(1.) THE appellant-orig. accused in Sessions Case No. 64 of 2004 (old No. 67 of 2001) is convicted and sentenced to suffer seven years' rigorous imprisonment with a fine of Rs. 1000/-, in default, to further undergo three months' simple imprisonment for the offence punishable under Section 376 of IPC; simple imprisonment of six months for the offence punishable under Section 323 IPC and rigorous imprisonment of one year for the offence punishable under Section 324 of IPC as well as rigorous imprisonment of one year for the offence punishable under Section 354 of IPC, by the learned Addl. Sessions Judge and Presiding Officer, Fast Track Court No. 3, Dahod, by his judgment and order dated 28. 10. 2005. The said judgment and order is under challenge in the present appeal.
(2.) IT is the case of the prosecution that the incident in question had taken place on 12. 9. 1999. It is alleged that the victim was residing at village Bhativada, Taluka Dahod and she was returning from the Floor Mill at about 12. 00 noon. When she reached near the place Dhamani Khokhari, the present appellant-accused came there and caught the right hand of the victim and thereafter she was pushed her down and tried to outrage her modesty and when she shouted for help, one Ramsubhai Ramsingbhai, who appears to be her elder brother of her husband; one Kalabhai Ramsingbhai and Nilesh Parsingbhai came there and caught hold of the appellant-accused. It is alleged that for his self-defence, the appellant-accused has bitten the thump of the right hand of Kalabhai who had come there to help the victim. It is alleged that thereupon the accused was caught hold of by the people and went to the Dahod police station and lodged the complaint. On the basis of the said complaint, the case was registered being I-CR No. 165 of 1999 and the investigation was carried out by Bashirbhai Mohammadbhai PW-8-Exh. 26 and on the next day, he went to the scene of offence and panchnama at Exh. 16 was drawn and thereafter recorded the statements of the relevant witnesses and the accused was arrested. Thereupon the investigation was handed over to PSI Joshi on 27. 9. 1997. During the course of investigation on the same day, further statement of the victim and complainant was recorded wherein the victim has stated that rape was also committed by the appellant-accused and so, again panchnama was drawn and the clothes which were produced by the victim were recovered and thereafter he made a report to add Section 376 of IPC. Thereafter, the appellant-accused was sent for medical examination. However, the victim did not agree to go for medical examination and therefore, it could not be done. At the end of investigation, the charge sheet was filed for the offences punishable under Sections 376, 354, 324 and 323 of IPC.
(3.) SINCE the learned Judicial Magistrate, First Class has no jurisdiction to try the case as Section 376 of IPC is not triable by him, he passed an order of committal to the Sessions Court under Section 209 of Cr. PC, which was numbered as Sessions Case No. 64 of 2004.