K.M. THAKER, J.

1. Heard Mr. Barad, learned advocate for the appellant and Mr. Dabhi, learned APP for the respondent.

2. This appeal under Section 374 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 11.5.2010 passed by the learned Sessions Court, Anand in Sessions Case No. 112 of 2009 whereby the learned Court has recorded conviction against the appellant for offence punishable under section 376 of IPC and has sentenced the appellant to undergo SI for 10 years and to pay fine of Rs. 500/- and in default to undergo SI for two and half years.

3. The case of the prosecution is that on 25.8.2009 at about 11.30 a.m. when the daughter of the complainant who is deaf and dumb and mentally challenged, had gone to the water pump to fetch water, the appellant forcibly committed sexual intercourse - rape on the said victim girl and then fled from the place of the incident. The mother of the victim girl lodged a complaint on 25.8.2009 stating and alleging that the appellant had sexually abused her daughter and committed offence under Section 376 of IPC.

4. According to the prosecution in the complaint lodged on 25.8.2009, the complainant alleged that her mentally challenged daughter - who is deaf and dumb - had gone to fetch water, the appellant approached her and gripped her in his arms and pushed her to the ground and after lifting her clothes he forcibly committed sexual intercourse - rape with her daughter against her wish and since one of her neighbors saw the appellant committing rape the appellant fled from the place of the incident. The complainant also alleged that having seen the appellant committing wrong with her daughter, the neighbor came to her and told her about the incident. Therefore, she, with her son, immediately rushed to the place of the incident and when they reached at the place of incident she saw that her daughter was crying and was putting on her clothes. The said complaint/FIR was registered and investigation commenced.

5. According to the prosecution, sufficient material was available on conclusion of the investigation and that, therefore, the charge-sheet came to be filed against the accused - appellant.

6. The case being triable by the learned Sessions Court, it was committed to the Court of learned Sessions Judge and was registered as Criminal Case No. 112 of 2009.

7. The learned trial Court framed the charge at Exh. 7 against the accused - appellant for commission of offence under section 376.

8. The statement of the accused - appellant was recorded. Upon being asked by the learned trial Court, the accused pleaded not guilty and pleaded to be tried.

9. So as to bring home the charge and to prove the case against the appellant, the prosecution placed on record 13 documents and examined 8 witnesses including the medical officer who had examined the victim.

10. After examining the witnesses and on completion of the stage of evidence, all incriminating facts, evidence and circumstances were informed by the Court to the appellant and further statement of the appellant - accused under section 313 of the Code of Criminal Procedure was recorded, wherein the accused - appellant denied the case of the prosecution and he also submitted written statement and claimed that it may be treated as part of further statement. In his said further statement, the appellant claimed that when the daughter of the complainant had come to fetch water she had annoyed and instigated him and that, therefore, he had broken the pot of water which she had brought with her (to fill water) and then he had put mud on her hair, but he did not commit sexual intercourse, or any wrong, with her.

11. After considering the oral as well as documentary evidence available on record and the submissions by learned advocate for the appellant and the learned APP, the learned trial Court, by the judgment and order dated 11.5.2010 which is impugned in present appellant, found the appellant guilty and recorded conviction