M. HIDAYATULLAH, C.J.
1. The two appellants, Janardan Tiwary and Bishwanath Singh have been convicted under Section 376, Indian Penal Code and each of them has been sentenced to six years1 rigorous imprisonment and Rs 500 fine, in default to undergo further rigorous imprisonment for one year each. They were originally tried with two others (Chandrama Singh and Rameshwar Singh) who were also convicted by the Court of Sessions but were acquitted in the High Court.
2. The facts of the case are simple. The prosecutrix is a young girl aged between 14 and 16 years. She was residing with her mother in Village Babura, which is six miles from Barbara Police Station. The occurrence is said to have taken place on January 8, 1962, between the hours 6 and 7 in the evening. That evening, Ram Pyari in the company of her nephew Bir Kumar Singh, PW 2, a boy aged 12 years went to a temple for the purpose of lighting agarbatties and performing pooja. They were returning home after having lighted the deyas and the agarbatties and were passing along the village foot-path when the four accused that is to say the two appellants and other two who have since been acquitted suddenly appeared on the scene and caught hold of Ram Pyari. One of them (Rameshwar Singh) thrust an angochhi into her mouth. She was bodily lifted and carried to a field called Chanka Bagicha. She was first thrown down under a mango tree but was later picked up again and taken to a place which was more smooth and there while the others held the girl down, each of the accused in turn raped her. Her nephew Bir Kumar was shown a dagger, and fled to his own house and informed his grand mother that Ram Pyari had been caught by four persons whom he named except one whom he described with reference to his village. The mother immediately went towards the Bagicha taking a lantern with her. She met Ram Pyari on the way and found that her clothes were bloodstained and there were stains of semen upon them. Ram Pyari narrated the incident to her. They wanted to get the help of the Mukhia but he was not in his house. So they went to a Sub-Inspector (Krishna Singh PW 11) who was in the village on leave, Ram Pyari narrated her story to him. He also saw that the clothes of the girl were torn and wet and that she was bleeding. He advised them to make a report to the Mukhia but the Mukhia was not available. Hence the report was made on the next day, at about 5.00 p.m. The girl was examined on January 10, 1962, by a Lady Doctor (PW 3) Pushpa Mehra. The Lady Doctor found evidence of rape upon the person of the girl and from her physical appearance and other conditions she was of opinion that the girl was aged between 14 and 16. After the necessary investigation, the four accused in the case were prosecuted with the result already stated.
3. In this appeal, no question of law has been raised. Mr O.P. Verma, who argued the case, attempted to take us through the evidence in the case but we declined to hear him on the conclusion of facts reached by the High Court. We have read the evidence for ourselves and we feel satisfied that the statement of the girl is sufficiently corroborated by the evidence firstly of her nephew, Bir Kumar and again by her report to her mother immediately after the incident as part of the res gestae. There is again the fact that at 9.00 p.m. that is to say within 2 hours of the occurrence she narrated the incident also to an independent witness, namely, Sub-Inspector Krishna Singh (PW 11). He was not the Sub-Inspector of the place but was in the village on leave.
4. Mr O.P. Verma, argued that the learned Judge acquitted the other two accused in the case on the self-same evidence and, therefore, the doubt created in the case must lead to the acquittal of the remaining two accused, namely, the appellants. His contention was that if the statement of the girl as well as of Bir Kumar in respect of two accused could not be accepted, then the same statement could not also be accepted in respect of the remaining two accused in the case. The learned Judge in the High Court paid too much attention to evidence of small incidents which denoted some kind of hostility between witnesses and the acquitted accused. These incidents are common enough in village life and too much weight cannot be attached to them. We think that the learned Judge was probably wrong in putting too much emphasis on the suggestion of enmity in the cross-examination of the witnesses (if enmity it can be called at all) and the acquittal of the other two persons was perhaps not justified. However, we leave the matter there.
5. In this case the first thing to see is whether rape had been committed or not. There is no doubt that the girl was criminally assaulted and suffered severe injuries as a result. She was examined 40 hours later and the injuries were found on her person. Mr O.P. Verma argued that the lady doctor ought to have smear from the vagina to see if spermatozoa could be found. There was hardly any need. The witnesses found the clothes stained with semen and she had suffered injuries. We are satisfied that this girl was raped and we have only to find out who the culprits were. In this connection, the law is that the evidence of the prosecutrix must be corroborated in some measure to connect the accused. Enough corroboration is available in this case from the evidence of Bir Kumar who gave the information to his grandmother immediately after the incident and also deposed on oath in Court. Bir Kumar Singh is a young boy aged 12 years and therefore, we have to be cautious about accepting his testimony. We have read his evidence. Bir Kumar Singh was closely questioned to find out whether he understood nature of evidence and whether he was capable of giving answers to the questions put to him. The Sessions Judge was satisfied that Bir Kumar was a competent witness and his statement struck us as being true.
6. It was argued that the girl had gone away in the company of one Jamuna Sonar to Poona for 15 to 16 days but there is no evidence to prove it and the High Court and the Sessions Judge have rightly rejected this suggestion. It was also said that this is a low family. The mother of the girl had kept a dancer in their house and he lived there with his mistress. The girl admitted that one dancer did live with them one year ago but was not then living with them. These suggestions have no bearing on the truth or falseness of the girl's story. They were made to prejudice the court against the girl's character. These false accusations do not appeal to us. On the whole we accept the evidence in case and do not think that there is any merit in this appeal at all and the other two accused must consider themselves fortunate that they were acquitted. The appeal fails and will be dismissed.