R.R.PRASAD, J. - (1.) SINCE both the appeals arise out of common judgment it were heard together and are being disposed of by this common order.
(2.) THE appellants, Santosh Kumar Biswas, and Aslam Ansari were put on trial along with Tohid Khan to face trial under Section 366 and 376(1) of the Indian Penal Code on the allegation that the appellants Santosh Kumar Biswas and Aslam Ansari along with co -convict Tohid Khan kidnapped Sunita Kumar (P.W.1) Kabita Kumari (P.W.3) and Meena Kumari (P.W.4) respectively and committed rape upon them respectively and the trial court having found them guilty under Section 376(1) of the Indian Penal Code sentenced them to undergo rigorous imprisonment for seven years and further on finding them guilty to undergo rigorous imprisonment for five years under Section 366 of the Indian Penal Code with the stipulation that both the sentences shall run concurrently. The facts of the case are that the informant Dwarika Rawani (P.W.2) informed the police regarding missing of her daughter Sunita from his house from 19.12.1996, upon which a sanha was lodged. Subsequently on 20.3.1997 the informant (P.W.2) lodged First Information Report (Ext 4) stating therein that her daughter Sunita Kumari (P.W.1) had gone to school and came back in the evening and while she had gone to answer call of nature, she was kidnapped by the appellant Santosh Kumar Biswas. Upon the said information, a case was instituted under Section 363 of the Indian Penal Code. When the matter was pending for investigation, the informant P.W.2 informed the police on 1.3.1997 that his daughter Sunita Kumari (P.W.1) as well as one Meena Kumari (P.W.4) have been seen in the company of the appellants, Santosh Kumar Biswas and Tohid Khan in a Hotel at Giridih. On getting this information the Investigating Officer (P.W.13) came to Giridih and arrested the appellants Santosh Kumar Biswas and Tohid Khan and also took Sunita Kumari (P.W.1) and Meena Kumari (P.W.4) in to custody and subsequently took the statements of Sunita Kumari and Meena Kumari under Section 161 of the Code of Criminal Procedure wherein they (Sunita Kumar and Meena Kumari) stated that both of them had gone with the appellants Santosh Kumar Biswas and Tohid Khan to Calcutta where they got married with Santosh Kumar Biswas and Tohid Khan respectively. The police also got their statements recorded under Section 164 of the Code of Criminal Procedure wherein Sunita Kumari (P.W.1) and Meena Kumari (P.W.4) made similar statements. Thereafter both the girls Sunita Kumari and Meena Kumari were sent before Dr. Laxmi Pandey (P.W.15) for medical examination, who on examining Sunita Kumari and Meena Kumari did find the age of Sunita Kumari in between 16 -18 years and the age of Meena Kumari in between 18 -20 years on the basis of radiological record and did opine that both were subjected to sexual intercourse and accordingly she issued medical report which has been marked as Exts. 2/1. Subsequently, third victim Kavita Kumari was produced before the police by her father and the police also recorded the statement of Kavita Kumari under Section 161 of the Code of Criminal procedure, who disclosed that she was kidnapped and was taken to Kolkata along with Sunita Kumari (P.W.1) and Meena Kumari (P.W.4) by Aslam Ansari, Santosh Kumar Biswas and Tohid Khan where Aslam Ansari committee rape on her. Kavita Kumari (P.W.3) was referred to Dr. Rita Gupta (P.W.14) for medical examination, who on examining her did find the age in between 16 -17 years and also did find the hymen old ruptured and opined that she is habituated to intercourse. Dr. issued medical report which was marked as Ext.2.
(3.) AFTER completion of investigation the police submitted charge sheet against these two appellants, namely, Santosh Kumar Biswas and Tohid Khan along with Aslam Khan under Sections 363, 366, 376 of the Indian Penal Code and accordingly, cognizance of the offences was taken and in due course when the case was committed to the court of sessions, charges were framed to which accused pleaded not guilty and claimed to be tried.;