P. P. GUPTA, J. This is a criminal appeal filed by accused-appellant Raghuraj under Section 374 Cr. P. C. against judgment and order, dated 23rd December, 1982 passed by Sri D. N. Khanna, Special Judge, Rai Bareli convicting and sentencing the appellant for five years R. I. under Section 366 and Seven Years R. I under Section 376 I. P. C. 2. Briefly stated, prosecution case is that on 15-11 -77 at about 5,00 P. M. . Km. Sunita, aged about 9 years, was raped by the accused Raghu Raj inside her house. H is not disputed that Raghu Raj and Km. Sunita are closely related. Km Sunita is the cousin sister of Raghu Raj. Ragnu Raj was living in a separate portion of the same house in which Km. Sunita alongwith her mother was living. 3. On the date of incident Km. Sunma was long in her house. Her mother had gone to the fields. Her father was living at Etawah in connection with his business. Thus, at the time of occurrence Km. Sunita was alone in the house. Accused Raghu Raj approached Km. Sunita and requested her to accompany her to the first floor of the house for helping him in lifting the bag of paddy. She went upstairs and heiped Raghu Raj who asked her to help him also in keeping the bag in the Kothari. When she reached Kothari and helped Raghu Raj, she was overpowered by Raghu Raj who committed rape on her, Her mother happened to return from the fields to her house at that time and on hearing the cries raised by Km. Sunita, went inside the house alongwith Hand Kishore and Awadh Kishore. When the accused saw them coming, he ran away from the house after scaling the wall. At the time he came out of the Kothari he was found typing his trousers. The girl was bleeding profusely. She was immediately taken to Primary Health Centre. Bachhrawan, District Rai Bareli where she was examined by Dr. S. A Rizvi at about 10. 30 P. M. D. W. 5 Dr. S. A Rizvi who examined her, found her to be a case of rape. The following injuries were found on person: INJURIEs Marks of external violence.- No marks of external violence on the elbow-joint, wrist joint, inter aspect of thigh, not sign of scratches, bruises, nails clear. S. A Rizvi at about 10. 30 P. M. D. W. 5 Dr. S. A Rizvi who examined her, found her to be a case of rape. The following injuries were found on person: INJURIEs Marks of external violence.- No marks of external violence on the elbow-joint, wrist joint, inter aspect of thigh, not sign of scratches, bruises, nails clear. It is very difficult to walk (by her) - Public hairs absent. Age of menarchae not reached. No mark of semen (dried) discharge of inner aspect of the. Fresh bleeding from and around vaginal orifice present. Lacerated wound in lebia majora as well as minara present bleeding from these sites. Hymen is ruptured and badly torn away. Edges are swellen and bleeding profusely. It bleeds uft touching. Post wall of vagina is extensively lacerated. 4. In the opinion of the Doctor Km. Sunita was a victim of rape. 5. After her medical examination and first aid, Km. Sunita was taken by her mother Smt. Ram Rati and witness Nand Kishore to her house at about 12. 00 in the night. Since bleeding continued and her condition became serious she was brought to the Dufferin Hospital, Lucknow at about 4. 00 AM. the next day. 6. P. W. 1 Uma Shanker who is real brother of Km. Sunita, was employed in Nagar Mahapalika, Lucknow. He came to know of this incident of 16-11-77. He remained busy throughout the day in the care and treatment of her sister. It was therefore on 17-11-77 at about 5. 00 P. M. that a written report of the incident was lodged by him at Bachhrawan Police Station. On the basis of this written report chick report was prepared by Head Constable Mustaq Ahmad. The case was investigated by S. I. Shiv Shanker Lal Shukla. After making a spot inspection and recording statements of the available witnesses he arrested the accused and interrogated him. 7. Km. Sunita was discharge from the Dufferin Hospital after 16 days. She was then taken to the Sadar Hospital, Rai Bareli for X- ray and other Medical examination to ascertain her age. She was X-rayed by Dr. K. N. Mehrotra who on the basis of X-ray and other Medical examination, assessed her age between 10-12 years, This report was received by the Investigating Officer on 7-12-1977. After completion of other formalities he sub mitted charge-sheet against the accused on 30-12-1977. 8. She was X-rayed by Dr. K. N. Mehrotra who on the basis of X-ray and other Medical examination, assessed her age between 10-12 years, This report was received by the Investigating Officer on 7-12-1977. After completion of other formalities he sub mitted charge-sheet against the accused on 30-12-1977. 8. The accused was charged under Section 366 and 376 I. P. C. He denied both the charges and claimed to be tried. 9. In support of its case prosecution examined seven witnesses, namely, P. W. 1 Uma Shanker Varma (brother of Km. Sunita); P. W. 2 Km. Sunita; P. W. 3 Nand Kishore; P. W. 4 Head Constable Mustaq Ahmad; P. W. 5 Dr. S. A Rizvi; P. W. 6 Dr. K. N. Mehrotra, Radiologist; and P. W. 7 S. I. Shiv Shanker Lal Shukla, Investigating Officer, After assessing the entire evidence on record the learned Judge found the appellant guilty of both the charges under Section 366/376 I. P. C. and convicted and sentenced him as above. 10. Feeling aggrieved from this judgment and order the accused has preferred this appeal. 11. Learned Counsel for the appellant Sri I. B. Singh and learned Addl. Govt. Advocate Sri Janardan Prasad were heard at length and record of the case was also perused. 12. The first argument advanced on behalf of the accused was that there wax inor dinate delay in lodging the F. I. R. which completely demolishes the prosecution case As has been stated above, the occurrence took place on 15-11-1977 at 5. 00 P. M. and tin F. I. R. was lodged on 17-11-1977 at 5. 55 P. M. Thus, there is a delay of two days in lodging the First Information Report. 13. On behalf of the prosecution, is was submitted that it was a case where a minor girl aged about Nine years was raped by her own cousin brother. Thus, the chastity and morality of a minor girl was involved, and in such cases the victims of such a crime ordinarily consult relatives and are hesitant to approach the police. 14. On behalf of the prosecution, is was submitted that it was a case where a minor girl aged about Nine years was raped by her own cousin brother. Thus, the chastity and morality of a minor girl was involved, and in such cases the victims of such a crime ordinarily consult relatives and are hesitant to approach the police. 14. In the case of State of Rajasthan v. Shri Narayan the Honble Supreme Court held: "true it is that the complaint was lodged two days later but as stated earlier Indian Society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman. A woman and her relatives have to struggle with several situations before deciding to approach the police, more so when the culprit happens to be rested. In such cases, therefore, the delay is understandable and hence merely on that account the prosecution version cannot be doubted. [para 6]" 15. In this case Km. Sunita a minor girl, aged about 9 years, was raped by his own cousin brother when there was none in the house. Victims father was in Etawah in connection with his business. Her brother Uma Shanker Varma was serving in Lucknow. Thus, Km. Sunita and her mother were alone in the house. At the time of occurrence, her mother had gone to the fields and she was alone in the house. The accused Raghu Raj was living in separate portion of the same house. Taking advantage of the loneliness of Km. Sunita he induced her to go up-stairs where rape was committed on her. Distance of police station is about 10 miles. The condition of the girl was serious. She was rushed to Primary Health Centre, Bachhrawan for first aid and medical examination. It has come in the statement of Dr. S. A. Rizvi P. W. 5 who has stated that the condition of the girl was serious. Her hymen was ruptured and there was heavy discharge of blood form the vagina. She was taken back to her house at about 12. 00 in the night. Her condition deteriorated again compelling her to be shifted to the Dufferin Hospital, Lucknow. S. A. Rizvi P. W. 5 who has stated that the condition of the girl was serious. Her hymen was ruptured and there was heavy discharge of blood form the vagina. She was taken back to her house at about 12. 00 in the night. Her condition deteriorated again compelling her to be shifted to the Dufferin Hospital, Lucknow. In these circumstances, it could not be expected either from the mother or from the witness to lodge a report at the police station. 16. The victims brother Uma Shanker Varma is an employee at Nagar Mahapalika, Lucknow. He came to know of this incident on 16-11-1977. He remained busy in the treatment and care of her sister Km. Sunita whose condition was not satisfactory. Thus, he too could not go to lodge the report at the police station. It was in these circumstances that the report was lodged with a delay of two days by him. It is, therefore, evident that the report could not be lodged promptly due to serious condition of Km. Sunita and also due to hesitation on the part of her mother who was alone in the house, as to whether or not this incident of rape which was committed by the cousin brother on her sister, should be brought to the notice of the Police. In these circumstances the delay in lodging the F. I. R. has satisfactorily been explained and no adverse inference against prosecution can be drawn from it. The next point raised on behalf of the accused was that the mother of the victim and close neighbour Awadh Kishore were not examined by the prosecution which casts doubt on the prosecution story. 17. In this case neither the mother nor the two witnesses Nand Kishore and Awadh Kishore had seen the occurrence with their own eyes. The mother while returning from the fields heard cries of her daughter Km. Sunita outside the house. At the same time, these two witnesses who were neighbours, were also passing. She called them and took them also inside the house. All of them saw the accused coming out of the KOTHARI tying his trousers who ran away after scalling the wall. Thus, all the witnesses stand at the same footing. All the witnesses of the prosecution need not to be called. She called them and took them also inside the house. All of them saw the accused coming out of the KOTHARI tying his trousers who ran away after scalling the wall. Thus, all the witnesses stand at the same footing. All the witnesses of the prosecution need not to be called. Of course, it is true that the witnesses whose evidence is essential to unfold the prosecution story, should be called. In this case, however, the mother and the other witness Awadh Kisbore were the witness of same facts as P. W. 3 Nand Kishore. It cannot be, therefore, said that their testimony was essential to unfold the prosecution story. Moreover, the mother Smt. Ram Rati might have hesitated to narrate the incident of rape on her minor girl and that too by her own cousin brother. P. W. 2 Nand Kishore who has been examined by prosecution lives at a distance of 30-35 feets from the house of the victim. Thus, he too is a close neighbor. In these circumstances, non-examination of Smt. Ram Rati and Awadh Kishore cant cast a doubt on the authenticity of the prosecution story. 18. By putting certain preliminary questions the trial Court has observed that Km. Sunita does not lack understanding. If she does not lack understanding, ordinarily her evidence must be accepted without requiring any further corroboration and conviction can be founded on that basis alone. Her evidence mist receive the same weight as attached to an injured witness. In this case however, there is evidence of Km. Sunita that rape was committed on her by accused Raghu Raj who is her real cousin brother. It cannot be believed that she would have falsely raped in her cousin brother. Moreover, she has been fully corroborated by witness P. W. 3 Nand Kishore who saw the accused coming out of the KOTHARI where rape was committed, tying his trousers and escaping after scalling the wall of the house. No inconsistency in their statements could be pointed out on behalf of the defence. Therefore, it cannot be said that the non-examination of the mother of the victim and another witness is fatal. 19. The defence version is that while returning form her field in the evening of the day of occurence Km. Sunita fell down from the cart on a peg (KHOONTA) which caused injuries in her vagina. Therefore, it cannot be said that the non-examination of the mother of the victim and another witness is fatal. 19. The defence version is that while returning form her field in the evening of the day of occurence Km. Sunita fell down from the cart on a peg (KHOONTA) which caused injuries in her vagina. This defence version has been rejected and rightly so, by learned Sessions Judge. Dr. S. A. Rizvi has also stated that such an injury could not be caused by falling on a peg. The injury report of Km. Sunita shows only injuries on and inside her vagina. There is no injury worth the name on any other part of her person. Had she fallen from the cart, there would certainly have some injury on face, chest and elbows. Absence of any such injury on her person negatives the story set-up by the defence. 20. It is important to note that in the course of arguments before learned Sessions Judge it was submitted that Km. Sunita was raped in field by some other person. However, not such suggestion was given to Km. Sunita. It is, therefore, clear from the stand taken by the defence that causing of injuries to Km. Sunita at the time and on the date of occurrence is not in dispute. The only question is whether this injury was caused by a rape committed on her by accused Raghu Raj or in the manner alleged by the defence. As has been said above, the fact that she was raped by accused Raghu Raj is conclusively proved by the statement of Km. Sunita fully corroborated by the statements of Nand Kishore. This medical report clearly negatives and demolishes the defence version. Hence, there can be that can be no hesitation in holding that Km. Sunita was raped by accused Raghu Raj. 21. It was lastly submitted on behalf of the accused that he was charged for having committed rape on Km. Sunita. However, the girl produced for medical examination was not Km. Sunita but was Km. Sangeeta. No such plea was ever raised either directly or indirectly at any stage during the trial. It is for the first time that such plea has been raised. The basis of it seems to be the two recorded statements of Smt. Ram Rati, the mother of Km. Sunita, before Doctor S. A. Rizvi. Sunita but was Km. Sangeeta. No such plea was ever raised either directly or indirectly at any stage during the trial. It is for the first time that such plea has been raised. The basis of it seems to be the two recorded statements of Smt. Ram Rati, the mother of Km. Sunita, before Doctor S. A. Rizvi. In one of her statements she had made a request to the Doctor for medical examination of her daughter and in other she had given no objection for her being examined by a male Doctor. These statements were reduced to writing by someone else as she is an illiterate lady and she had put only her thumb impression on both the letters. In these two documents the name of Km. Sangeeta instead of Km. Sunita is mentioned. From these documents learned Counsel for the accused wanted to impress upon the Court that the girl produced for medical examination was not Km. Sunita but was Km. Sangeeta. This plea raised before this Court cannot be accepted. The scribe of these letters was not examined. There may be some mistake in writing the name. Dr. S. A. Rizvi had specifically denied that he had not examined Km. Sunita whose statement was recorded in Court during trial. Moreover, there is nothing on record to prove that Smt. Ram Rati had any daughter of the name of Km. Sangeeta. The accused was also examined under Section 313 Cr. PC. He did not say that Km. Sunita who made her statement in Court, was not the same girl who was produced for medical examination. On the other hand, he stated that Km. Sunita whose statement was recorded during trial, had fallen down from the cart on a peg due to which she had received injuries inside her vagina. On these facts and circumstances, the plea raised for the first time before this Court that some other girl of the name of Km. Sangeeta was produced for medical examination, cannot be accepted. 22. The last point that was argued on behalf of the accused that no offence under Section 366 I. P. C. is made out. It has come in evidence that Km. Sunita through out remained in here own house. Only from the ground floor she was enticed by the accused come to the KOTHARI on the first floor of her own house. It has come in evidence that Km. Sunita through out remained in here own house. Only from the ground floor she was enticed by the accused come to the KOTHARI on the first floor of her own house. It is not the case of prosecu tion that she was removed from the portion of her house to that portion of house which was in the ownership and occupation of the accused. To sustain conviction under Section 366 I. P. C. the prosecution has to prove that the accused has some active part in the minor leaving the guardians house. Km. Sunita was never taken out of her own house. As such, it cannot be said that she was ever removed from lawful guardiaship of her mother guardian. Therefore, on the facts and circumstances, no offence under Section 366i. P. C. is made out. The accused is, therefore, entitled to acquittal under this Section. No other point was either pressed or argued in this appeal. 23. In view of the above, appeal is partly allowed. Conviction and sentence of the appellant Raghu Raj under Section 366 I. P. C. is set aside. However, his conviction and sentence under Sections 376 I. P. C. is maintained. 24. Appellant Raghu Raj is on bail. He shall surrender himself forthwith to serve out the sentence awarded by the trial Court and confirmed by this Court under Section 376 I. P. C. Appeal partly allowed. .