Agarwala, J.

[1] Mushtaq and Kalwa, two boys aged 15 and 14 at the time of the commission of the offence, that is on 8-5-1950, were prosecuted under Section 376, I.P.C. on a charge of committing rape on a girl of 11 years of age.

[2] The prosecution case was that on 8-5-1950, in the afternoon while the girl Dropadi and her brother Rup Chand were digging earth from a village pond, these two boys coming from an adjoining village were grazing their cattle nearby. The brother Rup Chand went away home, and they took advantage of the girl being alone and felled her down and committed rape on her, one after the other. When the girl's brother returned, he heard the cries of his sister and on running up found one of the boys committing rape on her and the other holding her by the hands. He raised an alarm and the two boys ran away. Other people came on the scene and they gave a chase to the boys arid caught them and took them to the police station, where the first information report was lodged by Rup Chand on the same day at about 7-5 P.M.

[3] The defence of Mushtaq and Kalwa was that they had nothing to do with the matter and that they had been implicated on account of enmity, and it was suggested on their behalf that somebody else might have committed rape on the girl.

[4] The girl was medically examined and she was found to have been recently raped. The 'lungis' of the boys were also examined and they were found to have blood-stains and spermatozoa on them.

[5] The prosecution produced the girl Dropadi and Rup Chand and four other persons as witnesses. On considering the entire evidence on the record the learned Sessions Judge came to the conclusion that Mushtaq, indeed, did ravish the girl; and so far as Kalwa was concerned that Kalwa did certainly aid Mushtaq but that as against Kalwa himself committing rape there was the solitary statement of the girl, and he held that Kalwa could be convicted only of abetting and aiding the offence which Mushtaq committed. He consequently held that both of them were guilty under Section 376, I.P.C. and sentenced each of them to eight months' rigorous imprisonment, and in addition to this he sentenced Mushtaq to eight stripes.

In the case of Kalwa, as he was of the age of 14, the learned Sessions Judge added that the benefit of the First Offenders' Probation Act might be extended to him. He, therefore, ordered that instead of Kalwa being detained in jail, that Kalwa be set at large under Section 4 of the U. P. First Offenders' Probation Act with two sureties in the amount of Rs. 250/- to keep the peace and to be of good behaviour for three years and to appear and receive sentence when called upon to do so. He made certain further directions in this connection.

[6] Mushtaq appealed against the sentence and on reading the Sessions Court judgment, a learned Judge of this Court issued notice to Kalwa to show cause why the application of the First Offenders' Probation Act by the Sessions Judge should not be set aside and he should not be sent to Jail, and to Mushtaq to show cause why his sentence of imprisonment should not be enhanced. The appeal of Mushtaq and the notice issued to Mushtaq and Kalwa by the learned Judge of this Court have both come up for decision before us now.

[7] After having heard learned Counsel for the appellant Mushtaq and also on the notice for enhancement on behalf of both Mushtaq and Kalwa and after perusing the record, we have come to the conclusion that the case against both of them was amply established by the evidence on the record.

[8] The evidence of the girl and of her brother Rup Chand and at least two of the witnesses, Himmat and Phool Singh, is worthy of reliance. They were, therefore, rightly convicted under Section 376, I.P.C.

[9] The only question for determination now is whether the sentence in the case of Mushtaq Was adequate, and whether the application of the First Offenders' Probation Act in the case of Kalwa was justified in law or not. The application of