- (1.) The abovenamed accused appellant has preferred this appeal against the judgment and order dated 16-8-1999 passed by the learned Judge. Special Court, SC/ST (Prevenion of Atrocities) Cases, Jodhpur in Sessions Case No. 117/98 by which he convicted accused appellant under S. 376 IPC and sentenced to undergo 7 years Rigorous Imprisonment and a fine of Rs. 200/-, in default of payment of fine to further undergo one month RI.
(2.) The facts giving rise to this appeal in short, are as follows :- PW6 Kamku on 16-6-1998 at about 3.00 PM lodged a report Ex. D/2 before PW8 Kishore Singh, SHO Police Station Luni. District Jodhpur inter-alia stating that on 15 of 1998 at about 3.00 PM when she was coming from the field lonely, on the way, accused appellant met her and as soon as she passed the Dhani of Meghwal, accused appellant pursued her on his cycle and, thereafter, he surrounded her and insisted upon to go to his Dhani and on refusal by her, he followed her. It is further alleged that as soon as he came to know that the place is lonely one, he left his cycle there and he caught her from the back side through his hands and took her to the nearby bushes and sitting on his stomach closed her mouth with Orni and after holding her legs, he committed rape on her. It is further stated that when she tried to cry, he closed her mouth and threatened that in case she cries, he would kill her. It is further stated in the report that after that incident, when she was going to her house in the state of wailing, PW2 Bhanwarlal met her and both reached the house and at that time since her husband was not there, no report was lodged on that day. It is further stated that on the next day, her husband came and PW2 Bhanwarlal told the incident to her husband and then, her husband instructed that report be lodged and thus, the report has been lodged. On this report, police registered the case and chalked out regular police FIR Ex. P/7. During investigation, through Ex. P/3, Orni of the prosecutrix was seized, site plan Ex. P/2 was prepared and accused appellant was got medically examined by PW4 Dr. V.K. Malhotra and his medical report is Ex. P/4. PW6 Jamku was also got medically examined by PW5 Dr. N.S. Kothari and her medical report is Ex.P/5. The accused appellant was arrested on 17-6-1998 and his arrest memo is Ex. P/1. After usual investigation, police submitted a challan against the accused appellant in the Court of Magistrate and thereafter, the case was committed to the Court of Session. The learned Special Judge framed charge for the offence under S. 376 IPC on 9-11-1998 against the accused appellant, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 9 witnesses and some documents were got exhibited. No evidence in defence has been produced, but four documents have been produced by the accused appellant in defence. After conclusion of trial, the learned Special Judge by his judgment and order dated 16-8-1999 convicted the accused appellant under S. 376 IPC and sentenced in the manner as stated above, holding inter-alia that in this case, the statement of prosecutrix PW6 Jamku is corroborated by the statement of PW2 Bhanwarlal and PW3 Bhanaram and further by the medical evidence, hence, the prosecution has proved its case beyond reasonable doubt against the accused appellant for the offence under S. 376 IPC. Aggrieved from the said judgment and order dated 16-8-1999, the learned Special Judge, SC/ST Cases, Jodhpur, the present appeal has been filed by the accused appellant.
(3.) In this appeal, the following submissions have been made by the learned counsel for the accused appellant :- 1. That the medical evidence in this case does not corroborate to the statement of PW6 Jamku. 2. That the mouth of prosecutrix was tied by Orni, but this fact is missing in the report Ex. D/2. 3. That Ex. D/2 report has been lodged with delay of 24 hours and this delay is fatal to the prosecution case and hence, the prosecution case should be thrown on this ground alone. ;