A. S. TRIPATHI, J.

( 1 ) APPELLANT Kailash has been convicted under Section 376 of the Indian Penal Code and has been sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs. 1000/- and in default of payment of fine, to further undergo six months rigorous imprisonment, by the judgment and order dated 6th of Feb. 1993 passed by Additional Sessions Judge of Pichhore, District Shivpuri.

( 2 ) THE facts of the case are that on 17-12-1991, at about 5. 00 p. m. Kumari Mathi, daughter of Ram Prasad aged about 13 years, was going to the house of Rajaram. When she reached in the Har of Nainwara, near the well, one Lalu questioned about her identity. It is alleged that Lalu and his companion grappled with the girl and thrashed her down on the ground. His companion took out knife and threatened her with dire consequences. It is alleged that thereupon the appellant and his companion committed rape upon her. Prosecutrix Mathi started crying, whereupon witnesses Lakahan, Barelal and Munshi came on the spot. The two accused tried to escape, but Lakhan, Barelal and Munshi caught hold of one of them, who was found to be the present appellant Kailash. The other co-accused managed to escape. Kailash was also injured while he was being arrested.

( 3 ) A case u/s. 376 IPC was registered against the appellant Kailash, who was caught red-handed, and handed over to the Police. Other co-accused Lalu Thakur managed to escape and could not be apprehended and was not prosecuted.

( 4 ) THE matter was investigated. The prosecutrix was medically examined and in medical examination, signs of rape were found on her body.

( 5 ) THE appellant had pleaded not guilty. The prosecution, in support of its case, had examined P. W. 1 Mathi, P. W. 2 Chatrapalsingh, P. W. 3 Ramprasad, P. W. 4 Kusumlata, P. W. 5 Ramlakhansingh Bhadoriya, and P. W. 6 Dr. K. P. Nath. No evidence was led in defence. The Trial Court accepted the prosecution evidence, and convicted the appellant as aforesaid, against which the present appeal has been preferred.

( 6 ) I have heard learned counsel for the appellant accused Shri Arun Pateriya, and Learned Penal Lawyer, appearing for the respondent/state, and examined the record.

( 7 ) THE first point raised in this appeal was regarding the age of the prosecutrix Mathi. Her age was found to be 13 years at the time of the incident, by the doctor in the medical examination report Ex. P/2. Further there was an injury on her cheek and her petticoat and panty were found soaked with blood and signs of rape were apparent on her private parts.

( 8 ) THE appellant was also medically examined and he was found to have been capable of sexual intercourse. In the medical examination, semen stains were found present on his Chaddi. ( 9 ) ENTIRE facts of the incident were narrated by the prosecutrix Kumari Mathi as to how the appellant had committed rape upon her. She had given details of the incident, which have been corroborated by medical evidence. There is no reason to discredit her testimony on this point. Her version is further supported by P. W. 2 Chatrapalsingh and P. W. 3 Ramprasad, who had arrested the appellant on the spot, after commission of rape, reaching there on the cries of the prosecutrix.

( 10 ) P. W. 4 Dr. Kusumlata Singhal had proved the medical examination report and found that the prosecutrix was 13 years of age at the time of the incident, and signs of rape were found on her body.

( 11 ) DETAILS of the investigation are given by P. W. 5 Ramlakhan Singh Bhadoriya, the Investigating Officer, who had taken in custody the appellant who was brought by the witnesses, after the incident. P. W. 6 Dr. K. P. Nath had medically examined the appellant and found him to be capable of performing sexual intercourse, and signs of intercourse immediately before the medical examination were found by the doctor.

( 12 ) IN such circumstances, when two persons are said to have committed rape upon a minor girl of aged 13 years at the time of

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