Hon’ble Bharat Bhushan, J.—Four appellants have filed these two separate appeals against the judgment and order dated 7.7.1983 passed by then 7th Additional Sessions Judge, Fatehpur in Sessions Trial No. 513 of 1981 (State v. Pramod and others) arising out of Case crime No. 250 of 1980, Police Station Thariyaon. District Fatehpur.

2. Both appeals stem from a common judgment and common evidence, therefore, both the appeals are being decided by a common judgment.

3. Appellant Pramod was convicted under Section 366 Indian Penal Code (in short, IPC) and sentenced to 10 years rigorous imprisonment (in short, R.I.). Appellants Suresh Kumar alias Avadesh Kumar and Raghav alias Raghvendra Kumar were convicted under Sections 376 IPC and sentenced to life imprisonment. Appellant Mithlesh Kumar was convicted under Section 376 IPC and sentenced to 10 years rigorous imprisonment. Appellant Raghav alias Raghvendra was also convicted under Section 366 IPC and sentenced to ten years R.I.

4. In view of Section 228-A of IPC, identity of victim of alleged rape is not being disclosed and she will be referred as prosecutrix only.

5. Prosecution story, in brief, is that prosecutrix, a married woman was living at her parental house with her parents in village Aurai, Police Station Thariyaon District Fatehpur at the time of incident. Her husband Prithivi Pal wrote a letter to her father expressing his inability to come to take his wife (prosecutrix). He asked that prosecutrix should be sent back to her matrimonial home at village Chaumauli, Police Station Dibiyapur, the then District Etawah now District Auraiya with some other arrangements. Appellant Pramod, a neighbour of prosecutrix’s parental home and known person offered to take her to her matrimonial home to which her parents agreed.

6. Accused-appellant Pramod accompanied by prosecutrix left the village Aurai, Police Station Thariiyaon district Fatehpur. He took her to Rasoolabad Railway Station where accused-appellant Raghav alias Raghvendra also met them. They boarded the train. At Fatehpur railway station, Raghuvendra and Pramod disembarked from the train on the pretext of searching vacant place in other compartment. Pramod went to search vacant seats in other compartment. Suddenly train departed. Prosecutrix started crying but Raghav alias Raghvendra consoled her and promised to leave her at parental home next day because no other train was available on that day. He took her to a tubewell at ‘Turab Ali Ka Purwa’ belonging to one Muslim. A room (kothari) also existed on the tubewell wherein co-accused Mithelesh and Suresh, cousins of Raghvendra were living with their mother, who was also aunt (father’s sister/Bua) of Raghvendra. Allegations are that both appellants Mithelesh and Suresh alias Avadesh Kumar confined the prosecutrix in kothari for 1 ¾ month and they repeatedly raped her despite her protest. She claims to have complained to the mother of Suresh alias Awadesh and Mithelesh but of no avail. It is further alleged that Raghvendra also subjected her to rape on his frequent visits to this kothari. It is alleged that this single room had a roof over which a tin shed stood pitched up as covering. Mithelesh and Suresh alias Awadesh used to keep the victim there. It is further stated that on one day, she managed to flee from his room on the pretext of need to defecate. She managed to reach Kotwali Fatehpur. She lodged First Information Report (in short, FIR).She was sent to District Hospital for medical examination. A site-plan was prepared at her instance and later on she went to her parental home as her husband refused to keep her after this incident.

7. Sri Diwakar Singh (PW-2) was asked to conduct investigation. He conducted investigation and subsequent to investigation filed charge-sheet under Sections 363, 366, 368, 376 IPC. The charge-sheets are on record as Ex Ka-3, Ex Ka-4 and Ex Ka-5. The trial Judge framed charges against Pramod Kumar under Section 366 IPC, against Ragh