M. C. JAIN, J. Four appellants, namely, Gokula Prasad Tiwari, Shitla Prasad Tiwari, Dwarika Prasad Tiwari and Mubarak Ali filed this appeal against the judgment and order dated 30-9-1981 passed by Sri J. B. Singh I, the then IV Additional Sessions Judge, Allahabad in S. T. No. 498 of 1980. Each of them has been convicted under Section 376 IPC and sentenced to seven years rigorous imprisonment. As per the report of the CJM Allahabad dated 24-10-2002 the appellant Gokula Prasad Tiwari died five years back. Therefore, the appeal abates, so far as he is concerned. 2. The relevant facts may be taken note of. The appellants allegedly committed rape on the person of Smt. Makhana wife of Tahir, tailor at about 11. 30 p. m. in between the night of 2nd/3rd May, 1980 in her house situate in village Pasana, Police Station- Koraon, District Allahabad. The report was lodged by her at the concerned police station the following morning at 6. 10 a. m. The distance was three miles. The appellants Gokula Prasad Tiwari, Shitla Prasad Tiwari and Dwarika Tiwari were real brothers. The husband of the prosecutrix was a tailor-cum-rural dancer. The appellants as well as the prosecutrix resided in the same village. The husband of the prosecutrix had gone out for dancing in village Gaura. She was sleeping inside her house along with her children. An oil lamp was kept alight in the house. At about 11. 30 p. m. all the appellants managed to enter her house by breaking Tattar (Bamboo sticks joined together to serve as door ). Each of them committed rape on her person one after another when she was lying on a cot. Her daughter raised alarm. As a result, Shaukat Ali P. W. 3 and Mohd. Shafi, then present at the nearby pond arrived there along with one Abdul Kabir and they all saw the accused persons running away from inside the house. Hakimunnisha P. W. 2 also arrived there. While leaving, the accused had also threatened her. But being night, she could not venture out to lodge the FIR immediately. The report, as stated above, was lodged by her after it had dawned at 6. 10 a. m. She was medically examined by Dr. Vina Nigam, P. W. 6 on 3-5-1980 at 3. 00 p. m. She was hospitalized also. But being night, she could not venture out to lodge the FIR immediately. The report, as stated above, was lodged by her after it had dawned at 6. 10 a. m. She was medically examined by Dr. Vina Nigam, P. W. 6 on 3-5-1980 at 3. 00 p. m. She was hospitalized also. The investigation was taken up by Chunna Lal Gautam, the then Station Officer of Police Station Koraon, P. W. 5. The accused Dwarika Prasad Tiwari and Mubarak Ali were taken into custody on 4-5-1980. The other two surrendered in the Court. After conclusion of the investigation, all the four were booked for trial which ended up in their conviction as stated above. The defence was of denial. 3. The accused Mubarak Ali also came up with the story that husband of the prosecutrix had purchased one Biswa of land from him for Rs. 5,000 for constructing house and he had promised to pay the said amount within one month. Hakimunnisha P. W. 2 advised him not to make payment. A Panchayat was conducted and thereafter, he had tried to occupy the land. On the instigation of Hakimunnisha P. W. 2, Shauakt Ali P. W. 3, Shafi Mohammad, Murad Ali and Munnawar had assaulted him and handed him over to the police. The present case had been concocted due to said assault. The remaining three accused pleaded false implication as they were present in the aforesaid Panchayat and further because an altercation had taken place between them on the one hand and the husband of the prosecutrix on the other in respect of causing of nuisance by his hens in their crop bearing plot. 4. The prosecution in all examined eight witnesses. Prosecutrix Makhana P. W. 1 was the star witness who narrated the prosecution case, proving the FIR too. 5. I have heard Sri D. S. Tiwari, learned Counsel for the appellants in support of the appeal and learned AGA from the side of the State in opposition thereof. It has been urged that the conviction has been recorded on insufficient and untrustworthy evidence and further that it was illogical that three real brothers (Gokula Prasad Tiwari, Shitla Prasad Tiwari and Dwarika Prasad Tiwari) would go to commit rape on the same lady together. 6. It has been urged that the conviction has been recorded on insufficient and untrustworthy evidence and further that it was illogical that three real brothers (Gokula Prasad Tiwari, Shitla Prasad Tiwari and Dwarika Prasad Tiwari) would go to commit rape on the same lady together. 6. On consideration of the matter, I am of the opinion that the argument carries weight that three real brothers would not go to commit rape on the same lady together. The record shows that out of these appellants (Gokula Prasad Tiwari, Shitla Prasad Tiwari and Dwarika Prasad Tiwari), Dwarika Prasad Tiwari was of 28 years of age, Gokula Prasad Tiwari was of 24 years of age and Shitla Prasad Tiwari was of 18 years of age as per their statements under Section 313 Cr. P. C. recorded on 25-9-1981. Thus, Dwarika Prasad Tiwari was the eldest of the three. Obviously, it sounds to be improbable that the eldest brother would take his younger brothers, too, with him to commit rape on the same lady and at the same time or the two younger brothers would accompany the eldest brother for such nocturnal sexual adventure. Unless one is wholly depraved and debauch in the extremity, he would not take his younger brothers to participate with him in such an activity. Therefore, it leads to justifiable inference that it was only the eldest brother Dwarika Prasad Tiwari who was involved in this incident and not his two younger brothers, namely, Gokula Prasad Tiwari and Shitla Prasad Tiwari out of whom Gokula Prasad Tiwari has since died also. Benefit of doubt should have been afforded to these two. It being the duty of the Court to separate the chalf from the grain and to find out the truth, the result would be that the appeal having abated in respect of deceased appellant Gokula Prasad Tiwari the appellant, Shitla Prasad Tiwari would also be absolved of the charge, giving him the benefit of doubt. 7. On going through the evidence on record and scrutinizing the same in a judicial and analytical manner having regard to the attending circumstances, I do not see any reason whatsoever to discard the prosecution testimony so far as the appellants Dwarika Prasad Tiwari and Mubarak Ali are concerned. The reasons may be stated briefly. The evidence of medical examination of the prosecution was, by and large, undisputed. The reasons may be stated briefly. The evidence of medical examination of the prosecution was, by and large, undisputed. On the vaginal examination, there was found transverse tear in the posterior fornix. It was bleeding on touch and its margins were irregular. It was also testified by Dr. Vina Nigam P. W. 6 that prosecutrix was hospitalized and that the injury was stitched by her. She also found that sexual inter- course had been committed with the prosecutrix within 24 hours of her medical examination. She emphatically stated in her cross-examination that injury of vagina consisting of transverse tear was possible from sexual inter-course only. The prosecutrix was a married lady with children but the above injury clearly indicated that forcible intercourse had been committed on her within 24 hours of her medical examination. The prosecution case was established by the direct testimony of Makhana PW 1 and circumstantial evidence of Shaukat Ali P. W. 3 and res gestae evidence of Hakimunnisha P. W. 2. Makhana P. W. 1 and Hakimunnisha P. W. 2 are inter-related and neighbours. Shaukat Ali, P. W. 3 an outsider was present near the scene of occurrence because he had come to fish from the adjacent pond. 8. The benefit of doubt can be afforded only to younger brothers of Dwarika Prasad Tiwari, as it sounds to be inherently improbable that they would accompany his eldest brother for such an act. But the case is intact having been proved to the hilt in respect of other two appellants, Dwarika Prasad Tiwari and Mubarak Ali. Even on chemical examination blood had been found on the petticoat of the prosecutrix which was taken into custody and sent for examination. It indicated that on being subjected to forcible sexual inter-course, she had bled and the blood had fallen on her petticoat. No doubt, the appellant Mubarak Ali had been examined by Dr. Mahendra Kumar P. W. 7 on 4-5-1980 at 9. 40 a. m. and a few abrasions and lacerated wound had been found on his person, but that did not prove his defence version of false implication. 9. The sentence of seven years rigorous imprisonment passed against the appellants Dwarika Prasad Tiwari and Mubarak Ali can also not be deemed to be harsh considering the beastly criminal act committed by them. 10. The result would be that the appeal would succeed in part. 9. The sentence of seven years rigorous imprisonment passed against the appellants Dwarika Prasad Tiwari and Mubarak Ali can also not be deemed to be harsh considering the beastly criminal act committed by them. 10. The result would be that the appeal would succeed in part. It is finally ordered as under: 11. The appeal is partly, allowed. It has already abated so far as appellant Gokula Prasad Tiwari is concerned, as he has died. The conviction and sentence passed against the appellant Shitla Prasad Tiwari is set aside and he is acquitted. 12. The appeal is dismissed in respect of appellants Dwarika Prasad Tiwari and Mubarak Ali. Their conviction under Section 376, IPC and sentence of seven years rigorous imprisonment passed against each of these appellants is maintained. 13. The appellants Dwarika Prasad Tiwari and Mubarak Ali are on bail. The C. J. M. Allahabad shall cause them to be arrested and lodged in Jail to serve out the sentence of seven years R. I. awarded to each of them under Section 376 IPC. 14. Let a copy of this judgment along with record of the case be immediately sent to the Court below for needful compliance under intimation to this Court within two months from the date of receipt. Appeal partly allowed. .