JUDGMENT :

1. Heard Sri Syed Ali Imam, learned counsel for the accused-appellants and learned A.G.A. for the State.

2. Most unfortunate aspect of this litigation is that despite the fact that the incident occurred in the year 2008, the accused are in jail since 07.08.2014.

3. This appeal challenges the judgment and order dated 07.08.2014 passed by Special Judge (SC/ST Act)/Additional Sessions Judge, Banda in Special Criminal Case No. 77 and 107 of 2008, under Sections 366, 368, 376 I.P.C. and 3(2)V SC/ST Act (State vs. Dharmmuni Joshi and Balkhandi Giri) wherein the learned Special Judge has convicted and sentenced accused-appellants, Dharmmuni Joshi and Balkhandi Giri, under Section 376 of Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) read with Section 3(2)(v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as SC/ST Act) and sentenced them to imprisonment for life with fine of Rs. 10,000/- each (Default sentence one year). Under Section 368, they were sentenced to ten years' rigorous imprisonment with fine of Rs. 5,000/- and in case of default in payment of fine, further to under go six months simple imprisonment. Accused-appellant, Dharmmuni Joshi was also sentenced under Section 366 of IPC for ten years' rigorous imprisonment with fine of Rs. 5,000/- and in case of default in payment of fine, further to under go six months simple imprisonment.

4. Brief facts as culled out from the F.I.R. are that the prosecutrix was given some medicine which have toxic effect in it and that is how she was lured into following the accused to their home and thereafter, both the brothers committed forcible sexual intercourse on her for one year and after one year she filed an application under Section 156(3) Cr.P.C. which culminated into investigation having taken place.

5. The Investigating Officer investigated the matter after recording the statements of about five witnesses and prepared a site plan and enquired and filed the supplementary report after collecting the injury report returned the case of the prosecutrix culminated into F.I.R. and the charge sheet was laid against the accused-appellants.

6. The accused was committed to the Court of Sessions as the case was triable by the Court of Session. The learned Sessions Judge framed charges on the accused. The accused pleaded not guilty and wanted to be tried.

7. So as to bring home the charge, the prosecution has examined the following witnesses who are as under:

8. In support of ocular version following documents were filed:

9. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C. and hearing arguments on behalf of prosecution and the defence, the learned Special Judge convicted the appellant as mentioned aforesaid.

10. As far as commission of offence under Section 3(2)(v) of SC/ST Act is concerned, it is submitted by learned counsel for the accused-appellants that the offence would not fall within the purview of 3(2) (v) of SC/ST Act as none of the ingredients required for proving that the act was committed because the prosecutrix belong to the said community nor is it proved by cogent evidence that the accused committed the offence (if any) as she belonged to the said community.

11. As far as commission of offence under Section 376 of IPC is concerned, it is submitted by learned counsel for the ap