The main legal point established in the judgment is the importance of evaluating the evidence of a child witness with circumspection, the need for corroboration in cases of rape, and the severity of the crime of rape.

Sunita Gupta, J.

1. This criminal appeal is directed against the judgment dated 17/07/2013 and order on sentence dated 22/07/2013 of Additional Sessions Judge passed in Sessions Case No.143/11 arising out of FIR No.191/11 PS Mayur Vihar whereby appellant herein was convicted under Section 376/377 Indian Penal Code. He was sentenced to undergo rigorous imprisonment for a period of ten years with fine of Rs.2,000/-. In default of payment of fine he was directed to undergo Simple Imprisonment for a period of two months for offence under Section 376 IPC. For the offence under Section 377 IPC he was sentenced to undergo rigorous imprisonment for a period of five years with fine of Rs.1,000/-. In default of payment of fine he was directed to undergo Simple Imprisonment for a period of one month. Both the sentences were ordered to run concurrently. Benefit of Section 428 Cr.P.C. was given to the convict. The gravamen of prosecution case, succinctly stated is as under:-

On 05/08/2011 at around 8:20 PM the prosecutrix “X” (assumed name) aged around 05 years was raped by the appellant. Information conveyed to the police was recorded as DD No.34A PS Mayur Vihar. After recording statement of victim’s mother (Ex.PW-3/A), the Investigating Officer lodged First Information Report. “X” was medically examined. The accused was arrested. Statements of the witnesses conversant with the facts were recorded. Exhibits collected during investigation were sent for examination to Forensic Science Laboratory. Upon completion of investigation, a charge sheet was filed against the appellant in the court. To bring home the guilt, the prosecution examined 11 witnesses. In 313 Cr.P.C. statement, the appellant pleaded false implication. He pleaded that he had gone for his work at W-10, Noida which is a garment factory and returned to his house at about 9:00 P.M. He opted not to lead any defence evidence. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment, convicted and sentenced the appellant as mentioned hereinbefore. Being aggrieved and dissatisfied, the appellant has preferred the appeal.

2. The main thrust of assailing the impugned judgment by learned counsel for the appellant is on the testimony of the prosecutrix where in pursuance to a question put to her, she has deposed that the accused did not remove his clothes. Based on this statement, it was vehemently argued by the learned counsel for the appellant that if the accused did not remove his clothes there was no question of penetration which is sine qua non for offence under Section 376 IPC as prevailing at that time. Counsel submits that, at the most, the allegations may attract the provisions of Section 354 IPC. When the offence in question took place, the maximum sentence prescribed for offence u/s 354 IPC was five years. The appellant is languishing in jail for more than five years. As such, he be sentenced to the period already undergone.

3. Per contra, learned Additional Public Prosecutor for the State submits that for commission of rape, it was not necessary for the appellant to remove all his clothes. The factum of commission of rape stands established from the testimony of prosecution duly corroborated by the medical as well as scientific evidence. Under the circumstances, the impugned judgment does not suffer from any infirmity. Moreover, the accused had taken a plea of alibi which however, was not proved by him. Under the circumstances, the appeal deserves dismissal.

4. I have bestowed my considerable thoughts to the respective submissions of learned counsel for the parties and have perused the record.

5. Admittedly, the prosecution case is based on the testimony of the victim child who was approximately five years of age at the time of incident. The fact that prosecutrix was aged about 5 years proved from the testimony of the prosecutrix (PW4) herself who disclosed her age as 6 years in her court deposition on 2