ROBIN KUMAR DAS Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.

(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.