J.P.Semwal - (1.) THE accused appellants Nankai and his brother Pahari since deceased have filed this appeal against the judgment and order dated 27-11-1979 passed by the 4th Additional Sessions Judge, Shahjahanpur convicting both the accused appellants under section 376, read with section 511 IPC and sentencing each of them to 4 years' R.I.
(2.) THE prosecution case in brief is that the accused appellants committed rape on Km. Meera on 11-2-1978 at about 5.30 p.m. in the Arhar field in village Paina Khurd, P. S. Sindhauli, District Shahjahanpur. According to the prosecution allegations, Km. Meera PW 2 aged about 14 years is daughter of Pusye and she was living with her father in village Paina Khurd at the relevant time. On 11-2-1978, she had gone to bring fodder from the fields situated in the south of village at a distance of 4-5 furlongs near 'Arhat' field belonging to the resident of village Chinaur. At about 5.30 p.m. Km. Meera was returning with fodder and when she reached near the Arhar field, the accused Nankai and Pahari were standing there. They both caught hold Km. Meera and gagged her mouth with a part of her Dhoti and took her to the Arhar field where they committed rape on Km. Meera. After the rape was committed, Km. Meera was released. She raised alarm which brought to the place of occurrence, witnesses, Chhotey Lal, Mathura Lal Jatav, Ram Lal Kori and Nathhu. On the alarm of witnesses, the accused ran away towards south. Kumari Meera, narrated about the incident to the witnesses who brought Km. Meera to her house. The accused had threatened Km. Meera not to tell about the incident to her family members or the villagers. Km. Meena, narrated about the incident to her mother. Her father was not present at that time and when he came, he was also told about the incident by Km. Meera. Pusye PW 4 father of Km. Meera, brought her to Shahjahanpur on the same day and got her medically examined in the district hospital Shahajhanpur. Dr. Sudhir Singh PW 1 was medical officer of the said district Hospital and he examined Km. Meera on 11-2-1978 at 8.15 P.M. and found the following injuries on her person vide injury report Ex. ka 1. 1. Multiple abrasions on right parotid region in an area of 4 cm x 4 cm. 2. Multiple abrasions in extensor aspect of left-fore-arm lower half in an area of 8 cm, x .5cm. 3. Abrasion on lateral aspect of right knee 1 cm x .7cm. All the injuries were simple and fresh at the time of medical examination. In" the opinion of the doctor, these injuries could have been caused by friction against some hard object. Pusye PW 14 had not gone to lodge report at police station Sindhauli due to fear. On next date i.e. 12-2-1978, Pusye PW 4 got an application Ex ka 2 scribed and submitted it to the District Magistrate, Shahjahanpur, narrating the occurrence. The District Magistrate directed the Inspector of Police Station Sadar Bazar to register a case whereupon Pusye submitted this application at the said police station on 12-2-1978 at 3.20 p.m. and a first information report vide Ex ka 4 was prepared at the aforesaid police station and a case was entered at SI. no. 24 of the G.D. vide Ex ka 5. Since the - occurrence related to P. S. Sindhauli hence, information was sent along with necessary papers to the Police .Station Sindhauli. On receipt of the first information report and other papers from P. S. Sadar Bazar on 12-2-1978, a case was registered at SI. No. 21 of the G.D., vide Ex ka 3 at P. S. Sindhauli. The investigation of the case was entrusted to
(3.) I. Bheem Singh PW 5. He started investigation and visited the village and recorded the statement of Pusye, inspected the spot and prepared site plan Ex ka 6. He also recorded the statement of Km. Meera, Naththu and other witnesses -and made a search of the accused who were not found. On the next date i.e. 13-2-1978, he arrested the accused Nankai. The accused Pahari surrendered himself in the court. After completing the investigation, the Investigating Officer submitted the charge-sheet against both the accused persons on 24-3-1978, vide Ex ka 7, under sections 376/511 IPC. 5. The prosecution in support of its case, examined in all 5 witnesses, out of which two witnesses Km. Meera PW 2 and Nathu Lal PW 3 are witnesses of fact. Km. Meera is the victim of the occurrence while Nathu Lal PW 3 is the witness who had heard cries of Km. Meera and had seen the accused persons coming out from the Arhar field and going towards south. Km. Meera narrated about the occurrence to him after she came out of the Arhar field. Pusye PW 4 is the father of Km. Meera prosecutrix who had lodged the report SI Bheem Singh PW 5 is the investigating officer who after completing the investigation submitted charge sheet. Both the accused denied the charges levelled against them and pleaded that they have been falsely implicated in this case due to enmity. According to them, Nande brother of Pusye was beaten by one Gayadeen and father of, these accused had appeared as witness from the side of Gayadeen and on account of this enmity, Pusye had falsely implicated them. No defence was adduced. I have heard Shri Kamleshwar Singh on behalf of the accused appellant and also learned A.G.A. in opposition and have perused the evidence and material on record.;