JUDGMENT :

Lok Pal Singh, J.

1. Criminal Appeals have been preferred under Sections 374(2) of Code of Criminal Procedure, 1973 (for short "Cr.P.C") against the common judgment & order dated 09.04.2014, passed by the learned Additional Sessions Judge, Khatima, District Udham Singh Nagar, in Sessions Trial No. 307 of 2013 whereby the accused-appellants, namely, Ram Prakash Rathour and Prakash Chand have been convicted under Sections 376D & 323 of I.P.C. Each one of the convicts has been sentenced to undergo rigorous imprisonment for 20 years and directed to pay fine of Rs.25,000/- each under Section 376D of I.P.C, in default of payment of which further simple imprisonment of one year each was awarded. Both the convicts were further sentenced to undergo rigorous imprisonment for a period of one year and also to pay fine of Rs.1,000/- under Section 323 I.P.C, in default of which further simple imprisonment of one month was awarded. All the sentences were directed to run concurrently.

2. Heard learned counsel for the appellants, learned Deputy Advocate General for the State of Uttarakhand and carefully perused the lower court record.

3. Prosecution story, in nutshell, is that on 28.03.2013, (complainant/victim) lodged a complaint at Police Station Khatima stating therein that she is a resident of village Teraghat. On 26.03.2013 at about 07:45 p.m., she alongwith one Vishvanath Nikunj, R/o Mukta Colony, P.S. Newria, Pilibhit had gone to purchase the mosquito coil, when they were returning after purchasing Mortin (mosquito repellent). As soon as they reached in front of the orchard of Bhagiram; all of a sudden, Prakash Chand, Ram Prakash and Dheeraj residents of the same village, dragged her towards the orchard and torn her clothes. Victim shouted and when his brother resisted this act, accused persons assaulted his brother. On raising alarm, many a people reached there and Srikrishna resident of the same village saved her life. The accused persons fled away from the spot. The said complaint was registered at G.D./Case Crime No. 69 of 2013 for the offences punishable under Section 354, 323 of I.P.C., against the accused Prakash Chand, Ram Prakash & one Dheeraj.

4. Investigation of the case was entrusted to S.S.I. Harish Bahadur Sen, who investigated the case and after conclusion of investigation, submitted charge sheet against the accused-appellants for their trial in respect of offences punishable under Sections 376D and 323 of I.P.C. However, the third accused, namely, Dheeraj was found juvenile and a separate charge sheet was filed against him & his case was referred to the Juvenile Justice Board, Rudrapur.

5. The learned Judicial Magistrate, on receipt of the charge sheet, committed the case to the court of Sessions for trial on 28.09.2013.

6. Learned Session Judge, Udham Singh Nagar, framed charge of offences against the appellants punishable under Section 376D and 323 of I.P.C, to which accused pleaded not guilty and claimed to be tried.

7. Prosecution got examined nine witnesses. Oral and documentary evidence was put to the accused under Section 313 Cr.P.C, in reply to which they alleged that the evidence adduced against them are false. After hearing the parties, the trial Court found both the accused-appellants guilty of charge of offences punishable under Section 376D & Section 323 of I.P.C, and convicted them accordingly.

8. Medical Examination of the prosecutrix was conducted on 03.04.2013 at 02:00 p.m. In the medical report (Exhibit A-5) the Medical Officer opined as under:

O/E Brest well developed, Auxiliary and pubic-hairs well developed labia majora and minora well developed. Hymen torned and healed. Vagina adjusting two fingers easily. Vagina smear taken in two slide and send to pathologist at C.H.C for detection of spermatozoa. There is no sign of injury in cliotra organ and other parts of body. Her C.M.P was 5th of February, 2013. Girl is sent to J.L.N Hospital, Rudrapur for determination of age for x-ray of elbow.

9. In the