Hon'ble Mrs. Ranjana Pandya, J.

1. Challenge in this appeal is to the Judgment and order dated 27.11.2010 passed by the Additional Sessions Judge, Court No. 7, Bareily (State Vs. Munna Deevana and others) in S.T. No. 215 of 2010 under Section 376 I.P.C. Thana Baradari, Bareily whereby the accused appellants Munna Deevana and Mustaq were found guilty under Section 376 (2) I.P.C. and sentenced to 10 years rigorous imprisonment and Rs.10,000/- fine each with default stipulation.

2. The prosecution case in brief is that the father of the victim, namely, Nasim Khan lodged a report on 12.6.2009 that he lives with his daughter aged 17 years. He has two small children Mohd. Taliv and Mohd. Ujair, who lived with him. He is a widower. The prevailing night at 2.30 a.m. in the night, the accused appellant Munna Deevana accompanied by another boy entered the house of the informant and carried away his daughter. They took her in a nearby field and both raped her. On hearing the shrieks of his daughter, he went out of the house. He saw Munna Deevana and the other boy fleeing away. He could identify the other boy if he saw him. His daughter wept and narrated the whole incident to him. He tried to trace the culprits but he could not trace them. Hence, he lodged the report.

3. On the basis of this written report, Constable Clerk 976 G.R. Gautam (P.W.5) scribed the chik report, which was proved as Ext.Ka-7 on the basis of which G.D. was also written and proved as Ext.Ka-8. Investigation of the matter was entrusted to S.I. Raghunandan Singh (P.W.4), who copied the chik report on 12.6.2009 in the case diary. He recorded the statement of Constable clerk G.R. Gautam. The medical report of the victim was received which was entered in the C.D. The statement of the victim was recorded by the witness. On her pointing out, the spot was inspected and site plan was prepared and proved by this witness as Ext.Ka-4. On 14.6.2009, accused Munna Deevana was arrested and his statements was recorded. On 19.6.2009, the statement of the informant Naseem Khan was recorded. Further the statement of Ubaig and Mohsin were recorded. In the presence of witnesses Asad Khan and Bhura Khan at the residence of the informant, the clothes of the victim were taken into custody by the witness and recovery memo was prepared, which was proved as Ext. Ka-5. On 2.7.2009, the statement of Mustaq was recorded. On 19.7.2009, the pathological and X-ray report of the victim was received, which was copied in the case diary. On 5.8.2009, the statement of witness Ujair was recorded. The investigation ended into a charge sheet which was proved by this witness as Ext. Ka-6.

4. The prosecution examined as many as five witnesses. P.W. 1 is the informant Naseem Khan, who proved the written report as Ext. Ka1. P.W. 2 is the victim. P.W. 3 is Dr. Sarika Singh, who examined the victim. She did not find any injury on the internal parts of the victim. The hymen was torn at 3 O'clock position, which was slightly bleeding on touch. The lower part of the hymen at 6 O'clock position and was of red colour. The vagina was admitting one finger. Slides were prepared and sent for examination. This witness proved the medical report as Ext. Ka-2 and the supplementary report as Ext. Ka-3. The statement of P.W. 4 Raghu Nath Singh and P.W.5 Constable Clerk G.R. Gautam has already been discussed by me.

5. After examining five witnesses, the prosecution closed its evidence. The statement of the accused was recorded under Section 313 Cr.P.C. in which the accused appellants denied the occurrence. The accused Mustaq has stated that the informant wanted to usurp his house, hence, he has falsely implicated this accused. His parents were blind and since he was sent to jail, his parents were ousted from the house. The informant is used to filing such reports. The accused Munna Deevana, while denying the occurrence, has stated that the house of Mustaq was usurped by the informant after turning out his blind parent