D.P.SINGH,J. - (1.) BOTH the appeals, arising our of same judgment, were heard together and are being disposed of by this common Judgment.
(2.) BOTH the appeals are directed against the judgment of conviction and order of sentence dated 3.6.2002 passed by the learned 1st Additional Sessions Judge, Garhwa in Sessions Trial No. 3/2000, whereby and whereunder the learned Sessions Judge held the appellants guilty and sentenced them to serve RI for ten years under Section 376(g), RI for ten years under Section 395 IPC, RI for one year under Section 3(1)(x) of SC ST Act, 1989 and RI for life under Section 3(2)(v) of SC ST Act, 1989. However, sentences were directed to run concurrently. The factual matrix leading to these appeals are that in the night of 8/9 June 99 Tuesday the informant Pratima Devi, PW 2 along with other witnesses and victims were sleeping inside the house situated in village Hasker, P.S. and district Garhwa when at about 11 PM they awoke on beating of doors and abuses hurled upon them. As per PW 2, out of fear they did not open the door but the assailants climbed over their roof and opened the door of their Angan, after which eight persons entered into the house carrying lathi, garasa, bhala etc. According to the informant, the accused persons started assaulting the inmates and took away cash ornaments etc. from their house. Further they entered into the house of one Krishna Ram, who happened to be her uncle and thereafter in the house of PW 4, Gita Kumari and committed dacoity.
(3.) NOT being satisfied with the looted articles, all the accused persons dragged PW 2, Pratima Devi, PW 4, Gita Kumari and Shobha Kumari along with them and committed rape upon them outside the village. All three of them have named five persons, three sons of Shankar Tiwari and one Shankar Choubey including the appellant Bijay Tiwari. She further asserted that due to land dispute between the informant and Tiwari family this incident has occurred. The informant along with two other victims returned to their house in the morning. Thereafter police arrived at the PO and recorded the statement of PW 2 at 9 AM. On the basis of this statement, a case was registered against five accused persons named in the fardbeyan and three unknown as Garhwa P.S. Case No. 99/99. The victims were sent for their medical examination, PO was inspected and finally charge sheet was submitted by DSP Garhwa in this case against these two appellants and one Shyam Sunder Singh under Section 395, 376(g), 120(B) IPC and under Sections 3 (1)(xii)/2(v) of SC ST Act and pending investigation against other persons. The case of the charge -sheeted accused were committed for trial by the court of sessions, where they stand separately charged under Sections 376(g), 395 IPC and Sections 3(x)/3(2)(v) of SC ST Act. Accused Shyam Sunder Singh absconded during trial. Appellants have pleaded not guilty and claimed false prosecution due to previous enmity. Appellant Bijay Tiwari further claimed that he was no present at the time of occurrence while appellant Lalan Choudhary claimed that he was not named in the FIR nor he was identified by the victims. The learned trial court, after examining witnesses and considering the facts on record, found and held both the appellants guilty and sentenced them as aforesaid.;