MEHTA, J.—The prosecution story, in brief, is that accused Sua Lal was a neighbour of Ram Deo, P.W.3. They both lived in Bajaj Nagar, Jaipur. Ram Deos daughter Mst. Pushpa, P.W.I, aged 6 or 7 years, was playing with other girls on December 4, 1970, at about 12.30 p.m. While she was so playing, accused Sua Lal caught hold of her, got on his "Charpoy" with her, undid the string of his Chaddi, set on her and then committed sexual intercourse with her. She called for help. Several people, including Kishan Lal, P.W.2, Mst. Ramli (grand mother of Mst. Pushpa) P.W.4, Mst. Anandi(anut of Mst Pushpa), P. W.5 and others appeared on the scene. These persons saw Sua Lal escaping and concealing himself into his kitchen. The same day Ram Deo, PW.3, returned home at about 1 p.m. Mst. Ramli, P.W.4, apprised him of the happening. Thereafter Mst. Pushpa also told him how the accused had behaved her indecently. Thereafter Ram Deo went to Police Station, Gandi Nagar and lodged first information report that very day at 1-50 p.m The police registered a case and took over investigation. After necessary investigation the police presented a challan to the court of Addl. Munsiff-Magistrate, Jaipur City (East). Learned Additional Munsiff-Magistrate conducted preliminary inquiry in accordance with the provisions of sec. 207-A., Cr. P. C and committed the accused to the court of Sessions Judge, Jaipur District, Jaipur, to face trial under sec. 376, I.P.C. The accused denied the indictment under sec. 376, I.P.C. and claimed trial. In support of its case the prosecution examined 10 witnesses. Prisoner Sua Lal in his statement, recorded under sec. 342, Cr P.C , admitted that he was a neighbour of Ram Deo and that his daughter Mst. Pushpa was about 6 years of age. He also admitted that he was lying on a cot in his house at about 12 in the noon and was reading a book. He denied the rest of the prosecution allegations. He further deposed that he had been beaten by the people, as a result thereof he sustained injuries, which started bleeding. On account of such bleeding his underwear and his Chaddar were stained with blood. Mst. Pushpas frock got stained with blood because of his injuries. Four years prior to the occurrence Mst. Pushpas father Ram Deo had imputed false accusation against his mother and it is on account of that reason that enmity had existed between him and Ram Deo. He did not produce any evidence in his defence. The trial court, its judgment, dated May 8, 1972, found Sua Lal guilty under sec. 376, I.P.C. and sentenced him to two years rigorous imprisonment and to pay a fine of Rs. 500/ , in default of payment of which to suffer further rigorous imprisonment for six months. The trial court directed that out of the amount of fine of Rs. 500/-, if recovered, Rs. 300/-, should be applied for payment to Mst. Pushpa as compensation for the injuries caused to her.

2 Dissatisfied by the above verdict, Sualal has taken this appeal. The first contention of learned counsel for the appellant is that as no injuries were found on the private parts of Mst. Pushpa, nor was her hymen torn, his conviction under sec. 376, I.P.C., could not have been recorded.

3. Dr. S. B. Mathur, Medical Jurist, S.M.S. Hospital, Jaipur, conducted the medical examination of Mst. Pushpa on December 14, 1970, at 7.35 p. m. The result of his examination is reproduced below :—

"No for sign body present. Vulva child-like, posterior commissure and fourchette are intact. Hymen-anular type elastic, no tare present. Vaginal canal little finger cannot be introduced. Vaginal discharge-not present. Vulva-vaginal swab and smears collected for examination of semen, spermatozoa and gonocecci."

In the opinion of the Doctor the girl was about 6 to 7 years of age. On receipt of the Chemical Examiners report Ex. P. 8, which reads that smear on the glass slide was positive for spermatozoa but negative for gonococci, Dr. Mathur was of the view that Pushpa had been subjected to sexual intercourse within 3 t

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