( 1 ) BOTH these criminal appeals are directed against the judgment and order dated 31/10/1994, passed by learned Additional Session Judge, aurangabad in Session Case No. 14/1994, whereby the appellants (original accused nos. 1 and 2) have been convicted for the offence punishable under Section 376 of the india Penal Code and Section 376 read with section 109 of the India Penal Code respectively. Each of the accused has been sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 500/-, in default to suffer further rigorous imprisonment for six months for the offence punishable under Section 376 and for the offence punishable under Section 376 read with Section 109 of the India Penal Code respectively.

( 2 ) PROSECUTRIX, aged about 20 years, namely Vandana resided with her parents at Milindnagar, Aurangabad, Accused also a young boy of about 23 years, resided in the neighbourhood while accused No. 2, a married woman, resided in rented premises in front of the house of prosecutrix Vandana. It is stated that during the absence of the parents of Vandana, she was called by the original accused No. 2 in her house where the accused No. 1 was present. Accused No. 1 had sexual intercourse with Vandana in the house of accused No. 2 Vandana came home after the sexual intercourse, changed her clothes and went to watch a cinema with accused No. 1. Thereafter, the accused No. 1 and Vandana had regular physical contacts. The first incident took place in the month of january, 1992. The physical relationship and the sexual intercourse between the two continued until the girl Vandana conceived. She was admitted in the hospital and she delivered a female child in the month of September, 1992. It is stated that earlier when her parents came to know about the conception, she had told her parents that the accused No. 1 was ready to marry with her. The accused No. 1 was approached With a proposal to marry Vandana and it is the case of the prosecution that the accused No. 1 refused to marry her. It was in such circumstances that a report about the incident came to be lodged by the complainant in the police Station. On the basis of this report, offence punishable under Section 376 of the india Penal Code came to be registered against the original accused No. 1 as also against original accused No. 2. The spot panchanama was recorded and the spot panchaoama of the house of the accused of the accused No. 2 where the first sexual intercourse had taken place in January 1992 was recorded and after completion of investigation, charge-sheet came to be filed against both the accused. The original accused No. 1 was charge-sheeted for having rape upon the prosecutrix Vandana and original accused No. 2 came to be chargesheeted for having abetted the commission of rape by accused No. 1 on the prosecutrix vandana.

( 3 ) BEFORE learned trial Judge, the prosecutrix Vandana came to be examined as p. W. 1. Her father was also examined as p. W. 2. Two medical officers came to be examined, one medical officer deposed about certain injuries on the person of the father of the prosecutrix arid the other medical officer deposed about the delivery of child by vandana in Ghati Hospital.

( 4 ) LEARNED trial Judge accepted the evidence of the complainant Vandana, who had stated that she had been ravished by accused no. 1 in the house of accused No. 2. Learned trial Judge, though recorded finding that the girl Vandana was major and that there was consent for intercourse, proceeded to hold the accused guilty in the light of the provision contained in Section 375 (Fourthly) of the India Penal Code. Learned judge observed that the girl consented for sexual intercourse because she believed that the accused will marry her and hence the act of the accused No. 1 amounted to rape and since this was done with be connivance and aid by the accused No. 2, the accused no. 2 came to be convicted for the offence of rape read with Section 109 of the India Penal Code.

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