DEO NARAIN Vs. STATE OF U.P.

JUDGEMENT

(1.) The instant appeal has been preferred by the appellants against the judgment and order dated 06.04.1995, passed by First Additional Sessions Judge, Barabanki in Sessions Trial Nos.92 of 1993 and 93 of 1993, convicting and sentencing both the appellants to undergo rigorous imprisonment for ten years under Section 376 I.P.C. and six months R.I. under Section 451 I.P.C.

(2.) The brief facts giving rise to the appeal are that duo appellants, namely, Deo Narain and Rajendra have been charge-sheeted by police of Safdarganj, district Barabanki under Sections 451 and 376 I.P.C. on the complaint of Smt. Anita wife of Tej Narain; that prosecutrix's mother-in-law Smt. Shivpati purchased eight bighas land through a registered sale-deed from one Babadeen prior to the incident; that the accused-persons demanded their share in the property and on refusal, they assaulted the prosecutrix's husband Tej Narain about three years ago; that on 23.05.1992, the husband of the prosecutrix (Tej Narain) had gone to Ambaur and her mother-in-law was present in another house; that the prosecutrix was all alone sitting in her grocery; that at about 12:30 p.m. duo brothers-cum-appellants, came there and taking advantage of loneliness, one appellant-Rajendra placed his Katta on the breast of the prosecutrix and the other appellant-Deo Narain committed rape upon her; that when she tried to raise alarm, co-appellant Rajendra gagged the mouth of the prosecutrix with an Angaucha; that subsequently, Rajendra too committed rape upon her forcibly; that the prosecutrix somehow managed to raise alarm and witnesses Ali Asgar and Raj Jiawan reached on the spot and witnessed the incident; that when the prosecutrix resisted, she was assaulted with kicks and fists; that after the incident prosecutrix's husband and mother-in-law arrived there and she along with her husband and mother-in-law left the house for police station Safdarganj; that she got a report prepared by one Mahesh Prasad Bharti at Safdarganj and reached at police station and handed over her report, which was registered as Crime No.102, under Section 376/323 I.P.C. against the appellants at 4:30 p.m. on the same day; that the investigation of the case was started and the prosecutrix was sent to District Women Hospital for medical examination; that the prosecutrix was examined on 24.05.1992 at 12:40 p.m.; that during medical examination, no mark of injuries were found on any part on her body; that there was no stain, no blood and no discharge; that during internal examination, doctor found that her hymen was torn, old healed and vagina was admitting two fingers. The vaginal smear was taken and sent for pathological examination and prosecutrix was subjected to radio logical examination also; that vide supplementary report no living or dead spermetozoa was found and epiphysis of the bones were found fused and she was adjudged about 19 years old. Doctor submitted her opinion that she was habitual to sexual intercourse, therefore, no opinion regarding rape can be given; that the police submitted charge-sheet after conducting the investigation against the appellants; that the prosecution examined Smt. Anita, the prosecutrix, P.W.1, P.W.-2 Ram Jiawan, P.W.-3 Ali Asgar who were eye witnesses in addition to P.W.4 S.I. Kripal Singh, Investigating Officer; that the doctor P.W-5 was also examined, who conducted internal examination as well as external examination of the prosecutrix; that prosecutrix named two eye witnesses who were P.W.2 and P.W.3 but both the eye witnesses turned hostile; that the trial court believing the sole testimony of P.W.1 convicted the appellants of the charges of rape as well as committing house trespass and held them guilty. Aggrieved by the aforesaid order, the instant appeal has been preferred.

(3.) During the course of arguments, learned counsel for the appellants argued that learned trial court had passed the judgment and order on the basis of sole testimony of the prosecutrix. The eye witnesses have not supported the version. Despite this fact, learned trial court convicted the appellants on uncorroborated sole testimony of the prosecutrix. It is established on record that appellants have assaulted the prosecutrix's husband one year prior to the incident and they were prosecuted, therefore, both the parties were having strained relations. The sole cause of enmity is that prosecutrix's mother-in-law (Shivpati) has purchased land from one Babadeen co-villager and since the appellants were of same family, demanded their share therein and prosecutrix's mother-in-law did not give any share and as such they nurtured the grievances and this was the sole reason of the enmity. The appellants in their statements recorded under Section 313 Cr.P.C. have alleged that the husband of the prosecutrix wanted to take forceful possession of the land in front of their house and when they resisted the prosecutrix, wife of Tej Narain, registered a false case against them. Learned counsel for the appellant summed up as under;