1. - The matter was listed on the application for suspension of sentence filed on behalf of accused-appellant Bhanji, however, at the request of learned Amicus Curiae, which was not opposed by learned Public Prosecutor, the parties were heard on the appeal itself, which was filed with a delay of 362 days and was registered at regular number only after condonation of delay by this Court vide order dated 6.1.2004.

2. The accused-appellant is aggrieved of the judgment of conviction and order of sentence passed by learned Addl. Sessions Judge (Fast Track) No. 1, Banswara in Sessions case No. 215/2001 5.10.2002, whereby he has been convicted for offence u/s. 376, 323 IPC and sentenced for rigorous imprisonment for 10 years with fine of Rs. 5,000/- and in default of payment of fine to suffer further rigorous imprisonment for a period of two months u/s. 376 IPC , and three months simple imprisonment and a fine of Rs. 500/-, in default thereof to further undergo imprisonment for 15 days for the offence u/s. 323 IPC. He has filed the present appeal u/s. 383 Cr.P.C. from jail through the Superintendent, Central Jail, Udaipur.

3. The facts apposite for disposal of this jail appeal, as unfolded in the prosecution story, inter alia, are that on 25.6.2001 at 8.10 p.m., prosecutrix Miss. Sushila Katara, a tribal, presenting herself at Police Station, Sadar, Banswara alongwith her mother Vala and father Vithala, orally informed that on that day in the morning she had gone to the house of her elder sister Laxmi at Jhantla. At about 4.00 p.m., when she was there, her brother-in-law Bhanji came from outside and tried to take her inside the house forcibly by catching hold of her hand. On her crying, when her sister came running there, the accused gave her a blow of club used for washing clothes and made her to run away from there. Thereafter, accused Bhanji forcefully dragged her inside the house and threw her on the ground. Accused, thereafter, put off his clothes and raised Ghaghara of the prosecutrix and committed rape and due to that blood came out from her private part but the accused did not leave and later on went away. She made shouts but nobody came for her help. The brother of Bhanji and his father were also nearby but no one came there to get her released from the clutches of the accused.

4. On the basis of aforesaid oral report. Ex.P/2, Case No. 218/01 for the offence u/s. 376 and 323 IPC was registered and investigation commenced. During investigation, statements of the witnesses were recorded, and memos were prepared in respect of blood smeared Goodari (beddings) (Ex.P/3), recovered blood smeared and control soil (Ex.P/4), arrest of accused (Ex.P/5), Pant (Ex.P/6) etc. A letter (Ex.P/6) was written to the Superintendent of Police for sending the samples for examination to FSL and by reaching at the place of incident site map Ex.P/8 was prepared. The samples were sent for examination to the FSL after obtaining forwarding letter from the S.P., Office and the prosecutrix was got examined for her age and rape and injury. Laxmi, the sister of prosecutrix was got examined for the injuries sustained and the accused was examined for his potency. The statements of prosecutrix Sushila and her sister Laxmi were recorded u/s. 164 Cr.P.C. and finding a case falling u/s. 376, 342 and 323 of IPC, challan was filed in the Court of ACJM and on committal, in due course of time came to be tried by the Court of Addl. Sessions Judge (Fast Track), No. 1, Banswara.

5. The learned trial Court, after hearing the parties on charge, framed charge against the accused-appellant u/s. 323 and 376 IPC and read over and explained the same to the accused, who denied and claimed trial.

6. The prosecution, in support of its case, examined as many as 16 witnesses and produced several documents in evidence. Thereafter, statement of accused was recorded u/s. 313 Cr.P.C. in which he pleaded innocence. In defence, no evidence was produced.

7. The learned trial Court aft