- (1.) This criminal appeal has been filed against the judgment and order dated 13.01.1994, passed by the IIIrd Additional Session Judge, Faizabad, by which the appellant Smt. Gayatri and Ramji Verma have been convicted for the offences punishable under Sections 363 and 366 IPC and appellant Santram Verma has been convicted for the offences punishable under Sections 363, 366 and 376 IPC.
(2.) As per prosecution case, in the night of 9/10.08.1988, Santram and the wife of Bhagwati Deen Verma has enticed away the sister of the complainant on the pretext of natural call and Santram had handed over the sister of the complainant to two other persons. The complainant searched out his sister, but she was not traceable, therefore, the report was lodged on 10.08.1988 at 16.20 hours, upon which a case at Crime No.312/1988, under Sections 363, 366 IPC was registered. The victim was recovered along with Kalideen and Banshu. The statement of the victim was recorded in which she had stated that she was subjected to rape by the appellant Santram and had also narrated the story of kidnapping. The victim was medically examined at District Hospital, Faizabad on 13.08.1988 and X-ray was also conducted in which she was found to be seventeen years old. After investigation, the charge-sheet was filed against the present appellants, who had denied the charges and claimed their trial.
(3.) The prosecution had examined the following witnesses :- PW-1 Shyam Bahadur, the cousin brother of Smt. Vedwati, had lodged the written first information report on the disappearance of the girl from the house. He proved the written first information report Exhbit-Ka-1 in his testimony stating that some two years three months ago in the morning at 3 or 4 O'clock Bhagauti's wife Gayatri Devi had come to his house and had taken away Vedwati from the house on the pretext of going to ease themselves in the field. When she did not return he inquired about her sister from her, who told him that she did not know where she had gone. Ram Kirpal and Sita Ram had told him that they had seen her near the Government Nali alongwith Bhagauti's wife. He doubted that Sant Ram had also a hand in the occurrence and had lodged the first information report against both of them and also against two unknown persons, who had come in the evening of the occurrence at the house of Sant Ram. PW-2 Smt. Vedwati, the victim of the occurrence, gave out her age as 15 years at the time of the deposition and testified that some two years three months ago she had been taken away from her house by Bhagauti's wife who used to come to her house and excited hopes that she would get her married in a well off family, who could provide her all the amenities and pleasures of life as she was leading a poor and miserable life. She enticed her away at about 3 O'clock in the morning on the pretext of going to field to discharge her routine business. Ramji and Sant Ram had been waiting there. Bhagauti's wife handed her over to Sant Ram and Ramji, who carried her to Saraiya Jungle. Ramji disappered from there for a while. Sant Ram had a forcible sexual intercourse with her in the jungle. He penetrated his organ in her private part and thus committed rape. She was helpless. When she wanted to raise alarm, he threatened to kill her. Ramji returned with Kali Deen and Banshu after some time. All the four carried her to Village Daraganj at the house of Langarh. She was removed from Daraganj next day to village Chingi and was kept there at the house of Banshu. From the house of Banshu while she was being carried to the railway station Katehari, a police inspector met at the Bharthuwa culvert and apprehended her. Banshu and Kali Deen made off and could not be arrested. She deposed that she had been married to Ashok originally in a very tender age. Her parents could not satisfy the dowry demand of Ashok, who divorced her consequently. Her parents got her married to Gur Prasad, who was also not well off. Smt. Gayatri used to come to her house and excited hopes that she would get her relieved of her miseries by providing a suitable match of a well off family. Thus she had fallen pray to her allurements. PW-3 R.N. Tiwari had proved the chick F.I.R. Exhibit-Ka-2 and the entry of the general diary and Exhibit-Ka-3. He was purely formal witness. PW-4 Dr. A.K. Srivastava was a senior Radiologist in the District Hospital Faizabad. He had conducted xray of the right elbow joint, right knee joint and right wrist and had prepared the xray plate Exhibit-1 to 3. On the basis of the xray plate he had found that Smt. Vedwati was only 17 years old at the time of her medical examination at the hospital. The epiphyses of radius and ulna bones had not fused with their respective shafts. The epiphyses of the knee joint were in the process of union. He, however, found that epiphyses of the elbow joints were united with their respective shafts. He proved the xray report Exhibit-Ka-4 in his deposition. PW-5 Dr. A. Bose had conducted the medical examination of the victim Smt. Vedwati on 13.08.1988 at 2.30 P.M. in District Women Hospital. She prepared the medical report Exhibit-Ka-6 wherein she had found on the external examination that Smt. Vedwati was of ordinary built. Her teeth were 14/13. Her breasts had not well developed. The vagina, however, admitted two fingers. She also found the old tag of hymen. On the internal examination she took vaginal smear and sent to Pathologist for evidence of any spermatozoa. She got the xray of right wrist joint, right knee joint and right elbow joint of Smt. Vedwati conducted for ascertainment of her age. She found that Smt. Vedwati was 17 years old. In the cross-examination she told that there could be a difference of six months only in the age. She refused to admit that she could be 19 years old. PW-6 S.I. B.D. Arun had commenced investigation and recorded the statements of the witnesses. He had also arrested Smt. Vedwati while she was being carried by two persons, who had taken to their heels, seeing the police. He was transferred in the course of investigation hence the investigation had been taken up by S.I. Asha Ram, who had arrested the accused and submitted the charge-sheet Exhibit-Ka-9 against them. He deposed that on 13.08.1988 he had arrested the prosecutrix Vedwati while she was being carried by two men, who had run away observing the police. He also proved the superdginama Exhibit-Ka-7 relating to the giving of Vedwati in the custody of her brother Krishna Lal.;