1. The appellant, who stand convicted for the offence punishable u/s 376 of the Indian Penal Code and sentenced to suffer RI for 10 years and to pay a fine of Rs.1000/- in default to undergo further RI for one month by Sessions Judge, Osmanabad vide judgment and order dated 31.03.2011 rendered in Sessions Case No.16/2009, by this appeal questions the legality and correctness of his conviction and sentence.

2. Few facts, which are germane to decide the present appeal, may briefly be stated thus –

(a) Prosecutorix (Her name is withheld as per the directions of the Supreme Court), had lodged a complaint (Exhibit-26) on 10th November 2008 in Shirdhon police station against the appellant and pursuant to which an offence was registered by PW9 API Choure at Crime No.127/2007 u/s 376 of the Indian Penal Code. Investigation of the said crime was entrusted to PW7 PSI Jadhav.

(b) PW7 PSI Jadhav had visited the spot and had drawn the Spot Panchanama (Exhibit35). Clothes of the prosecutorix, including her petticoat (Article-3) were seized under Panchanama (Exhibit-34). The appellant was arrested and the clothes on his person were also seized under Panchanama (Exhibit-33). Thereafter the prosecutorix as well as the appellant were sent for medical examination.

(c) PW1 Dr.Chanchal Bodake, Medical Officer, had examined the prosecutorix and had verified her age as 19 years. Accordingly, certificate (Exhibit-23) was issued. During the examination the pubic hair, vaginal swab and blood sample of the prosecutorix was collected and handed over to police to refer the same for chemical analysis. Sonography of the prosecutorix was also conducted and it was noticed that at the material time the prosecutorix was carrying 7 months’ pregnancy. It was opined that the prosecutorix was a married lady and was carrying. No opinion as to whether the prosecutorix was subjected to rape or not, was given till the receipt of the CA report.

(d) PW-3 Dr.Anand Kamble examined the appellant and opined that he was capable to perform sexual intercourse. Sample of semen and public hair of the appellant were collected and handed over to the police to refer the same for chemical analysis. Accordingly, medical certificate (Exhibit-29) was issued.

(e) During the investigation, statements of certain witnesses were recorded and the articles seized or collected during the investigation were forwarded to the Chemical Analyzer. In due course the CA reports (Exhibit-40, Exhibit-41 and Exhibit-42) were received and thereafter charge sheet was filed against the appellant.

(f) On committal of the trial to the Court of Sessions, trial court framed charge (Exhibit17) against the appellant for the offence punishable u/s 376 and 506 of the Indian Penal Code. The appellant pleaded not guilty to the charge and claimed to be tried. The prosecution, to substantiate its case, examined in all 9 witnesses. The prosecution witnesses include, PW1 Dr.Chanchal Bodake, who had examined the prosecutorix; PW2 prosecutorix herself; PW3 Dr.Anand Kamble, who had examined the appellant; PW4 Dinkar Kamblehusband of the prosecutorix; PW5 Latabai Kamblemother in law of the prosecutorix; PW6 Uttam NaikwadiPancha witness to the seizure of clothes of the appellant and the prosecutorix; PW7 PSI Jadhav the investigating officer; PW8 Bansode carrier of the muddemal and PW9 API Choure. It appears that the defence of the appellant is of false implication. However, the trial court discarded the defence of the appellant and convicted him for the offence punishable u/s 376 of the Indian Penal Code and acquitted him of the offence punishable u/s 506 of the Indian Penal Code. Admittedly, neither the complainant nor the State has questioned the acquittal of the appellant of the offence punishable u/s 506 of the Indian Penal Code. The conviction and sentence of the appellant u/s 376 of the Indian Penal Code is impugned in the present criminal appeal.

3. Heard Mr.Satej Jadhav, learned counsel for the appella