JAIN, J. - (1.) THE trial Court vide judgment and order dated 24. 1. 2002 passed in Sessions Case No. 73/96 convicted and sentenced accused appellant Robin Kumar Das u/s. 376 (2) (g), IPC to 10 years rigorous imprisonment and fine of Rs. 1000/- and in default of payment of fine to further undergo one month's rigorous imprisonment. Being aggrieved by the same, these two appeals have been preferred, one through Advocate and another from Jail through the Superintendent, Central Jail, Kota.
(2.) EX. P. 1, written report was lodged by prosecutrix Sunita at Police Station Ram Nagar, Kota, alongwith her father Kastoor Chand on 29. 3. 96 wherein it was alleged that on Wednesday (27. 3. 96), accused Tillu and Robin Kumar Das forcibly took her away and committed sexual intercourse with her. Her parents were not present at her house, therefore she could not tell about this story to anyone. However, on 29. 3. 96, again Tillu and Robin Kumar Das wanted to commit the same act but her brother Chiranji Lal heard hue and cry and came to rescue her but he was beaten. Therefore, she told to her father and thereafter came to lodge this report. It was further alleged that her parents had gone to village Balakund for 3-4 days, therefore she has come to lodge this report today with her father. On the basis of the above written report, the police registered FIR No. 100/96 at Police Station Udhyog Nagar, Kota City under Section 376 and 34, IPC and under Section 3 of the SC/st (Prevention of Atrocities) Act against the accused appellant. During investigation, site plan was prepared. The prosecutrix was medically examined. The accused persons were arrested and they were also examined medically. After completion of investigation, the police filed a challan in the court of Additional Civil Judge (Jr. Div.) and Judicial Magistrate No. 5, Kota (North) against the accused appellant who committed the case for trial. It appears that co-accused Tillu @ Tilak Raj was found to be 16 years of age, therefore the trial against him was conducted under the provisions of Juvenile Justice Act. The trial Court framed charges against the appellant u/s. 376 (2) IPC and U/s. 3 (1) (xi) of the SC/st (Prevention of Atrocities) Act. The accused denied the same and claimed to be tried. The prosecution examined 15 witnesses including Sunita (PW. 1), Prosecutrix, Lalita Bai (PW. 2) her mother Kastoor Chand (PW. 3) her father, Chiranji Lal (PW. 8) her brother and Dr. G. S. Vishnar (PW. 9 ). The documentary evidence was also placed on record. Thereafter, the statement of the accused appellant was recorded under Section 313 Cr. P. C. In defence, the statement of Ganesh (DW 1) was recorded. The learned trial court heard the arguments of both the sides and vide impugned judgment, acquitted the accused appellant from the offence u/s. 3 (1) (xi) of the SC/st (Prevention of Atrocities) Act but convicted and sentenced the accused appellant as mentioned above. The learned counsel for the appellant contended that the learned trial court has wrongly convicted and sentenced the accused appellant under section 376 (2) IPC as from the prosecution evidence the charge against him is not proved. He contended that as per Ex. P. 1, the incident alleged to have taken place on Wednesday (27. 3. 96) but no immediate report was lodged on 27. 3. 96 itself. So far as the incident dated 29. 3. 96 is concerned, no offence was committed even as per the contents of written report itself. The delay in lodging the First Information Report has not been properly explained by the prosecution. He further contended that there are number of contradictions in the statement of prosecutrix Sunita (PW. 1) and her statement has not been corroborated with any other statement of the prosecution witnesses or from medically evidence. In Ex. P. 1 written report, it was mentioned that on 29. 3. 96, the same offence could not be committed as her brother Chiranji Lal came to her rescue, whereas Chiranji Lal was examined in the case as PW 8 and he was declared hostile by the prosecution. In her statement before the trial court, Sunita (PW. 1) stated that she alongwith Manju and Sita were coming from the school and accused Robin Kumar caught hold her hand. Both the girls fled. Thereafter, Robin Kumar took her behind the school where another person Tilak Raj also came and both committed sexual intercourse her statement and she was declared hostile. Manju (PW. 6) has named three persons Robin Kumar, Avinash and Tilak Raj but she has not stated anything about committing sexual intercourse with prosecutrix (PW. 1 ). He also submitted that her mother Lalita Bai (PW. 2) was examined and she specifically stated in her statement that Sunita told her that she was assaulted by two students but she did not tell about any sexual intercourse with her by the accused persons. PW. 2 further stated that she came to know about rape with Sunita after lodging FIR. He contended that it was a simple case of assault and if it was a case of sexual intercourse, then first of all Sunita (PW. 1) would have apprised about it to her mother and not to anyone. It is not natural that she will tell to other person Pania or to her father Kastoor Chand about commitment of rape with her. He contended that Paniya who was an important witness but he was not examined by the prosecution. Sunita (PW. 1) stated that on the date of incident, she went to her house and her cousin Pania came and she narrated the entire story. Panwal went to beat Robin and thereafter Panwal alongwith 2-3 boys came and they narrated the entire story to her father. He also contended that as per medical report Ex. P. 5, no sexual intercourse was committed with her. Dr. G. S. Vishnar (PW. 9) stated before the court that there was no sign of resistance or her body and therefore no opinion could have been given in respect of the sexual intercourse.
(3.) LEARNED counsel for the appellant lastly contended that as per medical report Ex. P. 9, accused appellant Robin Kumar was 18-19 years of age and as per the provisions of 360 Cr. P. C. it was the duty of the trial Court to give the benefit of probation as he was under 21 years of age. He submitted that the provisions of Section 360 Cr. P. C. are mandatory in nature and in case the benefit of probation is not given, then the trial Court is duty bound to record special reasons for the same, as required u/s. 361 Cr. P. C. Therefore his contention is that although this is a case wherein the statement of prosecutrix Sunita (PW. 1) does not inspire confidence but even if her testimony is believed and the conviction of the appellant is upheld, then the benefit of section 360 Cr. P. C. be given to him as he was under 21 years of age on the date of incident. It is also contended that accused appellant has already completed the sentence of imprisonment for about 6 years and 9 months upto now and looking to adequate and special reasons available in this case, the proviso to sub-section (2) of Section 376 IPC be invoked and sentence of 10 years be reduced to a period sentence of imprisonment already undergone by the appellant. Learned Public Prosecutor contended that the learned trial Court has appreciated the oral as well as the documentary evidence and has rightly convicted and sentenced the accused appellant in the facts and circumstances of the present case. ;