The main legal point established is the court's discretion to impose a sentence of imprisonment for a term of less than seven years for adequate and special reasons, as mentioned in the proviso of Section 376 IPC.

JUDGMENT

Swarana Kanta Sharma, J. (Oral)

1. The present Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 ("Cr.P.C.") has been filed by the appellant assailing the impugned judgment dated 27.08.2008 passed by learned Additional Sessions Judge, Rohini Courts, Delhi in SC No. 403/2006 whereby the appellant was convicted for offence punishable under Section 376 of Indian Penal Code, 1860 ("I.P.C."). The appeal further assails the order on sentence dated 01.09.2008 whereby the appellant was sentenced to undergo rigorous imprisonment for seven years with fine of Rs. 5,000/- (Rupees Five Thousand) and in default of payment of fine, further simple imprisonment for six months.

2. The present appeal was admitted on 17.02.2009 and sentence of the appellant was suspended by virtue of order dated 14.07.2009.

3. In brief, the case of the prosecution is that on 05.09.2005, on receipt of DD no. 3A W/SI Parvati was sent to BJRM Hospital where prosecutrix/victim along with her mother Mamta met the IO and the statement of prosecutrix was recorded to the effect that she along with her parents resided in Ram Pal Ka Gher, Village Bakauli as tenants. One Gulsher Singh i.e., appellant/accused herein, also resided as a tenant in the same property. On 05.09.2005, prosecutrix had gone to school and at about 10:40 a.m. she returned to her house during recess period with her friend Lucy. It was alleged that Lucy went to her own house and prosecutrix came to her house where she saw that main gate of the property was locked from inside due to which prosecutrix tried and climbed the terrace of the adjoining house and reached the courtyard of her own house. It was alleged by the prosecutrix in her statement that she asked appellant, who was a co-tenant, regarding the whereabouts of her parents. It was further alleged that when prosecutrix started to return, appellant pulled her to his room and bolted the same from inside. Prosecutrix raised alarm but appellant shut her mouth and laid her on the floor and committed rape. It is alleged by the prosecutrix that appellant threatened her not to tell any person about the same. In the meantime, prosecutrix's mother reached and she narrated the entire incident to her mother. On the statement of prosecutrix, an FIR bearing no. 339/2005for the offence punishable under Section 376 of IPC was registered at Police Station Alipur, Delhi against appellant.

4. In the present case, prosecutrix was medically examined and the samples which was collected by the doctor were sent to FSL as well as the statement of the prosecutrix under Section 164 of Cr.P.C. was also recorded before the Magistrate. Thereafter, charges were framed against the appellant for the offences punishable under Section 376 of IPC.

5. By way of impugned judgment dated 27.08.2008, the learned Trial Court after considering the evidence and material available on record held that appellant is guilty of offence punishable under Section 376 of IPC. The concluding part of the impugned judgment dated 27.08.2008 reads as under:

"11.1. For the reasons aforesaid in para no. 9 and 10 above, I am of the opinion that prosecution has successfully established its case beyond all reasonable doubts, that prosecutrix was subjected to sexual intercourse by the accused on05.09.2005 at about 11 am. As discussed in para no. 9 above, prosecutrix was about 14 years of age at the time of occurrence and was a student of class 3. The elements of consent is, of course, not even remotely established or suggested. Thus, I am of the opinion that prosecution has successfully established the charge for offence punishable under Section 376 IPC against the accused. He is accordingly convicted for the aforesaid charges".

6. Learned counsel for appellant states that appellant has been facing trial since 2005 which is almost 17= years. It is further stated by learned counsel for appellant that appellant has undergone three years and ten months out of seven years, the punishm