1] The appellant is the original accused in Sessions Case No.282 of 1998, which was on the file of the District and Sessions Court, Thane. The appellant challenges the judgment and order dated 31st December 2002 delivered by the Third Additional Sessions Judge, Thane convicting him for the offence punishable under section 366-A of Indian Penal Code and sentencing him to suffer R.I., for three years and fine of Rs.2000/-. In default, he was to suffer R.I., for two months.

2] The appellant is also convicted for offences punishable under section 376 and 377 of IPC and sentenced to suffer R.I. For Ten years and fine of Rs.5000/-. In default, he was to suffer R.I. For six months more for each of the offence. The appellant is acquitted from offence punishable under section 342 of IPC. Both convictions and sentences are under challenge in this appeal.

3] The subject criminal case arose out of a complaint made by the complainant who is mother of the victim. It was alleged that the complainant and the accused are neighbours. They are residing in a slum colony. The victim was about 6 to 7 years of age at the time of incident. The incident had taken place on 15th October 1997. It is alleged that when the complainant was at home and taking rest in the afternoon, she woke up at about 5.00 p.m., when she came to know that her daughter (victim) who had come back from the school was called by the accused to his house under the pretext that some goods were to be brought for him. Therefore, the mother – complainant went to the house of the accused. She noticed that the door was closed from inside. Her other daughter Diksha pushed the door. At that time, the victim came out of the house.

She was weeping. Her frock was wet. The accused was found only on underwear. Thereafter, the complainant took the victim to her house, made enquiries, whereupon the victim told that the accused raped her as well as had anal intercourse. It is also alleged that the accused kidnapped the victim by inducing her and detained her and committed the aforementioned act. Therefore, the FIR came to be lodged by the complainant Hirabai, who is mother of the victim. The victim was sent for medical examination. The spot panchanama was prepared on the next date. Statements of witnesses were recorded. Clothes of the victim and underwear were seized. The Medical Officer collected the usual samples and articles and the same were forwarded for chemical analysis. The reports were received. After completion of investigation, the accused was charge sheeted.

4] After committal of the case, the charges were framed. Accused pleaded not guilty to the charges. His defence was of total denial. According to him, there was enemity between the complainant and the accused on account of supply of electricity as well as drawing of tap water. Therefore, he is falsely involved in the case.

5] The charge was framed in this case by the trial court on 16th August 2001. It reads thus:-

“I, V.V.Palnitkar, III Addl.Sessions Judge, Thane do hereby charge you;

Kailas Laxman Khamkar,

Khamkar Chawl, Ramchandra

Nagar No.1, Behind Labhesh Building,

Wagle Estate, Thane

as follows:-

On 15.10.97 in between 17-30 to 18-00 hours at Ramchandranagar No.1 within the jurisdiction of Wagle Estate police station, Thane you had kidnapped Reshma D/o complainant Hirabai Sawant a minor aged 6 years with an intention or knowing that she would be likely to force to have sexual intercourse with another and thereby committed offence punishable under section 366(A) of IPC and within my cognisance.

At the same date, time and place you have wrongfully confined said Reshma in your house and thereby committed offence punishable under section 342 of IPC and within my cognisance.

Thirdly, at the said date, time and place you had committed rape on said Reshma and thereby committed offence punishable under section 376 of IPC and within my cognisance.

Fourthly, at the said date, time and place you had voluntarily carn