Important Point – Injury is not sine qua non in a rape case.

Rajesh H. Shukla, J.

The present Appeal is directed against the impugned judgment and order rendered in Sessions Case No. 97 of 2005 (old) and 5 of 2006 (New) by the learned Additional Sessions Judge, District Narmada at Rajpipla dated 5.4.2006 recording conviction of the Appellant/Original Accused for the offence under Section 376 of the Indian Penal Code and sentencing him as stated in detail in the impugned judgment and order. The facts of the case briefly summarised are as follows.

2. As it transpires from the material and evidence on record, on 1.7.2005, the daughter of the complainant, who was studying in a primary school, had gone to the school. However, in the evening, when she returned from the school, she complained about pain in her stomach. Initially it was not viewed seriously by the complainant mother, but in the early morning, as the undergarments of the minor daughter of the complainant was found with blood stains, and thereafter, on an inquiry, the minor daughter is said to have stated that, on previous day, when she returned to the school after the recess, the Appellant/Original Accused, who is a teacher in the school had committed an offence of rape under Section 376 of the Indian Penal Code by laying her down in the class room. Therefore, the complainant mother had taken the victim to the Doctor at Vijay Maternity Home, where she was serving and was examined by the Doctors including the Gynecologist. The victim is also said to have stated that she was threatened by the accused that if she tells anybody she would be killed. Therefore, the victim was taken to the Government hospital at Rajpipla where the Doctor had called the police. The complaint was registered by the police being I-CR No. 99 of 2005 for the offence under Section 376 IPC.

3. After the investigation was made, the charge sheet came to be filed. However, as the offence is under Section 376 it was committed to the court of Sessions. The learned Sessions Judge framed the charges and proceeded with the trial.

4. After the recording of the evidence of the prosecution witnesses was over, the learned Sessions Judge has recorded the further statement of the accused person under Section 313 of the Criminal Procedure Code. In his further statement the accused denied the charges levelled against him.

5. After hearing the learned Public Prosecutor as well as learned Advocate for the accused, the learned Sessions Judge convicted the accused for the alleged offence under Section 376 IPC and sentenced him as stated in the impugned judgment and order.

6. It is this judgment and order, which has been assailed on the grounds stated in the memo of Appeal.

7. Heard learned Advocate Shri Nirad Buch for learned Senior Counsel Shri N.D.Nanavaty for Nanavaty Advocates for the Appellant/Original Accused.

8. Learned Advocate Shri Nirad Buch referred to the testimony of PW-1 Mother at Exh. 11 and her Complaint at Exh.12. Learned Advocate Shri Nirad Buch referred to the testimony of the victim PW-2 at Exh.13 and submitted that there is a discrepancy in the version of both the complainant mother and the victim. For that purpose he tried to emphasise that the victim has stated in her cross-examination that she had complained her mother about the pain in her stomach on the next day whereas the complainant mother has stated about such complaint in the evening. Similarly, he tried to refer to the contradictions with regard to the complain as well as testimony of the complainant and the victim. Learned Advocate Shri Buch submitted that there is a delay in filing the complaint which has not been explained. He has also referred to the testimony of PW-3 Doctor Nirav at Exh.15 and the testimony of PW-4 Dr. Falguni Solanki at Exh.22 and also the testimony of Dr. Ushaben Seth PW-5 at Exh.23. Learned Advocate Shri Buch submitted that the medical evidence do not suggest any intercourse or any other injury. He therefore tried to submit that merely because there are some red marks over