P.D. Kudal, J. - (1.) This is an appeal from jail by the accused-appellant. Jagdish who has been convicted and sentenced by the learned Additional Sessions Judge, Jhalawar, under Sections 376, IPC to five years rigorous imprisonment and a fine of Rs. 500/- in default of payment of fine to a further simple imprisonment for six months. He was also convicted under Section 451, IPC and sentenced to rigorous imprisonment for one year. Both the sentences were ordered to run concurrently.
(2.) The prosecution story, in brief is that on 11-3-1975, at about 2 p. m. an FIR was lodged by P.W. 2 Mst. Bajrangi, the mother of the prosecutrix, at the Police Station Bhawanimandi. Mst. Bajrangi, P.W. 2 and her husband P.W./1 Ram Dayal had gone to the market for purchasing the grain. The prosecutrix Mst. Dropadi, aged 9 years, was at the house with her 11/2 years old sister when Mst. Bajarangi returned home at about 11.30 a. m. she found Mst. Dropadi weeping while standing in the vaerandah. On being asked the prosecutrix told that the accused Jagdish, visited the house in her absence. He took her inside the house, threw her on the floor, unbuttoned his pants, put his penis over her private parts and pushed the penis into her vagina. It caused pain inside her private parts and blood started coming out. After committing sexual intercourse, the accused removed himself and washed the blood-stained floor with water. Mst. Bajrangi immediately went to the market along with Mst. Dropadi and apprised her husband about what had happened. Thereafter, FIR was lodged. The police registered a case under Section 376 and 448, IPC against the accused-appellant.
(3.) On behalf of the accused-appellant, it was contended that from the statement of Mst. Dropadi herself no offence under Section 376, IPC is made out. At best, a case under section 376/511, IPC is made out, but in that case the quantum, of sentence shall have to be reduced. It was further contended that on general examination blood was found on the inner aspect of the thigh, external genetalia and perineum. There was greyish white stains (doubtful for semen) on libia majora. There was lacerated wound 1/2" long having skin and fascia depth and gapping to 1/4" on strehching situated on the perineum. Upper end of this wound continuous into the vagina on the posterior surface, Vaginal wall consists of lacerated wound 3/4" X 1/4" X 1/4". This wound was bleeding edges and margins were red and swollen. Hymen was lacerated into multiple small tags and were red, swollen and bleeding on-touch. There was a bruise 1/4"x 1/4"on the left upper side of the urethra red in colour. There was swelling on whole of the external genitalia accompanied by pain and tenderness. According to the Medical Officer the duration of the above injuries was less than 24 hours and the process of healing and pus formation had not started. On X-ray examination the age of Mst. Dropadi was found to be below 9 years.;