Pankaj Naqvi, J. - (1.) This criminal appeal assails the judgment and order dated 13.8.2004 passed by Addl. District & Sessions Judge (Fast Track Court No. 3), Firozabad in S.T. No. 179 of 2002, convicting the appellants under Section 302, IPC to life imprisonment with fine of Rs.1000/- each, and under Section 377, IPC to 5 years R.I. with fine of Rs.1000/- each. Both the sentences were to run concurrently. The case of the prosecution in brief is that son of PW-2 aged about 12 years left his house on 6.7.2001 at about 8:00 p.m., after meals for a hotel, where he was working, but did not return. PW-2 came to be informed by a milk vendor next morning at 7:00 that a body of a child has been found at the T.B. Ground, which PW-2 identified to be that of his son. On above allegations, PW-2 lodged an FIR (Exbt. Ka-14) at about 9:15 a.m. same day.
(2.) Pw-3, a last seen witness, a rickshaw puller was waiting outside the T.B. Ward for passenger at about 11:00 p.m, on the fateful night. He saw the two accused and the victim along with them entering the T.B. Ward. He enquired from the accused as to how come they were there, to which they replied that they had come to see a patient. The victim stated that he was accompanying his 2 uncles, i.e. the accused pesons. At about 11:30 p.m, the two accused came out without the victim. PW-3 enquired about of the victim, accused fumbled and quickly went away from the scene. The police reached the scene at about 11:00 a.m, recovered a handkerchief-cum-towel (mul-ticoloured with blood-stains) from the scene on 7.7.2001 prepared a memo (Exbt. Ka-7), duly authenticated. The police on 10.7.2001 at 8:15 p.m., at the pointing out of accused Satya Prakash recovered a hung undergarment from his house, which he had allegedly worn while performing unnatural sex with the victim, a memo (Exbt. Ka-6), duly authenticated came to be prepared. The police on the same date, at about 9:10 p.m., and at the pointing out of accused Badan Singh also recovered a hung undergarment which he had allegedly worn at the time of the overt act, which had already been washed, a memo (Exbt. Ka-7) came to be duly authenticated and executed.
(3.) During investigation, the undergarments of the accused and the victim were sent for forensic analysis. The forensic report (Exbt. Ka-16) indicates that the undergarment recovered from the body of the victim had blood stains and that of the accused, apart from presence of human blood also reported semen.;