JUDGMENT

M.H. Beg, J. - The appellant, Jagannath, has been convicted under Section 376, I. P. C. and sentenced to six years' R. I. and the appellant Jallu has been convicted under Section 3761109, I. P. C. and also sentenced to six years' R. I. by an Assistant Sessions Judge, of Budaun.

2. The prosecution case was : On 30th of November, 1966, a minor girl, Shyama Devi, P. W. 1 aged about I1 years, daughter of a man called Tursi of village Ujhauli in the district of Budaun, on her way back after having carried some food to her father' who was working on a field, sat down on a path to cut some grass. The accused came along and asked her why she was cutting the grass. The girl replied that it was the field of Babu Ram and that it was no business of the accused to question her. Thereupon, the appellant Jallu is said to have carried her inside the field for a few yards. She was thrown on the ground. Her mouth was caught and her neck pressed against the ground by Jallu, to prevent her from raising an alarm, while Jagannath raped her. The girl, however, managed to cry out with the result that Nem Chand, P. W. 2, Gokul Ram, P. W. 3, and her uncle Mukundi, P. W. 6, who were working in a potato field, at a distance of about 150 yards, ran towards the Arhar field. They saw Jallu appellant running ahead and Jagannath appellant following him. Jallu escaped. But, Jagannath was caught at a distance of about 40 yards in the south-eastern corner of the field before he could get to the public road. The prosecution witnesses had stated that he had stumbled and could, therefore, be caught. A first information report was lodged at police station Binawar in the district of Budaun at 7.15 p.m. which relates the incident as set out above and mentions the names of the witnesses who came and saved the victim and caught Jagannath and saw Jallu running away.

3. The girl was examined by Dr. G. Kulshareshta, M. 0. Incharge of Women's Hospital, Budaun, on 1-12-1966. She found that the girl's hymen was torn posteriorly and that the tear extended into the vagina. There were lacerations on the vagina which presented a raw appearance with angry looking wounds which bled on touching. The lower jaw of the girl was swollen and there was a bruise on her right hand extending upto the wrist 4" x 2z". The doctor's report, Ex. Ka-19, shows that rape had been committed on the girl. No sperms were detected either in the vagina or on the clothes sent for a chemical test of stains on them. This was probably because the girl had struggled and managed to raise an alarm so that the sexual act was interrupted. The girl'; age was also determined from ossification of bones shown in a report, Ex. Ka-20, as between 12,1 to 131 years.

4. The girls version having been fully corroborated by the injury report of the doctor, it was not possible to dispute the fact that a rape had been committed on the girl. The investigating officer, Suryapal Singh, P. W. 9, who visited the spot on 3-12-1966 found earth and arhar plants in the field of Arhar disturbed at the place where the occurrence was said to have taken place. He also found blood on the arhar plants which he collected. He prepared a site plan showing the location of the Arhar field which lay towards the south-east of pillage Ujhauli with a public road intervening. The place of occurrence was shown a few yards removed from a path running between the two fields adjoining the public road. But, apparently, this place was not visible clue to the arhar crop either from the public road or from the potato field in which the witnesses were working. It is probably due to the Arhar crop that Jagannath had stumbled so that he could be caught by the witnesses.

5. It was pointed out on behalf of the appellants that the learned Sessions Judge had commented on the fact that the investigating officer had been negligent in not getting the body of the appellant Jagannath examined for any corresponding injuries to corroborate the prosecution version. R