The main legal point established in the judgment is the requirement for the prosecution to prove cases of abduction and rape beyond reasonable doubt, especially when relying on the sole testimony of the victim.

JUDGMENT :

1. The instant criminal appeal, under Section 374 (2) Code of Criminal Procedure, 1973 (herein after referred to as 'Code') has, been preferred against the judgment and order dated 26.02.2003, passed by Additional Session Judge, Fast Track Court No.2, Unnao, in Session Trial No.354 of 2001, arising out of case Crime No.111 of 2001, Police Station- Fatehpur Chaurasi, District-Unnao, whereby appellant Guddu has been convicted for offence under Section 366 I.P.C. for 5 years rigorous imprisonment with fine of Rs.5000/- and for offence under Section 376 I.P.C. for 7 years rigorous imprisonment and appellant Naresh has been convicted under Section 366 I.P.C. for 5 years rigorous imprisonment with fine of Rs.5000/-.

2. The prosecution case, in brief, is that the victim (P.W.-2) is sister of informant Om Prakash (P.W.-1). On 5.5.2001 at about 7:00 a.m., Om Prakash (P.W.-1) lodged a written report (Ext.Ka.-1) at police station- Fatehpur Chaurasi, District-Unnao, alleging therein, that his sister (P.W.-2), aged about 16 years, had gone on 27.4.2001, at about 8:30 p.m., to answer the nature's call, towards the field of northern side of village. It was further alleged that at that time informant and his family members were harvesting their crops in his field, meanwhile, appellants Guddu, Santosh along with co-accused his brother Naresh and his father Ramai Pasi enticed the victim away. It is further alleged that the said occurrence was seen by Uma Shanker son of Madhav Barai, co-villager of (P.W.-1), who narrated the whole story to him and since then he (P.W.-1) was searching his sister (P.W.-2) but failed to locate her.

3. On the said information, F.I.R. Chik (Ext.Ka.-6) was registered against the appellants and other co-accused and investigation was entrusted to Sub-Inspector Ram Awtar Diwakar (P.W.-4), who visited the place of occurrence, prepared the site plan (Ex.Ka.-8) and recorded the statement of (P.W.-1) including other witnesses Uma Shanker, Guddu and Ram Gopal. During investigation, on 17.5.2001 the victim (P.W.-2) was recovered by P.W.-4, in the presence of P.W.-1, near Takia Crossing when she was traveling with appellant Guddu in Bus No.U.G.P.-04143. P.W.-2 was sent to Government Women Hospital, Unnao for medico legal examination. Dr. Tabbasum Khan (P.W.-3) examined the P.W.-2 on 18.5.2001 and prepared medico legal certificate (Ext.Ka.-4). According to her, the victim's height was 154 c.m. and her weight was 42 kg. In external examination of the P.W.-2, no mark of injury was present on any part of her body ; her both breast were developed ; pubic and auxiliary hairs were present.

4. According to doctor (P.W.-3) further, in internal examination of the victim (P.W.-2), no mark of injury was present on her private part ; hymen ruptured, old torn and healed ; and vagina admitted two fingers easily. According to P.W.-3 further, vaginal smear were taken and two slides were prepared, which were sent for pathological examination to ensure for presence of alive or dead human spermatozoa and the P.W.-2 was sent for radiological examination for determination of her age.

5. According to P.W.-3, further she had prepared supplementary report (Ex.Ka.-5), the victim's (P.W.-2) radiological age was more than 18 years and no definite opinion could be given regarding rape.

6. After conclusion of investigation, charge sheet was filed for offence under Sections 366 and 376 I.P.C. against the appellants before the concerned Magistrate, who after taking the cognizance of the offence, since the offence was exclusively triable by the Court of Sessions, after providing the copies of relevant police papers, as required under Section 207 of the Code, committed the case to the Court of Sessions, Unnao, for trial.

7. Learned trial Court framed charge for offence under Section 366 I.P.C. against the appellant Naresh and for offence under Sections 366 and 376 I.P.C. against the appellant Guddu, to which, they denied and claimed for trial.

8. The prosecu