JUDGMENT :

1. Heard Sri Indra Pratap Singh, learned counsel for the appellants, Ms. Anupriya Jaiswal, learned AGA for the State and perused the record.

2. This appeal has been preferred by the convicts Gudun, Suresh, Jangay and Harish Chandra to set aside the judgment and order of conviction and sentencing dated 03.06.2000 passed by the XI-Additional Sessions Judge, Faizabad in ST No.827 of 1997 (State Vs. Gudun and others) arising out of Case Crime No.55 of 1997, under Sections 376, 354, 506 IPC, Police Station Khandasa, District Faizabad whereby the accused persons had been convicted under Section 376/511 IPC for five years rigorous imprisonment and fine of Rs.2,000/-each and in case of non-payment of fine to undergo six months additional incarceration; under Section 354 IPC for one year’s rigorous imprisonment each; under Section 506(2) IPC for one year’s rigorous imprisonment each. It was also directed that all the sentences shall run concurrently.

3. In brief, facts of the case are that informant Shreepal lodged an FIR on 08.03.1997 that in the night of 03.03.1997 at about 09:00 p.m. his daughter had gone outside the house to attend the call of nature. Gudun and Musey sons of Radhey Shyam, Suresh son of Jagram, Harish Chandra son of Salikram and Jangay son of Keshri threw his daughter on the ground. Gudun caught her breast and when Harish Chandra opened her saree with ill intentions, she cried, upon which Ram Dulare Yadav, Ramdev and Chandrika Prasad Tiwari and some other persons of his village reached on the spot and saw the accused escaping therefrom. As the matter was about his daughter, he did not approach the police but when they started threatening to kill him, he requested to lodge an FIR and protect him.

4. In this case the accused ‘Musey’ was declared juvenile and his case was transmitted to the Juvenile Justice Board, Faizabad for trail. The case of rest of the accused persons was committed and the charges were framed under Sections 376/511, 354, 506 IPC. Accused persons denied the charges and sought trial.

5. Prosecution examined following witnesses in its support:-

1 PW-1 Shreepal, informant

2 PW-2 Smt. Kusuma

3 PW-3 Dr. P. Nath

4 PW-4 Ramesh Chand Tiwari, moharrir constable

5 PW-5 SI Ram Nagina Yadav

6 PW-6 Dr. Sushma Singh

6. Following documentary evidences have been adduced by the prosecution:-

1 Ex.Ka-1 Written complaint

2 Ex.Ka-2 Injury report of the victim

3 Ex.Ka-3 Chik FIR

4 Ex.Ka-4 Carbon copy kaymi GD

5 Ex.Ka-5 Map

6 Ex.Ka-6 Charge sheet

7 Ex.Ka-7 Age determination report of the victim

(I) Grounds of Appeal

7. The grounds taken by the accused persons are that:

(i) the trial court failed to examine and evaluate the evidence on record correctly and judicially and has mistaken in passing the impugned order; (ii) the trial court could not consider that the story of the case was concocted and the same could not be substantiated by the prosecution; (iii) the impugned judgment has been passed on conjunctures and surmises; (iv) the trial court could not come to the conclusion that it was a malicious prosecution on account of enmity, the evidences are itself contradictory and the story is imaginary, the trial court failed to appreciate the main evidence which is falsifying the whole case; (v) the punishment is excess and the judgment and order is illegal and arbitrary and is not sustainable in the eyes of law. Hence, the impugned judgment and order of conviction and sentencing be set aside and the appeal be allowed.

(II) Brief discussion on the statements of prosecution witnesses

8. PW-1, informant, Shreepal has deposed that at about 09:00-10:00 p.m. on the date of incident when he was making jaggery, Ram Dulare and Chandrika were sitting at the house of Rampal, he heard the screams of his 14-15 years old daughter to save her. He ran there with a torch. Ram Dulare, Chandrika, Rampal and Ramdev had also reached after him and saw that accused Musey was doing dirty things with his daughter and acc