after removing the knicker of the Prosecutrix tried for a sexual go with her. But as a result of her resistance the penetration was not possible and that is how the appellant ejaculated on her thighs. It is almost at this time that the Prosecutrix was able to throwaway the appellant off her on the ground from which he got up dressed himself, but however obtained a promise from the prosecutrix that such incident would not be passed over to any person and thereafter all of them crossed over to the other side of the river. Next her case is that she reported this matter to some persons and finally lended in the Police Station who arranged her to be medically examined by a Doctor attached to the Goa Medical College hospital and that is how the charge under section 376 I.P.C. was made against the appellant.