VIPIN SANGHI, J.

1. The present appeal under Section 378 Cr.P.C. has been preferred by the State upon grant of leave, to assail the judgment dated 31.01.2017 passed by the learned Additional Sessions Judge – 01, South-East District in Case No.2113/2016, SC No.12/2013 arising out of FIR No.398/2010 registered at PS – Okhla, acquitting the respondent/accused of the charge framed against him.

2. The aforesaid FIR was initially registered under Section 363/354 IPC. The charge-sheet was filed under Section 363/354/376/377/367/506 IPC. However, the Trial Court framed the charge under Section 363/376/377/506 IPC vide order on charge dated 11.04.2012.

3. The case of the prosecution was that on receiving information at about 8:55 p.m. on 16.12.2010 of kidnapping of a girl aged about 8-9 years, police entered the information in the register vide DD No.25A (Ex. PW-16/A) and ASI Jagbir Singh (PW-16) along with Const. Sonu (PW-10) reached at the place mentioned in the information i.e. I-71A, Harkesh Nagar, New Delhi, where a crowd had gathered. In the crowd, he met the complainant Virender (father of victim) PW-9 and his daughter – the prosecutrix. One boy, whose name was revealed as Sonu – the accused was produced before PW-16. PW-9 made his statement (Ex. PW-9/A) that when he was at his house at about 8:00 PM his two daughters went outside to play and at 8:45 PM. his younger daughter (PW-1) came home and intimated to him that one boy had taken the prosecutrix from the hillock (pahari). Complainant immediately disclosed this fact to his landlord Rakesh (PW-4), who made a call on 100 no. and the complainant, his landlord (Rakesh) and others rushed in search of the prosecutrix. Complainant stated that while searching for the victim they reached at Harksh Nagar Chowk, and they saw that one boy named Sonu Kumar, S/o Vipin Singh, R/o. D-38, Harkesh Nagar, Delhi - (whose name came to be known later on upon inquiry) was crossing the railway line holding hand of the victim and walking fast. He stated that they rushed and the accused was overpowered. He stated that the prosecutrix told him (complainant) that the boy had misbehaved with her. The boy (accused) was handed over to police, who had been beaten by public while over powering him. On the statement of the complainant, rukka was prepared and case was registered under Section 363/354 IPC and investigation was started. The police station was asked to send a lady constable. Accordingly, Lady Constable Renu (PW-8) came to the spot. The prosecutrix and the accused were taken to AIIMS Hospital and were got medically examined; thereafter the accused was arrested in the case. The samples of the victim and accused were collected by the doctor during medical examination and handed over to I.O. and the same were sent to FSL for opinion.

4. The I.O. got recorded the statement of victim before Ld. M.M. Mr. Anuj Aggarwal (PW-7) under Section 164 Cr.P.C. on 18.12.2010. In the said statement (Ex. PW-7/B), the learned MM recorded that administration of oath to the prosecutrix was dispensed with as she was 9 years of age. In response to the query, “What do you do?”, the prosecutrix responded “I study in IIIrd Class”. The prosecutrix in her said statement disclosed that two days earlier she went with her sister to defecate in the open. One person came to her and he stated that he is the brother of her neighbour. He took the prosecutrix along with him inside the jungle. He showed a blade to the prosecutrix and threatened her that he would kill her if she did not listen to him. He asked the prosecutrix to remove her pant. The prosecutrix stated that she tried to bite him and run away, but the accused caught held of her. She further stated that the accused pulled down her pant and he also pulled down his own pant, and thereafter he did “gandaa kaam” with her. She stated that he first tried to put his “gandi cheez” – meaning penis, inside her and then he did put his “gandi cheez” insider her. Thereafter, he