- (1.) K. K. Chaubey, J. This appeal has been filed against the judgment arid order dated 24th April, 1979 of Sri B. N. Pandey, III Additional Sessions Judge, Etawah by which he convicted the appellants under Section 376 of the Indian Penal Code and sentenced each of them to undergo three years rigorous imprison ment.
(2.) THE case of the prosecution as per the first information report lodged by Sarman Lal on 28-12-1976 at 11 a. m. is that his daughter Manka Devi is aged about 13 years. As usual she went to graze goat on 27- 12-1976. Appel lants Ram Das and Nekse of Mohalla Sati, at about 5 p. m. , induced her to go with them. THEse boys used to visit the house of the first informant. THE younger daughter of the first informant saw them going with Kumari Manka Devi and told them that she would make a complaint to her father at which she was given Rs. 6 to keep quiet. One more person saw the girl going with these two boys and on enquiry he was informed that she was being taken to her house. When the girl did not return upto 7 p. m. , the first informant searched her. He, however, came to know that the two appellants had kidnapped his daughter. THE first informant came to the house of the appellants with 2-4 persons but they were not there. After lodging of the first information report the investigation started. However, the girl herself reached the house of her relative, where she narrated the entire story, which was communicated to her father and thereafter a report was lodged. Dr. Yashwati Sharma conducted the medical examination of Kumari Manka Devi on 29-12-1976 at 4- 25 p. m. and prepared her report as under : "m/i. A black mole on the right side of nose 2 cm below right eye. 2. A black mole on the left side of bridge of nose. Secondary Sex Character: 1. Pubic hairs - Scanty (five hairs present) 2. Auxiliary hairs - Absent 3. Breast - Development started. Internal Examination: Hymen torned, 3 tears present on right side (1/2 cm each ). 3 tears present on right side (I cm each ). Bloods clote and bleeding present and tenderness also present. Vagina admits 2 fingers tightly. There is no mark of injury anywhere on the body. Vaginal smear sent to Distt. Hospital for Pathological examination. Kumari Manka Devi sent to District Hospital for X-Ray. Conclusion: Probable cause of tear and bleeding and tenderness is due to rape. " A supplementary report was also prepared by Dr. Chandra Prakash, Medical Officer, District Hospital, Etawah : "epiphysis of medical epicondyle shows clinch of demarcation of fusion. Epiphysis of lateral epicondyle and Clearanon have fused. Epiphysis of reading also shows line of demarcation of the elbow joint. Epiphysis at the wrist joint are separate and show non-union, Vaginal smear report : Nagative for spermatozoa. Conclusion: Age of Kumari Manka is about fifteen (15) years. "
(3.) IN the Court below the appellants Were charged under Sections 366, 368 and 376, I. P. C. . to which they pleaded not guilty. The prosecution examined Kumari Manka Devi, P. W. 2, the victim, Sharman, P. W. 1, who lodged the first information report, Gulab Devi, P. W. 4, the younger sister of Kumari Manka Devi, Dr. Yashwati Sharma, P. W. 3, Ram Prakash, P. W. 5 who is scribe of the first information report and Tej Pal Singh, Investigating Officer,;