VIRENDRA SARAN, J. - (1.) RUSTAM and Meraj have filed this appeal against the judgment and order dated 11.7.1986 of Sri I. J. Malhotra, VIth Additional Sessions Judge, Lucknow convicting and sentencing each of the appellants to one year's R.I. under Section 363, I.P.C. and to four years R. I. under Section 376, I.P.C. and to a fine of Rs. 31,000. In default of payment of fine, the appellants were ordered to undergo further three years R.I.
(2.) ACCORDING to the prosecution case Km. Kiran and Km. Kumkum were daughters of Ram Charan and Naumi Lal respectively. Ram Charan and Naumi Lal were Central Bank employees and resided in bank quarters situated in Hazratganj, Lucknow. The quarters were situated facing each other. Appellant Rustam was running an optical shop in front of Central Bank, Hazratganj and Meraj was employed as driver in the same Bank. Both the appellants were on visiting terms at the houses of these two girls and in due course Km. Kiran developed intimacy with appellant Rustam while Km. Kumkum developed intimacy with appellant Meraj. The machinery of law was set in motion with the lodging of a joint F.I.R. by Ram Charan and Naumi Lal in which it was stated that on 26.12.1982 at about 11 O'clock in the night, the two appellants had enticed away the their daughters named above. It was further stated in the F.I.R. that appellants were visitors at the houses of the informants. On the lodging of the F.I.R., a case was registered and on 27.12.1982 the police recovered Km. Kiran as well as Km. Kumkum from the house of appellant Meraj who was also arrested at 3.20 p.m. Both of them were medically examined by P.W. 8 Dr. Madhu Nigam on 26.12.1982 and their medical examination has been summed up by the learned Sessions Judge as under : 'P.W. 8 is Doctor Madhu Nigam who medically examined both the girls namely P.W. 1 Km. Kiran and P.W. 2 Km. Kumkum. She prepared the medical reports after examination and found that both the girls were used to inter course and has hymen old torn and healted up. She further found that their breast were well developed and auxilliary and public hair were black and scanty she has not given any opinion about the age of both the girls and referred the matter to the Radiologist for X -ray. Both these girls were examined by Dr. Madhu Nigam P.W. 8 on the next day, i.e., 27.12.1982. She prepared separate medical report and paper A3/19(7) was a medical report of Km. Kumkum and Paper No. A3/23/15 is the medical report of prosecutrix Km. Kiran. However, the prosecution perhaps inadvertently did not get the medical report of Km. Kumkum proved and only medical report of Km. Kiran was proved which is Ex. Ka -13. Dr. Madhu Nigam had clearly stated that it was not possible to give a definite opinion of rape in view of the prosecutrix being used to sexual intercourse.
(3.) AFTER completion of the investigation, a charge -sheet was filed against the appellants and in due course they were committed to the Court of Session.;