- (1.) MRS. Saroj Bala, J.-The legality of judgment and order dated 21.8.2002, passed by the Additional Sessions Judge/F.T.C. IV District Banda, whereby convicting all the five appellants Chandra Prakash, Dharmvrat alias Pappu, Surjan Singh, Hasan and Iqbal for the offence punishable under Section 376 (g), I.P.C. and sentencing each of them with rigorous imprisonment for ten years and fine of Rs. 1,000 and in default to undergo rigorous imprisonment of one month has been called in question by way of these appeals.
(2.) THE prosecution case as unfolded during the trial is essentially as follows : The victim alongwith first informant, her father-in-law had gone to her parental home situated in village Visanda District Banda. On 12.6.1992, the first informant alongwith victim proceeded from village Visanda for going to his residence in District Kanpur but could not catch Kanpur Passenger Train. Both of them stayed in room No. 5 of Bundelkhand Lodge situated at a short distance from the railway station. At about 12.30 a.m. at night the watchman of Bundelkhand Lodge knocked at the door and asked the first informant to open the door. On identifying the voice of watchman the first informant opened the door. No sooner the door was opened five persons namely Dharmvrat alias Pappu, Lalla (died during trial), Surjan Singh, Hasan and Iqbal trespassed into the room and caught hold of first informant and his daughter-in-law and the door was closed from outside by the watchman. Thereafter the above named accused committed gang rape on informant's daughter-in-law one after another. After commission of rape the accused got opened the door and fled away. The names of accused and watchman came to be known as they were calling each other by their names. The first informant scribed the written report (Ext. Ka-6) and lodged it on 13.6.1992 at 2.05 a.m. at P.S. Kotwali Nagar district Banda on the basis of which chick F.I.R. (Ext. Ka-2) was prepared and crime was registered in the general diary. The relevant entry is (Ext. Ka-3). The victim was medically examined by Dr. Manorama Srivastava (P.W. 2) on 13.6.1992 at 9.10 a.m. and by a panel of doctors consisting of Dr. Shiva Bhardawaj (P.W. 6), Dr. Manorama Srivastava (P.W. 2) and Dr. Shashi Saxena (P.W. 7) at 7 p.m. on 13.6.1992. According to medical examination report (Ext. Ka-8) labia majora and minoro were well developed, UI-A.V. N/S tenderness was present. The vagina admitted two fingers easily. No bleeding or discharge was present per vagina. No external injury was present on the private parts. According to final medical report (Ext. Ka-1) submitted by the panel of doctors presence of spermatozoa in the vaginal smear was suggestive of recent intercourse. The doctors opined that in view of the injuries on the left breast and tenderness as per vagina examination and presence of sperm in vaginal smear the possibility of rape could not be ruled out. However no definite opinion could be given. According to the radiologist Dr. M. P. Mittal (P.W. 4) the radiological age of the victim was above eighteen years. The pathological test report (Ext. Ka-9) indicated that vaginal smear was positive for spermatozoa.
(3.) THE then S.I. Sheorati Prasad (P.W. 9) took the responsibility to investigate the crime. He interrogated the victim and first informant Nathu Ram Gupta at the police station. He visited the place of offence and prepared the site plan (Ext. Ka-10) and took in police custody the broken bangle pieces, underwear, bed sheet from the bed of victim under the memo (Ext. Ka-7). He arrested accused Chandra Prakash on 13.6.1992. THE accused Dharmvrat alias Pappu, Surjan Singh, Lalla (deceased) were also arrested thereafter. He took their underwears in police custody. THE relevant pages of register of Bundelkhand Lodge were collected under the memo (Ext. Ka-11). After completing all the necessary formalities he submitted the charge-sheet (Ext. Ka-13) against the accused persons on 4.8.1992. The committal proceedings were conducted by the 1st A.C.J.M., Banda, who by an order dated 19.10.1996 committed the accused persons to the Court of Sessions Judge for standing trial for the offence punishable under Section 376, I.P.C. The accused-appellant Chandra Prakash was charged for the offence punishable under Section 376 read with Section 109, I.P.C. The rest of the five accused were charged for the offence punishable under Section 376, I.P.C. The accused person pleaded not guilty and claimed to be tried. They alleged their false implication due to the conspiracy of their enemies.;