NAVEEN SRIVASTAVA,J. - (1.) This Criminal Appeal is preferred against the judgment and order dated 30.3.2012 passed by Special Judge, SC/ST Act, Kanpur Nagar in S.T. No. 1122 of 2007 (State vs. Rais Dear and others), convicting/sentencing the appellants under Section 376 IPC read with Section 3(2)5 SC/ST Act to life with fine of Rs.20,000/- and under Section 506 IPC to 1 year imprisonment. Both sentences to run concurrently. 1. The prosecution case in brief is as under: - (i) PW-1, informant / victim along with her friend PW-5, while returning from their workplace on 12.2.2007 at about 4:00 P.M, came across accused Mohd. Moin @ Lala and accused Rais @ Dear near Nai Basti. PW-5 in order to return a carry bag of her sister-in-law (DW-1) went to her house along with PW-1. Both the accused chased PW's-1 and 5, entered the house forcibly and sexually assaulted PW-1 at gunpoint in a room, while PW-5 was extended threats that if either of them dare to report, they would be done away with. (ii) Post occurrence, PW-1 was escorted by PW-5 to her house, where she narrated the incident to her mother and sister (PW-3). They decided to lodge a report same day and while they were on their way to lodge a report they were obstructed by the accused, who slapped PW-3, then PW-1 along with PW-3 could muster courage to lodge a report only next evening, i.e, 13.2.2007 on the basis of a written report (Ex.- Ka-1) scribed by one Deepak Saini as Case Crime no. 112/ 2007 under Sections 376, 506 IPC and 3(2)(v) SC/ST Act at 5 PM at P.S. Chakeri, Kanpur Nagar, against above named accused persons. (iii) During investigation, PW-1 was medically examined by PW-2/ the doctor on 14.2.2007 at about 1:45 P.M, in police custody. The statement of the victim under Section 164 CrPC was also recorded on 3.4.2007. The I.O, after recording of the statements of witnesses and carrying out other investigational formalities submitted a charge sheet against both the accused under aforesaid provisions. (iv) The Special Court, while taking cognizance of the offences, framed charges under Sections 376, 506 IPC and 3(2)(v) of SC/ST Act against both the accused, which they denied and claimed to be tried. (v) The prosecution in order to establish its case examined PW-1/ the victim; PW-2/ the doctor; PW-3/ the sister of PW-1, who accompanied PW-1 to lodge a report, PW-4/ the I.O, PW-5/ friend of PW-1, an alleged eye-witness and PW-6/ the Head Moharrir, who reduced the contents of the FIR in the G.D. (vi) The accused in their statements under Section 313 CrPC denied the occurrence and alleged false implication and in support thereof produced DW-1, owner of the house, who denied the occurrence having taken place inside her house. (vii) The trial court after evaluating the evidence on record convicted the appellants as above.
(2.) We have heard Sri Deepak Singh, learned counsel for the appellants and Sri A.N. Mulla, and Sri V.S. Rajbhar, the learned A.G.A's.
(3.) Learned counsel for the appellants raised the following contentions:- (i) FIR is delayed with no explanation, which is also not proved as the scribe (a stranger) was not examined. (ii) Conviction under SC/ST Act is not sustainable as there is no evidence to indicate that the victim was sexually assaulted only for the reason that she belongs to SC/ST Community, coupled with the fact that PW-1 (the victim) had no prior knowledge of the identity of the accused and vice-versa. (iii) PW's-1 and 5 tendered contradictory statements as to sequence of occurrence and the number of witnesses. (iv) DW-1 owner of the house completely denied the occurrence having taken place inside her house. (v) Prosecution was launched malafidely only with a view to extract compensation. ;