JUDGMENT :

1. Heard Ms. Rashmi Srivastava, learned Amicus Curiae for the appellant and Sri B.A. Khan, learned A.G.A. for the State.

2. This Appeal has been filed by the appellants, Kalletariya and Bhola against the judgement and order dated 12.03.1982 passed by Additional Sessions Judge XI, Agra in S.T. No. 404 of 1979 convicting the appellants under Sections 363, 366 I.P.C. and sentencing them each to undergo three years R.I. for each offence and also to pay a fine of Rs. 500/-for each offence and in default of payment, the appellants have further been directed to undergo R.I. for three months and both the sentences are directed to run concurrently.

3. Out of the two appellants, Kalletariya and Bhola, Bhola has expired and his appeal has been abated vide this Court's order dated 5.01.2019, therefore before this Court, Appeal of Kalletariya remains which is being taken up.

4. As per prosecution version as narrated in F.I.R., the victim/first informant, Vidya aged about 16 years was living with her father, Dhanvaj under his guardianship in village Ram Nagariya, P.S. Jaitpur, District Agra who was earlier married to one Karua. She stayed in her matrimonial home only for four to five days, thereafter she returned to her father's house and was living there since then continuously. Her Gauna had not taken place. The accused, Kalletariya was a resident of village, Nagaria, P.S. Pattora, District Agra who was jeth of the victim and at the time of occurrence, he used to work at the place of Village Pradhan, Dhandhu and used to often visit the house of victim and the accused appellant no. 2, Bhola (deceased) was his companion. On 10.01.1978, at about 8:30 a.m. when she had gone to ease herself out, both the appellants had met her and gave her temptation that they would provide her good clothes and jewellery and thus, in this way they beguiled her. On their said promise, the victim accompanied them whereafter the appellant along with co-accused took her to sookhatal where in the field of arhar, at the point of knife and giving her threat to kill, she was forcibly raped by both of them, thereafter appellants took her to Mauran where she was kept in the house of Bhola for about two and a half hours and from there, appellant along with co-accused took her to Kori Kuan and from there, she was taken in a bus to Etawah. When the said bus stopped at Oodi Mod, there, constables and an inspector came, whom she narrated the entire story and then both the appellants were arrested by police, thereafter the said police personnel had brought driver, conductor, Gambhir Singh and Ram Autar respectively along with informant to P.S. Badhpura where the victim narrated the entire story and on her oral statement, a report was lodged on 10.01.1978 at 6:30 p.m. at P.S. Badhpura, District Etawah on the basis of which chick F.I.R., Exhibit Ka-1 and G.D., Exhibit Ka-2 were prepared, thereafter police also took into possession victim's petticoat and the underwear of Kalletariya, recovery memo of which is mentioned as Exhibit Ka-3. On the next day, i.e. on 11.01.1978 at about 6:00 p.m., medical examination of the victim was conducted by Dr. S. Bhatiya at Agra and medical examination report, Exhibit Ka-4 was prepared by her. Thereafter police brought the accused from Badhpura to P.S. Jaitpur and G.D., Exhibit-9 was prepared. The investigation of this case was assigned to I.O. who prepared site-plan as Exhibit Ka-5 and Exhibit Ka-6 and recorded statements of other witnesses and submitted charge-sheet, Exhibit Ka-8 against the appellants under Section 363, 366, 368 and 376 I.P.C.

5. Against the accused appellant, Kalletariya, charges under Sections 363, 366 and 376 I.P.C. were framed to which he pleaded not guilty and claimed to be tried.

6. From the side of prosecution, as many as seven witnesses have been examined. P.W. 1, Vasdev Singh is a witness of fact, P.W. 2, Constable Girish Chand of P.S. Badhpura has proved F.I.R., Exhibit Ka-1, G.D., Exhibit Ka-2, Recovery Memo,