JUDGMENT

Jai Lal, J. - Siraj-ud-Din, appellant, aged 18 years, according to his own statement and 20 years according to the Magistrate has been convicted by a Magistrate 1st Class, with enhanced powers under Section 30, Criminal P.C., under Section 376, I.P.C., for having raped Mt. Bakhtawar, the daughter of Nabi Bakhsh aged 13 or 14 years, on the forenoon of 18th April 1927, and has been sentenced to seven years' rigorous imprisonment. He has appealed to this Court and I have heard Mr. Abdul Aziz who represented him and also Mr. Feroze Din, counsel for the Crown.

2. The case for the prosecution as stated at the trial is that Mt. Bakhtawar was taking some tobacco for her father who was working in the fields outside the village and when passing in front of a kotha she was suddenly seized by the accused, taken inside the kotha, thrown on the ground and ravished. It is alleged that when she was seized on the road she cried aloud and this attracted the attention of her father, Nabi Bakhsh, who actually saw the accused drag his daughter inside. Nabi Bakhsh thereupon ran towards the kotha and in the way met Nizam and Imam Din, and all the three went and found the accused raping the girl. It is alleged that the kotha had no door and was not consequently shut, that the girl was actually crying when these witnesses reached the scene of the crime and that the accused left her when they reached there. An attempt was made to secure the accused but he made good his escape after he had-been slapped by the father twice but he left a shoe and some clothes at the spot.

3. The statement of Mt. Bakhtawar is that the accused had a discharge before her father and his companions came to the spot. According to her the father was working at a distance of 20 or 25 paces from the place where she was seized; according to the father the distance was about 150 paces, but it is common ground that the place was visible from where the father was. It may also be mentioned that the mother and the brother of Mt. Bakhtawar were also working with her father It is further alleged that the ghagri of Mt. Bakhtawar got stained with blood as the girl bled as the result of the rape. This ghagri was secured by the Investigation Police Officer and sent to the Chemical Examiner, but no blood or semen was found thereon.

4. The matter was reported at the thana five kos from the village at 7 p.m. and Mt. Bakhtawar stated in that report that she was forcibly taken inside the kotha by the accused and was thrown on the ground and that the accused wanted to rape her; but on hearing her noise her father, Nizam and Imam Din came and released her and thereupon the accused ran away leaving his shoe and clothes on the spot. She added that "if her father had not arrived the accused would certainly have violated her." In her cross-examination she was confronted with this statement but she denied that she had made it and asserted that her statement at the time was the same that she had made at the trial. The learned Magistrate has tried to explain away this serious discrepancy between the two statements by remarking that the Head-Constable who recorded the statement was inexperienced, but the learned Counsel for the Crown has not supported the Magistrate in this connexion and has admitted that as a matter of fact, the statement recorded in the first information report is exactly as it was made by Mt. Bakhta-war. The learned Counsel, however, opined that Mt. Bakhtawar was not willing to state that she had been disgraced and it was for this reason that she minimized the circumstances of the assault on her. I am of Opinion that the statement made in the first information report represents what Mt. Bakhtawar stated to the Head Constable, and this view is supported by the manner in which the report is recorded.

5. The eyewitnesses have supported the case for the prosecution as put forward at the trial. Their testimony is almost consistent and is not open to any serious criticizm. But the learned