TULSHIDAS KANOLKA Vs. STATE OF GOA

JUDGEMENT

(1.) On the allegations that the appellant had raped a mentally retarded girl on 10th August 1999, the appellant stands convicted for an offence punishable under Section 376 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 10,000/-. in default, simple imprisonment for 6 months. The appellant also stands convicted for an offence punishable under Section 506(ii) of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. in default, simple imprisonment for 2 months. The substantive sentences have been directed to run concurrently and the amount of tine is directed to he paid as compensation to the prosecutrix. The conviction and sentence of the appellant for the aforesaid offences is challenged in the present appeal before me.

(2.) Briefly stated the prosecution case is that on 10th August' 1999. P.W.1 Yeshoda Kandolkar came to the police station and lodged a report against the appellant that he had committed rape on her daughter, Shaila Laxman Kandolkar, aged 21 years. The complaint of P.W.1 Yeshoda is at Exhibit 6. In the said complaint it is stated by P.W.1 Yeshoda that her daughter Shaila. aged 21 years is mentally unsound and was staying at home. She was doing the work of collecting wood and leaves. According to the complaint, about it month hack P.W.1 Yeshoda had noticed swelling on the feet of Shaila and, therefore, had taken her to Dr. Shirodkar at Pernem. The said doctor had examined her and had told P.W. 1 Yeshoda that Shaila was pregnant and the pregnancy was of 7 months. According to the complaint, P.W. 1 Yeshoda took Shaila home and called her relatives and neighbours Manisha Kanolkar. Prakash Kanolkar and one lady and had asked her daughter Shaila in their presence as to who had "enjoyed sex with.her". Shaila is alleged to have told P.W.1 Yeshoda and the other persons present that when she had gone to collect leaves of jack fruit trees one Bahi @ Tulshidas Kashinath Kanolkar had come to her and caught hold of her and, thereafter, took her in the bushes and had removed her underwear. The said person then had committed rape on her. The said Tulshidas had also committed rape on her on 4 occasions after a gap of 7 to 8 days and had threatened her by showing, a koita (sickle) not to disclose the incident to her mother. The report further states that P.W.1 Yeshoda then contacted the mother of the appellant and had apprised her about what the appellant had done to her daughter. After deliberation, the mother of the appellant had agreed to pay Rs. 2,000/- to terminate the pregnancy of Shaila. "thereupon. P. W. 1 Yeshoda is said to have contacted a doctor at Mapusa. who had told her that the cost for terminating the pregnancy would be about Rs. 5,000/-. P.W.1 Yeshoda then went and requested the mother of the appellant to pay her Rs. 2.000/- as promised but the mother of the appellant is alleged to have refused to pay the same. P.W.1 Yeshoda then informed the matter to her brother-in-law one Babulo Kanolkar, who had asked her to file a report with the police.

(3.) On the basis of the said complaint. Exhibit 6. P.W.9 P.I. Mohan Karekar registered an offence vide Crime No.99/99 for offences punishable under Sections 376 and 506(ii) of the Indian Penal Code. After registering the crime, the appellant was arrested and on the next day the appellant and the prosecutrix Shaila were sent to the Goa Medical College, Bambolim for examination. Shaila was examined by P. W.4 Vandana Tanksale. According to P.W.4 Dr.Vandana, she examined Shaila on 11th August 1999. Shaila is stated to have given the history of amenorrhea and forced sexual relations by the appellant. On examination P.W.4 Dr. Vandana found that her uterus was 28 weeks gestation size and she also felt foetal parts. On the basis of sonography it was found that a live foetus of 273-28 weeks gestation. The hymen of Shaila was found to be torn. According to her, the hymenal tear could he on account of forcible intercourse. The report of the examination of Shaila is at Exhibit 11. On Exhibit 15, which is a requisition for examination of Shaila, P.W.4 Dr. Vandana had advised a Psychiatric examination. etc. P.W.3 Dr. E.J. Rodrigues had examined the appellant on 11th August' 1999. On examination he found that there was nothing to suggest that the appellant was incapable of sexual intercourse. No signs of veneral infection were detected. The report of P.W.3 Dr.Rodrigues regarding the examination of the appellant is at Exhibit 9. P.W.3 Dr. Rodrigues had obtained the urethral swabs and slides for serological examination. The report of the Central Forensic Science Laboratory is at Exhibit 22. Neither the urethral swabs nor the vaginal swabs or the vaginal smears showed the presence of human spermatozoa.