1. - The accused appellants Nazam Alsi @ Chankia s/o Hanif Khan and Smt.Razi @ Razia, w/o Ramjan, both b/c Mohammedan, residents of village Jahana at present residing at village Dhakarulvalla , Police Station Pilibanga, District Hanumangarh, have preferred this appeal against the judgment and order dated 12.01.2007 as well as the sentence dated 16.01.2007 passed by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Cases, Hanumangarh in Sessions Case No.06/2005, whereby he convicted and sentenced the accused appellants as under:

2. The learned trial court acquitted both the accused appellants for the offence under section 3 (1)(x) and 3 (1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

3. The brief facts of the case, giving rise to this appeal are that on 12.11.2004 one FIR was lodged by Saroj d/o Pappu @ Krishan stating inter alia that on 28.10.2004 her parents had gone to the field and she and her brother were only at home and at about 09.00 AM, their neighbour Smt.Razi @ Razia called her and took her to the house and put her in one room where accused Nazam Ali was already hiding and thereafter Razia went away after locking the room and accused Nazam Ali committed rape on her. On hearing her cry, her brother Dhanraj called her parents and thereafter Razi @ Razia came and opened the lock of the room and accused Nazam Ali ran away. On this report, police registered a case and started investigation and after investigation, police filed challan against the accused appellants. Thereafter the case was committed for trial, in the court of learned Special Judge, Scheduled Castes Scheduled Tribes (Prevention of Atrocities) , Cases, Hanumangarh where the charges were framed against the accused and the trial began.

4. During the trial, prosecution examined as many as 15 witnesses and the statements of accused appellants were recorded under section 313 Cr.P.C. On the defence side , statements of D/W 1 to D/W 5 were recorded . After conclusion of trial, the learned trial judge vide judgment dated 12.01.2007 and 16.01.2007 has convicted the accused appellants as stated above.

5. Being aggrieved by the order of the learned Special Judge, the accused appellants have preferred this appeal.

6. Learned counsel for the accused appellants contended that Smt.Razi @ Razia has been charged for the offence under section 342 and section 376 IPC, whereas it is the settled principle of law that a lady cannot be charged for committing the offence of rape, as propounded by Hon'ble Supreme Court in Priya Patel v. State of Madhya Pradesh & Anr., 2006 R.Cr.D. 800 (SC) .

7. The learned counsel for the accused appellant further contended that Smt.Razi @ Razia can only be convicted for the offence under section 342 IPC. As per the First Information Report and the evidence produced during the course of trial, the prosecution tried to prove this fact that when the prosecutrix was called by accused Smt.Razia, soon after entering the house of accused Smt.Razia, closed the door of the room where the offence of rape was committed.

8. The learned Public Prosecutor contended that the present appellant Smt. Razi @ Razia has been convicted with the aid of section 109 IPC for the offence under section 376 IPC and the offence of abatement of rape is well proved against accused appellant Smt.Razia and even if there is no charge of the abatement or conspiracy and the accused is not prejudiced,it was well within the knowledge that she is not facing the charge under