- (1.) This appeal has been preferred by the accused appellant against the judgment and order dated 1-5-2000 by which the learned Additional Sessions Judge Nimbaheda convicted the accused appellants for offence under S. 376(2)(f), IPC and sentenced him to 10 years' R.I. and a fine of Rs. 500/- and in default of payment of fine, to further undergo 3 months' S.I.
(2.) This appeal arises in the following circumstances : (i) On 16-3-99 at about 6-30 p.m. P.W. 8 Smt. Pushpa lodged an oral report Ex. P/11 before P.W. 12 Brijendra which was reduced by P.W. 12 Brijendra in writing and the same is marked a Ex. P/11, stating that on that day, at about 5 p.m. when she was going to market along with her daughter, Jyoti P.W. 9 aged 4 years (hereinafter referred to as "the prosecutrix") on the way accused appellant who was brother of P.W. 8 Smt. Pushpa met him and he told him that he had come from Nimbaheda and he went to her house along with her daughter, P.W. 8 Smt. Pushpa told him that she would also come after taking vegetable. Thus, the accused appellant went to her house along with the prosecutrix. It is further stated in the report Ex. P/11 that after 20 minutes when P.W. 8 Smt. Pushpa reached her house, she found that doors were closed and from the room, she heard the cries of her daughter P.W. 9 Jyoti. Thereafter, she pushed the door and and door was opened and she saw that the accused appellant was committing rape with her daughter P.W. 9 Jyoti. Seeing P.W. 8 Smt. Pushpa, the accused appellant stood up and told P.W. 8 Smt. Pushpa that since he was brother of P.W. 8 Smt. Pushpa, he should not be blamed and she also called her husband P.W. 1 Jaggunath and she found that blood was coming from vagina of the prosecutrix and thereafter she was brought to Bengali doctor Govind Kumar P.W. 2, who told her that the prosecutrix be sent to Government Dispensary. Thereafter she went to Government Dispensary, but she did not find anyone there and in these circumstances, the report was lodged by P.W. 8 Smt. Pushpa. (ii) On this oral report P.W. 12 Brijendra chalked out FIR Ex. P/13 and started investigation. (iii) During investigation, Bushirt and Kachchha of the accused appellant were seized through Ex. P/3 and accused appellant and the prosecutrix were got medically examined and the medical report of P.W. 9 Jyoti Pushpa is Ex. P/17 which was prepared by doctor P.W. 13 Dr. Umesh Chandra. (iv) After usual investigation a challan was filed for offence under S. 376(2)(f) IPC before the learned Magistrate from where the case was committed to the Court of additional Sessions Judge, Nimbaheda.
(3.) The learned Additional Sessions Judge vide order dated 16-7-99 framed charge for offence under S. 376(2)(f) IPC against the accused appellant who pleaded not guilty and claimed trial.;