S.S. BYAS, J.— This is a jail appeal by accused Bagdiram against the judgment of the learned Sessions Judge, Pratabgarh dated February 25,1983 convicting the appellant under section 376, I P.C. and sentencing him to 5 years rigorous imprisonment with a fine of Rs. 500/-, in default of payment of fine to further undergo 3 months like imprisonment.

2. In the afternoon of 11. 2.82, the prosecutrix Ramudi (P. W. 1) a girl of tender age of 11-12 years, went to her field situate in village Mayakhera to bring the grass. When she reached there, the accused who was hiding himself came out from the standing crop. He caught hold of her and threw her down. Thereafter, he lifted her skirt and committed rape on her. She started weeping but the accused did not leave her. Hearing her screams, P.W. 2 Mangu and P.W. 3 Jeeva, who were passing by that side, came there. Seeing them, the accused ran away. They brought the gril to her house. On the next day, P.W.2 Mangu went to police station, Arnod and lodged report Ex. P/l of the occurrence. The police registered a case and proceeded with investigation. The medical examination of the prosecutrix was made on 12 2.82 by P.W. 7 Dr. Anish Ahmed, the then the Medical Officer-in-charge, Government Hospital, Arnod. He was of the opinion that there had been sexual act out side the vagina and upto the portion below the hymen, but there was no penetration into the hymen. The accused was arrested on 12.2.82. The clothes viz. skirt of the prosecutrix and underwear of the accused were seized and sealed. On chemi-cal examination, human semen was detected on both of them. On the completion of investigation, the police submitted a challan against he accused in the court of the learned Judicial Magistrate, Pratabgarh, who in his turn committed the case for trial to the court of Sessions Judge, Pratabgarh. The learned trial Judge, framed a charge under section 376, IPC against the accused. He denied the guilt and claimed absolute innocence. During trial, the prosecution examined 11 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Sessions Judge held the charge duly proved against the accused. He was consequently convicted and sentenced as mentioned above. Aggrieved against his conviction and sentence, the accused has taken this appeal.

3. I have heard the learned Amicus Curiae and the Public Prosecutor.

4. Learned Amicus Curiae made a scathing criticism of the judgment of the trial court and contended vehemently that the conviction of the accused was wholly unwarranted. In assailing, the conviction, he took various points, which I propose to deal with at seriatim.

5. The first contention is that the prosecutrix P.W. 1 Ramudi was a child of tender age of 10-12 years. No preliminary examination was made by the trial court to ascertain her competency to testify and whether she understood the sanctity of oath. And yet, oath was administered to her and she was examined as a witness. It was argued with vehemence that the preliminary examination of a child witness is imperative and inadmissible. Admittedly, P.W. 1 Ramudi is a child. Her age has been mentioned from 10 to 12 years in her statement. The statement does not show that any VOIR DIRE was made to judge her competency to testify. But the absence of VOIR DIRE does not render IPSO FACTO the statement of a child witness inadmissible, provided it can not be gathered from the statement that he or she understood the questions and had given rational answers. Where there is no preliminary examination, it is the recorded statement of a child, which ordinarily furnishes sufficient material to judge the competency of that witness. If the recorded statement of a child witness shows that he or she has a rational understanding, it cannot be wiped off merely on account of the absence of VOIR DIRE. There is consensus of judicial opinion on this point including the view of this Court taken in State of Rajasthan v.

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