1. This appeal has been preferred against the judgment and order dated 20.1.2010 passed by Special Judge (Atrocities) Durg, in Special Case No. 51/2007 convicting the accused/appellant for the offence punishable under Sections 366 and 376(1) IPC and sentencing him to undergo RI for five years with fine of Rs.500/- U/S 366 and RI for seven years with fine of Rs.500/- U/S 376(1) IPC, plus default stipulations.

2. Case of the prosecution in brief is that on 13.9.2007 a missing report was lodged by the father of the prosecutrix namely Gopi (PW-3) alleging that his minor daughter (prosecutrix) aged about 15 years at the relevant time went missing. This report was entered into Rojnamcha Sanha No. 17/2007. On 19.9.2007 prosecutrix returned home and based on her statement FIR Ex. P-13 was registered on 20.9.2007 for the offences punishable under Sections 363, 366 and 376 IPC. Prosecutrix was medically examined by Dr. Suhadra Thakur (PW-8) on 20.9.2007 and after completion of investigation charge sheet was filed by the police on 21.10.2007 for the offences punishable under Sections 363, 366, 376 and 496 IPC. Court below however framed the charge under Sections 366 and 376 (1) IPC as well as 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989 (for short the "Special Act").

3. In support of its case the prosecution has examined 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he pleaded his innocence and false implication in the case.

4. After hearing the parties, the Court below acquitted the accused/appellant of the charge under Section 3(2)(v) of the special Act but convicted and sentenced him as mentioned in paragraph No.1 of the judgment.

5. Counsel for the accused/appellant submits that prima facie it appears that prosecutrix was a consenting party to the act of the accused/appellant and that the prosecution has not adduced any legally admissible evidence in respect of her age.

6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that findings recorded by the Court below are strictly based on the evidence adduced by the prosecution and there is no infirmity in the same.

7. Heard counsel for the parties and perused the material available on record.

8. Prosecutrix (PW-1) has stated in her evidence that she knew the accused/appellant who is of Nishad caste whereas her caste is Satnami. At the relevant time she is stated to have been studying in class VII. Accused/appellant was residing near her house and whenever she went to the pond to take bath, she used to look at him. On the date of incident when she came out of the school premises to answer the call of nature, accused/appellant forcibly dragged her, made her sit on his motorcycle and when she tried to raise alarm, he pressed her mouth and showed her knife. According to her, out of fear she accompanied the accused/appellant. Accused/appellant is stated to have taken this witness to several places including village Balodi where in the house of his relative he committed forcible sexual intercourse with her in the night. Thereafter, he took her to village Jamghat and kept in his house. After staying for about an hour at village Jamghat when the accused/appellant was to take her somewhere else, at that time her parents came there and took both of them to police station Berla where the matter was reported to the police. Thereafter, her underwear was seized and she was medically examined with her consent Ex. P-2. In cross-examination she has stated that while going to number of places, several people came across but she did not make any disclosure to them. Even while sitting on the motorcycle of the accused/appellant she has not made any protest. In village Balodi she used to do household work along with the mother of the friend of the accused/appellant and she lived there as his wife. On marriage certificate of Arya Samaj being