JUDGMENT
E.S. Da Silva, J.
1. The appellant is the accused in Sessions Case No. 28/92 who was charge-sheeted in the Court of Assistant Sessions Judge, South Goa, Margao, for offences punishable under sections 366-A and 376 of the Indian Penal Code. The appellant’s case is that on 30th March, 1991, at about 1 p.m., the appellant kidnapped a minor girl by name Fernanda Quadros who was at that time 15 years of age and took her to Alnawar wherein he maintained intercourse with her. The appellant pleaded not guilty to the charge but the learned Sessions Judge after recording evidence acquitted the appellant of the offence under section 366-A but convicted him under section 376 of the Indian Penal Code and sentenced him to undergo 7 years of Rigorous Imprisonment and pay a fine of Rs. 500/- or in default to suffer three months further Simple Imprisonment. While convicting the accused the learned Assistant Sessions Judge recorded the finding that Miss Fernanda Quadros at the relevant time was a minor of less than 16 years of age and that the overall circumstances of the case were sufficient to convince him that after taking her away from the custody of her parents the appellant had gone alongwith her to Alnawar where he maintained sexual intercourse with her.
2. Shri Dessai, learned Counsel for the appellant, has firstly submitted that in a love affair/rape case it is incumbent on the prosecution to clearly establish the date of sexual intercourse in order to bring the accused under the offence of rape and such a date should be prior to the date the girl attains the age of 16 years. It was urged that this date can be established either through the evidence of the prosecutrix in her deposition in Court or by circumstantial evidence. According to the learned Counsel in this case the prosecution has failed to indicate the actual date of the intercourse allegedly maintained by the appellant with the prosecutrix. The learned Counsel took us through the deposition of the prosecutrix, being P.W. 3 Fernanda Quadros, to show that during her cross-examination she had clearly stated that she did not have any sexual intercourse with the accused/appellant before going to Alnawar. It was contended that the evidence on record shows that before going to Alnawar and after leaving Goa the appellant stayed with the prosecutrix for about 3 days in Belgium and in this regard the evidence shows that during that time the appellant did not maintain any illicit relations with her. The learned Counsel admitted that the prosecutrix during her examination-in-chief has made a statement that during the three month’s time she stayed with the appellant she had sexual intercourse with the said appellant on many occasions. In this regard it was contended that between the 30th March, 1991, which is the date when purportedly the appellant took away the prosecutrix from her parent’s custody, till 11th July, 1991, which is the date when admittedly the prosecutrix returned home, the prosecutrix attained the age of 16 years. The learned Counsel submitted that the date of birth of the prosecutrix has been established by the certificate of Baptism produced by P.W. 2, the mother of the prosecutrix, Analia Quadros which shows that the prosecutrix was born on 19th June, 1975. According to the learned Counsel this certificate should be accepted by this Court as it was accepted by the trial Court inspite of another certificate issued by the Bombay Municipal Council showing the date of the prosecutrix’s birth as being 19th July, 1975. For that purpose the learned Counsel submitted that the deposition of both the prosecutrix and specially the statement given by her mother Analia Quadros goes to show that there was a clear mistake on the part of the Bombay Municipal Council to register the birth of her daughter Fernanda on 19th July, 1975. It was contended that admittedly the Baptism Certificate shows that Fernanda was baptised on 20th July, 1975 and her date of birth is shown in the said certificate as being 19th June, 1975. Being so, the learned Counsel urged, it was necessary for the prosecution to prove that the alleged intercourse between the appellant and the prosecutrix should have been done prior to 18th June, 1991 bearing in mind that on 19th June, 1991 the prosecutrix completed 16 years of age and therefore no offence of rape would have been committed by the appellant if the sexual intercourse had been maintained after that date. The learned Counsel urged the prosecutrix had lived with the appellant by abandoning the parental house on her own volition and therefore any sexual intercourse maintained by her after the age of 16 years on her own could not attract any criminal liability on the appellant, namely, under section 376 of the Indian Penal Code.
3. In order to appreciate the submissions of the learned Counsel a brief reference to the evidence recorded by the prosecution may be helpfully extracted.
4. In this regard we must consider first the testimony of P.W. 2 Analia Quadros who is the mother of the prosecutrix. In her deposition Analia has stated that in the year 1991 her daughter was schooling at Sancoale in the S.S.C. Class. The appellant is also from Sancoale village. She had kept her daughter at Fatorda in the house of her sister-in-law P.W. 1. Evon Gomes because she wanted that she should remain away from the appellant. However on 30th March, 1991, at about 12 noon, her daughter came to Sancoale from Fatorda from the house of Evon Gomes and told her that she wanted to see her father at the workshop at Cortalim where he was working. She then went to meet her father and came back within twenty minutes. She told her that she was going back to Fatorda and thereafter she boarded the bus at 1.30 p.m. to go to Fatorda. On the next day someone came to her house and asked her son whether Fernanda had gone to Fatorda or not. Therefore, on 31st March, 1991 she went to Fatorda to the house of Evon Gomes to confirm whether her daughter had reached there. When she reached Fatorda she enquired with her father who was present in the house of her sister-in-law as to whether Fernanda had come and then she was told that she had not arrived. When her sister-in-law came by 7.30 p.m. on that day she confirmed that Fernanda had not come back home after leaving on the previous day allegedly to go to Sancoale. She then started searching for Fernanda and since they could not succeed her husband filed a missing report in the Police. Ultimately her daughter was found at Alnawar on 11th July, 1991. Fernanda was brought to Goa on 11th July, 1991 and her son told her that her daughter informed him that on the way, on 30th March, 1991, the appellant had met her and given some piece of paper and told her in the note in writing that he would get a job at Alnawar. Thereafter she was taken to Alnawar by the appellant where she stayed with him during all that time. She further stated that the date of birth of Fernanda was 19th June, 1975 which is the date registered in the Baptism Certificate issued by the Rosary Church at Bombay wherein she was baptised. A xerox copy of this certificate was produced by her and marked as Exh. P.W. 2/B. She also produced the original Birth Certificate issued by the Bombay Municipal Council alongwith the xerox copy showing the date of her daughter’s birth as being 19th July, 1975, Exh. P.W. 2-A. In cross-examination she asserted that the mistake in the Birth Certificate at Exh. P.W. 2-A was on account of the Bombay Municipal Council because her daughter was actually born not in July but in June. Therefore, the date of birth shown in the Baptism Certificate was the correct date of birth of her daughter.
5. P.W. 3 Fernanda Quadros, who is the prosecutrix, has deposed that P.W. 2 is her mother and P.W. 1 Evon is her aunty. On 30th March, 1991, at around 1.30 p.m. she boarded a bus at Sancoale to go to Cortalim junction. On that day at about 11.30 a.m. she had met the appellant on the way and he had given her a note (a piece of paper) on which it was written that he was getting a job out of Goa. The appellant told her that in case she was interested in coming with him she should come and also told her that was chance (opportunity). She reached Cortalim junction at around 1.45 p.m. and both she and the appellant boarded another bus at Cortalim to go to Panaji. In Panaji the appellant sold his gold chain and thereafter purchased two tickets to go to Belgaum. They went to Belgaum by bus and they reached there at around 10.30 p.m. They stayed in a hotel known as Bharat Lodge. They stayed in one room and both slept together. They stayed in the said Bharat Lodge for three days and thereafter the appellant took her to his friend’s place. The appellant told his friends that they were married and asked them to search for a room. They stayed in the house of the friend of the appellant at Alnawar for one week. In the said house she and the appellant were sleeping in one room but the appellant was sleeping on the top while she was sleeping down. After a week they shifted to a rented room at Alnawar and it was the appellant who was paying the rent of the room. It was the appellant also who was making all the expenses. They stayed in the rented room for about 3 months. During the three month’s time when they stayed together she had sexual intercourse with the appellant on many occasions. In cross-examination she admitted that she was in love with the appellant when she was staying with him. She also admitted that she had volunteered to go with the appellant out of Goa after reading the note. Her relations with the appellant were good for sometime even after she came back to Goa and became strained sometime by the end of 1992. Her relations with the appellant were good even at the time that her statement was recorded by the police. She further stated that the relations with the appellant became strained only when she came to know about the past life of the appellant and that was the reason why she cut relations with him. She was moving with the appellant even after her statement was recorded by the Police, but she had developed friendship with the appellant in the year 1990. She did not make any complaint to her mother against the appellant even after her return to Goa. On further questioning she said that she did not have any sexual intercourse with the appellant before going to Alnawar. However she denied the suggestion that the appellant did not have sexual intercourse with her at any time.
6. P.W. 4, Dr. Purnanand Audi is another witness who is material for the purpose of this case. In his deposition Dr. Audi, who is the Assistant Professor of Forensic Medicine in the Goa Medical College, has stated that on 20th July, 1991 he has examined the prosecutrix Fernanda Quadros, a girl of 16 years of age and on examination he found no injuries on her body except old rupture of the hymen at 4 O’clock and 8 O’clock positions and through which two fingers could easily pass into the vagina cavity. He was therefore of the opinion that hard blunt object, may be an erected penis, had penetrated into the vagina rupturing the hymen. According to him the age of the ruptured hymen was more than 7 days prior to the examination. He also examined at the request of the Police the appellant Joaquim Carvalho and he found that there were no congenital or acquired abnormalities in his private parts. There was erection of the penis and in his opinion there was nothing to suggest that Joaquim was incapable of performing sexual intercourse. In cross-examination he said that the rupture referred to by him in the hymen of the prosecutrix Fernanda could have been caused at any time seven days prior to the date of his examination on 20th July, 1991. It could be therefore caused on 12th July, 1991.
7. It is therefore clear that an overall assessment of this evidence conclusively indicates that the prosecutrix Fernanda was very much a minor girl of less than 16 years of age when the appellant induced her to leave her parental house and took her away from their custody to Alnawar. The said evidence also shows that, during the period of about 31/2 months the prosecutrix stayed with him first for three days in Belgaum and thereafter at Alnawar, the appellant has maintained sexual intercourse with the prosecutrix on several occasions. In this regard the deposition of P.W. 3 Fernanda Quadros is positive and leaves no doubt about the illicit relationship which the appellant succeeded in establishing with the prosecutrix by taking advantage of her minor age and convincing her to abandon her parents, to leave the house and go along with him to Alnawar. The learned Assistant Sessions Judge has rightly appreciated the evidence regarding the age produced by the prosecution and we are satisfied that the testimony of the prosecutrix has not been shaken at all during her cross-examination. This being the position, it is obvious that the said evidence did not require further corroboration. However, the medical evidence of Dr. Audi also proves that the prosecutrix was found with her hymen ruptured which fact by itself suggests that sexual intercourse had been maintained or penetration of hard object had occurred in the vagina of the prosecutrix. Further, the said evidence also establishes that the appellant was physically fit to maintain sexual intercourse and there was a normal erection of his penis. We are therefore of the view that consequent upon this evidence there was no reason to disbelieve in the story of the prosecution, namely, on the deposition of the prosecutrix, to prove the offence of rape so far the act of sexual intercourse is concerned. Now and with regard to the age of the prosecutrix it is true that P.W. 2 Analina Quadros has produced two birth certificates of the prosecutrix, namely, one issued by the Rosary Church at Bombay wherein Fernanda was purportedly baptised on 20th July, 1975 and which shows that her birth occurred on 19th June, 1975, while the other one is a certificate issued by the Bombay Municipal Council which reflects the date of her birth as registered on 19th July, 1975. Shri Dessai’s contention that in view of these two certificates the certificate issued by the Church should prevail upon the one issued by the Municipal Council does not impress us because being the latter a public document, it is obvious that it is this public document which should prevail upon the private document issued by the Rosary Church. The contention of the learned Counsel that the presumption of authenticity and correctness of the public document issued by the Municipal Council should be held as rebutted by the deposition of the prosecutrix’s mother Analina Quadros who has stated that her daughter was born in the month of June and not in the month of July and therefore the correct date of her birth is 19th June, 1975, does not impress us much. But be that as it may, irrespective of this point raised by Shri Dessai, which otherwise appears to have been acknowledged by the learned trial Court, even conceding that the prosecutrix was born on 19th June, 1975, the fact that she attained the age of 16 years on 19th June, 1991 does not make, in our judgment, any difference for the case of the prosecution. There is no dispute that the prosecutrix was less than 16 years of age when she purportedly left her parents’ house alongwith the appellant and went to Alnawar wherein they stayed together in the same room and even slept together during all that period. The averments made by the prosecutrix in this regard had never been disputed by the appellant during cross-examination. The inference which the learned Counsel wanted to draw from certain isolated statements made by the prosecutrix during her evidence appears to us totally misplaced and has to be considered in the context of an overall appreciation of the entire evidence on record. With respect, we are inclined to disagree with the learned Counsel when he contends that the prosecutrix has clearly acknowledged that she did not have any sexual intercourse during the three days both stayed together at Belgaum before going to Alnawar. In this regard the deposition of the prosecutrix that they stayed in one room of Bharat Lodge and slept together does not in our view permit such conclusion. Further, the averment made by the prosecutrix that she did not have any sexual intercourse with the appellant before coming to Alnawar read together with what the prosecutrix has already said that during the three months time when she stayed with the appellant she had sexual intercourse with him on many occasions leads us to the inescapable conclusion that the appellant has maintained illicit sexual relationship with the prosecutrix at least after she reached Alnawar wherein they both stayed together for a long period of more than three months. This being the position, we fail to understand what is the ultimate scope of the learned Counsel’s contention that it was incumbent on the prosecution to prove that the illicit relationship purportedly maintained by the appellant with the prosecutrix was during the period prior to the prosecutrix having attained the age of 16 years. We see no merit in this type of averment of the learned Counsel because the facts on record and the evidence adduced by the prosecution unmistakably establish that the appellant has maintained sexual intercourse with the prosecutrix when she was less than 16 years of age even assuming that Fernanda has completed the age of 16 on 19th June, 1991. This, in our view, answers also the further submission of the learned Counsel to the effect that the prosecution had to prove its case beyond reasonable doubt and this position is attracted in the instant case. We have already seen that the evidence of the prosecutrix which has otherwise been fully corroborated by the medical evidence also proves without iota of doubt that the appellant has maintained sexual relations with the prosecutrix when she was of the age of less than 16 years. Therefore, the submission of the learned Counsel that the prosecution has failed to prove the actual date of the sexual intercourse and hence no offence of rape could have been held as committed by the appellant fails and is bound to be rejected. Reliance placed by the learned Counsel in this connection on the case of Shashikant Bajirao Pagare v. The State of Maharashtra, , appears to be totally misplaced and this case is not at all attracted in the facts of this case. That was a case wherein a Single Judge of the High Court has acquitted the accused from the offence of rape on the ground that the prosecution has not been able to prove that the rape has been allegedly committed by him on a specific date which was the night between 16th and 17th March, 1979. That was the prosecution case according to the charge framed against the accused and the Court found that the evidence on record was ruling out any possibility of the accused having spent that night of 16th and 17th March, 1979 in the company of the prosecutrix and in the same house where she had been kept by him. It is therefore obvious that this ruling was given on the specific facts of that case and it is not going to take the case of the appellant any further.
8. It was next urged by the learned Counsel that the object of section 376 of the Indian Penal Code is to preserve chastity and eliminate forceful and forcible intercourse of the person with a minor girl of less than 16 years of age even if she shows her willingness to consent to any such relationship. According to the learned Counsel the age of 16 years stipulated in Clause sixth of section 375 is to secure that the consent is to be given only by a person fully developed and grown-up and as such knowing what she is going to allow or permit to be done to her by a male person as far as the sexual act is concerned. It was urged that the facts and circumstances of the case do not show that this is strictly a case of rape within the purview and meaning of the objective of section 376 of the Indian Penal Code. We are again however afraid that this proposition of the learned Counsel appears to be wholly unwarranted or uncalled for. Admittedly the courts are not and cannot be concerned with the object of a legal provision. This lies in the province of the legislative body and the courts are not going to legislate on the matter. The courts are only concerned as to whether the requirements of a particular section which classifies it as a criminal offence are or not complied in a given case. The courts are bound to interpret the legal provisions both in letter as well as in its true spirit. Therefore the question of the object or of the intention of the Legislature in enacting criminal sections in the statute does not appear to us at all relevant. Hence this argument of the learned Counsel is to be recorded only to be rejected.
9. Further, the attempt made by the learned Counsel to read in the evidence of the prosecutrix some admissions which the facts and circumstances on record do not at all suggest and much less support it, in our view, impermissible and not likely to succeed. As we have already mentioned earlier, the evidence of the prosecutrix which in no manner has been able to be rebutted by the appellant is to be looked into as a whole and it did not even require any corroboration which however is found in the medical evidence of Dr. Audi. We are therefore firm in our mind that the facts of this case do not merit any doubt about the commission of the offence of rape by the appellant.
10. Shri Dessai however in the alternative has vehemently pleaded that, in case this Court is inclined to hold the appellant guilty for such offence, sufficient leniency should be shown to him as far as the punishment is concerned and therefore bearing in mind the circumstances under which the offence was committed the appellant who has already undergone more than six months of imprisonment should be set free by considering the punishment already served as sufficient to meet the ends of justice. In this regard the learned Counsel has cited a number of rulings in the cases of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, , Fazal Rab Choudhary v. State of Bihar, , Sri Khireswar Saikia and another v. The State of Assam, 1990(1) Crimes 77, Vijayan Pillai @ Babu v. State of Kerala, 1990(1) Crimes 261, Pooran Singh v. State of U.P., , and Shri Durga Dass v. State of H.P., . In our view these rulings which have been given on the particular facts of the case do not appear to be attracted or helpful on the point sought to be canvassed by the appellant and we therefore feel that they are not required to be considered in detail. We are however satisfied that in this particular case there is abundant evidence on record to show that the offence of rape was committed by the appellant when at the relevant time he appears to be of a young age of 25 years only, which means that he was not sufficiently mature and settled as far as his mind is concerned. Further, the said evidence also shows that the prosecutrix and the appellant were in love for a period of more than one year prior to the incident and that when this happened she was hardly three months short of the age of 16 years when Fernanda chose to leave her parental house and accompany the appellant to Alnawar. This fact by itself suggests that the prosecutrix seems to have willingly accompanied the appellant when he proposed her to go along with him. Further we are very much impressed with the offer made by Mr. Dessai, on behalf of the appellant, to marry the prosecutrix at any time inspite of the prosecutrix’s refusal to get married to him. Indeed in this regard the evidence on record clearly points out that even after the prosecutrix had gone home she continued to maintain good relations with the appellant and did not even complain to her parents about the act of the said appellant. In her deposition the prosecutrix acknowledged that even after the complaint was lodged and she gave her statement to the Police she continued to move along with the appellant and only later on when she came to know about his past life she decided to break her relationship with him. All these facts go to suggest that the action of the appellant does not come within the purview of a crude act of rape committed by the appellant for the only purpose of satisfying his libidinous tendencies. Therefore considering also the young age of the appellant and the past love relationship he was maintaining with the prosecutrix coupled with his willingness even now to marry her, we are of the view that this aspect is to be considered as a mitigating circumstance amounting to an adequate and special reason calling for attenuation in accordance with the first proviso to section 376 of the Indian Penal Code.
11. We therefore partly allow this appeal. The conviction of the appellant under section 376 of the I.P.C. is upheld but the sentence awarded to him is reduced. The appellant is sentenced to undergo three years of Rigorous Imprisonment and to pay a fine of Rs. 500/- or, in default, to undergo further three months of Simple Imprisonment.
12. We are told that the appellant has been granted parole by this Court for period of one month which expires on 22nd January, 1995. The appellant should therefore surrender to the Jail Authorities on that day for the purpose of complying with the sentence of imprisonment awarded to him.