Ghanshyam Prasad, J.

1. The appellants of both Jibe appeals have called in question their conviction and sentence dated 16.12.20,02/17.12.2002 passed by Fast Track Court No.IV, Sitamarhi in Sessions Trial No. 285 of 2002/198 of 2002. Both the appellants have been convicted u/s. 376 Indian Penal Code, 1860 and sentenced to undergo R.I. for ten years and to pay fine of Rs. 3,000.00 each and in default to undergo S.I. for one year.

2. The incident as narrated by the prosecution is not only shocking but also put question mark upon us to be called. as a civilized society. The young lady of unsound mind leading a vagabond life was subjected to gang rape under cover of her mental condition. A lady who deserves sympathy and care of the society was used to satisfy sexual lust.

3. The informant Ramashankar Mishra (P.W.6), the then Havaldar of Dumra P.S. and posted at outpost No. 3 lodged a fardbeyan on 6.4.2002 at 10.30 A.M. stating therein that on getting information about presence of a lady of unsound mind he went near rickshaw stand situated near Shankar Chauk and saw a lady aged about 25 years with a female child of four years laying in semi unconscious condition. He came to know from secret information that she was subjected to rape by someone. There is a Kali Mandir near the Chauk. The informant came in the Temple and enquired from its pujari Mahesh Giri(P.W.3), who disclosed in detail about the occurrence of rape.

4. According to the prosecution story, as unfolded in the fardbeyan, the victim lady Manwati Devi(C.W.1) had. come to that place on 18.3.2002 and began to live near Shankar Chauk. On 25.3.200.2 at 11.30 P.M. the Pujari Mahesh Giri was sleeping inside the temple. He woke up upon hearing cry of the child of the victim; came out of the temple premises and began to search the mother of the child. When he came near the meat shop situated within premises of rickshaw stand he saw both the accused-appellants, namely, Ashok Kumar and Bhajan Paswan committing rape upon the victim one by one. He tried to protest by calling them upon which both the accused-appellants threatened him with dagger. Out of fear he returned to the temple and told about the occurrence to other persons who were sleeping in the temple premises. Later on accused-appellant Bhajan Paswan came in the temple premises and left the victim there after giving threat to him.

5. On the basis of fardbeyan lodged by the informant, the police registered case against both the accused-appellants u/s. 376 Indian Penal Code, 1860 In course of investigation, the victim was medically examined by Dr. Usha Jaiswal(P.W.8), the Medical Officer, Sadar Hospital, Sitamarhi. The statement of main witness Mahesh Giri(P.W.3) was also recorded u/s. 164 Cr.P.C. The statement recorded under sec. 164 Cr.P.C. is Ext.2. However, statement of victim was not recorded as she was mentally not fit to give statement. The police after investigation submitted chargesheet against both the accused persons under Sec. 376 Indian Penal Code, 1860

6. The prosecution in course of the trial examined altogether eight witnesses. The victim Manwati Devi was also examined by the court as C.W.1. Except informant(P.W.6), I.O. Mahadeo Sah(P.W.7) and the Doctor(P.W.8), all other witnesses i.e. P.Ws.1 to 5 turned hostile.

7. No specific defence has been taken by the accused-appellants in their statements recorded u/s. 313 Cr.P.C. In cross examination of witnesses, particularly informant, they have taken plea of only false implication by the informant as he used to eat meat and rice on credit. However, no oral or documentary evidence has been adduced in support of their defence.

8. It is to be noted here that the informant was not the eye witness of the occurrence. His evidence is hearsay inasmuch as it is based on the disclosure made by P.W.3 Mahesh Giri. The victim being a lady of unsound mind was also not in a position to narrate the entire story in a manner as expected from a prudent person. As said above,