The appellant stands convicted under section 376, P. P. C. and sentenced to suffer rigorous imprisonment for 5 years and fine of Rs. 1,000 or in default to undergo rigorous imprisonment for 6 months for having committed rape on Mst. Pari, aged 8 years. He was tried and convicted by the First Class Magistrate, Mehar, empowered under section 30, Cr. P. C. vide judgment dated 5th December 1970,
2. According to the prosecution case Mst. Pari went out of the house for playing at Tipahri time on 18th December 1969, and shortly after, her cries were heard coming from the house of the appellant, upon which Kouro, Saifal, his son-in-law and Ibrahim, his son, went running in that direction and when they reached near the door of the appellant's house, they saw Mst. Pari coming-out weeping and wearing a blood-stained shaIwar. They then enquired as to what had happened to her, upon which she stated that she was raped by the appellant. She was then brought back and on the same day at 16-30 hours Kouro, her father, lodged the first information report at Police Station Thariri, Muhabat.
3. The appellant also filed a counter-report at the sume police station at 17-45 hours the same day.
He was arrested and his blood-stained clothes were secured from his person. The clothes of Mst.
Pari were also secured and these articles were sent for chemical analysis and, according to the report of the chemical analyser, they had blood on them. Mst. Pari was also medically examined and, according to the opinion of Dr. Ghulam Qadir, her hymen was torn and "violence seemed to have been committed on the private parts of the girl". The appellant was also examined and on his person one contused wound on his head and a contusion on the right arm were noticed and, according to Dr. Muhammad Ishaq, the wounds were simple in nature and caused by a blunt weapon.
4. The appellant dented the prosecution case and pleaded enmity with Kouro because of suspicion of his father's illicit intimacy with Mst. Khani, wife of the brother of Saifal ; and it was on account of that grouse that he was beaten that day by Saifal, Ibrahim and Kouro.
5. At the trial the prosecution examined Mst. Pari, 'Kouro and Saifal in support of its case. Mst. Pari, though a child of 8 years yet has with clarity disclosed what had happened to her. There is no reason why she would falsely implicate the appellant. It is equally unbelievable as suggested by the defence that her mother would puncture her hymen by inserting a finger in her vagina merely to bolster a false case against the appellant over the suspicion of illicit intimacy of his father with Mst. Khani.
6. The learned counsel for the appellant urged that her statement should not be accepted firstly because the appellant would not commit this crime in the presence of Mst. Mukhi and secondly, according to her, the appellant had discharged yet no semen was detected anywhere on her body to corroborate her version. Mst. Mukhi is younger to the victim and her presence could not have had any effect to desist the appellant from com mitting the crime. Simply because no semen was detected it does not follow that the girl was not subjected to rape, for there is definite medical opinion that there was partial penetration which resulted in the rupture of hymen. Her version is supported by the strong cirumstantial evidence that she was seen emerging from the house of the appellant weeping and with blood on her clothes.
This evidence is furnished by Kouro and Saifal. According to the mashir, the cot in the room of the first floor was found with red spot like blood and a similar spot was also detected on the ground under the cot. True, that there is no report of the Chemical Analyst regarding its origin, yet when considered in the context of the evidence of the girl it does become a supporting feature, for it was found in the room where she was subjected to sexual intercourse. There is also no doubt that there was privacy in the room and nothing has been said to show that besides the girl and Mst. Mukhi any other inmate of the house was in the room. It was only when the girl was seen emerging from the house that the father of the appellant was observed at the door of the house which is neither here nor there.
7. The presence of the injuries on the person of the appel lant is unconnected with the crime of rape on the view that I have taken. Kouro has stated that while turning his back the appellant dashed against the door and suffered this injury, while Saifal stated that his father pushed him back and in that way he suffered that^ injury on impact with the door. The defence evidence furnishe'd by Muhammad Sadiq and Muhammad Yousuf is also on the footing that the appellant was beaten.
Whether the injuries were accidentally suffered or were caused as a result of beating will not affect the prosecution case so far as the commission of rape is concerned.
8. The learned counsel for the appellant urged that Kouro, according to the investigating officer, was reputed to be of bad character and that his family did not enjoy good reputation because Mst.
Khani's daughter was killed while she was committ ing the sexual act with Tulsidas who was also murdered on that account. What the investigating officer has said is his ownl opinion, which can have no effect on the merit of the case.| Similarly, Mst. Dadhi and her daughter are related to the com plainant through his son-in-law and it is not believable that for either of them he would take revenge from the appellant against whom there was no suspicion of intimacy, and expose his daughter to shame.
9. For the reasons given above the prosecution has established its case beyond doubt and I would uphold the conviction.
10. There now remains the suo niotu reference. The act of the appellant was brutish and committed on a helpless girl. It is true that the sentence awarded is not wholly in proportion to the gravity of the olTence yet the sentence of imprisonment is not inadequate and accordingly there is no reason why it should be enhanced. While discharging the notice I would maintain the sentence as well. The appeal stands dismissed. .