Amitava Roy, J. - (1.) THE subject matter of challenge is the judgment and order dated 23.10.1989 passed in Sessions Case No. 20/1987 by the learned Additional Sessions Judge No. 2, Alwar convicting the appellants under Sections 366 & 376 of the Indian Penal Code (hereafter referred to as IPC) and sentencing them to undergo rigorous imprisonment for five years and a fine of Rs. 100/ - each for the first offence and to suffer seven years' rigorous imprisonment and pay a fine of Rs. 100/ - each for the second offence. In default in payment of fine, the appellants were directed to undergo rigorous imprisonment for further six months on both counts. I have heard Mr. Amit Soni, learned counsel for the appellants and Mr. N.R. Saran, Public Prosecutor, Rajasthan.
(2.) THE prosecution case traces back to 22.4.1987 when, at about 10:40 p.m. one Hussaina (PW -3) lodged a verbal report with the Alwar Police Station alleging that while he was taking the victim on his rickshaw from SMD junction towards the railway station, they were intercepted by a car which came from behind, for which he had to stop his rickshaw. It was alleged further that thereafter, four persons came out from the car, and by force, dragged the victim into it and sped away therefrom. It was stated further that at that time, some home -guards were on duty nearby, to whom he first reported about the incident, on which they though tried to stop the car, they failed. On the basis of this verbal report, the Alwar Police Station recorded the same and acted on it as a first information report (Ex. P -2) and lodged a case under Section 365 and 366 IPC. On the completion of the investigation, a charge -sheet was laid against the accused -appellants and one Harpal Singh under Sections 365, 366 & 376 IPC and a report was also submitted against another co -accused, named Rudrabhan, under Section 169 of the Cr. P.C. He was later on discharged and the accused -appellants alongwith Harpal Singh were made to stand trial under Sections 365, 366 & 376 IPC who, on being confronted with the charge to that effect, claimed to be innocent and denied the same.
(3.) IN the trial, the prosecution examined 18 witnesses, including the prosecutrix Vijay Laxmi, PW -1; Dr. Prahlad Swaroop Agarwal, PW -16; Dr. Deshbandhu Gupta PW -15; Shri Brij Mohan Gupta, PW -17, the learned judicial magistrate, who conducted the Test Identification Parade (hereafter referred to as 'the TIP'); the investigating officer, Shri Giriraj Prasad Sharma, PW -18. A host of documents including the TIP report Ex. P -1, the FIR (Ex. P -16), the medical examination report of the prosecutrix Ex. P -15, the seizure list Ex. P -7 and Ex. P -8 of the Ambassador car bearing registration No. DLK 7868 and its front seat cover respectively and the Forensic Science Laboratory Report Ex. P -20 was proved. After recording of the evidence of the prosecution witnesses, statement of the accused persons were recorded under Section 313 Cr. P.C. and they, when confronted with the charge and materials against them, denied the correctness thereof. They however, declined to adduce any evidence. The learned trial court, as referred to hereinabove, on a consideration of the evidence on record, oral and documentary, convicted the appellants under Sections 366 & 376 IPC and sentenced them as above. It however, acquitted co -accused Harpal Singh for want of proper identification.;