A gang rape conviction can stand under section 376(2)(g) when held collectively accountable for jointly committing the act despite the absence of physical injury on the victim.

1. This appeal arises out of the judgment of conviction and order of sentence, dated 8.8.2000 passed by the Additional Sessions Judge, Baikunthpur, Dist. Koria in S.T.No. 163/1999 convicting each of the accused / appellants under S.376(2)(g), S.363 & S.366 of IPC and sentencing them to undergo RI for 10 years, pay a fine of Rs.200/-; RI for 3 years, pay a fine of Rs.200/-; and RI for 3 years, pay a fine of Rs.200/- with default stipulations respectively.

2. As per prosecution case, on 25.2.1999 at about 8 pm when the prosecutrix came out from her house to attend the call of nature, the appellants caught hold of her, took her to a nearby kitchen garden, when she tried to raise alarm, appellant No.3 Rama gagged her mouth by inserting a piece of cloth and then appellant Nos. 1 & 2 (Laxman & Shivprasad) committed rape upon her one after another. Unnumbered FIR (Ex.P / 1) was registered at the instance of prosecutrix on 26.2.1999 at 10 am at Police Outpost' “ Charcha and thereafter numbered FIR (Ex.P / 14) was registered on the same day at 2.30 p.m. against the appellants under S.376/34 of IPC. The prosecutrix was sent for medical examination which was conducted by PW - 13 Dr. Shobha Chaturvedi vide Ex.P / 13. As per medical report, no definite opinion could be given by the doctor regarding forcible sexual intercourse and there was no injury, either external or internal, on her person. Vaginal slides of the prosecutrix were prepared as Articles Cl & C2 and sent to FSL. Likewise, petticoat of the prosecutrix (Article A) and underwear of accused / appellant Laxman (Article B) were also seized and sent to FSL. As per unexhibited FSL report, spermatozoa was found on all these articles. Appellants Laxman and Shivprasad were also medically examined by PW - 7 Dr. D.K. Chikanjuri and they were found capable of performing sexual intercourse vide Exs.P / 9A and P / 10A respectively. To determine the age of the prosecutrix, she was sent for x - ray examination and as per report Ex.P / 11 of the Radiologist (PW - 8 Dr. M.K. Jain), her radiological age was found to be 14-16 years. After filing of charge sheet, the trial Judge framed charges under S.363, S.366 and S.376(2)(g) of IPC against the accused / appellants.

3. So as to hold the accused / appellants guilty, the prosecution examined as many as 13 witnesses. Statements of the accused / appellants were also recorded under S.313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. In their defence they examined one Dr. Rajni Sharma as DW - 1.

4. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused / appellants as mentioned in para 1 of this judgment.

5. Learned counsel for the appellants submits as under:

* that on account of previous enmity between the appellants and the family of the prosecutrix, they have been falsely implicated. The factum of enmity between them has been admitted by the prosecutrix also.

* That as per statement of the prosecutrix she was subjected to gang rape by two appellants, however, as per her medical report there was no injury, external or internal, on her person, which goes to show that the appellants have been falsely implicated and no such offence has ever taken place.

* That as per medical report of the prosecutrix she was found to be habitual to se