Sharma, J.—Jagannath has been convicted by the Additional Sessions Judge, Baran under secs. 376 and 451 I.P.C. and sentenced to 2-1/2 years rigorous imprisonment and a fine of Rs. 51/- in default to undergo further imprisonment for four months. It was alleged by the prosecution that on the 5th February, 1950 when Mst. Pana a girl of about eight years was engaged in sweeping the grains at 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 Mst. 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 girls 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 sec. 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 Judges court at Baran.

2. The accused denied the charge and pleaded that the case was an out come of enmity. The learned Additional Sessions Judge however, was satisfied that offence under both the sections were 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 Mst, Pana, the victim of the alleged offence who had to admit in cross-examination that she had stated in committing Magistrates 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. Mst. 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 father, the evidence was simply a sender of waste paper. All other evidence was in corroboration of the evidence of Mst. Pana and when her evidence itself had to be totaly 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 she admitted facts which showed that there was no penetration at all. In she circumstances of the case the offence of rape was not at all made out.

4. The learned Government Advocate had to cocede that so far as the offence of rape is concerned it was not made out on the record from the evidence of the girl. It was not established that any penetration took place. He further argued that there is sufficient evidence to prove that the case under sec. 451 and sec. 354 at the least was made out. To this the reply of the learned counsel for the appellant is that even if offence under secs. 451 and 354 has been committed, there was no evidence which can be relied upon. The only evidence about the entry of the accused inside the house of Mst. Pana at the time of alleged incident is that of Mst. Pana and two other child witnesses, Krishna and Mst. Kessar. Each of them admitted that whatever has been stated by them was on the basis of the knowledge derived from the other and that neither the one witness nor the othe

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