SANTAN JOAO FERNANDES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ON the allegations that the appellant on 6th October, 1997, in between 3 p. m. to 7 p. m. had committed rape on Maria Gomes, 4 year old girl, the appellant stands convicted and sentenced for an offence punishable under section 376 of the Indian Penal Code. The sentence and conviction of the appellant recorded by the Additional Sessions Judge-II, Panaji, have been assailed in the present appeal. The appellant stands convicted for the aforesaid offence punishable under section 376 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 5000/- in default to undergo simple imprisonment for six months. The State has filed Criminal Appeal No. 75/2000 for enhancement of sentence. Both the appeals are being decided by this common judgment.

(2.) THE facts necessary for the decision of the present appeal may be briefly stated as under:-P. W. 9, Piedade Gomes, on 13th October, 1997 lodged a report with the Goa Velha Police Station complaining therein that the present appellant had taken her minor daughter aged 4 and had asked her to lick his penis and thereafter had forced his penis in her vagina. The date of the incident as stated in the report Exh. 21 is said to be 6th October, 1997 and the report came to be lodged on 13th October, 1997. The report was taken down by P. W. 15, P. S. I. S. C. Tavares. The said report, Exh. 21 bears the signature of the complainant P. W. 9, Piedade Gomes and P. W. 15, P. S. I. S. C. Tavares, who had registered the complaint under sections 323 and 376 of the Indian Penal Code and then proceeded to the scene of the offence, drew the panchanama Exh. 9, in the presence of P. W. 2, Govind Naik, and another panch Ramesh. A sketch of the scene of offence was also drawn. Photographs came to be taken by P. W. 14, Police Constable Ramchandra Sawant. The accused was arrested on 13th October, 1997 in the presence of P. W. 2, Govind Naik and one Ramesh and in pursuance to Exh. 10, the clothes which the appellant/accused was wearing came to be seized. The clothes which the prosecutrix P. W. 11, Maria Gomes, was wearing came to be attached vide panchanama Exh. 7. The clothes bearing muddemal articles Nos. 4 and 5 comprising of frock and panty came to be seized. P. W. 11, Maria Gomes, was referred for medical examination to Goa Medical College where she was admitted. P. W. 11, Maria Gomes, was examined by P. W. 12, Dr. E. J. Rodrigues, and P. W. 13, Vaishali Joshi. The report of examination of P. W. 11, Maria Gomes, are Exhs. 24 and 25 and the report of the examination of the accused which was referred for medical examination is Exh. 26. Dr. E. J. Rodrigues had also obtained the vaginal swabs and the vaginal smears and the same were handed over in sealed container vide Exh. 27 to the Police Officers. Dr. Rodrigues had also obtained two urethral swabs, two urethral smears and pubic hair test tubes which were handed over in a sealed container to the Police vide Exh. 28. During the course of investigation, the blood samples, the smears, clothes and the muddemal property were forwarded on 20th October, 1997 to C. F. S. L. , Hyderabad vide Exh,. 37 which is the forwarding letter. Exh. 25, report pertaining to P. W. 11, Maria Gomes, is that in view of Serological Examination Report there was seminal emission within the external genitals suggestive of vulval penetration. P. W. 5, N. R. K. Rao, a Junior Scientific Officer, C. F. S. L by his certificate Exh. 16 has opined that the vaginal smear and the vaginal swab of P. W. 11, Maria Gomes, with human spermatozoa were detected so also human spermatozoa was detected on the frock and panty of P. W. 11, Maria Gomes. P. W. 15, P. S. I. S. C. Tavares, after completion of the investigation which included recording of statements presented a charge-sheet before the Court.

(3.) AFTER committing, the learned trial Judge framed a charge against the appellant for an offence punishable under section 376 of the Indian Penal Code. The appellant abjured his guilt and claimed to be tried. The trial Judge after recording the evidence and statement of the appellant under section 313 Cri. P. C. and after hearing the learned Counsel for the State and the accused by its judgment dated 29th May, 2000 convicted the appellant for an offence punishable under section 376 of the Indian Penal Code and sentenced the appellant to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5000/- in default to undergo simple imprisonment for a term of six months. It is this conviction and sentence which is assailed before me in the present appeal.