( 1 ) THIS criminal appeal is brought from the judgment of the Sessions judge. Shimoga, in a case under Ss. 376, 366a and 363 of the ipc, convicting the two appellants Srinivasa Murthy (A1) and Lakshmanappa (A2) under S. 363 read with S. 34 of the IPC and sentencing them each to undergo rigorous imprisonment for six months. ( 2 ) THE prosecution case was that A1 and A2 were acquainted with pramila, a minor girl aged 13 or 14 years, of Shimoga. They resided in her neighbourhood and being acquainted with her, intended to entice or take her away from the lawful guardianship of her mother with the intention of illicit intercourse. Accordingly on 13th March 1976 at about 5-30 or 6 p. m. while Pramila (PW. 2) had gone with Sowbhagya (PW. 3) to a flour mill with wheat and ragi for milling, A1 approached her and asked her to carry back some lemons to his father which he had purchased. Accordingly the two girls accompanied him upto a place known as jail Circle in that town. A1 went back and brought an autorickshaw driven by Basavaraj, (PW. 5) A2 was standing with a bicycle at the Jail circle and the two girls were entrusted to him. When the auto-rickshaw arrived, A1 compelled Pramila to occupy the rickshaw and A2 sat with her. It was stated that Pramila attempted to cry out, but her mouth was shut by A2. Thereafter the basket containing flour was given to Sowbhagya (PW. 3) and she was threatened to tell that Pramila had gone to bhadravathi to her aunt's house. Thereafttr PW. 3 returned back to her house and Al left on the bicycle to join A2 who brought the auto-rickshaw to Javali village. Both Al and A2 brought Pramila in that village and according to the prosecution case, they detained the girl at Javali, thereafter at Sagar and then again came back to Jayali to the house of one Channabasappa the Police Patel (PW. 7 ). Meanwhile, Shanthamma (PW. 4) the mother of Pramila waited for a day or two as Pramila was expected to return from her aunt's house. When she did not return, suspicion arose and PW. 3 was asked to give the correct information. On the next day that is on 14-3-1976 the FIR was written and according to the information received from PW. 4) the mother of Pramila waited for a day or two as Pramila was expected to return from her aunt's house. When she did not return, suspicion arose and PW. 3 was asked to give the correct information. On the next day that is on 14-3-1976 the FIR was written and according to the information received from PW. 3, the two accused were named in it and the matter was reported to the police. However, the FIR was received at the police sation at 6 p. m. on 16-3-1976. The oral statement of PW. 4 who instituted the FIR was written. Thereafter another supplementary statement of PW. 4 was written. On the basis of the two statements, the police registered a case under Ss. 376, 366a and 363 of the IPC against the two accused. The usual investigation followed and the girl was searched and ultimately on 21-3-1976 she was brought from the house of pw. 7 along with the two accused. Thereafter, the case was sent up against the two accused for the offences under Secs. 376, 366a ant 363 of the Indian Penal Code. ( 3 ) THE prosecution produced 11 witnesses of whom PWs. 1 and 6 were the Doctors who had examined Pramila and found her to be 13 or 14 years in age. She had signs of recent sexual intercourse. Besides the two doctors, the girl Pramila, PW. 2 and her mother Shanthamma PW. 4 were also examined. However, both of them turned hostile and did not support the prosecution story. Sowbhagya PW. 3 was also examined and she adhered to the prosecution case. Besides her, Basavaraj PW. 5 the autorickshaw driver and Channabasappa, the police patel PW-7 were also produced. PW. 5 however partially supported the prosecution case. Kalligudi the Head Constable PW. 10 who made the recovery of the girl along with the two accused was also examined. PW. 11 was the investigating officer. The other witnesses are not material to make any reference. ( 4 ) THE defence of the two accused was one of bare denial. It was however stated by A1 that he was implicated due to enmity. ( 5 ) THE learned Sessions Judge considered that since PW. 2 the prosecutrix did not support her case, the offence of rape under Sec. 376 was not made out. ( 4 ) THE defence of the two accused was one of bare denial. It was however stated by A1 that he was implicated due to enmity. ( 5 ) THE learned Sessions Judge considered that since PW. 2 the prosecutrix did not support her case, the offence of rape under Sec. 376 was not made out. According to the learned Sessions Judge she ought to have not only supported the prosecution case, but should have also stated that she was compelled or forced to sexual inercourse. In the absence of that statement, according to the learned Sessions Judge, the offence was not made out. At the same time, the learned Sessions Judge accepted the statement of PWs. 1 and 6 that Pramila was aged 13 or 14 years and not more than that and therefore held that the offence of kidnapping under s. 363 was made out. For the other offence under S. 366a, the learned Sessions Judge, however, did not give any reason why he acquitted the accused under that count nor did he state any reason why the charge under S. 366a was not made out when obviously according to him the charge under Sec. 363 was established bevond any doubt. With these findings, however, the learned Sessions Judge convicted the two accused and sentenced them under S. 363 in the manner stated above. They have felt aggrieved of the decision and have preferred the present appeal. ( 6 ) THE prosecution, in the case essentially relied upon the statement of the child witness Sowbhagva PW. 3. She is aged 11 years and was decidedly a child witness. There could be no two opinions that although a child witness, she was nonetheless, a competent witness. The court had to ascertain in the best way which they could, whether from the extent of her intellectual capacity and understanding, she was able to give a rational account of what she had seen, heard or done at the particular occasion. The only test of competency was her capacity to understand the questions and to give rational answers. The decision on that question primarily rests on the trial Judge who sees the proposed witness, notices her manner, her apparent intelligence or lack of intelligence and may resort to any examination which will tend to disclose her capacity and intelligence as well as her understanding of the obligation of oath. The decision on that question primarily rests on the trial Judge who sees the proposed witness, notices her manner, her apparent intelligence or lack of intelligence and may resort to any examination which will tend to disclose her capacity and intelligence as well as her understanding of the obligation of oath. In short he has to formulate his opinion as to whether the witness understood the duty of speaking the truth although did not understand the nature of oath or affirmation. In the instant case, the learned Sessions judge made the following observation in his judgment :" I found the girl to be a bright child. She was a student of Vlth standard and appears to be quite wordly wise. She knew what position her father occupied. She knew the head-master of her school. She also knew why she had come to Court and she had to tell the truth. Being satisfied that she was aware of the implications of giving evidence in Court, I allowed her to be examined in the case. "it is thus evident that the capacity of the child witness was duly ascertained by the learned trial Judge. The questions were put and due answers were recorded. If the finding of the trial Judge was that she had capacity to understand questions and to answer them in a rational manner, the competency under law was established. But the question of credibility of course still remained to be satisfied. Being a child witness, she was subject to all those frailties which are amenable to any ordinary witness and besides all these frailties, being tender in age and small in intellect, she was likely to be tutored and therefore a precaution was to be observed to bring her testimony to a state of credibility so that she could be stated to have proved or disproved a question of fact. For this, corroboration was required to her statement. The learned Sessions Judge found that corroboration, at any rate, in the statements of PWs. 5 and 7 and that is why he placed absolute reliance upon the statement of the child witness PW. 3. I have carefully considered all the three statements and I am too of the same opinion. PW. 3, although a child witness, could be entirely relied upon and was rightly relied upon by the learned trial Judge. 5 and 7 and that is why he placed absolute reliance upon the statement of the child witness PW. 3. I have carefully considered all the three statements and I am too of the same opinion. PW. 3, although a child witness, could be entirely relied upon and was rightly relied upon by the learned trial Judge. ( 7 ) IT is manifest, nothing inherently wrong was detected in her statement. Her narration was consistent and bereft of embellishment. It was a natural story and nothing abnormal could be detected. She stated that both Pramila and she were going to the flour mill which too is stated by. Pramila PW. 2 and her mother PW. 4. Al brought them to Jail Circle as he wanted to purchase lemons. Thereafter he brought the autorickshaw and Pramila was made to sit along with A2 in that auto-rickshaw. She was told that Pramila was going to her aunt at Bhadravathi. Accordingly, she came and reported to her mother. In her statement Ext. P3, Shan- thamma PW. 4 the mother gave the supplementary version to the police and the name of P. W. 3 was mentioned in that statement. That makes up for the omission of PW. 3 in the written FIR Ext. P2. As regards corroborttion, PW. 5 very much stated that Al brought his auto-rickshaw on that day at about 5 to 6 p. m. upto Jail road where A2 and a girl occupied it and they came to Javali village. He could not identify Pramila and for that he was cross-examined by the prosecution. Obviously, he wanted to help the defence by omitting to identify Pramila and in cross-examination by the defence he stated that Pramila was not the girl who boarded his auto-rickshaw. If he did not identify the girl how could he exclude Pramila unless he knew her from before or at 'any rate, recalled the features of the girl who actually boarded his auto-rickshaw accurately, so that Pramila was necessarily excluded. At any rate, the implication of the two accused and the involvement of a girl having sat with them, at that pointed hour of the day, was established. That was the corroboration of the version given by PW. 3. PW. 7 also stated that the girl pramila along with Al and A2 were recovered from his house on 21-3-76. He is corroborated by PW. That was the corroboration of the version given by PW. 3. PW. 7 also stated that the girl pramila along with Al and A2 were recovered from his house on 21-3-76. He is corroborated by PW. 10 the Head Constable who went for the said recovery. PW. 9 the own sister of A2 stated that the latter was employed as a Ward Boy in Mcgann Hospital. PW. 7 came to know A2 as he was an indoor patient in that hospital for some time. PW. 7 stated that although he stayed in the hospital for three months, he was not told what ailment he was suffering from nor he could recall the name of the ward or even the name of the disease with which he was suffering. Being illiterate he may not be aware of all these details. It is not denied that a2 was serving as a Ward Boy in that very hospital. Thus, the recovery of the girl along with the two accused proved by PW. 7 further corroborates pw. 3 inasmuch as the two accused enticed her away to Javali village. That being the position, the learned Sessions Judge was right in placing reliance upon the statement of PW. 3 and the offence of kidnapping under S. 361 was duly established against the two accused. ( 8 ) THE learned Sessions Judge committed the obvious error of acquitting the two accused under Ss. 376 and 366a of the IPC. According to his finding, the age of the girl was 13 or 14 years and for the offence of rape under S. 375, the girl being below 16 years, her consent or no consent was not the material question. Nevertheless, the learned Sessions judge thought that she could have stated that she was compelled or forced to sexual intercourse. Obviously, when this young girl resided with the two accused for a couple of days presumption could be drawn that she was subjected to sexual intercourse for which there was medical evidence Similar Was the position with respect to the offence under S. 366 as the intention and knowledge for illicit interc6urse Was easy to infer. However, the prosecution has not cared to file any appeal against the acquittal and therefore nothing need be stated with respect to those two Offences. However, the prosecution has not cared to file any appeal against the acquittal and therefore nothing need be stated with respect to those two Offences. ( 9 ) THE, learned Counsel for the appellant laid emphasis on the statement of PW 4 inasmuch as, she stated that the people belonging to the household of A1 had asked her for the marriage of Pramila with A1. She told them that she was agreeable for the alliance but the marriage would be performed when she was able to secure some money. She further stated that she did not know if some- differences arose between the people of the household of A1 and her second husband and therefore a false case was foisted against A1. From all this an argument was founded that perhaps the differences' arose because the second husband of PW. 4 did not want A-1 'to marry Pramila, although that fact was not stated specifically by PW. 4 She did not tell what for the differences arose between the people of the household of Al and her second husband. " It Was also stated that one Shekarappa is the friend of the second husband of PW. 4 and being in employment of the police, he helped them to foist this case. A1 in his statement also stated something about that so-called enmity for which questions were put to PW. 4. It does not stand to reason that both Al and a2 were implicated in this false, case because there was some dispute between the second husband of PW. 4 and some people belonging to the household of Al over the master of marriage proposal of Al with Pramila. After all ithe mother being the. natural guardian had agreed to that proposal and so A1 could not have been the target of a false case of this nature. The entire suggestion was left out at that stage and in my opinion, nothing definite could be inferred in that regard. It is also evident that the motive for the implication suggested does not refer at all to lakshmanappa A2 and one does not know why he was implicated if at all falsely in a crime of this nature. Thus, the statement of PW. 3 as well as the statements of PWs.-5 and 7 could not be considered tainted by any such suggestions made to PW. 4. Thus, the statement of PW. 3 as well as the statements of PWs.-5 and 7 could not be considered tainted by any such suggestions made to PW. 4. ( 10 ) THE learned Counsel then submitted that the FIR was delayed but, for it, the explanation is to be found in Ext. P3 on the basis of which the FIR was recorded. She had given out in that statement that Pramila had gone to her aunt's house and was expected to be back within a day or two. That was why the report was written on 15-3-1976 although it was drafted on 14-3-1976. Thus there was no delay in instituting the FIR. ( 11 ) IN this view of the matter nothing substantial could be found in favour of the defence and the conviction of the two accused under sec. 363 could not be assailed for any valid reason. ( 12 ) THE appeal is, therefore, without any merit and the same is dismissed. --- *** --- .