R.K.MERATHIA, J. - (1.) AS both the appeals arise out of the common judgment, they are taken up together and are being disposed of by this common judgment.
(2.) THESE appeal are directed against the judgment of conviction and order of sentence dated 4.8.1994 and 6.8.1994 respectively, passed by Shri Shyama Prasad Singh, learned Sessions Judge, Deoghar in Sessions Case No. 118 of 1992, convicting the appellants under Sec.376/511, Indian Penal Code and sentencing them to undergo R.I. for three years each. The prosecution case in short is that the informarit -Amabati Marandi, aged between 15 -16 years, was coming alone at 1 a.m. in the night of 3/4.4.1991 after attending the marriage. Both the appellants had also gone there. The appellants followed her. When she reached near the house of one Litan Besra; appellants put a 'gamchha ' around her neck from behind; gagged her mouth and commanded her not to raise alarm at the threat of killing her. Appellant -Badri Yaclav, thereafter, put 'gamchha on her mouth and Chandan Hembram told to take her near Kali temple. She struggled hard to rescue herself but the appellants gave fist blows and terrorized her. They took away her near the Kali temple where Badri Yadav removed the 'gamchha ' from her mouth and she started raising alarm, whereupon Badri Yadav assaulted her by fist and threatened her to kill. Out of fear, she kept mum. Chandan Hembram asked her to go inside the temple and take an oath in presence of the deity to marry him, to which she denied. Appellant - Badri Yadav, thereafter, removed her sari and tore her 'soya '. In spite of her efforts, she could not do anything. Appellant -Chandan Hembram, thereafter, removed her entire clothes including the undergarments, gagged her mouth and took her away towards the filed. Appellant - Badri Yadav remained standing near the temple. Appellant -Chandan Hembram committed rape upon her inspite of her struggle. She felt intense pain. She wanted to drink water and when the appellants proceeded to fetch water, she raised alarm loudly and the villagers rushed towards the place of occurrence. Appellant -Badri Yadav removed her silver chain, took away her sari and both the appellants escaped. Villager, PW 3 reached near her and gave his 'dhott finding the informant naked. After wrapping 'dhoti, ' she went to the village and narrated the entire occurrence to her parents.
(3.) MR . Singh submitted that the prosecution examined nine witnesses. PW 1, the brother -in -law of the informant, PW 2 the father of the informant and PW 3, who is an independent witness, said to have offered his "dhoti" to the victim when she was found nacked, have not supported the prosecution case and they have been declared hostile. He further submitted that PW 4, Doctor, has not found any internal or external injury or any sign of rape on the informant. PW 5, the sister of the informant, stated that she and the informant had gone to the marriage house for dancing and that she learnt from the informant that appellants put "garnchha" on her neck and thereafter Badri Yadav outraged her modesty. He further submitted that PW 6. the mother of the informant, stated inter alia that informant told her that both the appellants outraged her modesty, Mr. Singh submitted that prosecution could not prove the case of rape but only on the basis of the oral evidence of the victim, appellants have been convicted under Sec.376/511, IPC. He submitted that the prosecution has failed to prove the charges under Sec.376/511, Indian Penal Code beyond all reasonable doubts. Mr. Singh lastly submitted that Ext -A is a compromise petition which was filed before the bail was granted to the appellants in the learned Court below and the same was shown to the victim also at the time of her deposition which she did not deny.;