SURENDRA VIKRAM SINGH RATHORE, J. - (1.) SINCE all the aforesaid criminal appeals arise out of a common judgment, hence all these appeals are being disposed of by a common judgment.
(2.) UNDER challenge in the instant criminal appeals is the judgment and order dated 08.02.2013 passed by District and Sessions Judge, Shravasti, in Sessions Trial No.82 of 2010 arising out of Case Crime No.C -52 of 2008, Police Station Kotwali Bhinga, District Shravasti, whereby the appellants Shiv Dayal, Shiv Kumar and Aziz were convicted and sentenced as under: - (i) Under Section 363 IPC - 5 years' rigorous imprisonment and fine of Rs.2,000/ - each; (ii) Under Section 366 IPC - 7 years' rigorous imprisonment and fine of Rs.2,000/ - each, and (iii) Under Section 376 (2)(g) IPC - imprisonment for life and fine of Rs.2,000/ - each. Appellant Aziz was further convicted for the offence under Section 3(1)(12) of the SC/ST Act and was sentenced to undergo simple imprisonment for a period of two years and fine of Rs.2,000/ -. In default of payment of entire fine amount, each of the appellant was directed to undergo six months' additional simple imprisonment. All the sentences were directed to run concurrently. By the same judgment, co -accused Chandrika was acquitted of all the charges levelled against him.
(3.) IN brief, the case of the prosecution was that the complainant Amirka Prasad moved an application under Section 156(3) Cr.P.C. before Chief Judicial Magistrate, Shravasti, on 30.05.2008 alleging therein that his daughter aged about 15 years, hereinafter referred to as the victim, had gone to the house of her Mausa on 13.05.2008 in village Revalia, Police Station Bhinga, District Shravasti. On 19.05.2008 at about 07.00 PM, she had gone to attend the call of nature and when she did not come back then her Mausa and other family members started her search and also informed the complainant. The complainant also searched the victim. During search, he was told by Maiku Lal and Banshi Lal that they had seen the victim on 19.05.2008 in the evening going on motorcycle along with Shiv Dayal (appellant) son of Jagat Ram. Since then the victim has not returned to her house. Shiv Dayal was a relative and used to visit his house and Shiv Dayal has enticed her away. The complainant expressed an apprehension in the said application that the victim may be murdered and also raised a suspicion against one Jagat Ram, the father of the appellant Shiv Dayal, and one Prahlad that they were also involved in the said incident. The complainant alleged that he had gone to Kotwali Bhinga and informed the police but when no action was taken then on 24.05.2008, he sent an application through registered post to the Superintendent of Police, Shravasti, even then no action was taken. Along with the application under Section 156 (3) Cr.P.C., the complainant had filed the copy of the application sent to Superintendent of Police, Shravasti and also a copy of the mark sheet of Primary School Bhingaha Bazar. The Magistrate concerned allowed the application and in compliance of the order of the Magistrate, the case was registered on 21.08.2008 at 11.05 AM against Shiv Dayal, Jagat Ram and Prahlad. After registration of the case, the investigation proceeded and during investigation, the victim was recovered on 30.08.2008 at about 8.00 AM at Laxmi Bazar Tiraha and the victim was referred for her medical examination to Women Hospital, Bahraich, which took place on 01.09.2008 at 4.10 PM. According to her medical examination, hymen was old torn, no leaking, no bleeding and no injury over the private parts was found. Vaginal smear slides were prepared and the victim was referred for her X -ray for determination of her radio -logical age. On the basis of the aforesaid test, the age of the victim was reported to be between 18 -19 years and no definite opinion regarding rape was expressed. The place Chilvaria where the rape is alleged to have been committed was also inspected and its site plan was prepared. During investigation, nomination of Jagat Ram and Prahlad was found to be false on the basis of the evidence of the victim recorded under Section 164 Cr.P.C. Charge sheet was filed against the appellants and one Chandrika, who was acquitted after trial. The case of the defence was that the victim was major. She solemnized marriage with the appellant Shiv Dayal on 10.04.2008 and thereafter this marriage was duly registered by the Registrar of Marriages on 25.08.2008. The victim remained with appellant Shiv Dayal in Punjab for a long period of more than three months out of her own free will. Therefore, the victim was legally wedded wife of the appellant Shiv Dayal and the allegations made against the appellants were absolutely false.;