1. The appellant is assailing the judgment and order dated 23.01.2012 rendered by the Sessions Judge, Bhandara in Sessions Trial 15/2010, by and under which, the appellant-accused is convicted for offence punishable under Section 376 read with Section 511 of the Indian Penal Code ('IPC' for short) and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.1000/-. The accused is acquitted of offence punishable under Section 354 and 376 of the IPC.

2. Heard Shri A.R. Kaplay, the learned Counsel for the appellant and Ms. T.H. Udeshi, the learned Additional Public Prosecutor for the respondent-State.

3. The genesis of the prosecution lies in oral report dated 24.10.2009 lodged by the victim (P.W.1) at the Mohadi Police Station, the gist of which is thus:

The victim, who was then aged 10 years is a student of the 5th standard and is residing at Dahegaon with her family. The incident occurred on 24.10.2009. The victim was at home in view of the Diwali vacation. The mother of the victim Smt. Chandrakalabai left home at 09:00 a.m. to harvest rise.

The victim and her father Dhondu (P.W.2) were at home. The accused is residing in the neighbourhood. The niece of the accused one Shradha, a resident of Bori, was visiting the accused.

The victim and Shradha were playing near the house. The father of the accused Wasudo was proceeding to his field in a bullockcart. The victim and Shradha boarded the bullockcart and got down near the house of the victim. The father of the accused Wasudeo asked the victim to carry Shradha's tiffin from his house to the house of the victim and to serve Shradha lunch. The victim went to the house of the accused alone to fetch the tiffin. The accused was alone, when the victim was asked for Shradha's tiffin the accused held her near the waist, took her in another room, made her lie on the ground, removed the knicker of the victim and lowered his lower and knicker till knees. The accused then slept naked on the person of the victim, the victim started weeping loudly and told the accused that she would disclose the incident. The accused then got up from her person. The accused had touched his penis to the vagina, which however, did not penetrate in the vagina. The victim suffered from pain in vagina.

4. The Mohadi Police Station registered offence punishable under Section 354, 376 read with Section 511 of the IPC on the basis of the said oral report Exh.14. The printed F.I.R. is Exh.18 on the record of the trial court. The victim was medically examined, the statements of witnesses were recorded, the accused was medically examined on 25.10.2009. The completion of investigation led to submission of the charge-sheet in the court of Judicial Magistrate First Class, Mohadi who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exh.10) under Section 354, 376 read with Section 511 of the IPC. The accused abjured guilt and claimed to be tried. The defence of the accused is of false implication. The defence is that the victim was asking the accused to put on the T.V. The accused who was tired, slapped the prosecutrix who went to her house weeping.

5. The age of the victim is not seriously challenged. Before I consider the ocular evidence on record, it would be apposite to analyze the medical evidence. The victim was medically examined by Dr. Varsha Sambhare (P.W.9) on 24.10.2009. She has deposed that the victim sustained an abrasion injury on right labia majora of size 1 cm x 5 cm, the duration of which was within six hours. The hymen was ruptured and introitus was congested. Both labia majora were swollen. P.W.9 has proved the medical examination certificate Exh.31. In the cross-examination, it is elicited that P.W.9 has mentioned in the certificate Exh.31 that no definite opinion about sexual intercourse could be given. Several situations, in which the hymen may be ruptured, are brought on record. It is extracted that in case of rape, it is expected