- (1.)THE appellant was tried for rape of prosecutrix, aged about 8 years, under section 376 of the Indian Penal Code. In support of the said charge, the prosecution had examined six witnesses. The learned Additional Sessions Judge, Nagpur vide judgment dated 12-8-1998 held the appellant guilty for the offence under section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for ten years as also to pay fine of Rs. 500/-, in default, to suffer further rigorous imprisonment for four months. The appellant was in custody since 16-10-1997 and he was given benefit of set off from that date, under section 428 of the Code of Criminal Procedure. The appellant has challenged the said conviction and sentence in this appeal.
(2.)THE prosecution case, in brief, is that the appellant called the prosecutrix to his house by offering peppermint. Accordingly, she went to the house of the appellant where he was alone. Appellant removed the under-wear of the prosecutrix and thereafter the appellant entered his penis into her vagina. She started weeping and appellant shut her mouth. There was bleeding from the private part of the prosecutrix. After her mother came in the evening, she narrated the incident to her. The incident had taken place at about 3-4 p. m. The report was lodged with the police in the early hours of next day. The prosecutrix was medically examined and her under-wear was attached by the police which was sent to Chemical Analyser. The appellant absconded after commission of crime and was arrested on 16-10-1997. The case of the appellant is that of total denial and that he has been falsely implicated on account of dispute between him and father of the prosecutrix.
(3.)THE learned Advocate for the appellant urged before me that the evidence of prosecutrix could not be accepted as she was a child witness and had been tutored to depose against the appellant. The next submission made by learned Advocate for the appellant is that in view of the evidence of Dr. Mangala Ghisal (P. W. 3), sexual intercourse/sexual assault has not been proved and that no offence under section 376 of the Indian Penal Code is made out. It is further urged by the learned Advocate that there is no independent corroboration to the testimony of the prosecutrix. Lastly, it is submitted that the charge was not framed under section 376 (2) (f) of the Indian Penal Code and as such, minimum sentence of ten years imposed calls for reduction.