RAFIK TAKSIR Vs. STATE

JUDGEMENT

(1.) THE Appellant stands convicted for an offence punishable under Sections 376, 363 and 342 of the Indian Penal Code and is sentenced to suffer Rigorous Imprisonment for 7 years and to pay a fine of Rs. 10,000/- in default Simple Imprisonment for 6 months, Rigorous Imprisonment for 1 year and to pay a fine of Rs. 2000/- in default Simple Imprisonment for 1 month and to pay a fine of Rs. 1000/- in default Simple Imprisonment for 1 month respectively, by the IInd Additional Sessions Judge, Panaji, in Sessions Case No. 48 of 1999. It is this conviction and sentence which is assailed before me in the present appeal.

(2.) THE facts necessary for the decision of the appeal are set out hereunder : - On 31st March, 1999, a complaint, Exh. 35, was filed by P. W.15, Babu Sab, complaining that his daughter Sheinaz Sheikh had gone to the school on30th March, 1999 and did not return home till 12. 00 in the afternoon. At about2. 00 p. m. , he learnt from one ice-cream vendor by name Sashi that his daughter was seen going with the Appellant. He had gone to Pernem where the uncle of the Appellant resides and his daughter on being questioned had complained of being raped by the Appellant and hence, the complaint came to be filed. On receipt of the said complaint, P. W.16, Allan D'sa, Police Inspector attached to the Mapusa Police Station registered the offence and directed P. S. I. Menezes to send the prosecutrix P. W.10, Sheinaz Sheikh, for medical examination. THE offence was registered vide Crime No. 81 under Sections 376, 363 and 342 of the Indian Penal Code. THE Appellant was also arrested and sent for medical examination and he was examined by P. W.1, Dr. Silvano Sapeco. THE medical reports in respect of the Appellant are at Exhs. 6 and 7. THE urethral swabs and the smear slides were sent to the Serologist at Hyderabad by covering letter Exh. 8 THE blood sample of the Appellant was drawn for his blood groupings which was 'o'rh positive as per the certificate Exh. 9 P. W.10, Sheinaz Sheikh, was examined by P.W.3, Dr. Jimmy Paul. Her report of examination is at Exh. 13 and the covering letter in respect of the vaginal swabs and smears is at Exh. 14 On examination, P.W.3, Dr. Jimmy Paul, found that the hymen had a fresh tear at9 O'clock position which was oedematous and bled on touch. P.W.3, Dr. Jimmy Paul, had collected the samples of the scalp hair, pubic hair and finger nail clippings. He opined that physical genital examination is suggestive of recent sexual intercourse. P. W.17, Braz Menezes, then proceeded to Pernem and recorded the scene of the offence panchanama in the presence of P.W.7, Stanley Braganza and one Umesh. THE said panchanama is at Exh. 20 A cream colour mat alleged to have been used by the Appellant was also attached. A white blouse and blue skirt alleged to have been worn by P. W.10, Sheinaz Sheikh, were also attached. A school bag containing writing pad and books of P. W.10, Sheinaz Sheikh, were also attached under a panchanama. P. W.17, Braz Menezes, then recorded the statements of the various witnesses and on receipt of the report of the Serologist which is at Exh. 26 filed a charge-sheet in the Court. THE learned Trial Judge vide Exh. 3 framed a charge against the Appellant for an offence punishable under Sections 376, 363 and 342 of the Indian Penal Code. THE Appellant abjured his guilt and claimed to be tried.

(3.) THIS Court while considering the bail application of the Appellant pending the decision of the appeal, had asked the prosecutrix P. W.10, Sheinaz Sheikh, and her mother P.W.5, Ashraf Bi, to remain present in the Court. THIS Court while deciding Criminal Miscellaneous Application No. 42 of 2001 at para 4 has observed thus : - When the prosecutrix and her mother were called in the Chamber to assess their consent, if any, for the marriage, it was revealed that both of them have expressed desire in favour of the wedlock between the prosecutrix and the accused. The mother of the prosecutrix expressed her desire that the prosecutrix marries the accused as she was satisfied that the accused was a suitable partner for the prosecutrix notwithstanding the incident of rape, for which he has been convicted and sentenced. A specific affidavit has been presented by the mother on16th April, 2001 and it has been stated therein that on considering the various aspects and more particularly the welfare of the prosecutrix, both the sides have decided in favour of the wedlock of the accused and the prosecutrix. THIS proposal also has the consent of the Almin Committee of the Masjid. The intentions of the mother seem to be bonafide and for the welfare of her daughter and prima facie, at present, there is no reason to believe that the wedding proposal is only used as a rule to secure bail for the accused. Notwithstanding these observations, it would be necessary also to impose suitable conditions to ensure that the wedding ceremony is performed and the accused treats the prosecutrix as his wife in toto and the wedlock is not used as an alibi to get over the Order of conviction and sentence. Though such plea was taken before the trial Court, the learned trial Judge has rightly turned down the same plea taken in defence only.