JUDGMENT

Swarana Kanta Sharma, J.

1. The present appeal has been filed by appellant under Section 374 of the Code of Criminal Procedure, 1973 ('Cr.P.C') challenging the impugned judgment dated 22.09.2010 and order on sentence dated 25.09.2010 passed by learned Additional Sessions Judge (North West- 04), Rohini, Delhi in case FIR bearing no. 85/2008 whereby learned Additional Sessions Judge has convicted both the accused persons for committing offences punishable under Section 363/365/34 of the Indian Penal Code, 1860 ('IPC').They were also convicted for committing offence punishable under Section 376 of IPC.

2. At the outset, it is pertinent to note that State had preferred an appeal i.e. Crl. A. 1067/2013 seeking enhancement of sentence to life imprisonment. The co-accused Naresh expired during the pendency of the appeal and his appeal as well as the appeal filed by the State stood abated. The present appeal as well as appeal of the State qua appellant Sanjeev Kumar remained pending. The appellant Sanjeev Kumar also passed away on 15.05.2021, however wife of the appellant vide Crl.M.A. No. 4464/2022 sought leave of the Court to continue the appeal under provision of Section 394-C of Cr.P.C and the Division Bench of the Court vide order dated 13.09.2022 granted leave to the wife of the appellant to continue the present appeal. The present appeal was to be heard by a Single Bench, therefore, the present appeal was directed to be listed before this Bench.

3. Briefly stated, case of the prosecution is that on 24.04.2008, the prosecutrix had lodged a complaint with the police on the allegations that she had visited Hanuman temple at Nangli Puna, Delhi from Mahendipur Balaji, Mandir (Rajasthan) along with her family. Her parents had gone inside the temple while she was left outside along with the luggage in front of a government school. In the meanwhile, a white color car with two boys, one driving the car and other sitting in the rear seat had stopped the car in front of the prosecutrix. The boy driving the car had dragged the prosecutrix inside the car and the petitioner who was sitting on the rear seat had committed sexual assault upon her while the car continued to move. After about two hours, the prosecutrix was dropped at the same place from where she was dragged inside the car. After that, she had narrated the entire incident to her father who had informed the police. Police had reached at the spot and upon investigation, the car used to commit alleged offence had been found parked near the street and the two boys who had committed rape were also present there. The prosecutrix had identified the boys who were apprehended by the police and they had disclosed their names as Sanjeev Kumar and Naresh. Thereafter, FIR was registered and after investigation, charge-sheet was filed.

4. Learned Trial Court vide order dated 10.09.2008 proceeded to frame charges against the accused persons punishable for offences under Section 363/365/376(2)(g)/34 of IPC. Relevant portion of the order on charge dated 10.09.2008 passed by learned Trial Court is reproduced as under:

"I have perused the relevant record and I find that prima facie case u/s 363/365/34 IPC and 376(2)(g) IPC is made out against the accused persons.

Accordingly, charge under Sections 363/365/34 IPC and 376(2)(g) IPC is framed against both the accused to which they pleaded not guilty and claimed trial.

Case to now come up for prosecution evidence on 7.11.2008. Prosecutrix and other material witne