Point of Law : Judgment of trial court is based on cogent evidence and is found in consonance with the evidence on record - Complicity of all four accused is found in the crime and the judgment and order passed by learned trial court is liable to be upheld.

JUDGMENT :

1. Present Criminal Appeal under section 374(2) Cr.P.C. has been filed against the Judgment and Order dated 22.10.1994 passed by Jagdish Prasad, Special/Additional Sessions Judge, Lakhimpur Kheri in Sessions Trial No.73 of 1990 (State Vs. Debi Dayal and 3 others) arising out of Case Crime No.170 of 1989, under Sections 394, 397, 366 and 376 I.P.C., Police Station Mitauli, District Lakhimpur Kheri convicting the appellants, under Sections 376/366 I.P.C. and sentencing them to undergo rigourous imprionsment of ten years under Section 376 I.P.C. and further sentencing them to undergo rigourous imprisonment of five years under Section 366 I.P.C. Both the punishment are directed to run concurrently.

2. In the guidelines of the Hon’ble Supreme Court, the name of the victim is not disclosed. Her name is referred as letter ‘X’.

3. Wrapping the facts of the case in brief, at about 12:00 p.m. i.e. in the midnight of 10/11.06.1989 the informant Buddha Chamar alongwith his wife, his daughters namely; Goda and victim ‘X’ and his son Ram Prasad was sleeping in the courtyard of his old house and wingnut (dibari) was kept blown, four persons armed with gun and country made pistol entered in the house and took away his daughter victim ‘X’ aged about 18 years. On the hue and cry by her daughter i.e. victim ‘X’, his wife, his daughter Goda and son awoke and saw the accused persons namely Devi Dayal, Arjun Pasi, Ambika Pasi and Fareed Khan were kidnapping his daughter Victim ‘X’ was being taken by Devi Dayal and Ambika Pasi on the gun point, and accused Arjun Pasi and Fareed Khan robbed the nose ring, sutiya and anklet of his wife and daughter Goda and other household items containing clothes and Rs.1,000/-. When they raised alarm and villagers gathered, accused took to their heels. He tried to search out his elder daughter victim ‘X’, who came after about one an hour from the eastern side of village by crossing the river in wet clothes. She narrated the whole story that all the four persons carried her across the Pirai river and raped her one by one against her will in the bushes and after committing rape upon her all of them fled away.

4. On the basis of written report, F.I.R. was lodged on 11.06.1989 and was registered as Case Crime No.170 of 1989, under Sections 394, 397, 366 and 376 I.P.C., Police Station Mitauli, District Lakhimpur Kheri. The case was entrusted for investigation to S.I. Devideen Singh, who recorded the statement of victim ‘X’ under Section 161 Cr.P.C. and she was medically examined by P.W.-7 Dr. Indra Chopra on 11.06.1989 at about 5:15 p.m. Doctor did not find any mark of injury on her private parts, left abdomen or thigh. On her internal examination, hymen was found old torn. Investigating Officer visited the house of complainant and interrogated complainant and visited the spot where the rape was committed and after spot inspection, prepared site plan as Ext. Ka-2, recovered wingnut (Dibari) and prepared its recovery memo and proved it as Ext. Ka-4.

I.O. took the petticoat of the victim ‘X’, and prepared its recovery memo proved it as Ext. Ka-5. Arrested accused Arjun Pasi and Fareed Khan on 13.06.1989. After collecting sufficient evidence submitted the charge-sheet Ext. Ka-6 dated 23.06.1989 against all the accused persons under Sections 394 and 376 I.P.C.

5. Accused appeared before trial court and charges were framed and read over to the accused appellants under Sections 394/376 I.P.C. Accused appellants denied all the charges and claimed to be tried.

6. In order to prove the case, prosecution examined P.W.-1 Victim ‘X’, who narrated whole the story. P.W.-2 Ram Prasad, the brother of the prosecutrix, P.W.-3 Buddha, complainant, who proved written report as Ext. Ka-1 and P.W.-4 Smt. Laxmi W/o the complainant, who corroborated the factum of robbery and abduction of victim ‘X’ by the accused persons. P.W.-5 S.I., Devideen Singh, who investigated the case and proved site plans as Ext. Ka-2 and Ext. Ka-3, memo of Dibari