STATE OF NCT OF DELHI Vs. ASHISH KUMAR

JUDGEMENT

(1.) The present appeal has been preferred by the State upon grant of leave to assail the judgment dated 30.09.2016 passed by the Ld. ASJ- 01(West) Tiz Hazari Courts: Delhi in Sessions Case No. 56/2012 (Old No.), 56241/2016 (New No.), arising out of FIR No. 217/2012, under Sections 363/376/511 IPC, registered at PS Uttam Nagar. By the impugned judgment the respondent accused stands acquitted of the charge framed against him under Sections 363/376/511 IPC.

(2.) The prosecutrix was a child who was barely 3 years old on the date of the incident. The date of the incident is 15.05.2012, and the date of birth of the prosecutrix was established on record to be 14.12008. The FIR in the present case came to be registered on the statement of the mother of the prosecutrix, who was examined as PW3. She alleged that she lived at her given address with her 3 children - including the prosecutrix, who was her younger daughter. The accused resided in a rented accommodation in the neighborhood of the complainant and the family of the complainant and the family of the accused were on visiting terms. On 15.1212 at 06.30 P.M she had gone to take some household articles from a shop in the neighborhood, and after 10 minutes at 06.40P.M when she returned, she did not find her daughter "J"- the prosecutrix, and she was missing. She started searching for the prosecutrix and while searching for her, she reached the house of the accused. The door of the room of the accused was found to be shut and when she opened the door of the room of the accused, she found the accused sitting on a cot; the prosecutrix was sitting in his lap; her underwear had been removed; the zip of the pant of the accused was open, and; the penis of the accused was protruding out of his pant. Soon upon the arrival of the complainant and upon seeing her, the accused closed the zip of his pant and started to make the prosecutrix wear her underwear. At this stage, the complainant shouted and raised a hue and cry and on hearing the cries, her husband and neighbours had also gathered. When the accused attempted to flee from the spot, the complainant caught held of him. She stated that number 100 was dialed by someone and her husband had handed over the accused to the police, whereafter the medical examination of the prosecutrix was done at DDU Hospital. No injury was found on the private parts of the prosecutrix and internal medical examination of the prosecutrix was not consented to by the mother. She sought action against the accused since he had attempted to rape the prosecutrix.

(3.) The statement of the prosecutrix was not recorded either under Section 161 Cr.P.C., or under Section 164 Cr.P.C. She was not cited as a witness.