( 1 ) THIS appeal is directed against the judgment of the learned Additional Sessions Judge dated 13th December, 1990, whereby he had convicted the appellant under Section 376/366 and sentenced him to seven years rigorous imprisonment and directed him to pay a fine of Rs. 500/- and in default of payment of fine to undergo further imprisonment of two months under section 376 Indian Penal Code. The appellant was further convicted. and sentenced-under section 366 to. rigorous imprisonment of four years and a fine of Rs. 500/- or in default of payment of fine further rigorous imprisonment for two months.

( 2 ) BRIEF facts necessary to dispose of this appeal are recapitulated as under:

( 3 ) MUFRAJA Public Witness 2, the mother of the prosecutrix lodged a First Information Report in which it is stated that on 22nd July, 1989 when she returned home after cleaning utensiles in nearby bungalows, her daughter Prosecutrix told her that some neighbours have brought VCR and TV on rent and she would also like to see a picture on VCR. First the mother declined the request of her daughter thereafter, the appellant who was staying in a nearby jhuggi came to the jhuggi of the prosecutrix around 9:30 p. m. and asked prosecutrix to accompany him to see a movie on the VCR, thereafter prosecutrix had gone to watch a movie on the VCR alongwith the appellant.

( 4 ) THE appellant was a rickshaw puller and prosecutrix s two brothers are also rickshaw pullers. It is mentioned in the F. I. R. that around 1 1:00 p. m. when her son Abdul Salam Public Witness 5 came and enquired about the prosecutrix, then Public Witness 2 Mufraja informed that she had gone to see a movie on VCR in the neighbours jhuggi. Public Witness 5 Abdul Salam told her that he has seen the prosecutrix with the appellant and they were going in a three wheeler scooter. At that time Mufraja got an apprehension that the appellant had not taken away. Thereafter, a search was made but the prosecutrix could not be traced and Public Witness 2 lodged the report to the police.

( 5 ) MUFRAJA, Public Witness 2 had gone to Banaras in search of her daughter with the police but the accused/appellant could not be traced so they returned to Delhi. In her statement Public Witness 2 had further stated that on 31st July, 1989, they had gone to Mugal Sarai and there they learnt that the prosecutrix was living with the appellant as husband and wife and only yesterday they had gone to Delhi. Thereafter they returned to Delhi and at New Delhi Railway Station they saw the prosecutrix with the appellant in the waiting room.

( 6 ) THE police recovered the prosecutrix The clothes of the prosecutrix, i. e. , one petticoat was taken into possession vide memo exhibit Public Witnessa 2/ D. The same was sealed in a packet. Underwear of the accused/ appellant was seized alongwith a Baniyan and Lungi vide exhibit Public Witness. 2/e.

( 7 ) THE age of prosecutrix was about 12 years which she stated in her - statement recorded on 21st February, 1990. In the First Information Report she had mentioned that her age was 14 years.

( 8 ) ON 9th March, 1990 statement of Ruqsana Public Witness 4 was recorded. Some questions were asked to ascertain the ability of the witness, the learned Judge observed that from the answers given to some of the questions he was satisfied that the witness was giving rational answers.

( 9 ) THE prosecutrix, Public Witness 4 in her statement had stated that she lives with her mother and two brothers. The Father lives separately. She mentioned that her brothers are rickshaw pullers and her mother is a maid servant. She had mentioned that she knows the accused/ appellant present in Court. He was living in a jhuggi nearby. She stated that 6 or 7 months back she was watching a movie on the VCR in ajhuggi nearby. She watched the VCR until 1:00 a. m. , thereafter accused/ appellant look her to Mugal Sarai forcibly in a three wheeler scooter up to the Railway Station and then by train. Ther