- (1.) B. K. Sharma, J. That is an appeal against the judgment and order dated 18-2-1980 passed by Sri S. C. M. Tripathi, the then Vth Additional Sessions Judge, Azamgarh in S. T. No. 196 of 1977-State v. Dayanand under Section 376, IPG, P. S. Tharwa, District Azamgarh, whereby he con victed the accused-appellant Dayanand of the offence under Section 376, IPC and sentenced him to undergo R. I. for a period of 3 years and 6 months.
(2.) HEARD the learned counsel for the parties and perused the record. The prosecution case as disclosed in the FIR by Smt. Sudhiya victim at 10 p. m. at P. S. Tarya on 10-3- 1974 was that while she was uprooting pea from her field in her village Meh Nagar, within the limit of police station Tarya, the present accused/appellant Dayanand and co-accus ed Ram Saran both resident of Meh Nagar, P. S. Tarya came near her and asked from her as to what was the way for going to village Kusmuliya and when the said that the Rasta for Kusmuliya passes from the East and they could also go by road, they came near her and fell her to the ground and they started committing rape upon her by removing her 'lugga' (Dhoti) and that on her alarm witnesses came there, whereupon the accused persons left her. The medical examination of Smt. Sudhiya was made by the medical officer Sri A. K. Mazoomdar in the District Hospital on 11-3-1974 at 4. 30 p. m. He recorded the presence of multiple abrasions in an area of 8" X 5" over the back, middle and upper part. In his opinion it was caused by friction and its duration was about one day.
(3.) SMT. Sudhiya was medically examined by the Medical Superinten dent of the women hospital, Azamgarh on 11-3-1979 at 5. 30 p. m. she found that her vagina admitted two fingers easily. Hymen torn and replaced by old healed granular tags. No sign of fresh injury present on her private part. It was not in controversy that the prosecutrix was of the age of consent. At the trial the prosecutrix Smt. Sudhiya claimed in her examina tion in chief that she was raped by Dayanand accused/appellant and there after by the co-accused Ram Saran. The prosecution had also examined two witnesses Rajbali PW 2 and Udit P. S. 3 as the witnesses of fact. The Sessions Judge gave benefit of doubt to Ram Saran co- accused not only on the ground that Ms identity had not been established beyond doubt as he was named Ram Saran son of Namona in the FIR while at the trial she named him as Shyam Narain and did not describe him by word 'alias' any where and claimed that earlier also she had given the same name of the culprits as she has given at the trial but also because in her evidence it had come that she screamed just after accused Dayanand stood up (after committing rape) and the witnesses arrived and that (consequently) the co-accused might not have been able to commit rape.;