- (1.) THE love affair between the Appellant and P. W. 9, Shabana Khatib, turned sour, as a result of which, the Appellant stands convicted for an offence punishable under Section 376 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for 7 years and to pay fine of Rs. 10,000/-, in default Simple Imprisonment for 6 months and for an offence punishable under Section 363 of the Indian Penal Code, the Appellant is sentenced to undergo Rigorous Imprisonment for 1 year and to pay fine of Rs. 2000/-, in default Simple Imprisonment for 1 month. It is this conviction and sentence that is assailed before me in the present Appeal.
(2.) THE facts necessary for the decision of the Appeal are set out hereunder: - THE Appellant, who is an Engineer, had taken a room on rent in the house of P. W. 10, Mussa Khatib, father of the prosecutrix, P. W. 9, Shabana Khatib. THE Appellant is stated to have taught P. W. 9, Shabana Khatib, geometry and as a result of the familiarity between them, the feeling of love grew between them which was also reciprocated by P. W. 9, Shabana Khatib. On 6th June, 1999, a report came to be lodged by P. W. 1, Parvesh Khatib, brother of P. W. 9, Shabana Khatib, informing the Police that P. W. 9, Shabana Khatib, was missing from the residence from 5th June, 1999. THE report further stated that on 5th June, 1999, at about1. 30 p. m. , P. W. 9, Shabana Khatib, had gone to answer to call of nature and did not return back. THE said report, Exh. 9, also contained a description of the girl who was stated to be 17 years of age, medium built, about5" tall and having fair complexion. P. W. 11, Janaba Bambe, A. S. I. attached to the Pernem Police Station, was directed on 10th June, 1999, by P. W. 12, P. I. M. N. Karekar, to make enquiries about the missing girl. P. W. 11 Janaba Bambe, went to Fakirpatta, Torsem, Pernem and on enquiries, he learnt that P. W. 9, Shabana Khatib, had either gone with the Appellant or was forcibly taken by him. On 10th June, 1999, he recorded the statements of P. W. 8, Nataline Fernandes, P. W. 7, Fula Fernandes and P. W. 6, Jainam Khatib. On 15th June, 1999, an offence under Section 363 of the Indian Penal Code came to be registered and P. W. 11, Janaba Bambe was told by P. W. 12, P. I. M. N. Karekar, to go to Mumbai along with the father of P. W. 9, Shabana Khatib. P. W. 11, Janaba Bambe, went to Mumbai, made enquiries and learnt about the residential address of the Appellant at Hyderabad. P. W. 11, Janaba Bambe and P. W. 10, Mussa Khatib, went to Hyderabad by train and thereafter to Manguru by bus. THEy went to the local Police Station and with the assistance of the local Police went to the house of the Appellant. THE front gate of the house of the Appellant was locked and on giving a call, a lady came out of the house who disclosed that the Appellant was living in another house behind the house from which the lady had come. THE Police went to the house where the Appellant was stated to be residing, called out the Appellant and the Appellant opened the door. THE house where Appellant was stated to be residing, comprised of only one room. In that house, P. W. 9, Shabana Khatib, was found. P. W. 9, Shabana Khatib, and the Appellant were brought to Goa and the Appellant was arrested. Meanwhile, on 12th June, 1999, P. W. 1, Parvesh Khatib, had filed a complaint, Exh. 10, stating therein that after making enquiries, one Nataline Fernandes had informed P. W. 1, Parvesh Khatib, that P. W. 9, Shabana Khatib, had gone with the Appellant. The report further stated that Miss Jaina Ibrahim Khatib, a cousin of P. W. 1, Parvesh Khatib, had produced a note written by P. W. 9, Shabana Khatib, in which it was stated that she was leaving her parents and was going away. P. W. 1, Parvesh Khatib, also produced the said note which is Exh. 11 and the School Leaving Certificate of P. W. 9, Shabana Khatib, is at Exh. 12 A perusal of Exh. 12 reveals that her date of birth was 23rd April, 1982. Thus, on the day of the incident, P. W. 9, Shabana Khatib, was less than 18 years but more than 17 years of age. P. W. 9, Shabana Khatib, was examined by P. W. 3, Dr. Subudh Kansar. Dr. Kansar found that her hymen had been ruptured and admitted one finger easily. In his opinion, the finding were suggestive of intercourse i. e. 72 hours earlier. Vaginal swabs and smears as also samples of pubic hair of P. W. 9, Shabana Khatib, was taken. The certificate is at Exh. 17 Appellant was examined by P. W. 4, Dr. Silvano Dias Sapeco. On examination, P. W. 4, Dr. Silvano Dias Sapeco found the Appellant to be aged 26 years and in the absence of any positive physical findings he could not give any opinion whether the Appellant had performed sexual intercourse. The examination report of the Appellant is at Exh. 19 P. W. 4, Dr. Silvano Dias Sapeco, had taken urethral swabs and smears which were sent with the Police vide Exh. 20 Vide Exh. 21, the Medical Officer of the Blood Bank was requested to determine the Blood Group of the Appellant. P. W. 5, Dr. J. D. Lawande, obtained the blood sample of the Appellant and by Certificate at Exh. 23, opined that the Blood Group of the Appellant was 'o' Rh Positive. The report of the Chemical Analyser at Exh. 34 in respect of the vaginal swabs and smears of P. W. 9, Shabana Khatib, does not disclose the presence of spermatozoa. The Police added Section 376 of the Indian Penal Code and a charge-sheet came to be filed for an offence punishable under Section 363 and 376 of the Indian Penal Code against the Appellant.
(3.) THE learned II-Additional Sessions Judge, Panaji, after committal of the case, framed a charge vide Exh. 3 against the Appellant for an offence punishable under Sections 363 and 376 of the Indian Penal Code. THE Appellant abjured his guilt and claimed to be tried. THE prosecution in support of its case examined 12 witnesses which included the prosecutrix, P. W. 9, Shabana Khatib, her father, P. W. 10, Mussa Khatib and her brother P. W. 1, Parvesh Khatib. The learned Trial Court found the Appellant guilty on both the counts and sentenced him as aforestated. In the present Appeal, the conviction and sentence is assailed by the Appellant.;