JUDGMENT 1. - Learned Sessions Judge, Balotra has convicted appellant Gordhaniya under Section 376 IPC and sentenced him to 10 years rigorous imprisonment with a fine of Rs. 500/-, in default of payment of fine, to further undergo six months rigorous imprisonment. Against this judgment of the learned Sessions Judge, Balotra dated June 24, 1983, Gordhaniya has filed this appeal through Jail. Mr. D.C. Sharma has been appointed as Amicus Curiae for the appellant, as he is not represented by any other lawyer. 2. Briefly stated, the prosecution case is that Kumari Babri aged 10 years, along with other girlfriends including Kumari Khamma had gone to graze their cattle in the jungle, where accused Gordhaniya met them. He called the girls and told them that he would issue chits permitting them to graze their cattle and that chit would be first given to the girl whose thumb impression would be the biggest. He took the thumb impressions of the girls and found that the thumb impression of Babri was the biggest. He thereupon, told Kumari Babri to go with him to get the chit and asked the other girl to wait, Gordhania carried Kumari Babri under a Kumatiya shrub and made her to lie there telling her that if she did not obey him, he would fire her with a gun. The case of the prosecution further is that he took off the underwear of Kumari Babri and then forcibly committed rape on her. Kumari Babri raised a hue and cry. She was badly injured in her private parts and was bleeding. She then came to the other girls, who were waiting nearby and in their company. She came to her house where she narrated the whole story to her mother Smt. Champa, who later informed her husband Kheta Ram. Kheta Ram then narrated it to his brother Chhoga Lal, and asked him to lodge the report about this incident to the police. This incident took place on sept. 11, 1982 in the noon, and the report was lodged before the police on September 12, 1982 at 11. A.M. In the meantime, the girl was taken to the Hospital as she was in great pain. Doctor examined her. Chhoga lal lodged the report to the Police Station Siwana. After registering the case, the police started investigation. The accused was arrested. A.M. In the meantime, the girl was taken to the Hospital as she was in great pain. Doctor examined her. Chhoga lal lodged the report to the Police Station Siwana. After registering the case, the police started investigation. The accused was arrested. The site was inspected and after completing investigation, the police put up a challan against the accused Gordhania for offence under Section 376. IPC as committed by the learned Magistrate to the court of sessions. He pleaded not guilty to the charge under Section 376, IPC framed against him. Thereupon the learned Sessions Judge tried him. Ten witnesses were examined on behalf of the prosecution, PW 1 is Dr. Harish Bapna. He examined Kumari Babri on September 12, 1982 and prepared the report Ex. P/1. According to him, the girl was about 10 years of age and he had experienced sexual inter-course within last 24 hours of the examination. PW 2. is Kumari Babri. She has stated the story narrated above about how she was taken by the accused inside the jungle and how she was subjected to rape. PW 3 is Kumari Khama aged about 10 years. She corroborates Kumari Babri to the extent that Babri was taken by accused Gordhania with him on the pretext of giving a chit for grazing cattle and the other girls were left aside. She further stated that after sometime, she went to see where Babri was, and on going towards the Hillock, she was saw that Kumari Babri was lying underneath Gordhania with her Chhaddi being off. On seeing this, she came back and kept sitting with the other girls. She further stated that after sometime, Babri came there and told the girls that Gordhania had forcible intercourse with her Kumari Khama further stated that when Babri came back, she was bleeding from her private parts. Thereupon, they all came to Babris house and informed the mother of Babri of this incident. PW 4 Smt. Champa is the mother of prosecutrix Kr. Babri. She also corroborates the story given by Babri and Khama to the effect that when the girls came from the jungle, she was not at home, but she reached there after sometime and found, Babri lying on a cot. The other girls Kumari Mofuri, Kumari Badami and Kumari Khama were also present there. Then Babri narrated to her what happened with her in the jungle. The other girls Kumari Mofuri, Kumari Badami and Kumari Khama were also present there. Then Babri narrated to her what happened with her in the jungle. She also states that Babris underwear was smeared with blood and her private parts were bleeding. She also found some cratches on her body. She further states that her husband was not at home at that time. He returned in the evening when she narrated this incident to him and thereupon, her husbands brother Chhoga Ram also arrived at there. He was also informed of this incident and he went to the police Station in the next morning and reported the matter. 3. PW 5 Chhogaram corroborates the story given by Smt. Champa to the effect that when he reached Kheta Rams house, she was informed about this incident. In the night they thought whether the matter should be reported to the police or not since the honour and prestige of the family was concerned and then they decided to report the matter to the police in the morning. He, therefore, went to the police station and reported the matter, PW 7 Kheta Ram is the father of Kumari Babri and he also corroborates the story given by Smt. Champa and Chhoga Ram. He also states that on returning to the house when he was informed of this incident by his wife, he saw Babri and found that she was bleeding from her private parts. Thereupon, he called Chhoga Ram and later a report was lodged with the police on the next date. PW 8 Jagiya corroborates the story to the extent that he had seen the accused taking the girls with him for issuing the chits for grazing and on seeing them thus going he accosted Gordhania and told the girls not to go with him, but Gorohania told him that he will be issuing chits. 4. PW 6 Moolsingh is Motbir of the recoveries of the pieces of cloth left on the spot at the time of site inspection etc. PW 9 Punamchand has stated about the arrest of the accused and PW 10 Sona Ram is the Investigating Officer, who has deposed about the investigation carried by him. 5. The accused denied the prosecution story but did not produce any evidence in defence. PW 9 Punamchand has stated about the arrest of the accused and PW 10 Sona Ram is the Investigating Officer, who has deposed about the investigation carried by him. 5. The accused denied the prosecution story but did not produce any evidence in defence. After hearing the learned Amicus Curiae for the accused and the learned Public Prosecutor, the learned Sessions Judge found him guilty and sentenced him as aforesaid. 6. I have heard learned Amicus Curiae and the learned Public Prosecutor and have gone through the record. 7. Form what has been stated above, it does appear that Kumari Babri had been raped, as has been found by the learned Sessions Judge as her statement stands corroborated by the medical evidence as also the circumstantial evidence given by Kumari Khama PW 3 the mother of Kumari Babri Smt. Champa (PW 4) her father PW 7 and her uncle PW 5. The learned Amicus Curiae has, however, challenged the findings of the learned Sessions Judge and has urged that the guilt has not been brought home against the accused beyond reasonable doubt. I shall consider his contentions one by one. The first contention raised by the learned Amicus Curiae is that in this case the FIR had been lodged with great delay, which should give rise to an inference against the prosecution inasmuch as although the incident had taken place in the noon on September 11, 1982, the FIR was lodged at the police Station at 11.00 A.M. on sept. 12, 1982 while the distance of the police station from the place of incident is only about 8 kms. He has further pointed out that even after the FIR Ex. P 2 had been lodged, a copy thereof was sent to the Magistrate concerned also after almost 24 hours whereas the court is situated in the same town where the police Station Siwana is situated. So far as the first contention goes, the delay in filing the report, in my opinion, stands satisfactorily explained inasmuch as it appears from the evidence of Smt. Champa and Shri Kheta Ram that when Kumari Babri returned home after the incident, Khetaram was not there and he returned only in the evening when he was informed of this incident. So far as the first contention goes, the delay in filing the report, in my opinion, stands satisfactorily explained inasmuch as it appears from the evidence of Smt. Champa and Shri Kheta Ram that when Kumari Babri returned home after the incident, Khetaram was not there and he returned only in the evening when he was informed of this incident. He further states that since the honour of the family was in question, they thought over the matter whether the report should be made to the police or not and it was only thereafter that they came to the conclusion that the matter must be reported. The explanation cannot be said to be unsatisfactory. The girl having acquired the blemish of rape would find it difficult to get married and therefore, the anxiety on the part of the parents whether to report the matter or not, cannot be unnatural. On the next morning the report was lodged at the Police Station, which was about 8 kms. away from the place of occurrence, and it cannot be said to be delayed report. 8. As regards the sending of the report to the Magistrate is concerned, it does appear that it was received by the Magistrate on the next day, but it appears that it was despatched from the police Station on the same day. The Investigating Officer has not been cross examined in this respect and, therefore, the delay in the report reaching the court cannot be of much avail to the accused. Further, there does not appear to be any previous enmity between the accused and the family of the prosecutrix so that the delay in the report being sent to the Magistrate can give rise to an inference that the original report may have been tampered with. 9. It was, then, contended by the learned Amicus Curiae that there are contradictions in the statements of witnesses, but no material contradictions have been pointed out. I have carefully gone through the evidence of all the witnesses and I find that they have narrated the story in a straight forward manner, which inspires confidence and nothing has been brought out from the cross examination of any of the witnesses to discredit him. 10. I have carefully gone through the evidence of all the witnesses and I find that they have narrated the story in a straight forward manner, which inspires confidence and nothing has been brought out from the cross examination of any of the witnesses to discredit him. 10. The contention of the learned Amicus Curiae further is that the conduct of PW 3 Kumari Khama, who tries to corroborated Kumari Babri is also unnatural inasmuch as although she says that when she had gone to see Kumari Babri after Gordhnia had taken her away, she found that kumari Babri was lying on the turban of Gordhnia and Gordhnia was on her top, still she did not either raise hue or cry or accosted Gordhnia. In this connection, it may be stated that Kumari Khama is a little girl aged about 10 and she may not have realised the full implications of the situation. Therefore, she may not have raised any hue or cry or accosted Gordhania, but on that account, her evidence cannot be discarded. She further, states that later when Kumari Babri came towards them, she was bleeding from her private parts. This clearly corroborates the evidence of Kumari Babri. I have no reason to think that Kumari Khama is a tutored witness. 11. Learned Amicus Curiae also urged that the whole story that Gordhania took away Kumari Babri on the pretext of giving her chit for grazing cattle is a cock and bull story, which cannot be relied upon inasmuch as Gordhania was no authority for issuing any such chits. It may be stated that Gordhnia was dealing with only little girls, who may not be in know of the facts whether Gordhania had any authority to issue chits or not Gordhania is a grown up person and he could have easily faked some authority before these little girls. It may also be added that PW 8 Jagiya also corroborates the story of the girls regarding the issue of chits and, he further states that he had told the girls not to follow Gordhania, because he know that he could not issue any chits. It, however, appears that the girls did not realise the danger and in order to be able to graze their cattle easily, they went alongwith Gordhania. 12. It, however, appears that the girls did not realise the danger and in order to be able to graze their cattle easily, they went alongwith Gordhania. 12. It was also urged by the learned Amicus Curiae that the fact that if in reality Kumari Babri had received the injuries, which are alleged to have been found on her person by Dr. Harish Bafna, she could not have gone running to the house after such an incident, but I am unable to accept this contention because in the first place, the Doctor does not say that it was not possible for the girl after receiving the injuries stated by him to have walked or run to her house from the place of the incident and in the second place, it depends on the power of resistence of the person concerned. It may also be possible that the other girls, whoever, accompanying her, may have helped her to reach her house. 13. It was further urged by the learned Amicus Curiae that so far as the age of Kumari Babri is concerned no ossification test was carried out and, therefore, it cannot be accepted for certain that she was below 16 years of age. It was also urged that no certificate of birth or any school certificate has also been produced in support of the age of Kumari Babri. In this connection he placed reliance upon Banspati Mongol v. State of M P. 1963 (2) Cri. L.J. 354 (M.P.) , but that case is not at all applicable to the facts & circumstances of the case on hand. In the present case as a matter of fact, the age of the girl does not appear to have been challenged by the accused at any stage. Neither the Doctor was cross-examined in this respect nor the girl herself nor her mother. In the case relied upon by the learned Amicus Curiae, the position was entirely different. In that case, although the girl gave her age to be 9 years her mother stated that the girl was married about 10 years age when she was 5-6 years old. That brought her age to be between 15 to 16 years. The doctor further found that her hymen was torn in peaces long back and she was accustomed to sexual life. That brought her age to be between 15 to 16 years. The doctor further found that her hymen was torn in peaces long back and she was accustomed to sexual life. In these circumstances, the age of the girl became very important and crucial and therefore, the want of X-ray examination or absence of any birth certificate etc. assumed importance. 14. As already stated above, Kumari Babri gives clear description how she was subjected to rape by the accused. Her statement is corroborated by Kumari Khama, who says that immediately when she came from the company of Gordhania, she was bleeding from her private parts. This story is further corroborated by her mother Champa, father Kheta Ram and her uncle Chhoga Ram, her stated that who have there were injuries on her private parts when she complained to them at the house about the rape committed by the accused Gordhania and all this is fully corroborated by the evidence of Dr. Harish Bafna, who found the following injuries on her body, when he examined her at 12.30 Noon on Sept. 12, 1982:- 1. One faint bruise 1" long on (LH) chest wall; 2. scratches 3" long on right side of chest wall; extending upto upper part of abdomen. He further found the following injuries on her genitals:- 1. a long 3/4" tear in the parineal area extending upto lower part of vagina which bleeds on slight touch; 2. Hymen was found ruptured and tags bleed profusedly on slightest touch. He has further observed that the examination of the swabs take from the vagine and external OS of cervi shows spermatozoa and on the basis of these injuries, he came to the conclusion that Kumari Babri had experienced sexual intercourse within the past 24 hours of her examination. 15. The cross-examination of Kumari Babri, her mother and her father, does not bring out any grounds to show that there was any reason for them to falsely implicate the accused, as has been stated by the accused. 16. In these circumstances the conclusion arrived at by the learned Sessions Judge appears to be fully justified and the conviction of the appellant under Section 376, IPC does not call for any interference. 17. 16. In these circumstances the conclusion arrived at by the learned Sessions Judge appears to be fully justified and the conviction of the appellant under Section 376, IPC does not call for any interference. 17. On the question of sentence, I am of the opinion that the accused being 25 years of age, having committed rape on a helpless girl of about 10 years, the sentence awarded to him cannot be said to be severe or harsh. 18. In these circumstances, the appeal fails and is, hereby, dismissed. 19. I am thankful to Mr. D.C. Sharma, learned Amicus, Curiae, who has taken pains to prepare the case at a short notice and has argued it at his best.Appeal dismissed. *******