- (1.) Heard Sri Hari Bans Singh, learned counsel for the appellants and learned A.G.A. for the State of U.P.
(2.) This application has been moved by the appellants Mohd. Moin @ Lala and Rais @ Dear with a prayer that they may be released on bail during the pendency of the Criminal Appeal No. 1414 of 2012 which has been filed against the judgement and order dated 30.3.2012 passed by learned Special Judge (SC//ST Act), Kanpur Nagar in S.T. No. 1122 of 2007 whereby the appellants have been convicted for the offence punishable under section 376 IPC read with section 3(2)V SC/ST Act and sentenced to undergo imprisonment of life, fine of Rs. 20,000/- has also been imposed. They have been further convicted under section 506 IPC and sentenced to undergo imprisonment of one year.
(3.) It is contended by learned counsel for the appellants that the FIR of this case is delayed, it has been lodged on 13.2.2007 at 5.00 P.M. in respect of the incident allegedly occurred on 12.2.2007 at about 6-7 P.M. The prosecutrix was medically examined on 14.2.2007 at 1.45 P.M. According to the medical examination report no injury was found on her person, she was fully developed lady, her hymen was old torn and healed. According to the supplementary medical examination report no spermatozoa was found in pathology report and no definite opinion of rape could be given. The prosecution story is not reliable at all, even the prosecutrix did not make any protest against the commission of the rape. It is alleged that prosecutrix was in the company of one Kamla. According to the deposition of Smt. Kamla P.W. 5 when she along with the prosecutrix was returning after finishing the labour work, she was going to her Nanad's house, they were stopped by the appellants Lala @ Moin near the hotel of Thakur, at that time the appellant Rais @ Dear was standing at some distance. The appellant Lala interrupted her by saying where she was going, on that she has replied that she was going to her Nanad's house, he inquired about the prosecutrix, in reply she stated that her name was Maya, she was working with her. She and prosecutrix went to house of her Nanad but the appellant also reached there, she was called by appellant Lala from the house, she was given threat of life by pressing her neck, the appellant Lala and Dear was armed with Chhuri, she was asked not to make noise, the prosecutrix was taken in side the room. First of all the appellant Lala committed the rape with prosecutrix in side the room, he came out then the appellant Dear committed the rape with the prosecutix in side the room. The prosecutrix was extended the threat of life in case she made any complaint. The prosecutrix went to her house where she was narrated the story to her sister Soni and Mother. She was told by her mother to go to police station, when she was on way to the police station Soni was caught hold by the appellant Lala and she was slept by him twice or thrice. The deposition given by P.W. 5 is not reliable at all, it appears that the prosecutrix and P.W. 5 falsely implicated the appellants due to enmity. The appellants were on jail during the pendency of the trial, they have not misused the liberty of the bail, they may be released on bail.;