MAHAVIR AND OTHERS Vs. STATE OF U.P.

JUDGEMENT

(1.) These are three connected criminal appeals. Three appellants namely, Mahavir, Bhagwan Din and Ram Swaroop were tried together S.T. No. 130 of 1993, State Vs. Bhagwan Din and two others, in connection with rape on one Smt. Ram Kumari w/o Ganga Ram r/o village Vishun Nagar, P.S. Khairabad, District Sitapur. Learned Trial Court has convicted and sentenced appellant Ram Swaroop under Sec. 376, I.P.C. to seven years rigorous imprisonment with a fine of Rs. 1000.00 and one year rigorous imprisonment under Sec. 506, I.P.C. Accused appellant Bhagwan Din and Mahavir have been convicted and sentenced to one year rigorous imprisonment under Sec. 109, I.P.C. for abetting commission of rape and six months rigorous imprisonment for offence punishable under Sec. 506, I.P.C. In addition to this all the there appellants have been further convicted and sentenced to a fine of Rs. 500 each, for the offence under Sec. 3 (1) (XII) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. They have appeals against the judgment and order dated 10.1.1995, passed by II Additional Sessions Judge, Sitapur.

(2.) Heard Sri K.K. Tewari, learned Counsel for appellant Mahavir. No one has appeared for remaining two appellants. Learned A.G.A. was at heard and record has been perused.

(3.) Allegation against the appellants is that on 13.2.1993 at 10 a.m. Village Vishun Nagar, P.S. Khairbad, District Sitapur prosecutrix Smt. Ram Kumari w/o Ganga Ram had gone to her fields to collect fodder (Hareri) for her cattle. All the three accused persons taking advantage of her alone presence committed the offence. It is said that out of the three appellants Bhagwan Din and Ram Swaroop physically caught the prosecutrix and carried her to Arhar fields. Bhagwan Din over powered her and Ram Swaroop forcibly committed rape on her. As against appellant Mahavir only allegation was that he kept on standing nearby on a Mend. Appellant Ram Swaroop had gagged her mouth by thrusting scarf. After rape was committed all the three accused took to their heels. The prosecutrix then moved towards her village wailing and crying. She claimed that Raghunath and Nanda of her village had also seen the three accused running away after commission of the crime. She had returned to her house and narrated the incident to her mother-in-law. Two ladies then went to police station and lodged report on the same day at 14 hours. The prosecutrix was sent for medical examination. Doctor did not find any injury on her person. Hymen was found old torn and healed up. Vagina admitted two fingers easily. No bleeding or sign of recent inflammation was found. Vaginal smear was taken for determination of spermatozoa and sent for analysis.