- (1.) BARKAT Ali Zaidi, J. The aforenoted three appellants were tried in S. T. Nos. 463 and 1980 or charges under sections 451, 376 and 323 I. P. C and the VII-Ith Addl. Sessions Judge, Allahabad by Judgment and order dated 23. 3. 1982 found them guilty under section 451 I. P. C. and sentenced appellant Moti Lal under section 376 I. P. C. with two years rigorous imprisonment plus fine Rs. 200/-, in default, 3 months further imprisonment. He also found guilty appellant Moti Lal under section 376 IPC and sentenced him with 5 years rigorous imprisonment. Appellants Bhullar Yadav and Kallar were also found guilty under section 323 IPC and the Trial Sessions Judge released them on probation under section 4 of U. P. First Offenders Probation Act, for both the offences.
(2.) THAT is how the two appeals, which have been consolidated for hearing and are being decided by one judgment. According to prosecution version on 19. 8. 1977 at 7. 30 O'clock in the evening in village Bahoopur, the aforenoted three accused came to the house of informant Smt. Devi P. W. I, while her parents had gone to another village to ask about welfare of her in-laws and her younger sister was playing out side the house. It is alleged that accused Moti Lal pushed the prosecutrix down on the ground and had forcible sexual intercourse with her despite her resistance while accused Kallar caught the arms of the prosecutrix and co-accused Bhuwar Yadav gagged her by pressing his hand over her mouth. The prosecutrix shrieked as and when she could, attracting, witnesses Ramjiyawan, Ram Dev and Sarjoo to the place of occurrence, who saw the accused Moti Lal in the actual act of rape and also saw, that, they were holding the hand of the prosecutrix. It is alleged that on the evening of 24. 8. 1977, the parents of the prosecutrix and her husband P. W. 2 Amrit Lal came to the village, to whom the prosecutrix narrated the entire story. A written report of the incident was prepared by the husband of the prosecutrix, Amrit Lal took the prosecutrix to the police station, the next morning on 25. 8. 1977 and lodged the first information report (Ext, Ka-1) at 8. 30 A. M. at police station Sarai Mamrej. On the basis of the written report (Ext. Ka-1), the police registered the case against Moti Lal Yadav, Bhuwar Yadav and Kallar vide chick F. I. R. (Ext. Ka-7) and referred (the prosecutrix for medical examination to Duffrin Hospital, Allahabad.
(3.) THE investigation of the case was assigned to P. W. 4 S. O. Sri Sukhram Sonkar, who went to the spot, prepared site plan, Ext. Ka-5 and recorded the statement of the prosecutrix and other witnesses under section 161 Cr. P. C. The prosecutrix was examined at Duffrin Hospital Allahabad on 25. 8. 1977 at 5. 50 P. M. by P. W-3 Dr. V. Nigam who vide Ext-K-2 found no injury whatsoever on the person of the prosecutrix. Hymen torn, vagina, admitting two fingers easily and that she was used to sexual intercourse and that there was no evidence of recent rape. The doctor advised X-ray for determination of her age, according to the X-ray report (Ext-Ka-3) she was around 19 years of age.;