Amareshwar Sahay, J. - (1.) Both the appeals arise out of the same impugned Judgment and as such, they were taken up together and are being disposed of by this common Judgment.
(2.) The three accused namely Motilal Mahto [appellants of Criminal Appeal No. 286 of 1998 (P)], Babulal Sah [appellant of Criminal Appeal No. 287 of 1998 (P)] and Sanjay Yadav [appellants of Criminal Appeal No. 278 of 1998 (P)[ were tried together for the charge under Sections 366/34 and 376/511/34 of the Indian Penal Code and by the impugned Judgment of conviction and Order of sentence dated 23.07.1998 and 24.07.1998 respectively passed by 2nd Additional Sessions Judge, Godda in Sessions Case No. 176 of 1997/067 of 1997, convicted all the appellants for the charges under Section 366/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of five years each and they were acquitted from the charge under Section 376/511 of the Indian Penal Code. Since the convict Babulal Sah expired during the pendency of his appeal being Criminal Appeal No. 287 of 1998 (P) and, therefore, his appeal has already been dismissed as abated.
(3.) The prosecution case in short is that one Lil Murmu recorded her Fardbayan on 25.07.1997 wherein, she alleged that she was about 16 years of age and her brother had a tyre repairing shop at Bhagalpur and she had gone eight day ago to meet her brother at Bhagalpur. On the alleged date of occurrence while returning from Bhagalpur, she got down at Godda Bus Stand at 7.30 P.M. from a Maxi for going to Littipara, Pakur. But on query, she learnt that there was no Bus available at that time for going to Pakur. Thereafter, she proceeded ahead in search of a Hotel and when she reached in front of Mela Maidan, a car stopped by her side. Two young boys got down from the said car and one was sitting at the driver seat. Those two boys forcibly lifted her and made her to sit on the back seat of the car and they also sat by her side on the back seat. Thereafter, the car proceeded towards Bhagalpur road. Two boys who were sitting in the back seat, took out her clothes and made her to he on the back seat. One of the boys was putting his finger in her private part and the other was squeezing her breasts. Thereafter, one of the boys, tried to commit rape on her and then, she started crying loudly. In the mean time, the Police patrolling party came there and made to stop the car at the Bus Stand. One of the boys opened the gate of the car and then fled away and the other two boys were caught by the Police who disclosed their names to be Motilal Mahto @ Munna [appellant of Criminal Appeal No. 286 of 1998 (P)] who was driving the car and the other as Babulal Sah [appellant of Criminal Appeal No. 287 of 1998 (P)] who was squeezing her breast and was putting his finger in her private part. They disclosed that the third boy who fled away was Sanjay Yadav [appellant of Criminal Appeal No. 278 of 1998 (P)]. The number of the Car was BR108805. Therefore, it appears that so far the appellant Motilal Mahto is concerned, the only allegation against him is that he was driving the said Car, so far as the appellant Sanjay Yadav is concerned, against him the allegation was that he tried to commit rape on her. But as stated earlier, the appellants have been acquitted from the charge under Section 376/511 of the Indian Penal Code.;