M.G. Giratkar, J. - (1.) Appellant assailed his conviction awarded by learned Additional Sessions Judge, Nagpur in Sessions Trial No. 214/2002 by which he is convicted for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for four years and also to pay fine of Rs. 3000/ in default to suffer rigorous imprisonment for a further period of three months. He is further convicted for the offence punishable under Section 448 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for six months and also to pay fine of Rs. 1000/ in default to suffer further rigorous imprisonment for a period of one month.
(2.) The case of the prosecution against the appellant can be summarized as under. (i) Victim was residing with her parents in a rented premises of the appellant. Before the reported incident, appellant tried to do sexual intercourse with the victim, aged about 10 years but she did not disclose to anybody. On the day of incident i.e. on 24-11-2001, victim returned from the school at about 12.00 in the afternoon, after lunch, she was sleeping. Appellant entered in the room. He uplifted her dress, removed her underwear. He was inserting his penis into her vagina. Mother of Rahul came to the spot. Appellant was in nude condition. He ran away. Her mother came to house in evening. Victim narrated incident to her. Mother of victim along with other ladies went to Police Station, Ambazari and lodged the report. (ii) Victim was examined thrice by the Medical Officer. She was examined on 27-11-2001 by the Medical Officer. He issued certificate stating that "no evidence of any injury mark on private part, no evidence of injury marks on body, hymen is intact, sexual intercourse has not taken place with the said patient". (iii) The complainant again taken the victim to Mayo Hospital. P.W. 2 Dr. Nivedita Kulkarni examined her on 29-11-2001 and issued certificate, Exhibit 19 stating that "hymen was torn. This is most probable due to repeated sexual intercourse. There is no possibility of any other reason." Again she was examined by the Medical Officer on 1-12-2001. In the certificate, Exhibit 58, Medical Officer found that "there was no injury fresh or old on body. There were no markings of injury old or new on abdomen or thigh, groin pubic hair and axillary hair not developed. No bleeding or discharge from vagina. No hymen injury. Hymen intact." (iv) Complainant and Mahila Mandal insisting to register the crime against appellant. Crime was registered. ACP Chavan investigated the crime. After complete investigation filed chargesheet before the Chief Judicial Magistrate, Nagpur who, in turn, committed the same to the Court of Sessions for trial. (v) Trial Court framed charge at Exhibit 3. Same was readover and explained to the accused/appellant. He pleaded not guilty and claimed to be tried. Defence appears to be of false implication. At the conclusion of trial, learned trial Court convicted the accused/appellant as stated above.
(3.) Heard learned counsel Shri A. S. Ambatkar appearing with learned counsel Shri P. R. Agrawal for the appellant. He has pointed out contradictory medical certificates on record. He has pointed out material omissions and contradictions in the evidence of witnesses. Learned counsel has submitted that appellant was landlord. He was insisting to vacate the premises, therefore, he is falsely implicated by the complainant.;