S. S. BYAS, J. - (1.) THIS is a jail appeal by accused Bagdiram against the judgment of the learned Sessions Judge, Pratabgarh dated February 25,1983 convicting the appellant under section 376, I P. C. and sentencing him to 5 years rigorous imprisonment with a fine of Rs. 500/-, in default of payment of fine to further undergo 3 months' like imprisonment.
(2.) IN the afternoon of 11. 2. 82, the prosecutrix Ramudi (P. W. 1) a girl of tender age of 11-12 years, went to her field situate in village Mayakhera to bring the grass. When she reached there, the accused who was hiding himself came out from the standing crop. He caught hold of her and threw her down. Thereafter, he lifted her skirt and committed rape on her. She started weeping but the accused did not leave her. Hearing her screams, P. W. 2 Mangu and P. W. 3 Jeeva, who were passing by that side, came there. Seeing them, the accused ran away. They brought the gril to her house. On the next day, P. W. 2 Mangu went to police station, Arnod and lodged report Ex. P/l of the occurrence. The police registered a case and proceeded with investigation. The medical examination of the prosecutrix was made on 12 2. 82 by P. W. 7 Dr. Anish Ahmed, the then the Medical Officer-in-charge, Government Hospital, Arnod. He was of the opinion that there had been sexual act out side the vagina and upto the portion below the hymen, but there was no penetration into the hymen. The accused was arrested on 12. 2. 82. The clothes viz. skirt of the prosecutrix and underwear of the accused were seized and sealed. On chemi-cal examination, human semen was detected on both of them. On the completion of investigation, the police submitted a challan against he accused in the court of the learned Judicial Magistrate, Pratabgarh, who in his turn committed the case for trial to the court of Sessions Judge, Pratabgarh. The learned trial Judge, framed a charge under section 376, IPC against the accused. He denied the guilt and claimed absolute innocence. During trial, the prosecution examined 11 witnesses and filed some documents. IN defence, the accused adduced no evidence. On the conclusion of trial, the learned Sessions Judge held the charge duly proved against the accused. He was consequently convicted and sentenced as mentioned above. Aggrieved against his conviction and sentence, the accused has taken this appeal. I have heard the learned Amicus Curiae and the Public Prosecutor. Learned Amicus Curiae made a scathing criticism of the judgment of the trial court and contended vehemently that the conviction of the accused was wholly unwarranted. In assailing, the conviction, he took various points, which I propose to deal with at seriatim. The first contention is that the prosecutrix P. W. 1 Ramudi was a child of tender age of 10-12 years. No preliminary examination was made by the trial court to ascertain her competency to testify and whether she understood the sanctity of oath. And yet, oath was administered to her and she was examined as a witness. It was argued with vehemence that the preliminary examination of a child witness is imperative and inadmissible. Admittedly, P. W. 1 Ramudi is a child. Her age has been mentioned from 10 to 12 years in her statement. The statement does not show that any VOIR DIRE was made to judge her competency to testify. But the absence of VOIR DIRE does not render IPSO FACTO the statement of a child witness inadmissible, provided it can not be gathered from the statement that he or she understood the questions and had given rational answers. Where there is no preliminary examination, it is the recorded statement of a child, which ordinarily furnishes sufficient material to judge the competency of that witness. If the recorded statement of a child witness shows that he or she has a rational understanding, it cannot be wiped off merely on account of the absence of VOIR DIRE. There is consensus of judicial opinion on this point including the view of this Court taken in State of Rajasthan v. Vijayram (1 ). In the instant case, the statement of P. W. 1 Mst. Ramudi shows that she had a rational understanding. The way, in which, she replied the questions both in examination-in-chief and cross-examination leaves the impression that she had rational understanding and was competent to testify. Her statement, therefore, cannot be wiped off from consideration. The first contention, thus, holds no ground.
(3.) IT was next contended that the accused was wrongly conivcted. There was no convincing and acceptable evidence to show that the girl was raped by the accused. IT was argued that the prosecutrix P. W. 1 Ramudi and P. W. 2 Mangu were closely related inter se. P. W. 3 Jeeva was a chance witness. No reliance can be placed on what they testified against the accused. I have gone through the evidence of these witnesses carefully. The prosecutrix P. W. 1 Mst. Ramudi deposed that in the afternoon of the day of occurrence, she went to her field to bring the grass. The accused, who had hidden himself in the standing crops came out He caught hold of her and took her in a side. There, he threw her down and raised her skirt. Thereafter, he committed rape on her. She started weeping. She was cross-examined, but nothing could be elicited from her, which may make her testimony unworthy of belief or credit. It has not been suggested that there was any bad blood between her and the accused. No reason has been ascribed before me as to why she would depose falsely against the accused. There is then ample corroboration of what she stated against the accused. P. W. 2 Mangu deposed that he and P. W. 3 Jeeva were coming together and happened to pass near the place of occurrence. They heard screams in the field and went to that side. He saw the accused committed sexual intercourse with Ramudi. Seeing them, he took to heels, He and Jeeva (P. W. 3) ran after him but could not catch him and he made good his escape They took the girl to the village and thereafter, he went to police station to lodge the report. P. W. 3 Jeeva also gave the same account of the incident. He stated that hearing the screams of Ramudi, he went towards her. He saw the accused running away. Ramudi (P. W. 1) told him that the accused had committed rape on her. She was then weeping. He and Mangu (P. W. 2), who was with him, took her to the village. There is nothing in the cross-examination of these witnesses to help the accused. No previous enmity and strained relations exist between them and the accused. The learned trial Judge accepted their testimony as true and no reasons are there to persuade me to take a different view. ;