PRASAD UTTAM MAINKAR Vs. STATE OF GOA

JUDGEMENT

(1.) THE Appellant stands convicted for an offence punishable under Section376 of the Indian Penal Code on the allegations that on27th June, 1999, at about5. 30 p. m. , he had committed rape on one Miss. Suvidha Paste, and is sentenced to suffer Rigorous Imprisonment for 7 years and to pay fine of Rs. 5000/-, by the II-Additional Sessions Judge, Panaji, by Judgment dated-23rd October, 2000, in Sessions Case No. 50 of 1999. THE conviction and sentence is assailed before me by the Appellant in the present Appeal.

(2.) P. W.13, P. I. Shamba Sawant, was attached to the Valpoi Police Station. On 27th June, 1999, at about9. 30 p. m. , the prosecutrix, P.W.9, Suvidha Paste, came to the Police Station and lodged her complaint Exh. 27 alleging that she had been raped by the present Appellant at her place in Bagwada, Morlem. On the basis of the complaint, P. W.13, P. I. Shamba Sawant, registered an offence. The clothes of the prosecutrix, which she had produced (M. O. 1 to 3) comprising of salwar, petticoat (slip) and one underwear, came to be attached in the presence of P. W.1, Deepak Mainkar, vide Attachment Panchanama Exh. 7. The prosecutrix, P.W.9, Suvidha Paste, was sent to the Goa Medical College for her examination. P.W.9, Suvidha Paste, was examined at the Goa Medical College by P.W.6, Dr. Jayshree Shastry. On examination, P.W.6, Dr. Jayshree Shastry, found that P.W.9, Suvidha Paste, did not have any injuries on her body. On genital examination, her development was found normal and there were no injuries on the inner aspect of the thighs nor were there any bruises or abrasions. The hymen of the prosecutrix was found to be torn and there was bleeding from the tear. The bleeding was minimum. P.W.6, Dr. Jayshree Shastry, collected the samples of scalp hair, pubic hair, vaginal swabs and smear of P.W.9, Suvidha Paste. According to her, there was a recent sexual intercourse which could be forcible. The Medical Certificate is at Exh.15. In the cross-examination, she admitted that in Exh. 15, she had not stated that the intercourse was forcible. She has also admitted in the cross-examination that the sexual intercourse which she had referred in her report Exh. 15, could also be otherwise than forcible. She had referred the prosecutrix P.W.9, Suvidha Paste, for determining the Blood Group which came to be determined by P. W.10, Dr. Korgaonkar as per his report Exh. 21 colly. The Blood Group of P.W.9, Suvidha Paste, was 'b' Rh positive. On 28th June, 1999, P. W.13, P. I. Shamba Sawant, recorded the scene of offence panchanama in the presence of P.W.8, Laxman Mayenkar and one Gurudas Shirodkar. The scene of offence panchanama is at Exh. 24 colly. The scene of offence is described as an open place having cashew plantation all around and called Bibe Mol. The scene of offence panchanama also records that on the eastern side at a distance of about2 kms. was the house of the said girl and towards the western side is Bagwada and Government Primary School. Towards the north, there are cashew plantation and towards the south, at about a distance of 200 metres, the hut of the appellant is situated. The Appellant was detained on29th June, 1999, at about2 p. m. and was referred for medical examination. He was examined by P.W.7, Dr. Silvano Dias Sapeco. The medical examination report of the Appellant is at Exh. 18. On examination, P.W.7, Dr. Silvano Dias Sapeco, in the absence of any positive physical findings could not give any opinion as to the recent forcible sexual intercourse. However, urethral swabs and smear slides were taken for serological examination. He had also obtained the samples of finger nail clippings, pubic hair and scalp hair samples. All the samples were handed over by him vide Exh. 20 colly. The Appellant was referred to the Blood Bank of the Goa Medical College for determining the Blood Group. The Blood Group of the Appellant was determined as 'a' Rh positive. After the medical examination, the Appellant was arrested and his clothes were attached by P. W.12, A. S. I. Narayan Yetle, in the presence of P.W.2, Babi Mapsekar, and P.W.3, Tukaram Mainker, both of whom were declared hostile. The report of the Forensic Laboratory is at Exh. 37 colly. The said report shows that the underwear of the prosecutrix was stained with blood. Semen was detacted on her petticoat (slip) and in the vaginal swabs. Human spermatozoa was detected on her petticoat (slip) and in the vaginal swabs. After completing the investigation, a chargesheet came to be filed against the present Appellant for an offence punishable under Section376 of the Indian Penal Code.

(3.) MR. D. Pangam, Advocate, was appointed from the Legal Aid Panel to represent the Appellant as the Appellant had not engaged an Advocate. MR. Pangam, the learned Advocate appearing for the Appellant, who has very ably argued the Appeal, has contended before me, that the evidence of the prosecutrix, despite being corroborated by P.W.6, Dr. Jayshree Shastry, is inherently improbable as the events disclosed by her tasks human credulity for their acceptance.