N.K. Mehrotra, J. - (1.) THIS is an appeal under Section 374(2), Cr. P.C. against the judgment and order dated 22.8.1989 passed by I Vth Additional Sessions Judge, Pratapgarh in Sessions Trial No. 146 of 1987 convicting and sentencing the Appellants under Section 376, I.P.C. to 5 years R.I. and a fine of Rs. 1,500 and under Section 457, I.P.C. to 2 years and six months R.I. and a fine of Rs. 500.
(2.) DURING the pendency of the appeal, Appellant Rajendra Prasad alias Barsati Pasi was killed in encounter with the police. The appeal filed by Rajendra Prasad alias Barsati Pasi stands abated. On the date of hearing another accused. Mishri Lal did not appear either himself or through counsel. Since it is an appeal of the year 1989, it was heard on merit after giving opportunity to the learned Additional Government Advocate, in view of the decision of the Hon'ble Supreme Court in Bani Singh v. State of U. P. : AIR 1996 SC 2439.
(3.) THE prosecution case in brief is that informant Chhotey Lal had settled down at Ramapur (Gosepur), P.S. Raniganj, district Pratapgarh in the year 1982. Accused Mishri Lal Pasi and Rajendra Prasad alias Barsati Pasi are residents of the same village. They were the neighbours of informant Chhotey Lal. Accused Mishri Lal is distantly related as uncle of accused Rajendra Prasad alias Barsati Pasi. It is alleged that on 6.12.1986 at about 12 O'clock in the night accused Mishri Lal and Rajendra Prasad alias Barsati Pasi trespassed into the house of Chhotey Lal by removing chappar and both of them committed rape on Smt. Suraj Kali, the daughter of informant, who was then aged about 16 years. On that night Ram Sunder, the nephew of informant Chhotey Lal and Smt. Suraj Kali were alone at their house. Informant Chhotey Lal along with his wife and other children had gone to attend marriage ceremony at village Atanpur, district Allahabad. On 9.12.1986 when informant Chhotey Lal returned to his house, his daughter Smt. Suraj Kali disclosed to him the entire incident of rape. She also told her father that she was threatened by the accused that if she would disclose the occurrence to anyone, they would kill her.;