A.H. Khan, J.
1. The Additional Sessions Judge, Bhilsa, convicted the accused under Section 376 I. P. C. and sentenced him to 2 years rigorous imprisonment and a fine of Rs. 500/-. In default of payment of fine, the accused was to further undergo rigorous imprisonment for six months. Against his conviction and sentence, he has filed this appeal.
2. The prosecution case is that the accused along with three minor girls (Evti, Bhagwati and Chironji) went for grazing cattle near the river Betwa. At about noon, the accused Lalaram asked the two younger girls (Bhagwati and Chironji) to go ahead and after the coast was clear, the accused took the girl Mst. Evti, aged about 12 years to an adjoining depression near the river, and, there ravished her. The act caused rupture of hymen and the pain was so intensely severe that Mst. Evti could not go back home. She remained lying in the field and it is said that in the evening, the accused Lalaram went to the house of her father and informed him that his daughter had had fever and was therefore lying in the field. The father went to the field, lifted the girl and brought her home where she disclosed to her mother her real condition. Soon after this a report was made to the Police Station in which the accused was named as the offender.
3. The accused has been convicted mainly on the evidence of the girl, her father and medical testimony.
4. The learned counsel for the appellant has raised an objection that the evidence of Mst. Evti Bai (prosecutrix) is inadmissible because her statement is neither on oath nor on solemn affirmation but there is no substance in the argument for the following reasons.
5. There is no doubt that Mst. Evti Bai is a girl of about 12 years of age. According to Section 51 of the Oaths Act, a witness must be examined on oath or affirmation but Section 13 of the Act provides that an omission to take an oath or to make an affirmation shall not invalidate any proceedings or render any evidence inadmissible. The test laid down by Section 118 of the Evidence Act, regarding the competency of the witness is the witness's capacity to understand and rationally answer questions put to the witness. There was some controversy as to whether the omission to give oath should be accidental or intentional. In Queen-Empress v. Maru, ILR 10 All 207 Mahmood J. held that Section 13 of the Oaths Act is only applicable when the omission is accidental. On the other hand, the Calcutta High Court in Queen v. Sewa Bhogta, 14 Beng LR FB 294 took a contrary view. This conflict of judicial opinion was, however, resolved by a decision of Privy Council, Mahomed Sugal Esa v. The King, (AIR 1946 PC 3) in which their Lordships of the Privy Council observed that Section 13 Oaths Act is quite unqualified in its terms and there is nothing in it to suggest that it is to apply where the omission to administer the Oath to a witness occurs per incuriam. In the instant case, the learned trial Court has received the testimony of the girl after satisfying himself that she possessed sufficient understanding. Thus her unsworn testimony is admissible.
6. After going through the evidence in the case, I see no sufficient ground for interfering with the order of conviction and sentence of the trial Court and the appeal is therefore dismissed summarily.