JUDGMENT

S.R. Dongaonkar, J.—This is an appeal against the judgment of conviction and sentence rendered by 13th Ad-hoc Addl. Sessions Judge, Nagpur, dated 29-1- 2005, in Sessions Trial No. 14/2004. The appellant was sentenced to suffer R.I. for 7 years and to pay fine of Rs. 500/-, i/d to suffer R.I. for 3 months for the offence punishable under section 376 of the Indian Penal Code.

2. The appellant was prosecuted for the aforesaid offence on the allegations that the incident had occurred on 20-1-2002 in the house of appellant at Gardeo Mohalla, Mouda. The girl (prosecutrix) Pinky was then staying with the complainant Pushpa Bondare (PW-1). It is alleged that on the day of incident, the said Pinky was about 10 years old. She is mentally retarded girl. In the noon time, the said PW-1 Pushpa was returning from river. She saw the accused driving out the victim i.e. prosecutrix from the backside of his house. It is alleged that the said prosecutrix Pinky wanted to go to home but the appellant was not allowing her. So, the complainant PW-1 Pushpa asked Pinky as to why she was crying. It is alleged that Pinky told her that the accused had taken her to his house on the pretext of giving her some sweets. Thereafter he removed her nicker and committed forcible sexual intercourse with her. She also allegedly told her that appellant threw away her nicker. It is also alleged that at that time victim’s private part was bleeding and her nicker was stained with blood. Thereafter she lodged report to Police Station Mouda as the victim was staying with her and because her father had gone out for work, so also her mother had gone to her mother’s place at Kamptee. The said report, being Exh. 9, was treated as F.I.R. by P.W-9 HC Ramprasad and he registered offence Crime No. 21/2002 under section 376 of the Indian Penal Code. The victim was sent for medical examination. During investigation, PW-9 HC Ramprasad prepared spot panchnama which is at Exh.14. Victim Pinky was sent to Indira Gandhi Medical College and Hospital at Nagpur for medical examination. One Dr. Minal Holkar examined her. She issued the medical certificate as regards her medical examination Exh.28. It may be mentioned that at the time of evidence, this Dr. Minal Holkar was not available, as such the said report was sought to be proved through PW-7 Dr. Nivedita Kulkarni, Professor and Lecturer of Gynecology of that college. She was knowing the handwriting of that Dr. Minal Holkar. The witnesses to the spot panchnama are PW-2 Tukaram and PW-3 Dilip Daikohad. PW-4 is the victim Pinky. PW-5 L.P.C. Sangita Ajmire had taken the said Pinky to the Medical College, Nagpur, as per requisition of the P.S.O. During investigation, the samples of vaginal swab and blood were taken and the same was sent to the Chemical Analyzer. The report of C.A. was received. After due investigation, accused/appellant came to be charge-sheeted for the offence under section 376 of the Indian Penal Code.

3. On committal of the case, the learned Trial Judge framed the charge for the aforesaid offence to which the appellant pleaded not guilty. His defence is that of total denial and of false implication because there was dispute between PW-1 Pushpa and he himself.

4. In order to bring home the guilt of the accused, the prosecution has examined in all 12 witnesses. PW-1 Pushpa Bondare (Exh.8) is the complainant. According to her, when she was returning to home, she noticed victim Pinky being driven out of the house of the appellant from backside and when she inquired with her, she disclosed about the incident and later on she lodged report to police station as per Exh.9. PW-2 Tukaram Shende and PW-3 Dilip Daikohde are the witnesses to the spot panchnama (Exh.14). PW-4 Pinky is the victim of the alleged offence, however, she could not be examined in the Court because she could not answer any question except stating her name. The learned trial Judge has recorded that as her behaviour was that of mentally retarded perso