1. The appellant is aggrieved by the judgment and order dated 24.04.2001 rendered by the Additional Sessions Judge, Khamgaon in Sessions Case 20/1996, by and under which, the appellant-accused is convicted for offence punishable under Section 376 (2) (f) of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.2000/-.

2. Heard Shri R.L. Khapre, the learned Counsel for the appellant and Shri N.B. Jawade, the learned Additional Public Prosecutor for the respondent/State.

3. The genesis of the prosecution lies in oral report dated 01.07.1994 (Exh.14) lodged by P.W.1 Sou. Chhaya Ravindra Deshmukh at Police Station Nandura, the gist of which oral report is thus:

P.W.1 Chhaya and her husband P.W.2 Ravindra Deshmukh and their two daughters aged 4 years and 2 years reside in Sahayata hutment area at Wadner (Bholji) within the jurisdiction of the Nandura Police Station. The accused, then aged 18 years, resides two houses away, with his mother. On 30.06.1994 between 03:00 and 04:00 p.m., the elder daughter-victim came home crying. P.W.1 pacified her and asked her as to what happened and the response of the victim was to disclose that the accused (referred to as “Mama” or maternal uncle) made her lie on the ground and asked her to show her buttock. The victim then disclosed, that she was ravished, by pointing finger towards her vagina. P.W.1 rushed to the house of the accused and confronted him. The accused was frightened and kept mum. P.W.1 personally inspected the vagina of the victim and noticed sticky fluid and that the vagina was reddish. P.W.2 came home at 05:00 p.m. and the incident was disclosed to him by P.W. 1. P.W.1 and P.W.2 deliberated and then with the assistance of Jivansingh Deshmukh (P.W.3) called the Police Station on 01.07.1994 and lodged the oral report.

4. The Nandura police registered offence punishable under Section 354 and 376 read with Section 511 of the Indian Penal Code against the accused. Investigation ensued, upon completion of which charge-sheet was submitted in the court of Judicial Magistrate First Class, Malkapur who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exh.9) under Section 376 (2) (f) of the Indian Penal Code. The accused abjured guilt and claimed to be tried. The defence of the accused is of total denial and false implication. In response to question 27 in the statement recorded under Section 313 of the Criminal Procedure Code, 1973 the accused stated thus:

P.W.1 Chhaya has constructed her house by encroaching on the road. On that count there was quarrel in between me and P.W.1 Chhaya and her husband. There was a quarrel in between my mother and P.W.1 Chhaya as the turathi bundles kept by me were thrown by P.W.1 Chhaya and her husband. Jivansing Deshmukh is the maternal uncle of Chhaya. Jiwansing was the member of Grampanchayat. Jiwansing Deshmukh has prepared complaint against me.

The defence of false implication is further discernible from the trend and tenor of the cross-examination.

5. The prosecution examined six witnesses to bring home the charge. The victim was not examined, although, the record reveals that the statement of the victim was recorded by police. It was the learned A.P.P. Shri Jawade who, as an exemplary officer of the court fairly brought to the notice of the court that the record reveals that the statement of the victim was recorded. The learned Sessions Judge was pleased to convict the accused, as aforestated.

6. Shri R.L. Khapre, the learned counsel for the accused would submit that the failure of the prosecution to examine the victim is fatal. The next submission of Shri Khapre is that reading the spot panchnama (Exh.18) and the medical evidence together, it is extremely doubtful whether the victim was medically examined as is deposed by P.W.6 Dr. Sau. Subhangi Kulkarni. Shri Khapre would further submit that the defence of false implication is more than probablize