ORDER :

Gautam Chourdiya, J.

1. This appeal arises out of the judgment of conviction and order of sentence dated 19.05.2001 passed by the Special Judge (Prevention of Atrocities Act), Surguja, Ambikapur (C.G.) in Special Criminal Case No. 04 of 2000, whereby the Appellant stands convicted and sentence as under:-

2. The case of the prosecution in brief is that when the prosecutrix (PW-7) was at her home on 07.11.1999, the appellant, who is neighbour of the prosecutrix, came to her home saying that I cannot live without you (prosecutrix) and he proposed her for marriage, thereafter, he abducted the prosecutrix from the lawful guardianship of her father. Thereafter, the appellant took the prosecutrix to the house of Subhash (PW-1) where both stayed for two days and during this period, the appellant committed sexual intercourse against the will of the prosecutrix. When father of the prosecutrix came to know that the prosecutrix was in the house of Subhash, her father along with Sarda Prasad Guruji (PW-2) went there and took the prosecutrix to his home, then the prosecutrix told her father about the incident. At the time of incident, the prosecutrix was a minor below 16 years of age. F.I.R. (Ex.-P/16) was lodged by the prosecutrix (PW-7) on 09.11.1999 at about 11:20 a.m. in the police station Outpost Raghunathnagar. The prosecutrix was sent for medical examination. PW-10 Dr. (Smt.) Shashiprabha examined the prosecutrix and gave her report Ex.-P/23 in which she opined that there was no external injury present over the body of the prosecutrix but she opined that intercourse must have been performed within two days. She (Dr.) also prepared two slides from vaginal swab and advised for chemical examination of the same.

3. During investigation undergarments of the prosecutrix were seized vide seizure memo Ex.-P/2. Spot map was prepared vide Ex.-P/3. One certificate (Ex.-P/5) regarding age of the prosecutrix was obtained from Head Master of Middle School, Raghunathnagar and photocopy of Admission and Discharge Register (Ex.-P/9C) were seized through Ex.-P/6, according to which, her date of birth is 23.08.1986. One undergarment of the accused/appellant was also seized vide Ex.-P/13.

4. After investigation, charge-sheet was filed against the appellant/accused for the offence under Sections 363, 366, 376 and 342 of IPC and since the prosecutrix belongs to scheduled caste, Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short 'Special Act'). While framing the charge, the Special Judge framed the charge against the accused/appellant under Sections 366 and 376 of IPC and Section 3(2)(v) of the Special Act. The appellant has denied the charge framed against him and prayed for trial.

5. The prosecution in order to establish charge against the accused/appellant examined 10 witnesses namely PW-1 Subhash Panika, PW-2. Sarda Prasad, PW-3 Vishwabhusan Nath, PW-4 Birjhu Singh Aayam, PW-5 Bhawat Prasad Rajbhanu, PW-6 Dr. Marat Kumar Mannar, PW-7 Prosecutrix, PW-8 Ramvichar, PW-9 M.S. Chandel and PW-10 Dr. (Smt.) Shashiprabha Jaiswal. Statement of the accused/appellant was recorded under Section 313 of the Cr.P.C. in which he denied the material appearing against him and stated that he is innocent, he has been implicated in a false case and he examined Motiram as DW-1 in his defence.

6. After appreciation of the evidence available on record, the learned the Special Judge (Prevention of Atrocities Act), Surguja,