JUDGMENT Heard. 2. The appellant has been convicted for the offences punishable under Sections 376(2)(f) and 323 of the Indian Penal Code. He has been sentenced to suffer rigorous imprisonment for seven years for former offence and rigorous imprisonment for seven years for the later offence. 3. The appellant is close relative of victim girl Neha. The complainant is also relative of the victim as well as the appellant. Complainant Mrs. Sonali Vinod Chavan was resident of Kale wadi in Gewrai tahsil of Beed district. Her husband had three sisters by name Mrs. Vjutai, Mrs. Savita and Mrs. Amruta. The victim girl was daughter of Savita and Sukhlal Gade. The victim girl was left at the house of appellant at Vilasnagar, Amravati by her parents as they had gone to Karnataka State for some job work. 4. It is the case of prosecution that on 9th April, 2011 the appellant was one of the drivers of truck No. MH27X 535. He had one codriver also with him. The victim girl Neha was travelling with the appellant from Amravati and she was to be dropped at the house of the complainant. It is also the case of prosecution that the small child was sexually assaulted by the appellant on upper berth located in the cabin of driver of the said truck when the truck was being driven by the second driver. The girl was left at the house of the complainant on 10th April, 2011 at about 2.30 p.m. The appellant had his lunch at the house of the complainant and he hurriedly left the complainant's house. The complainant later on noticed that there was lot of injuries on the person of Neha including some injuries on her private parts. The inquiries made from the girl child revealed that she was sexually assaulted by the appellant. The matter was, therefore, reported to police. The girl was examined by the Medical Officer. The Medical Officer found following injuries on the person of the victim girl. i) Abrasion on left cheek 2 cm x 1 cm. ii) Abrasion on right iliac fossa 1 cm x 1 cm. iii) Contusion on right thigh 4 cm x 2 cm iv) Hymen was found ruptured freshly and vulva was swollen. 5. Statements of witnesses, including another driver of the truck, were recorded and after completion of investigation chargesheet was filed in the Court. ii) Abrasion on right iliac fossa 1 cm x 1 cm. iii) Contusion on right thigh 4 cm x 2 cm iv) Hymen was found ruptured freshly and vulva was swollen. 5. Statements of witnesses, including another driver of the truck, were recorded and after completion of investigation chargesheet was filed in the Court. When the case came up for hearing before the trial Court the trial Judge framed charge for the offence punishable under Section 376(2)(f) of the Indian Penal Code and Section 323 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. The prosecution had examined in all 14 witnesses in support of its case. P.W.1 was Smt. Sonali Vinod Chavan complainant, P.W.2 was her husband Vinod Chavan, P.W.3 was victim girl Neha @ Pooja, P.W.4 was Santosh Pawar who was working as second driver of the truck, P.W.5 Mrs. Alka Nande was one of the police constables who took part in the investigation, P.W. 6 was Medical Officer who had examined the victim girl, P.W. 7 was also Medical Officer, P.W. 8 was Police Constable who had taken the seized articles to the Forensic Science Laboratory, P.W. 9 was father of the victim girl, P.W. 10 was one of the panch witnesses, P.W. 11 was also one of the panch witnesses, P.W. 12 API Sanjay Lohkare had recorded First Information Report. P.W. 12 was posted at Gewrai Police Station and he had recorded statements of the complainant. He had also registered Crime No. 80/11 at Gewrai Police Station. The investigation was later on handed over to Shivaji Nagar Police Station at Khamgaon as the said Police Station had jurisdiction to investigate the case. P.W. 13 was posted at Shivaji Nagar Police Station at Khamgaon. He had received the papers from Gewrai Police Station and had registered First Information Report No. 28 of 2011 under Section 376 and 323 of the Indian Penal Code against the appellant. P.W. 14 had carried out further investigation of the case. 6. In the first place, it may be mentioned that most of the relatives of the victim girl including the complainant and her husband did not support the prosecution case and were declared hostile. As far as victim girl is concerned, she could not tell anything to the Court and her evidence could not be recorded. 6. In the first place, it may be mentioned that most of the relatives of the victim girl including the complainant and her husband did not support the prosecution case and were declared hostile. As far as victim girl is concerned, she could not tell anything to the Court and her evidence could not be recorded. The whole case of the prosecution was therefore, based on the evidence of Medical Officer and the burden of proving his innocence in view of the provisions of Section 106 of the Indian Penal Code. The Medical Officer's report clearly indicates that there was manipulation of the private part of the victim girl. The Medical Officer's evidence also establishes that the injuries were caused to the victim girl and that some pressure was applied on her private part. The evidence also establishes that something was inserted in vaginal canal of the victim. The victim, admittedly, was in custody of the appellant at the time of the alleged incident and therefore, the appellant was under obligation to explain the injuries sustained by the victim girl. The things were specially within the knowledge of the appellant and therefore, the law cast duty upon him to explain the things which were exclusively and specially within his knowledge. The appellant has not offered any explanation for the same. After having gone through the evidence of the Medical Officer and evidence of P.W.1, which at least supports that the victim was in custody of the appellant, I have come to a conclusion that the injuries on person of the victim had been caused by the appellant. The offence punishable under Section 323 of the Indian Penal Code had been proved beyond all reasonable doubts. 7. However, the crucial question is as to how one can held the appellant guilty of the offence punishable under Section 376 of the Indian Penal Code unless it is established by circumstantial evidence that there was penetration of penis, may be partially, by the appellant in the vagina. The injuries described by P.W. 6 Medical Officer could also be caused by manual manipulation of private parts of the victim girl and therefore, it is very difficult to say that only because hymen was ruptured the victim might have been subjected to sexual intercourse. The rupture to hymen can be caused by insertion of finger also. The injuries described by P.W. 6 Medical Officer could also be caused by manual manipulation of private parts of the victim girl and therefore, it is very difficult to say that only because hymen was ruptured the victim might have been subjected to sexual intercourse. The rupture to hymen can be caused by insertion of finger also. One just cannot presume that the appellant might have inserted his penis in vagina of the victim. In my opinion, on the basis of medical report only it would not be safe to maintain the conviction of the appellant under Section 376(2)(f) of the Indian Penal Code. Hence, I pass the following order. i. The appeal is partly allowed. ii. The conviction of the appellant for the offence punishable under Section 376(2)(f) of the Indian Penal Code is set aside. iii. The conviction of the appellant for the offence punishable under Section 323 of the Indian Penal Code and the sentence imposed by the trial Court is maintained. iv. Set off be given to the appellant for the imprisonment already undergone by him. Appeal accordingly stands disposed of. Appeal partly allowed.