(1.) Appellant, Damari Ram has been found guilty for an offence punishable under Section 376 of the I.P.C and sentenced to undergo R.I for 7 years as well as to pay fine appertaining to Rs.5, 000/- in default thereof, to undergo S.I. for 3 months additionally, appellant Upendra Paswan has been found guilty for an offence punishable under Section 376 /34 of the Indian Penal Code and sentenced to undergo R.I for 7 years as well as to pay fine appertaining to Rs. 5,000 and in default thereof, to undergo S.I for three months, additionally vide judgment of conviction dated 03.07.2015 and order of sentence dated 08.07.2015 passed by Additional Sessions Judge, Xth, East Champaran at Motihari in Sessions Trial No. 510/2006.
(2.) Name withheld, complainant PW.5 filed complaint petition no. 2344(C) /2004 on 25.11.2004 putting an allegation that on 23.11.2004 at about 6.00 P.M while she was returning from market and as soon as reached near the Mango orchard lying at village Chintamanpur, accused Damari Ram and Upendra Paswan who were taking toddy since before, caught hold her and then, threw her on the ground. Then, thereafter, accused Upendra Paswan caught hold her both hands while Damari Ram began to commit rape over her. On hue and cry raised by her the witnesses and others who were returning from market rushed, caught hold Damari Ram, pulled him, assaulted whereupon, Damari Ram became enraged and after showing fasuli threatened that who will speak against him will be murdered. Witnesses have scolded him that even being cousin father-in-law he has indulged himself in such kind of sin, even then, he did not remorse himself and continued with his threatening who will disclose or pursue panchayati in the village will be given a lesson. Then thereafter, she had gone to police station where, the Officer-in-charge had said that as he is going to conduct raid so a, case be filed before the court whereupon the same has been filed.
(3.) After filing of the aforesaid complaint petition, victim was examined on S.A. and then thereafter, the case was transferred to the Court of a Magistrate in terms of Section 192(1) of the Cr.P.C to conduct an inquiry under section 202 of the Cr.P.C whereupon cognizance vide order dated 30.02005 was taken under Section 376/34 of the Indian Penal Code against both the accused. Subsequently thereof, presence of both the accused were procured though, during intervening period, Upendra remained absent. Vide order dated 06.06.2007, charge was framed and then thereafter witnesses were examined, statement of accused were taken and then hearing both the parties identified both the accused to be guilty for the offence as indicated hereinabove against which, instant appeal has been filed.