FAROOQ HASSAN, J. - (1.) THIS appeal is directed against judgment dated 15. 9. 89 passed by the Additional Sessions Judge, Neem Ka Thana (District Sikar) convicting and sentencing the appellant under Sec. 376, IPC, to undergo eight year's R. I. and to pay a fine of Rs. 4000/- (in default, further 2 years R. I.) Brief facts:
(2.) A written report (Ex. P. 5) was lodged at police station Patna on 6. 2. 88 by Jal singh alleging therein that his two daughters, namely, Ummed aged 13 years and Santosh aged 9 years, had gone to the forest to graze his male and female calves; Ummed being dumb, upon her, Malaram (appellant) committed rape at 5 p. m. and when her sister, Santosh tried to save Ummed, she was slapped to go away; that, thereupon, Santosh started to her house where she was found weeping and she narrated tale of woe about rape upon her sister, Ummed and thereafter Shishupal Singh arrived at the house alongwith Ummed and stated that Malaram has committed rape upon Ummed which he had seen and when he rescued, Malaram went away; her clothes were stained with blood. It had been alleged therein that upon narration of the tale of woe about rape at his house, he, Amar Singh, Bhopal Singh, Jaswant Singh went in search of Malaram to the colony of Bheels and made enquiries but they were beaten by Mahavir, Moolram Meena thereby they sustained injuries. Upon the said report, criminal case was registered at the police station and the investigation commenced. The challan was presented in the Court of Munsif and Judicial Magistrate, Neem Ka Thana against the appellant for the offence punishable under section 376, IPC. The Magistrate committed the case for trial to the Court of Sessions. The charge was framed and read over to the appellant who pleaded not guilty claiming trial. The prosecution examined 17 witnesses. The appellant was examined under Section 313, Cr. P. C. He examined Khet Singh as D. W. 1. The learned trial Court after hearing the parties, and discussion of the evidence on record, found the appellant guilty of the offence under Section 376, IPC and sentenced him as indicated above. Hence this appeal. Learned counsel for the appellant urged that the trial Court failed to take into consideration the fact that the medical evidence does not support the prosecution story unfolded by the prosecutrix inasmuch as her statement suffers from inconsistencies which have been brushed aside by the trial court whereas it goads to raise presumption of innocence in favour of the appellant. The evidence of the prosecutrix does not inspire confidence because her evidence is full of inconsistencies and unworthy of credence as being a dumb witness she could not explain the circumstances in which the alleged rape has been committed by the appellant and her evidence which has been adduced by way of indicating signs which too were like tutured by her parents, cannot be believed. Mr. Balwada argued that both the child witnesses were tutored by their parents. Besides, only other witness who was produced to support the prosecution version from the very inception, was Shishupal (PW 7) but he failed to fortify the rape story put by the child witnesses and he resiled from his earliest version. Therefore, he was declared hostile. Mr. Balwada stressed that it was Shishupal (PW 7) who had fetched the prosecutrix and her sister Santosh, from the place of incident and handed over them to their parents at the house, narrating the story of rape. But he came up with a different story before the trial court which bore hostality to the appellant. Therefore, it is argued, the prosecution case has not been proved beyond reasonable doubt against the appellant. Learned Public Prosecutor contrarily contended that in view of the statements of the prosecutrix and her sister, Santosh, the trial Court was justified in convicting the appellant on the consistent & reliable evidence.
(3.) I have considered the points raised by the defence counsel and Pudlic Prosecutor and have perused the entire record. In the instant case, the statements of Ummed (Pw 10) (prosecutrix), her sister, Santosh (Pw l ). & Shishupal (Pw7) who were held as principal witnesses to the incident of alleged rape, and that of Dr. R. R. John (Pwl2), are acted upon as a basis by the trial Court for a finding of guilt against the appellant which calls for a more intrinsical examin-ation than has been done by the trial Court. Having browsed through the judgment of the trial Court, I may state that the Court has only considered the circumstances which are against the appellant. It cannot but be said that the Court did not advert to the cardinal principles that should be followed in finding the accused guilty on the evidence in the cases of carnal assault. Undisputedly, the prosecutrix, (Ummed) was aged 12/13 years, and dumb being unable to speak at the time of incident of the alleged rape. Before the chief- examination of Ummed began, the trial Court put a note while recording her evidence, that she albeit could not clearly speak but to some extent, after understanding, she, by not clearly speaking, answered by moving her head. And, it declared the prosecutrix as competent witness. ;