MAHANAND NAIK Vs. STATE OF GOA

JUDGEMENT

(1.) This appeal is directed against the appellant's conviction by the learned Sessions Judge, Panaji for the offence punishable under Section 376 of the Penal Code and sentence of Rigorous Imprisonment for 7 years with fine of Rs. 25,000/- and in default, further imprisonment for two months imposed upon the appellant, on the conclusion of trial of Sessions Case No. 30/2009 before the learned Judge. The facts, which are material for deciding this appeal, are as under:

(2.) On the same day i.e. on 21/04/2009, the police went to the house of the appellant which was locked, made his wife open the house, performed the panchanama of spot and seized, among other things, five photographs showing the victim scantily dressed. The police also performed panchanama of the house of the victim and the places shown by the victim. Nothing was, however, seized from the victim's house. No clothes of the victim or bed-sheets from the house of appellant were seized or sent for Forensic Science Laboratory. The victim and the appellant were referred for medical examination which, as was to be expected, did not reveal that any forcible sexual intercourse had taken place. Since the appellant was arrested for his involvement in murder case, he was produced before the Special Judicial Magistrate for recording his confessional statement and in the course of that confessional statement, he also stated that he had sexual intercourse with the victim under duress. The police recorded the statements of witnesses, collected relevant material and on completion of the investigation, sent the charge-sheet to the Court of Judicial Magistrate, First Class, Ponda, who committed the accused the Court of Session at Panaji.

(3.) The learned Sessions Judge heard the parties and by an order dated 26/10/2008 held that there was enough material to charge the appellant for the offence punishable under Section 376 of the Penal Code. On 30/11/2009, she proceeded to frame charge against the appellant mentioning that on or about November, 2009 and thereafter, the appellant committed rape upon the victim. The appellant pleaded not guilty and was put on trial. At the trial, the prosecution examined in all 15 witnesses in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence in the light of the defence of false implication, the learned Sessions Judge convicted and sentenced the appellant as aforementioned. Aggrieved thereby the appellant is before this Court.