VIKRAMADITYA PRASAD, J. - (1.) BOTH the appeals have been heard together and are being disposed of by this common judgment, as both arise out of the same judgment.
(2.) BOTH the appellants were convicted for an offence under Section 376(2)(g) and 452, IPC and were sentenced to undergo RI for 10 years and a fine of Rs. 25,000/ -and in default, to undergo Rl was awarded for the offence under Section 452, IPC, besides a fine of Rs. 5,000/ - and in default, to undergo RI for 1 year and the fine so realized be given to the victim. However, both the sentences were to run concurrently. According, to the fardbeyan, Ext. 4, of the prosecutrix, PW 2, Sushila Devi, recorded at 4.00 p. m. on 6.11.1998 at Chainpur P.S. in the District ot Palamau, she, alongwith her husband, Anuj Ram, PW 8, lived in a rented house in the village -Sonartand. On 5.11.1998 (prosecutirx does not know the date and says yesterday), which was a Thursday at about 4.00 p.m. the neighbour (Bagalgir) of her rented house, Anil Kumar and Dilip Kumar, (both the appellants) and three other boys, who were of the same village -Somerdih, entered into her room and closed it from inside and as the prosecutrix identified all these persons well, all belonged to the same village, thereafter they caught hold of her breast, started squeezing, saying that they will have physical relation with her. When she wanted to raise hulla, Anil, pressed her mouth and Dilip and others lifted her by catching her feet and hands and threw her inside and on a cot and thereafter they undressed her up to her waist, when the prosecutrix protested and tried to resist their act her feet and hands, then Anil Kahar and Dilip tied her hands and feet separately with the gamchi with the cot, which they had brought, and also on her mouth. Thereafter, when she became heipless, firstly Anil came to her, completely undressed her, made her naked and thereafter raped her and as she was writhing, he gave her slaps on cheeks and after satisfying his lust; he retreated. Thereafter the same act was performed by Dilip and then in sequence other three also raped her. She kept weeping, but none of them had any compassion and while leaving the room they untied her and took away the gamchi, which they had brought with them. After that, she wanted to get up from the cot, but as she was feeling pain in her stomach, legs and private parts, she could not get up. At about 8.00 P. M. in the night, her husband came then she disclosed the entire event to him. in the morning, they went to her maike (father 'shouse) at Baralota and from there she went to the Police Station straightaway, where the fardbeyan was recorded in presence of her husband, Anuj Ram, who also signed the same, Ext. 3, and the prosecutrix put her LTI, which is marked for identification. On the basis of the aforesaid fardbeyan, the Chainpur P.S. Case No. 136/98 was instituted. It appears that the said fardbeyan was received in the office of the chief Judicial Magistrate on 7.11.1998 and during investigation the police appears to have seized some broken pieces of yellow bangles from the room, in which the prosecutrix remained, by preparing a seizure list, Ext. 2, in presence of witness, Sarju Choudhary. After recording the fardbeyan, the prosecutrix was sent to a Doctor, Pushpa Sahagal, PW 5, who examined the prosecutrix on 6th November 1998, at 7.30 p.m. and submitted her report, Ext. 1. After investigation, the police submitted charge -sheet against Anil Kahar, Diiip Kumar Chaurasia, Rajendra Chaudhary, Langra and Lekha Chaudhary @ Sitaram Chaudhary. On trial, two accused persons, namely, Rajendra Chaudhary and Langra, were acquitted by the impugned judgment and these two appellants were only convicted.
(3.) OUT of the nine PWs examined, five turned hostile even the mother, father and husband ot the prosecutrix. Four witnesses, who did not turn hostile are the Doctor (PW 5), prosecutrix (PW 2), seizure list witness of bangle broken pieces Sarju Choudhary and the IO (PW 9).;