IMPORTANT POINT
Free legal assistance at State cost is a fundamental right of a person accused of an offence when he cannot engage an advocate being a poor or indigent.

ORDER

S.G. Mahajan, J. – Appellant Hiraman s/o Sakharam Borkar has preferred the instant appeal against the order of conviction and sentence passed upon him by the learner Additional Sessions Judge. Bhandara, in Sessions Trial No. 158/94. The learned Additional Sessions Judge by his judgment and order dated 22-8-1995, convicted the appellant of the offence under Section 376 I.P.C. and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 500/- or in default to suffer simple imprisonment for five months more.

2. The case of the prosecution is as follows:

(a) Victim Vandana who was aged 12 years at the time of incident. was a student of 7th Standard and she was residing with her parents Rajkumar and Sushilabai at village Ambadi. Accused-appellant Hiraman was also the resident of the same village. The accused-appellant is the grandfather of Vandana by relation. Some time prior to the incident the father of Rajkumar had expired. So the family of victim was observing mourning. On 14-8-1994. Vandana did not go to the school. She was at her house only playing with her maternal cousin Dipali. The daughter of the accused-appellant by name Joshilabai had came to Ambadi alongwith her female child Karishma. Vandana visited the house of the accused-appellant to play with Karishma. Since Karishma was not at the house of the accused-appellant. Vandana and Dipali passed some time with one Ashwini who was the tenant of the accused-appellant. Then Ashwini went out in connection with her job of delivering bidis. So Vandana and Dipali proceeded towards the house of Dipali. At this juncture the accused-appellant who was present at his house and was lying on a cot called Vandana and asked Dipali to go to her house alone. The accused-appellant then asked victim Vandana to pick his grey hair. Vandana, sitting by the side of the cot of the accused-appellant started picking the hair of the accused. When Vandana was very close to the accused-appellant., he started rubbing his hands on the whole body of Vandana. He also started moving his hands on her baok chest and abdomen. On enquiry by Vandana with the accused as to what was he doing the accused asked her to keep quiet and thereafter he inserted his palm in the underwear of Vandana and started fondling her vagina. Vandana was stunned. The accused-appellant then lifted Vandana and took her in the kitchen. He removed her underwear and gagged her mouth. He laid her on the floor lay on her body and inserted his organ in her vagina. Vandana started getting pain in the vagina. After completing the sexual act as above the accused-appellant threatened Vandana not to disclose the incident to anyone and also tried to allure her saying that he would give Rs. 10/-. The accused-appellant then brought Vandana out of the door. Vandana was crying. One Sitabai was passing from the lane in front of the house of the accused. She saw the used bringing out Vandana 'crying. On enquiry with Vandana, she disclosed to Sitabai that she was raped by the accused-appellant. The private part of Vandana was bleeding and her underwear was also blood-stained. Sitabai went in the village to inform the mother of Vandana. The aunt of Vandana named Kantabai was present at the house. Sitabai informed her about the rape on Vandana. Kantabai visited Vandana and found that Vandana was crying and noticed the bleeding from her vagina. Some other women also noticed Vandana was crying. The people gathered. Vandana was taken to village Chourasta. She also disclosed the act of the accused to her mother Sushila. The accused-appellant was in a readiness to flee, but the villagers caught hold of him. Vandana was shifted to General Hospital. Bhandara. The police was informed. The police arrived at village Ambadi and arrested the accused who was till then in the custody of the villagers.

(b) Victim Vandana was medically examined by Dr. (Mrs.) Khedikar, who found a fresh tear in the hymen and also on the vaginal wall of Va