- (1.) This appeal has been filed by the appellant Shekhiya @ Shekh Mohd. s/o Dildar Khan, b/c Musalman , r/o Borunda, District Jodhpur against the judgment of conviction and order of sentence dated 27.11.2007 passed by the learned Special Judge , Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases , Merta, in Sessions Case No.47/2006 by which the learned trial court convicted the accused appellant for the offence under section 363, 366A, 342, 323 and 376 of the IPC and section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentenced him for the offence under section 363 IPC to three years' rigorous imprisonment and a fine of Rs.1,000/- and in default of payment of fine, to further undergo two months' rigorous imprisonment, for the offence under section 366 A IPC to five years' rigorous imprisonment and a fine of Rs.2,000/- and in default of payment of fine, to further undergo three months' rigorous imprisonment, for the offence under section 342 and 323 IPC, to six months' rigorous imprisonment , for the offence under section 376 IPC to seven years' rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo six months' rigorous imprisonment and for the offence under section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, to five years' rigorous imprisonment and a fine of Rs.3,000/- and in default of payment of fine, to further undergo three months' rigorous imprisonment. All the sentences were ordered to run concurrently. The brief facts of the case arising out of this appeal are that on the intervening night of 16.06.2006 and 17.06.2006, at about 02.05AM a written report was filed by complainant Nemi Chand Damani, stating that his daughter named Rekha went on 15.06.2006 at about 03.00 PM for bringing the key of the house and came back on 16.06.06 at about 08.00 PM. On being enquired, she stated that Dhaniya and one another boy accompanying him, forced her to sit on the motor cycle and they brought her to forest of Borunda and ultimately to the Ganesh Temple and at that place ,Dhaniya started to beat her and Dhaniya after some time, committed rape with her. The another boy, accompanying Dhaniya, remained outside the temple. In the night she remained in the forest. On the basis of that report, criminal case No.63/2006 under section 366A, 376, 323 and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, was registered and the investigation commenced. During the course of investigation, medical examination of the prosecutrix was conducted and the present appellant Shekhiya @ Shekh Mohd. was arrested and he was also medically examined by the Medical Officer and statement under section 164 Cr.P.C. was got recorded. The 'Salwar' and other under garments worn by the prosecutrix' were seized and they were sent to the Forensic Science Laboratory' for examination. After completion of investigation, a charge sheet was filed in the court of learned Addl. Chief Judicial Magistrate, Merta, from where the case was committed to the court of Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases , Merta, for trial. The learned trial court, charged the accused appellant for the offence under section 363,366A, 342,323 and 376 IPC and section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act , to which the accused appellant did not plead guilty and claimed to be tried.
(2.) The prosecution examined as many as 13 witnesses , namely, PW/1Dr.Savita Tak, PW/2 Chanda Ram, PW/3 Hanuman Ram, PW/4 Pappu Damami, PW/5 Nemi Chand, PW/6 Smt.Radha, PW/7 Mahendra, PW/8 Rekha Damami, PW/9 Dr.Rajendra Prajapat, PW/10 Dr.Jassa Ram , PW/11 Satveer, PW/12 Sawant Ram and PW/13 Amit Sihag. The incriminating evidence adduced against the accused was put to him for explanation under section 313 Cr.P.C. and the accused produced the following six witnesses namely , DW/1 Shekhiya @ Shekh Mohd. , DW/2 Kalu, DW/3 Salim, DW/4 Sampat Raj, DW/5 Sikandar and DW/6 Durga Singh, in defence. The learned trial court, after hearing both the parties , found the accused appellant guilty for the offence under the above sections and sentenced him as indicated above. Aggrieved by the above order , the appellant has filed this appeal before this court. On 03.02.2011 this Court appointed Mr.Ravi Panwar , Advocate, as amicus curiae, to assist the Court because the counsel for the appellant who filed the appeal remained absent.
(3.) The learned amicus curiae appearing on behalf of the accused appellant , vehemently contended that the judgment of conviction and order of sentence passed by the learned trial court cannot be sustained, because the learned trial court erred in appreciating the evidence of PW/8 Rekha, and further the statement of Rekha ,as deposed in the court , is against the natural human behaviour and further Ex.P/8, the First Information Report , does not contain the name of the appellant as the accused, and in the First Information Report the complainant attributed the act of the offence of rape, to one Dhaniya and in the First Information Report it is specifically mentioned that another boy, who was accompanying Dhaniya, remained outside the temple and no overt act was attributed in the First Information Report to the appellant, and after lodging of the First Information Report, the investigating officer recorded the statement of the prosecutrix under section 161 Cr.P.C. in which on 17.06.06 the prosecutrix stated that instead of present appellant, Shekhiya @ Shekh Mohd. brought her forcibly in the bus and in Ganesh temple he committed the forcible rape with her and thus, there is a material contradiction in the first Information Report and the police statement and further on 24.06.06 police got examined Rekha under section 164 Cr.P.C. in which she deposed that Shekhiya @ Shekh Mohd. Committed rape with her.;