JUDGMENT

Karunesh Singh Pawar, J.

Heard Sri Ashok Kumar Singh, learned counsel for the appellants, Sri Alok Tiwari, learned A.G.A for the State- respondent and perused the record.

2. The present appeal has been filed against the judgment and order dated 10.03.1989 passed by the then VIII Additional Sessions Judge, Lucknow in Sessions Trial No.286 of 1988 ," State v. Ram Chandra & Ors.", Case Crime No. 151/85, under Section 376 IPC, Police Station Itaunja, District Lucknow whereby the appellants were convicted for the offence punishable under Section 376 I.P.C. and sentenced each of them to undergo rigorous imprisonment for a period of five years with fine of Rs.1,000/- and in default of payment of fine, they are directed to undergo further simple imprisonment for a period of four months.

3. As per Office report dated 20.08.2016, the Principal Magistrate, Juvenile Justice Board, Lucknow in its report dated 17.08.2016 has held the appellant No.3-Sarjoo alias Sahju juvenile at the time of incident. The report is on record.

4. The appellant No.2-Ashok Kumar has also been declared juvenile vide report dated 24.12.2020 sent by the Principal Magistrate, Lucknow. This fact has been taken note in the order dated 12.01.2021. Thus, learned counsel for appellants has argued the present appeal only with regard to appellant No.1- Ram Chandra.

5. Prosecution case is that on 27.09.1985 at about 07:30 pm when the victim was going to attend the call of nature, the appellants caught hold her mouth and dragged her into the house of Maiku where no one else was present and firstly, she was raped by the appellant-Ram Chandra and thereafter by Ashok and Sarjoo. At that time, Ashok and Sarjoo put lathi on the throat of victim and they were saying that if she resists she will be killed. She stated that while she was being raped by Ram Chander, Ashok and Sarjoo were pressing her throat by lathi and when Ashok raped her, Ram Chander and Sarjoo had overpowered her by lathi and when Sarjoo raped her, Ram Chander and Ashok had overpowered her by lathi. After committing rape, her kurta and salwar were washed with water and she was asked to wear them. While wearing, she got a chance to raise the alarm and after hearing the alarm, Abid Ali and Ram Swaroop came there and they had seen these accused persons in the torch light going out of the room. Thereafter, they took the victim to her home where she told about the incident to her father. The F.I.R. of the incident was registered on 27.09.1985 at about 8:25 pm, P.S. Itaunja, District Lucknow and prompt medical was conducted on the very next day i.e. 28.09.1985. The clothes of the prosecutrix were taken by the police and sent for chemical examination.

6. The Investigating Officer after taking statement of the prosecution witnesses and completing the formalities, filed charge-sheet. Charges were framed vide order dated 05.10.1988 by VIII Additional Sessions Judge, Lucknow against the appellants.

7. Prosecution in support of its case has examined seven witnesses i.e. PW-1 Kamini Devi, PW-2 Dr. Pushpa Nautial who conducted the medical examination of the prosecutrix, PW-3 Shiv Shanker, father of PW-1, PW-4 Ravindra Kumar Singh who is fard witness, PW-5 Mohd. Aslam Khan, he is also fard wittiness of the torch, PW-6 Constable Ramesh Singh who is scriber of the F.I.R., PW-7 S.I. Kalikanand Agnihotri who has conducted the investigation.

8. PW-1 in her examination in chief has submitted that at about 07:30 pm while she was returning after a