BHANDARI, J.—This is an appeal by the State from the judgment dated 30th March, 1963 of the Sessions Judge, Partabgarh, acquitting Vijairam accused-respondent of the offence under secs.376/511 IPC.

2. Briefly, the case for the prosecution is that on 6th November, 1962, at about 4.00 .p.m., Vijairam respondent, resident of Khariakheri, met Mst. Shyam Kanwar (PW 4), a minor girl, aged about 11 years, of the same village, in the bed of the nallah flowing on the outskirts of that village and attempted to commit rape on her. A report of the incident was made by Arjunsingh, father of the said girl, who was posted as a constable at Police Station, Deogarh, on 8th November, 1962, at 3.30 p.m. On the date of occurrence, Arjunsingh was at Police Station Deogarh and his elder son Bheronsingh and his wife had gone from village Khariakheri to Partabgarh to make purchases, leaving Smt. Shyam Kanwar and her younger brother Amar Singh in the village. When Bheronsingh returned to the village he was informed by Smt. Shyam Kanwar that she and Amarsingh had gone to graze the bullocks near the field of Arjunsingh, when Vijairam came there and took the girl to the khal and there felled her on the ground and then attempted to commit rape on her. Bheron Singh went to his father Arjunsingh on 7th November, 1962, at Police Station Deogarh and informed him of the occurrence. Arjunsingh went to his village to make enquiries from Smt. Shyam Kanwar and then submitted a written report to the Station House Officer, Partabgarh, who had reached village Khariakheri on 8th November, 1962. Smt. Shyam Kanwar was examined by Dr. I. P. Agarwal on 9th November, 1962, but the doctor found no mark of injury, or blood or seminal stains on the external genitals or the thighs of the girl. The hymen was found in tact. The accused was also examined by the said doctor. He appealed to be a young man of 25 years, capable of having sexual intercourse.

3. The accused was arrested and challaned before the Magistrate First Glass, Partabgarh, and was committed to the court of the Sessions Judge, Partabgarh, for trial under Sec. 376/511 IPC. The accused pleaded not guilty and stated that he had been falsely implicated on account of enmity. He produced Chhagan (DW 1) in his defence. The learned Sessions Judge took the view that if the statement of Smt. Shyam Kanwar was to be believed, the accused was guilty of an offence under sec. 376/511 IPC but he refused to act on her statement as he found inconsistencies in the statements of Smt. Shyam Kanwar and her brother Amar Singh. The prosecution also examined Bheronlal (P.W. 6) who turned hostile and did not support the prosecution case. Taking this view of the evidence, the learned Sessions Judge acquitted the accused.

4. In this appeal, it has been argued by the learned Dy. Government Advocate that learned Sessions Judge has wrongly acquitted the accused by treating minor inconsistencies in the statements of Smt. Shyam Kanwer and Amarsingh as substantial. His contention is that it is proved by the evidence of Smt. Shyam Kanwar, which is corroborated by the statement of her brother Amarsingh, that the accused attempted to commit rape on her and that in any case, he felled her on the ground and assaulted her indecently.

5. For appreciating the arguments of the learned counsel for the accused, it may be mentioned that before examining Smt. Shyam Kanwar, the learned Sessions Judge put certain questions to her and he came to the conclusion that the witness did not understand the sanctity of oath, and, therefore, she was examined without the administration of oath. No questions were put to her to judge her competency as a witness. In the case of Amarsingh also who, in the opinion of the Sessions Judge, was aged about 8/9 years, no questions were put to judge his competence. Neither were any questions put to him as to whether he understood the necessity of speaking the truth, or understood the sanctity of the oath, and the learned Sessions Judge p

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