JAGANNATH Vs. STATE

JUDGEMENT

(1.) Jagannath has been convicted by the Additional Sessions Judge, Bara under Sections 376 and 451, Penal Code and sentenced to 2 1/2 years rigorous imprisonment and a fine of Rs. 51/- in default to undergo further rigorous impisonment for four months. It was alleged by the prosecution that on the 5th February, 1950 when Mt. Pana a girl of about eight years was engaged in sweeping the grains at the platform near her house in village Bhanwara some time in the afternoon the accused Jagannath came to her and took her away inside the house and in the IKDARA committed rape upon her. At that time there were only some children at the place; two of whom were a girl Mt. Kessar and a boy Krishna both about seven years old. When her father returned to the house she told him about the act of the accused. The girl's father Madna went to the Police Station to lodge a report but it was not recorded. He therefore, made an application before the Sub-Divisional Magistrate, Chabra who directed the police to record a report and investigate the case. The first information report was, therefore recorded on the 7th February 1950 at about 6 in the evening. The girl and Jagannath accused were medically examined and after necessary investigation the case was challaned under Section 451 as well as 376 in the Court of Sub-Divisional Magistrate, Chabra who committed the accused to take his trial under both the sections to the Additional Sessions Judge's Court at Baran.

(2.) The accused denied the charge and pleaded that the case was an outcome of enmity. The learned Additional Sessions Judge, however, was satisfied that offence under both the sections was proved against the accused and consequently convicted and sentenced him as above. The accused Jagannath has filed this appeal.

(3.) I have been taken through the evidence by the learned counsel for the appellant Mr. Jugal Kishore Mathur who appears for him. He referred to the statement of Mt. Pana, the victim of the alleged offence who had to admit in cross-examination that she had stated in committing Magistrate's Court that whatever she had stated was at the instance of her father and that she did not understand many things which she had mentioned in her examination. Mt. Pana was confronted with this statement in the Sessions Court and the statement was put on record as Ex. P. W. 3. The learned counsel argued that in the first instance the girl was of tender years and her statement carried not much weight, and looking to the fact that she who was the victim herself had to admit that whatever she had stated, she had done at the instance of her fattier the evidence was simply a scrap of waste paper. All other evidence was in corroboration of the evidence of Mt. Pana and when her evidence itself had to be totally discarded, the question of acting upon the corroborative evidence does not arise. He has also argued that in her statement before the committing Magistrate with which she was confronted in the trial Court, there are admitted facts which showed that there was no penetration at all. In the circumstances of the case the offence of rape was not at all made out.