HARI HAR Vs. EMPEROR

JUDGEMENT

(1.) The present appellant Harihar alias Paji has been convicted by the learned Sessions Judge of Mirzapur, of an offence under Section 376, Indian Penal Code, and sentenced to two years rigorous imprisonment and ten stripes. The complaint Mt. Sumeria is a girl, who according to the Civil Surgeon's evidence, is between 12 or 14 years of age and is probably 13. The evidence as to age is not very definite. The Civil Surgeon has given no reasons for holding that she is likely to be either over or under 14, and the Judge-has said that he does not think the evidence on the record can be held to be sufficient to establish, that the girl is under 14. There is, however no suggestion whatever that the sexual intercourse, which has been proved if the direct evidence of the prosecution witnesses is accepted was with, the consent of the girl, so that the question of her exact age is not of vital importance.

(2.) Her story is as follows: She had been to a big resorvoir to water her cattle and having done so she washed some clothes and spread them on the ground. One cow wont down a "bandh." and she followed in order to bring it back. On the way back the appellant, who is a young man of about 23 years, caught her dhoti from behind and after a struggle in which the dhoti was torn threw her down, on the ground and raped her. The girl struggled and cried out, and three witnesses, namely Sambhal, Mira and Jaimangal came up over the Bandh and called out. By this time the accused had left the girl and run away. Mt. Sumeria says that her dhoti was stained with blood, and that there was blood on the ground where she was lying. She was taken to her mother's house and told tier what had happened. Her mother washed the dhoti and then took her to the police station about a mite away where a report was entered about noon on 10 June. The report mentions that the child's mother had washed away the blood from the dhoti but that it still had some stains. This story is supported by the three witnesses who have been named. The appellant was arrested the same day, and some of his clothes together with those of the girl were sent for examination to the Chemical Examiner. His report shows that of the three garments belonging to the accused the dhoti was stained with blood but the stains on the other two garments could not be indentified. A dhoti and a piece of cloth, which are said to belong to Mt. Sumeria, were also sent for examination and were found to have blood stains on them as were some pieces of leaves and part of a sirsa fruit which the sub- inspector discovered on the spot.

(3.) Such was the evidence for the prosecution, and the statement of the appellant was a denial of the offence and a suggestion that there was a quarrel, the details of which he did not specify. Be claimed that there were the blood stains on his clothes when they were taken by the police, and that the witnesses for the prosecution including Mt. Sumeria had given evidence against him through the influence of the police, and also because there were some disputes about a demand for money which had been advanced by his father to these witnesses. None of the oral evidence for the defence made any impression on the Court, but it may be mentioned that of the three men who claimed to be eye-witnesses of the rape, Mira has been shown possibly to have some slight cause for a quarrel with the appellant's father over a mat tier of evidence. Nothing has been shown against the other witnesses for the prosecution.