JUDGMENT :

Vinay Joshi, J.

1. Heard finally by consent of both the learned Counsel appearing for the parties through video conferencing.

2. Appellant/convicted accused has exercised his statutory right of appeal in terms of Section 374 of the Code of Criminal Procedure, to challenge his conviction recorded by the Sessions Court in Sessions Trial No. 56 of 2016 dated 25.06.2019 for the offence punishable under Sections 363, 366, 376(2)(l) of the Indian Penal Code. The Trial Court held accused guilty for aforesaid offences and imposed maximum punishment to undergo rigorous imprisonment for ten years with total fine of Rs. 7000/- with stipulation of default. Though separate punishments were imposed for each offence, the Trial Court directed that all substantive sentences shall run concurrently.

3. The prosecution case, in nut-shell is that, the Informant PW-1-Sudhakar Dalwi was living at village Godhanapur alongwith his son and daughter aged 20 years. Informants' daughter i.e. Prosecutrix was mentally retarded, deaf and dumb. On 28.03.2016, around 7.00 pm, the Informant returned to his house from the field and found that his daughter was missing. He took search for her at nearby places, however, she was not traced. During search, he learnt from PW-4-Prabhakar Khedkar that, his daughter was taken away on Luna moped by the accused. Accordingly, informant alongwith his kins went in-search of the accused. Since the accused was residing in the M.I.D.C. area, he went to village Parkhed and traced the house of accused which was at the outskirts of village. Around 2.00 am (midnight) all of them entered into the house of the accused, and saw accused and Prosecutrix in naked position. They saw that the accused was lying on the person of Prosecutrix. All of them separated both and gave them cloths to wear. Police were telephonically called at the place of occurrence. Then the informant went to concerned Khamgaon Rural Police Station and lodged report (Exhibit 23) regarding the happenings.

4. On the basis of said report, the Police registered Crime vide C.R. No. 71 of 2016. The investigation was entrusted to PW-10-A.P.I. Sanjay Nikumbh. He has visited the place of occurrence and drew the Panchanama of the scene of offence. While drawing the spot Panchanama, he made to seize a blanket which was lying on the spot. He sent Prosecutrix as well as accused for medical examination. The statement of relevant witnesses were recorded. Seized articles including cloths of Prosecutrix and samples were sent for chemical analyzation. After completing the investigation, final report came to be filed.

5. The Sessions Court has framed charge against the accused for the offence punishable under Sections 363, 366, 376(2)(l) of the Indian Penal Code. The accused denied the guilt by claiming innocence. The prosecution has examined in all ten witnesses to establish the guilt of the accused. The defence of the accused is of total denial and in the alternative, the case of consensual sexual intercourse. On appreciation of oral and documentary evidence, the Trial Court held that the prosecution was successful in proving all charged offences with certainty and accordingly, recorded a finding of guilt and passed aforesaid mentioned sentence.

6. Learned State appointed Counsel for the appellant-accused has challenged the judgment and order of conviction. It is submitted that the Trial Court failed in appreciating the evidence in proper perspective. The defence has highlighted that there were no injury marks on the person of Prosecutrix which suggests her passive consent. It is submitted that in terms of Section 164(5)(b) of the Code of Criminal Procedure, the statement of Prosecutrix recorded by the Magistrate has to be treated as chief-examination and therefore, the Trial Court erred in recording her evidence. Besides that, it is argued that the evidence of prosecution witnesses is inconsistent, unreliable and it is risky to base conviction. On the other hand, learned A.P.P.