Shiv Kumar Sharma, J. - (1.) Sabu @ Sahabdeen and Karmoo @ Kamru, the appellants herein, were put to trial before the learned Additional Sessions Judge (Fast Track) Kishangarh Bas District Alwar, who vide judgment dated July 15, 2004 convicted and sentenced them as under:- U/s. 376 (2)(G) IPC: To suffer rigorous imprisonment for ten years and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six months. U/s. 456 IPC: To suffer rigorous imprisonment for one year and fine of Rs.500/-, in default to further suffer simple imprisonment for three months. The substantive sentences were ordered to run concurrently.
(2.) It is the prosecution case that informant Menkhan (Pw.10) submitted a written report (Ex.P-15) on June 27, 2003 at Police Station Kishangarh Bas with the averments that on June 25, 2003 around 11 PM while his wife Fatima (fictitious name) was sleeping in the house the accused Sabu, Karmu and Umar entered inside the house lifted Fatima and took her in a room and committed rape on her. After the incident Cast Panchayat was summoned in the next morning and a decision was taken in the Panchayat to lodge the report. On that report a case was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Kishangarh (Alwar). Charges under sections 376(2)(G) and 456 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 15 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above.
(3.) Learned counsel for the appellants in the process of assailing the impugned finding made following submissions:- (i) There was unexplained delay in lodging the report. The incident took place at 11 PM on June 25, 2003 however the report was lodged on June 27, 2003. Since there was previous enmity between the parties the delay in lodging the report demolished the entire prosecution case. (ii) Dr. Kamlesh (Pw.4) who examined the prosecutrix on June 28, 2003 did not find any injury on the person of prosecutrix. (iii) Even according to prosecutrix herself she was sleeping on a cot by the side of her Nanad Kalli. In such a situation it was not possible for the accused to lift her silently without disturbing the sleep of her Nanad.;