JUDGMENT

C.K. Buch and D.N. Patel, JJ.—This appeal is under Section 374 read with Section 386 of the Code of Criminal Procedure by original Accused Nos. 1 and 2 of Sessions Case No. 114 of 1998 tried by the learned Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad. The appellants have challenged legality and order of conviction and sentence dated 6th August, 1999 hereby both the accused have been held guilty for the offence punishable under Section 376(2) read with Section 34, Section 342 read with Section 34, Section 394 read with Section 34 of the Indian Penal Code and under Section 25(1 a) of the Arms Act. Both the accused have been ordered to undergo imprisonment for life and to pay fine of Rs. 500/- each qua for the offence punishable under Section 376(2) read with Section 34 of the Indian Penal Code. They are sentenced to undergo rigorous imprisonment for one year and pay fine of Rs. 500/- for the offence punishable under Section 342 read with Section 34 of the Indian Penal Code. They have been imposed life imprisonment and to pay a fine of Rs. 1000/- for the offence punishable under Section 394 read with Section 34 of the Indian Penal Code and undergo rigorous imprisonment for five years and pay fine of Rs. 500/- for the offence punishable under Section 25(1a) of the Arms Act, in default, punishment is simple imprisonment for one month, except for the offence punishable under Section 394 read with Section 34 of the Indian Penal Code, in default punishment for the said offence is simple imprisonment for two months.

2. Initially, learned Advocate Ms. Shilpa Shah was appointed to represent the case of Appellant No.1 and Ms. Rekha Kapadia for Appellant No.2. But because of personal inconvenience on the part of Ms. Shilpa Shah, Registry has appointed Ms. Rekha Kapadia to represent case of Appellant No.1 on the strength of the order passed by this Court on 28.11.2008. We have heard learned Advocate Ms. Kapadia for both the appellants and learned Additional Public Prosecutor Ms. Pandit for the respondent State.

3. The case of the prosecution in nutshell is reflected in charge-sheet Exhibit 4. It is alleged that both the appellants (hereinafter referred as accused), with a common intention entered the field of the complainant located in the sim of village Bakrol, Ta: Dascroi on 27/28.09.1994 at about 2.00 a.m. and their intention was to commit loot (robbery). Both the accused then reached near bore well of the field where the complainant and the prosecution witnesses were sleeping. All of them were threatened on the gunpoint of country made pistol, their hands and legs were tied and the, ornaments- golden as well as silver were looted by both the accused. They also snatched a wrist watch worth Rs. 100/- and cash of Rs. 360/- and Rs. 3000/- from two different prosecution witnesses. While committing the offences of robbery, the complainant as well as witnesses were forced to go inside the small room erected adjacent to bore well and they were confined inside. It is alleged that after committing robbery and bolting witnesses in the room the accused forcibly took away minor daughter of the complainant behind one small room erected adjacent to bore well and both the accused committed rape on her one after another. According to prosecution, the accused firstly had entered the field of prosecution witness Mahobbatsinh Mohanbhai at about 11.00 p.m. some time prior to midnight on 27.09.1994 and locked the witness. This witness and his wife were threated by showing a country made pistol and dharia which the accused were holding and their legs and hands were also tied by the accused. At that time, the accused had fired the country made pistol, as a result of which, the sari put on by the wife of witness Mahobbatsinh sustained damages. It is alleged that thereafter at about 1.00 a.m., immediately after mid night, the accused entered the field of P.W. Mohanbhai Somabhai and under threats, his both hands were tied by the accused and he