( 1 ) BY this appeal, the appellants seek indulgence of this Court in the judgment passed by the learned V Addl. Sessions judge, Dewas in S. T. No. 173/91 on 17-1-1994 thereby finding the appellants guilty of the offences under Sections 366 and 376 (2) (g) of the IPC, convicted and sentenced them each to suffer R. I. for two years with fine of Rs. 100/-, in default of payment of fine to suffer R. I. for 15 days and to undergo r. I. for ten years and to pay a fine of rs. 200/-, in default of payment of fine to suffer addl. R. I. for 30 days.

( 2 ) THE factual matrix before the trial court were that on 23-4-89 in the night at 8. 00 p. m. in village Hathiguradiya, when prosecutrix Meerabai and her husband dayaram, after taking their night meals, were sleeping in their house. At that time accused Jaggu made a call from outside the house. On opening the door by Dayaram accused umrao, Jagan, Sajan and Devisingh alias Mansingh entered inside the house and started assaulting Dayaram. On this, meerabai asked Dayaram to go away from there. Thereupon all the four accused persons caught hold of Meerabai and took her towards a rivulet in the village and after making her to lie on the ground accused jaggu first committed sexual act with hen. When she tried to cry, her mouth was gagged by a cloth. Thereupon appellant Umrao and sajan committed rape on her and lastly co-accused devisingh also committed rape on the prosecutrix. After committing sexual act, accused Jaggu, Mansingh and Sajan went at Mau leaving Umrao to have a watch on the prosecutrix in a sugarcane field. The prosecutrix then asked Umrao for going to answer the call of nature and when she was going towards the village one Ranjeet PW- 11 met her on the way to whom she disclosed about the incident and along with Ranjeet, she went to her village and thereafter disclosed about the incident to her mother, husband and brother-in-law. On 24-4-89 at 12. 30 in the noon, she lodged the report at p. S. Haatpiplya Ex. P/1. The prosecutrix was sent for medical examination and Dr. . Velankar examined her and her report is ex. P/2. The doctor prepared two slides of vaginal swab and handed it over to Constable mohansingh who in turn made over the same to Head Constable Madanlal. Madanlal also seized one petticoat of meerabai vide Panchanam Ex. P/7 and also prepared spot map Ex. P/5 in presence of the witnesses. He also recorded the statement of witnesses. Appellant Sajansingh was arrested on 15-5-89 while accused Jaggu and Mansingh were arrested on 17-5-89. They were also medically examined and according to the medical report they were found capable to perform sexual act. However, accused Umrao could not be arrested, identification Parade was held by Tehsildar antarsingh wherein the prosecutrix identified sajansingh, Mansingh and Jaggu. The report of the Chemical Examiner is Ex. P/20 according to which stains of human spermatozoa were found on the petticoat. ( 3 ) ACCUSED Umrao was shown to be absconding. Co-accused Jaggu remain absent on 21-4-93, therefore, warrant of arrest was issued against him. This accused too was declared absconding by order dated 30-11-93.

( 4 ) AFTER usual investigation charge-sheet was filed against the appellants and Sajan. They pleaded not guilty and claimed trial. Their plea was that they were falsely implicated. They examined one witness radheshyam (DW-1) in their defence. After trial, the learned trial Court finding the appellants guilty of the offences charged, convicted, and sentenced them as indicated hereinabove.

( 5 ) NONE appeared for the appellants. This court heard the learned Govt. Advocate and also perused the entire record carefully. It emerged from the statement of the prosecutrix pw-3 Meerabai that she was not knowing the appellants and co-accused Jaggu from before the date of incident and their names were disclosed to her by PW-1 Ranjeet who met her on the way when she was returning towards the village. In Para 12 of her deposition she stated in thi

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