ROHIT B.DEO,J. - (1.) The appellant is assailing the judgment and order dated 17-3-2003 rendered by the learned II Additional Sessions Judge, Bhandara in Sessions Trial 139/2001, by and under which the appellant-accused is convicted for offence punishable under Section 452 of the Indian Penal Code (" IPC " for short) and is sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs.1,000/-. He is further convicted for offence punishable under Section 376 of the IPC and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.2,000/-.
(2.) The genesis of the prosecution lies in oral report dated 05-11-2001 (Exhibit 17) lodged by the prosecutrix (P.W.1) at Police Station Deori alleging that the accused subjected her to forcible sexual intercourse.
(3.) The gist of the report is thus : The prosecutrix, then aged 12 years is residing with her parents at Toyangundi. The incident occurred on 04-11-2001. The father of the prosecutrix left the village at 6-00 a.m. to go to Deori for work. Her mother Sau. Meerabai went to the agricultural field at 10- 00 a.m. and the younger brother, then aged 8 years, was playing with the village boys. The prosecutrix finished household work and was sleeping on the cot in the middle room of the house at 12-30 p.m. The accused, who resided in the neighbourhood, opened the door, approached the prosecutrix who was sleeping on the cot, pressed her mouth, lifted her in his arms and took her near the hearth in the varandah of the house of neighbour Radheshyam Achale. The prosecutrix resisted, but in vain. She was made to lie on the ground, her attempt to get up was thwarted by the accused who pressed both the thighs with his hands. The accused lifted her petticoat upward and removed and kept aside the knicker. The accused was wearing an underwear with a towel wrapped around the waist. He threw the towel aside, removed his underwear, stretched the legs of the prosecutrix, stretched her private part and inserted his penis forcibly into the vagina. The prosecutrix made an attempt to free herself, but could not succeed. The prosecutrix was experiencing pain in private part and blood oozed from the private part. The accused discharged sticky fluid into her private part which the prosecutrix wiped with petticoat. She suffered an abrasion on right elbow. She started weeping, the accused released her and fled. The prosecutrix disclosed to Siyabai Ingole and Asmita Lanjewar that the accused committed bad act with her. She then narrated the incident to her mother at 5.30 p.m. who disclosed the incident to her father when he returned from work. The father of the prosecutrix decided to lodge the report on the next day since it was late in the evening. The prosecutrix, accompanied by her father, lodged the report on 05-11-2001 at 3-45 p.m. ;