A.K. Trivedi, J.

Cr. Appeal No. 128 of 2011 wherein Raj Kishore Rai happens to be the appellant. Cr. Appeal No. 204 of 2011 wherein Ram Ishwar Rai happens to be the appellant commonly originate from the judgment dated 14.12.2010 passed by Additional Sessions Judge. Fast Track Court No. IV, Vaishali at Hajipur in Sessions Trial No. 285 of 1998 convicting both the appellants under Section 376(2)(g). wrongly mentioned as 376(g) of the IPC and order of sentence dated 18.12.2010 directing each of them to undergo R.1. for ten years as well as also fined Rs. 20,000/- in default thereof to undergo S.1. of two months additionally as such analogously heard and are being disposed of by a common judgment.

2. Manju Devi, victim aged about 13 years instituted first information report (Ext-5) on 11.03.1997 at about 9.30 a.m. at Sarai police station disclosing therein that on the previous day she was alone at her house as her mother and brother have gone to Biharsharif. At about 7 p.m., while she was going to latrine situated East to her house, Ram Ishwar Rai armed with chhura, Raj Kishore Rai armed with pistol and Tulsi Kumar Rai came, caught hold and began to drag which she protested. On account thereof, all of them threw her on ground. Ram Ishwar Rai caught her breast. Raj Kishor Rai gagged her mouth and further said that she will be murdered after pointing out pistol. Ram Ishwar Rai torn her frock while Tulsi Kumar untied the string and then committed rape. After Tulsi Kumar, Ram Ishwar Hai also committed rape upon her. When Raj Kishor Rai removed his hand from her mouth, then thereafter she raised alarm over which Mantun Kumar and Manish Kumar came seeing whom, all the three escaped therefrom. Mantun Kumar and Manish Kumar carried her to her house. Today when her brother returned back from Biharsharif then she disclosed the occurrence over which he has carried her to P.S.

3. On the basis of the aforesaid first information report Sarai P.S. Case No. 22 of 1997 was registered under Section 376(g) of the IPC whereupon investigation commenced and culminated by way of filing charge-sheet. Trial proceeded against all, however case of Tulsi Kumar has been separated and sent to Juvenile Justice Board while remaining two have been convicted and sentenced, the subject matter of instant appeal.

4. The defence case as is evident from mode of cross- examination as well as from the statement recorded under Section 313 of the Cr PC is of complete denial of occurrence. It has further been pleaded that on account of animosity they have been falsely roped in. To support the same two D.Ws. have also been examined.

5. It has been submitted on behalf of the appellants that the judgment of conviction and sentence recorded by the learned trial Court happens to be bad in law as well as on facts because of the fact that the learned lower Court did not consider the loopholes persisting in the prosecution case. To buttress his submission, it has been submitted by the learned counsel for the appellants that first of all the occurrence so alleged is suffering from improbability in the background of the fact that all the accused so named happens to be full brother and on account thereof, no one could expect commission of an offence of rape by all the three brothers that too when the youngest happens to be a juvenile while the eldest happens to, be aged about 40 years, as has been disclosed in the FIR itself.

6. It has further been submitted that during course of evidence, it has come that brother of informant Pappu Kumar as well as mother of informant Dropadi Devi have gone to Biharsharif on the eve of marriage of another brother of informant then under such circumstance there was no occasion for the informant to remain alone at her house. Therefore, the aforesaid two improbabilities virtually make the whole prosecution case unreliable.

7. With regard to lapses on the part of the prosecution, it has been submitted that neither Manish Kumar nor Mantun Kumar have