- (1.) Challenge in this appeal is to the judgment and order dated 05.03.2014 passed by learned Additional Sessions Judge, Court No. 4, Maharajganj in ST No. 144 of 2011 (State Vs. Arvind Yadav and two others), arising out of Crime No. 1029/11 under Sections 376, 506 IPC, PS Pharenda, District Mahrajganj, whereby accused appellants were found guilty and each of them were convicted and sentenced to undergo 10 years' rigorous imprisonment under Section 376 IPC and a fine of Rs.20,000/- each and one year's rigourous imprisonment under Section 506 IPC with default stipulation.
(2.) In brief, the prosecution case is that victim aged about 14 years gave a typed application signed by herself to the concerned police station alleging that on 15.07.2011 at 11:00 AM, she along with 3-4 ladies went into Parmapur Jungle to pick twigs and while returning to home, all of sudden three persons came on cycle in Jungle in front of village Gudaripur and at gunpoint they forcibly took the victim into Jungle. Further allegation is that one by one they committed gang rape on the victim and threatened her to kill, if she tells the aforesaid incident to anybody.
(3.) On the basis of the aforesaid application of the victim, FIR marked as Ext. Ka-8, was lodged on the same day i.e. 15.07.2011 at 16:35 hours. The investigation was entrusted to SI Abdul Hashim, who copied the chik report and FIR in case diary. He recorded the statement of victim, who was present in the police station. He took the blood stained and semen stained clothes of victim before her father and mother as well as other police officials present in police station, which were sealed and recovery memo was prepared and scribed by SI Bharat Yadav, thereafter the same was read over to the victim, her mother Phoolmati and father Moti Lal Gupta as well as Geeta and their signatures and thumb impressions were taken. The recovery memo was proved by this witness as Ext. Ka-4. This witness on the date of incident i.e. 15.07.2011 inspected the spot, recorded statements of witnesses, prepared site plan, which was proved by this witness as Ext. Ka-5. From the place of occurrence, a cycle and blood stained half shirt was also recovered by this witness, recovery memo of which was prepared and was proved by this witness as Ext. Ka-6. The victim was sent for medical examination to C.H.C., Partawal, Maharajganj where she was medically examined and injury report dated 16.07.2011 is available on record marked as Ext. Ka-2. As per the injury report, the hymen was fresh torn, vagina was admitting two fingers and the victim was in great agony. Smear slide was prepared and sent for pathological examination. The injury report is available on record and is marked as Ext. Ka-2. The doctor did not find any mark of violence present on the body or the private part of the victim. Vide pathological report dated 17.07.2011, vaginal smears were found negative for spermatozoa. Further, in the same report which is said to be microscopic examination, it has also been indicated by the Dr. S.K. Yadav that no motile or non-motile spermatozoa were seen. As per the supplementary report dated 21.07.2011 marked as Ext. Ka-3 the age of the victim was determined as 18 years. However, advice was given to consult radiologist to determine the exact age of the victim. In this report, it has also been mentioned that sexual relations has been set up but no definite opinion regarding rape can be given. Hence, the victim was sent for radiological test to Radiology Department, Maharajganj Hospital to determine her age, according to which the age of victim was found to be 18 years.;