The delay in FIR cannot be a ground to discard the entire prosecution story. Section 114-A of the Indian Evidence Act presumes absence of consent in gang rape cases. The absence of injury does not necessarily indicate consensual sexual act.

Surendra Vikram Singh, J. –

Under challenge in the instant Criminal appeal is the judgment and order dated 23.12.2010 passed by learned Session Judge, District Barabanki in Session Trial No.659 of 2008 arising out of Case Crime No.335 of 2007, under Section 376 (2) (g) IPC, Police Station Safderganj, District Barabanki whereby both the appellants namely Pradeep Rawat and Jagroop have been convicted for the offence under Section 376 (2) (g) IPC and were sentenced to undergo rigorous imprisonment for a period of ten years and also with fine ofL 10,000/-, with default stipulation of 2 years' additional simple imprisonment.

2. According to the version of the FIR, the case of the prosecution was that the victim was the minor daughter of the complainant Ram Aadhar and the FIR of this case was lodged on 16.05.2007 at 00: 45 hours, alleging therein that on 05.05.2007 the complainant had gone with his wife and son to village Pasinpurwa and her minor daughter was alone in the house. The appellants Pradeep Rawat and Jagroop at about 7.00 p.m. forcibly took her from her house and after closing her mouth she was gang raped by the appellants. Anyhow the victim managed to raise alarm then Smt. Molahi wife of Tulsi, Jagjeevan son of Sukai and other persons ran towards the place of occurrence then the accused persons ran away from there. When the complainant came back to his house then his daughter narrated the entire story to him and accordingly FIR was lodged. After registration of the case the victim was referred for her medical examination. She was medically examined by the Dr. Sultana Aziz, Senior Consultant, District Women Hospital, Barabanki, on 17.05.2007 at 12.35 p.m. In her examination her teeths were 7+7/7+7, breasts were well developed and axillary and pubic hairs were well developed but no mark of injury was seen on her private part. Hymen was old torn healed tags of hymen were present. Vagina admitted two fingers easily. Vaginal smear slides were prepared and sent to pathological test for ascertaining the presence of spermatozoa. For determination of her age, she was referred for X-ray. On the basis of the aforesaid tests, by means of supplementary report dated 22.05.2007, no definite opinion about rape was given and her radiological age was reported to be between 17-18 years. The Investigating Officer inspected the place of occurrence on 16.05.2007 and prepared its site plan. The statement of the victim under Section 164 Cr.P.C., was recorded on 25.05.2007 and after concluding the investigation charge-sheet was filed against both the appellants.

3. The case of the defence was that they have been falsely implicated in this case. The appellants Pradeep Rawat has stated that he had given L 5000/- to the complainant about one month prior to the incident and he saved this amount by working in the village as a labour and the same was given by him to the complainant. The case of the appellants Jagroop was that Pradeep is his cousin through village relations and not because of blood relationship. He has stated that Pradeep is married.

4. In order to prove it case, the prosecution has examined PW- 1, the complainant, Ram Aadhar, PW-2 the victim, PW-3 Smt. Molhi, PW-4 Dr. Om Prakash who has prepared the X-ray reports, PW-5 Constable Arjun Prasad Chaudhary who has prepared the chik report and G.D. of this case, PW-6 Dr. Sultana Aziz, who has medically examined the victim and has also prepared supplementary report, PW-7 S.I. Devi Saran Maurya, the Investigating Officer of this case.

5. In defence no evidence was adduced on behalf of the appellants. After appreciating the evidence on record the trial court has convicted the appellants as above, hence the instant appeal.

6. Submission of the learned counsel for the appellants was that in this case the FIR has been lodged with delay and according to the medical examination the victim was found to be habitual to sexual intercourse and they have been falsely implicated in this case. In the alt