JUDGMENT :

Shree Chandrashekhar, J.

The appellants are in appeal under section 374(2) of the Code of Criminal Procedure against the judgment of conviction under section 376(2)(g) of the Indian Penal Code.

2. In the afternoon of 23.09.2011, a minor girl was abducted and ravished by four friends near village Degri. She reached home in the evening and narrated the incident to her mother. Next day, accompanied by her father she submitted a written report at Torpa police station. A First Information Report was lodged under section 376(2)(g) of the Indian Penal Code against Chhotoo Kumar, Chandan Kumar, Firoj Ansari @ Munna and Javed Hussain @ Manua. The statements of the prosecutrix, her mother and father were recorded by the investigating officer the same day under section 161 of the Code of Criminal Procedure (hereinafter referred to as CrPC) and on 26.09.2011 statement of the prosecutrix was also recorded under section 164 CrPC. She was clinically examined by Dr. Rashmi Romila Sanga on 25.09.2011 at Sadar Hospital, Khunti and the vaginal swab and X-ray of her elbow joint, wrist joint, pelvic etc. were taken. No external injury on the body or any injury over vulva and thigh of the prosecutrix was observed by the doctor and no trace of spermatozoa, dead or alive, was detected In the forensic examination. All four accused were arrested on 24.09.2011 and their statements were taken by the investigating officer, but they were not taken to a doctor for their medical examination. On 18.11.2011, a charge-sheet was submitted against them and they have faced the trial on the charge under section 376(2)(g) of the Indian Penal Code. The prosecution has examined eight witnesses to prove the charge against them; the victim girl was examined as PW4. During the trial, Firoj Ansari who was on bail got involved in Rail PS Case No. 31 of 2013 and he was lodged in Tihar Jail since 05.10.2013. This fact was not brought to notice of the trial Judge and the prosecution continued to examine the witnesses as the accused were represented through their counsel. When statement of the accused was to be recorded under section 313 CrPC since Firoj Ansari remained absent the bail-bonds furnished by him were cancelled and the records were separated vide order dated 04.07.2015 - split up record was numbered as Sessions Trial No.147(A)/2012. A production warrant was issued and when Firoj Ansari was produced from Tihar Jail he was offered opportunity to lead evidence in defence and finally vide order dated 12.04.2016 his defence was closed. Since prosecution evidence against all the accused was common and examination of Firoj Ansari under section 313 CrPC separately would have no impact on the outcome of the case, vide order dated 09.05.2016 both sessions trials were amalgamated and by a common judgment dated 20.05.2016 the appellants were convicted under section 376(2)(g) of the Indian Penal Code. They were heard on the point of sentence and by order dated 26.05.2016 sentenced to R.I for 10 years with a fine of Rs. 5000/- each under section 376(2)(g) of the Indian Penal Code, with a default stipulation to undergo S.I for one year.

3. The learned Sessions Judge has held as under :

"The learned defence counsel further drew the attention of the court and submitted that the doctor has opined that no external and internal injury was found on the private part of the victim and as such the allegation of rape cannot be said to have been established beyond doubt but it is settled law that mere fact that no injuries were found on the private part of the victim cannot be a ground to hold that no rape was committed upon her. I find it relevant to mention here at the cost of repetition of facts that I have already opined during the discussion of the evidence in aforesaid paras of the judgment that the victim PW-4 has unrebuttedly and consistently stated the fact of rape committed upon her by the accused persons and the same has been fully corroborated by Ext-2, Ext-5 and PW-1 and