JUDGMENT :

Umesh Chandra Sharma, J.

1. This appeal has been filed against the judgment and order dated 25.5.2013 passed by the Additional District and Sessions Judge, Court No. 6, Budaun, by which the appellants Pappu son of Bhole and Vijaypal son of Bhole have been punished under Sections 323/34, 506, 376(2)(g) and 342 of the I.P.C. They have been punished under Section 376(2)(g) of the IPC with life imprisonment and have been fined with Rs. 1 lac each. In the event of default it has been provided that they would have to further undergo ten months simple imprisonment. They have been punished under Section 342 IPC with an imprisonment of six months along with a fine of Rs. 600/- each. In the even of default, they have to further undergo three months of simple imprisonment. Under Sections 323/34 of the I.P.C., they have been punished with one month’s imprisonment with a fine of Rs. 100/- each. In the event of default, they have to further undergo 15 days imprisonment. With regard to punishment under Section 506 IPC, the appellants have been punished with two years’ of imprisonment with a fine of Rs. 2,000/- each. In the even of default, they would have to further undergo two months’ simple imprisonment. All the sentences were directed to run concurrently.

2. The case as had been narrated in the first information report was that the first informant along with his mother Smt. Ganga Dei, wife Rekha and two small daughters, on 8.1.2010, while were going from Rasoolpur Kalan to Aslaur, were at about 7PM in the evening stopped by Vijay Pal s/o Bhole, Pappu s/o Bhole and Rishipal son of Saudan. The three miscreants, after stopping them at pistol point took them to a field. There the first informant, his mother with the two daughters were made to stay at a particular place and one miscreant with a pistol remained with them. The two other miscreants forcefully took the wife of the first informant to a mustard field where they, one after the other, raped her.

3. As per the first information report, the whole incident started off at 7:00PM in the evening of 8.1.2010 and continued till 4:00AM of the next day i.e. till the morning hours of 9.1.2010. At 4:00 am of 9.1.2010, when Dharamveer and Danveer who were passing by saw the first informant and his family and recognized the three miscreants, the latter ran away. Through the first information report, action was prayed for.

4. Investigation, thereafter, commenced on 10.1.2010. The police in the presence of Roopkishore, the first informant and Dharamveer recovered the underwears of Vijaypal and Rishipal and kept them in a sealed cover.

5. On the next date, i.e. on 11.1.2010, the Police in the presence of the first informant, Roopkishore and Danveer took into custody the petticoat and the white underwear of the prosecutrix and kept them in a sealed cover. On the very same day, remains of the clothes which were burnt and the broken bangles of the prosecutrix were also taken by the Police and kept in sealed cover.

6. On 11.1.2010 at about 12:10PM, the prosecutrix was examined by Dr. Anita Dhasmana. On the same day, she found from the vaginal smear that there was no spermatozoa seen in the vagina and also gave her conclusion in the medical report that no definite opinion about rape could be given. In the medical examination, she had also categorically stated that no mark of injury was seen on the body of the prosecutrix.

7. Roopkishore, the first informant, was also medically examined on 10.1.2010 and likewise, the mother Ganga Dei was also examined on 12.1.2010. After the accused Vijay Pal and Rishipal were arrested they were also made to undergo medical examination on 10.1.2010. The Doctor who had examined the accused had also sent the smear of the penis of the accused for examination and thereafter, reports were also received with a comment that no spermatozoa was seen in them.

8. The police after investigation submitted the charge sheet on 9.3.2010. Thereafter, the Additional Sessions Judge, Court N