MOOL CHAND GARG,J

1. This order shall dispose of the aforesaid appeal filed by the appellant under Section 374(2) Cr.P.C. against the judgment of conviction dated 30.03.2007 and order of sentence dated 10.04.2007 passed by the Additional Sessions Judge, New Delhi in Sessions Case No. 133/2004 arising out of FIR No. 472/2004 registered under Section 376 IPC at P.S. Najafgarh, whereby the Ld. ASJ held the appellant guilty for the offence under Section 376 IPC and sentenced him to undergo 7 years R.I. and also to pay a fine of Rs.2000/- and in default of payment of fine to further undergo S.I. for 2 months. Benefit of Section 428 of Cr.P.C. has also been extended to the appellant.

2. This case was registered on the basis of the statement made by the complainant Ram Kumari, mother of the prosecutrix. In her complaint Ex-PW5/A it has been stated by her that, “on 28.07.04 at about 8.00 PM her daughter X (correct name not given) had gone along with the children from the colony to watch a show. However, she did not return till 11.00 PM. She searched her daughter X at the residence of her sister-in-law residing nearby. She further stated that X had not come back to her. She along with her sister-in-law then searched for X here and there but could not find her. When she went to a nearby plot having a boundary wall she found „X? lying naked there. Her mouth was gazed with her salwar, she was lying in an unconscious condition and the blood was oozing out from her private parts. She brought X at her house and narrated the incident to her husband. Her husband then made a telephone call to the police on which the PCR reached there and removed „X? to RTRM hostpial.” On that basis FIR was registered at P.S. Najafgarh under Section 376 IPC against the appellant. On 29.08.04, the Police party along with the prosecutrix and her mother went towards Tyagi Farm House. They found many persons gathered there. Among the crowd, the prosecutrix identified accused Phool Singh to be the person who had committed rape on her person. Accused was apprehended and his personal search was also conducted.

3. During the course of investigation, the statement of prosecutrix X u/s 164 Cr.P.C. was also recorded on 31.08.04 by the MM, which is Ex.PW7/A. In her statement she had stated:

Meri Mummy ka naam Ram Kumari Hein. Papa ka naam Matdin Hein. Mein Panchavi Class mein padhti hoon. Meri do behan aur ek bhai hein. Mein ghar se khelne ke liye gayi thee. Mein ghar par khana khane ko aa rahi thee. To ek aadmi ne meira muh band kar diya aur kaha vahan par chal. Vahan par tamasha ho raha Hein. Vahan par Bulb jal raha tha. Usne meri Kachchi uttar di. Usne apna pant kachcha uttara tha. Voh meire uppar let gaya. Meire ko do chante mare. Meiri Chahti ke uppar kaat liya. Mein Mummy-mummy boli. Usne mera naam puchcha. Meine apna naam Anita bataya. Mein usko nahin janti thi. Us aadmi ne Peshab karne vali Chiiz ko meri peshab karne vali jagah par dala thaa. Khoon nikla thaa. Meri Kachchi bheeg gayi. Voh mujhe neeche laya. Usne kaha ki voh ghar chale jayega to mein bhi apne ghar chali jaon. Mein apni Mummy ke paas chali gayi. Meri Mummy ne poocha kya huan, to meine sari baat mummy ko batayi. Mummy ne mujhe davai dilai thi. Mein usko pehchan sakti hoon. Jagah bhi dikha dee thi.

4. The prosecutrix was also medically examined and MLC Ex.PW3/A was prepared. It has been proved by Dr. Aparna Nath, who examined her and deposed in court as PW3. In her deposition she has stated; I have seen MLC No. 974 dated 28.08.2004 pertaining to Anita d/o Mata Din age 8 years female. On that day I was called by the casualty medical officer to casualty for examining Anita. I examined her and gave my noting at point A to A of the MLC Ex.PW3/A. The notings are in my handwriting and bears my signatures. On examination I found abrasion and bruises present on back also presence of nail scratches on back. Presence of bruises around right breast. On local examination I found slight bleeding from vagina,