JUDGMENT 1. This appeal is filed against the judgment and order of Sessions Case No.15/2009 which was pending in the Sessions Court, North Goa, Panaji. The Learned Additional Sessions Judge, Panaji has convicted and sentenced the appellant for the offences punishable under sections 376 and 506 of I.P.C. The maximum sentence of imprisonment given is 10 years. Both sides are heard. 2. In short, the facts leading to the institution of this appeal can be stated as follows: At the relevant time, the prosecutrix was 60 years of age. She was unemployed lady and she was not having her own shelter. She was leaving in Panaji Municipal market. She used to do petty work of fish vendors and shop owners to earn her livelihood and she used to sleep on the platform in the fish market. 3. The incident took place on the night between 27/12/2008 and 28/12/2008 when the prosecutrix was sleeping in the fish market after midnight. The accused came there and he removed the blanket which was taken for covering herself by the prosecutrix. The prosecutrix woke up and she noticed the accused. When the prosecutrix questioned the action of the accused and she said that she would call the police, the accused said “main police hun”. Thereafter, the accused raped the prosecutrix when she was lying on the platform of Panaji market by using force. When she tried to shout for help, the accused kept his hand on her mouth and prevented her from shouting. After doing the act, the accused went away and returned to the prosecutrix within few minutes. Then he gave threat that he would teach her a lesson stating “Maim tumko dikha doonga” 4. Due to the old age and as the prosecutrix had already sustained injury to her leg, she remained in lying condition on the platform of the fish market during remaining period of the night. In the early hours on 28/12/2008 the fish vendors noticed her. There was blood on her clothes. She was lying there and she was not able to make movement. On inquiry, she disclosed the incident to those persons. She was taken to Goa Medical College hospital where report was recorded by the police. 5. In the early hours on 28/12/2008 the fish vendors noticed her. There was blood on her clothes. She was lying there and she was not able to make movement. On inquiry, she disclosed the incident to those persons. She was taken to Goa Medical College hospital where report was recorded by the police. 5. In the report, the prosecutrix described the present applicant as the man aged about 20 to 25 years and he was wearing a white dirty colour shirt and black dirty colour pant and was cockeyed. 6. The crime was registered as Crime no.301/2008 in Panaji Police station on the basis of the report of the prosecutrix. The doctors from Government hospital were requested to do the medical examination of the prosecutrix. In the past, the same police station had arrested the accused under section 41 of Cr. P.C on 20/1/12/2008 and they had the description of the accused. On that morning the prosecutrix had also occasion to see the accused again and on the same day the I.O arrested the accused in the market place. 7. During the course of investigation, the clothes of the prosecutrix which were having blood stains were taken over and she was referred for medical examination. The accused was also referred for medical examination. During medical examination, the vaginal swab of the prosecutrix was collected and from the accused urethral swab was collected for DNA matching. The sample of blood which was on the spot was collected by the police and the same was also sent to Central Forensic Science Laboratory (CFSL). CFSL gave report that the vaginal swab did match with the urethral swab of the accused for DNA matching. Human blood was detected on the clothes of the accused and blood was detected on the cotton swab which was used for collecting blood sample from the spot of offence and also from clothes of the prosecutrix. Police recorded statements of persons to whom disclosure was made by the prosecutrix regarding the incident. After completion of the formalities, charge sheet came to be filed for the aforesaid offence. Charge was framed and plea was recorded. Prosecution examined in all 20 witnesses. All the witnesses stuck to the version given before the police. The accused took defence of total denial during trial and when statement under section 313 Cr. P. C was recorded. He did not examine himself on oath. 8. Charge was framed and plea was recorded. Prosecution examined in all 20 witnesses. All the witnesses stuck to the version given before the police. The accused took defence of total denial during trial and when statement under section 313 Cr. P. C was recorded. He did not examine himself on oath. 8. The Trial Court has given conviction for both the offences. The Trial Court has held that the evidence of the prosecutrix is sufficient for giving conviction. There is other material like presence of injuries which were found on the person of the prosecutrix and the presence of injury which was found on the private part of the accused. Presence of blood on the clothes of the prosecutrix and also on the clothes of the accused are held to be circumstances which give corroboration to the case of the prosecution. The circumstances like the report of DNA matching is considered and the Trial Court has sentenced the appellant with rigorous imprisonment of 10 years and fine of Rs.10,000/- for the offence of rape. 9. This Court has carefully gone through the evidence of the prosecutrix. She has described the incident in detail. She is not from Goa and her native place is Karnataka. Her evidence shows that there was nobody to take care of her in Goa and she was somehow earning her livelihood. She was sleeping on the platform of the fish market.. She has deposed that in the night, the accused came to her place and by using force he raped her. She has given evidence that after some time he again returned and gave threat to her by saying “Maim tumko dikha doonga”. 10. Prosecutrix has given evidence that due to the assault she could not get up and after the incident she was lying on the floor of the market. Prosecutrix has given evidence that she could not make any movement due to the incident and when the fish vendors came there at about 5 a.m. they removed her to G.M.C. In the evidence she has given particulars of injuries sustained by her though such particulars are not given in the complaint at Exhibit 9. However, her evidence shows that she was examined in Government hospital on the same day when she was shifted to Government hospital. However, her evidence shows that she was examined in Government hospital on the same day when she was shifted to Government hospital. During the evidence, the record like photographs of the place where she was sleeping were shown to her and she has identified the place. That record is duly proved. 11. The Prosecutrix identified the accused in the Court and she has given evidence that she had seen the accused on the date of the incident at the market place and thereafter the accused was shown to her during test identification parade whom she identified. She has identified her clothes as well as the clothes which were taken over by the police. In her evidence, she gave description of the accused. 12. The learned counsel for the accused appellant submitted that the complaint at Exhibit-9 was given against an unknown person but the prosecutrix has in her evidence stated that she had seen the accused in the market place prior to the incident. Learned counsel submitted that in view of this circumstance, the prosecturix cannot be believed. This Court holds that this submission cannot be accepted. The evidence of many shop-owners is recorded by the State and their evidence show that they had also seen the accused roaming in the market, but they did not know his name. From the evidence of the prosecutrix, it can be said that she had seen the accused in the past but she did know his name and so description of the accused was given to the police in the complaint. The contents of Exhibit-9 corroborate with the version given in the Court. 13. The evidence of some shop vendors, like Mustaf Bepari (PW-2), Vindo Gaikwad, (PW.5), Domeline Fernandes (PW-6), Bashir Bepari, (PW-8) show that in the early hours of the next day they all learnt about the incident. Their evidence and particularly the evidence of last witness show that the prosecutrix was still lying on the floor of the market and was not able to make movement. There were blood stains on the clothes. Thus, disclosure was made by the prosecutrix and this circumstance gives corroboration to the version of the prosecutrix. 14. Dr. Silvano Sapeco (PW-9) has given evidence that on 28/1/2008 police gave him requisition to examine the prosecutrix medically. He has given evidence that he examined the prosecutrix. He found the following injuries on the person of the prosecutrix. Thus, disclosure was made by the prosecutrix and this circumstance gives corroboration to the version of the prosecutrix. 14. Dr. Silvano Sapeco (PW-9) has given evidence that on 28/1/2008 police gave him requisition to examine the prosecutrix medically. He has given evidence that he examined the prosecutrix. He found the following injuries on the person of the prosecutrix. i. Oblique scratch abrasion 3 x 1/8 cms was seen over left side of nose. ii. 1 cm red bruise was seen for ear nobule. iii. Red bruise 2 x 1 cm each was seen for upper and lower lips of mouth. iv. Red bruise of 2 x 1 cm was seen over right mid memory breast region 6 cms above right nipple. 15. Evidence is given by this witness that such injuries can be caused by blunt force or object or surface impact and the age of the injuries was within 24 hours and they were simple in nature. The doctor has given specific evidence on the injury which was caused on the private part of the prosecutrix. The description given is that she had a laceration of ¾ x 1/2 x ½ at 60' clock position of posterior commisure of vagina. The record of medical examination is consistent with his oral evidence. Nothing could be brought in the cross examination to create doubt about his evidence. 16. The evidence of doctor Sapeco says that on that day he collected vaginal swabs and smear slides were retained for serological testing. His evidence shows that he handed the aforesaid material in sealed condition to the police with his signatures for sending them to CFSL office. 17. The evidence of Dr. Sapeco further shows that on the same day, on requisition letter given by the police, he examined the accused. He found the following two injuries on the person of the accused. i) Abrasion with oozing of serum 1/1/2 over right outer aspect of lower lip. ii) Vertical abrasion 5 x 1/8 cms over left cheek. 18. He has given evidence that these injuries were caused within 24 hours by the accused. Besides the aforesaid two injuries, there was one injury on the private part of the accused like frenulum of the circumcised glans penis. These injuries were caused within 24 hours. It was necessary for accused to give explanation for the third injury which was noticed on his private part. Besides the aforesaid two injuries, there was one injury on the private part of the accused like frenulum of the circumcised glans penis. These injuries were caused within 24 hours. It was necessary for accused to give explanation for the third injury which was noticed on his private part. The doctor has given evidence that the third injury was suggestive of recent sexual penetration. This evidence gives corroboration to the version of the prosecution. 19. The evidence of Dr. Sapeco (PW-9) shows that he had collected urethral swabs smear slides prepared by him, pubic hair and available finger nail clipping of the accused for serological testing. He has given evidence that these articles were also sealed and sent in sealed condition to the police for sending them to CSFL office. There is evidence on the identification of these articles and on the correspondence. The record of medical evidence and correspondence is consistent with the evidence given by the doctor. His evidence further shows that the accused was in position to have sexual intercourse. 20. It appears that the prosecution has examined other witnesses like Dr. Kumar (PW-10) to show that the consent of the accused was obtained for medical examination. Learned counsel appearing for the accused submitted that there is some differences in the signatures appearing on the consent form and the signatures appearing on the statement under Section 313 Cr. P.C. If the provisions under section 53, 53-A are considered, it can be said that it is the duty of the police to refer the accused in such a case for medical examination and the doctor is expected to make a medical examination when such accused is referred for medical examination by the officer of the rank mentioned in section-53. 21. Section-53 shows that consent of the accused is not required to be taken in such a case. 22. As per Section 164-A of Cr. P. C., consent of the victim needs to be obtained. Thus, for DNA matching, for collecting blood the consent of the accused is not necessary. Thus, there is no need to discuss the objection taken by the learned counsel for the appellant more. 23. The prosecution has examined panch witness in respect of the panchanama made for attachment of clothes etc. and also a panch witness for the spot panchanama. They are PW-13 and PW-14. Thus, there is no need to discuss the objection taken by the learned counsel for the appellant more. 23. The prosecution has examined panch witness in respect of the panchanama made for attachment of clothes etc. and also a panch witness for the spot panchanama. They are PW-13 and PW-14. Their evidence is consistent with the documents like panchanama and they are duly proved as Exhibits-53 and 59. Mr. Raul Parab, (PW-15) is examined on the document of spot panchanama. Their evidence show that blood stains were collected from spot of offence. There is record to show that these articles were forwarded to CFSL office. The CFSL report in respect of these articles and also the aforesaid articles vaginal swabs and urethral swabs are at exhibits 121 and 122. The observations from the first CFSL report show that the material like swab from the vagina of the prosecutrix and material collected from urethral smear slide of the accused were compared for DNA matching and they were found to be identical. This circumstance is clinching circumstance against the accused. The CFSL report regarding clothes and the articles taken from the spot of offence show that blood was detected on the clothes of the prosecutrix and also on the underwear and pant of the accused. This material is also relevant and it gives corroboration to the case of the prosecution. 24. The prosecution has examined one Mrs. Siddhi Halankar, (PW-11) for proving the record of the test identification. In her evidence the record is proved and it shows that identification parade was conducted on 10/3/2009 and the prosecutrix identified the accused. The evidence shows that a person squint in the eye was made to stand in the row and only four such persons were available. This Court sees no reason to take a doubt of evidence given by the Executive Magistrate. In any case, when it is a rape case and there are aforesaid circumstances, there is no need to hold a test identification parade. It appears that only because in the complaint the prosecutrix had mentioned that the accused was unknown to her, the identification parade was held. This evidence has given further corroboration to the version of the prosecutrix. As this witness was busy in the election duty the identification parade could not be held immediately. 25. The aforesaid material and oral evidence remained unshaken during the cross examination. This evidence has given further corroboration to the version of the prosecutrix. As this witness was busy in the election duty the identification parade could not be held immediately. 25. The aforesaid material and oral evidence remained unshaken during the cross examination. The learned counsel for the appellant submitted that the shop vendors have falsely implicated the accused. No material is brought on record to create such probability. All the other witnesses appear to be independent witnesses and the prosecutrix had no reason at all to falsely implicate the accused. She is a helpless lady and she could not have achieved anything by making false allegations against the accused. The accused also appears to be a poor person. This Court holds that there is sufficient material on record to prove beyond reasonable doubt both offences against the accused. The learned counsel for the appellant submitted that a lenient view needs to be taken in view of the facts and circumstances of the case. The age of the accused was round 23 years at the relevant time. He was found roaming in the Panaji Municipal market and it appears that he also is a poor person, from labour class. It can be said that he misused the condition of the prosecutrix to satisfy his lust. Considering the age of the prosecutrix and the age of the accused and aforesaid circumstances and also provisions of section 376 of Cr. P.C, this Court holds that minimum sentence of 7 years rigorous imprisonment would be just and proper in the present case. In the result, the appeal can be partly allowed. The Learned Additional Public Prosecutor has produced a copy of the decision given in Criminal Appeal No. 1325 of 2012 by the Apex Court in the case of “Guru Basavaraj @ Benne Settappa Vs. State of Karnataka”, where the Apex court observed about proportion of sentence. There can be no dispute over this proposition. 26. In the result, following order is made: The appeal is partly allowed. The judgment and order of the trial court giving conviction to the accused under sections 376 and 506 of I.P.C is maintained. However, the sentence under section 376 is reduced. The accused is sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs.10,000/- for the offence of section 376 of I.P.C. The sentence given for the offence under section 506 is maintained.