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1. Brief facts of the prosecution's case are that on 21.04.2011 on receipt of DD No. 4A, ASI Dilbagh Singh alongwith Ct. Manoj Kumar reached the spot at the house of Joginder Yadav, PS: Kapashera State Vs. Ashok Gali No.6, Kapashera where they met the complainant Smt. Alpana Devi W/o Shri Anant Ram Pandey, who told that accused Ashok had committed unnatural sex with her daughter/ prosecutrix S aged about 4 years (name withheld in view of dictum of Hon'ble Superior Courts). Smt. Alpana stated in her complaint that she was the resident of the abovesaid address and on 20.04.2011 in between 1.00­1.30 p.m., she was sleeping in her room and when she woke up, she found that her daughter (prosecutrix) was not present there. She started searching for her daughter in the nearby quarters of the same plot. During search of her daughter, when complainant again went to the quarters of back line, she found the door of the room of one Ashok (accused) was semi­opened. She saw Ashok (accused) lying on the mat and her daughter (prosecutrix) sitting near his head. The complainant called her daughter from outside and asked her as to why she had gone to the room of Ashok, to which she replied that when she was playing on the roof, accused Ashok had caught hold her hand and brought her in his room and gave money for bringing toffees. Prosecutrix further told the complainant that when she came back after bringing toffees, accused Ashok asked for one toffee and when she went in the room of accused Ashok for giving him a toffee, he closed the door of room and made her lie on the mat and removed her panty and from the side of his underwear he took his male organ out and put it in her mouth and thereafter he also put his finger in her vagina. Prosecutrix further told her PS: Kapashera State Vs. Ashok mother that accused Ashok had told her not to disclose this thing to anybody and asked the prosecutrix to come again on next day and opened the door and in the meantime complainant reached there. Complainant on hearing this, checked the clothes of the prosecutrix which were stinking so she washed the same and started waiting for her husband. At about 11.00 p.m. her husband reached back home from his duty and complainant narrated the whole story to her husband and somebody from the neighbourhood call the police at 100 number and police reached there. The prosecutrix was got medically examined at Safdurjung hospital. On the statement of complainant, case under Section 377/342 IPC was registered. Prosecutrix was then produced for recording her statement under Section 164 Cr.P.C. Accused was arrested and on conclusion of the necessary investigation, he was charge­sheeted.

PS: Kapashera State Vs. Ashok

10. PW­4 Smt. Alpana deposed that she was residing at the House of Jogender, Gali no.6, Kapashera, New Delhi and on 20.04.2011 at about 1.00­1.30 p.m., she was sleeping in her room with her daughter and her daugther woke up and started playing in the courtyard. She further deposed that and when she woke up, she found that her daughter (prosecutrix) was not present there. She started searching for her daughter in the nearby quarters of the same plot. During search of her daughter, when she went to the lane situated behind her lane, she found the prosecutrix in the house of accused Ashok. She deposed that accused Ashok was lying on the mat and her daughter (prosecutrix) sitting near his head. The complainant called her daughter from outside and inquired from her her as to why she had gone to the room of Ashok, to which she replied that when she was playing on the roof alongwith other children, accused Ashok came there and gave money for toffee and thereafter he took the prosecutrix at his room and bolted the the door of room from inside and made her lie on the mat and removed her panty and after removing his underwear put his private part in the mouth of prosecutrix and also put his fingers in private parts of prosecutrix. PW­4 further deposed that prosecutrix further told her that accused Ashok had told her to not to disclose this thing to anybody and had directed the prosecutrix to come again on next day. She further deposed that thereafter she and alongwith the PS: Kapashera State Vs. Ashok prosecutrix came back home and started waiting for her husband who had gone out for his duty. She further deposed that at about 10.00 p.m. when her husband reached back home from his duty, she narrated the whole story to her husband and her husband told somebody from the neighborhood to call the police at 100 number and police reached there and took the prosecutrix to the hospital for medical examination. She further deposed that thereafter they return to the police station where her statement was recorded and her daughter (prosecutrix) was produced before the Ld. Magistrate for recording her statement. PW­4 further deposed that she had washed the clothes of prosecutrix which she was wearing at the time of incident and she handed over the same to the police. She further deposed that accused was arrested from his room and his personal search was conducted and accused had also pointed out the place of occurrence and police seized the mat from his room. PW­4 further deposed that it was also disclosed by her daughter (prosecutrix) to her that accused Ashok had also taken one more girl namely Niti to his room and had also inserted his finger in her panty.

12. Prosecutrix entered into the witness box as PW­6. As prosecutrix was minor aged about 4 years, Court had put certain question to her. From the question put to the prosecutrix, Court had observed that the prosecutrix was of sufficient maturity and was capable of giving replies to the questions put to her but, however, as she did not understand the meaning and sanctity of oath, her statement was recorded without oath.

During her examination, prosecutrix deposed that one day when she was playing with her friends on roof, accused took her and one of her friend Niti downstairs stating that he will given them toffee and then he sent Niti away and took her to his room. She further deposed that accused thereafter closed the door of the room and made her lie on the mat and them he himself laid down on her. She further deposed that thereafter accused removed his underwear and that of the prosecutrix and asked her to open her mouth and put his tongue in her mouth. She further deposed that accused had also applied saliva on her private parts. Prosecutrix further deposed that she the disclosed about the incident to her mother and her father came in the night and called the police. During examination of the prosecutrix, Ld.Addl. P.P. for the State had put leading questions to the prosecutrix to which she denied that accused had put his private part in her mouth.

19. The plea of the accused for false implication has no merits or substance as no daughter would put her house as well as honour of her family at stake. It is well settled legal position that if the statement of prosecution is credible and trustworthy, it requires no corroboration and conviction can be recorded on the sole testimony of the prosecutrix.

20. In the present case, the prosecutrix, a minor, PW­6 is a child witness who has deposed that the accused Ashok had taken her from the roof and brought her down stair on the pretext of giving her toffee and closed the room and made the prosecutrix lie on the mat and, thereafter, the accused himself laid down on the prosecutrix. She has further deposed that the accused asked the prosecutrix to open her mouth and, thereafter, he put his tongue inside the mouth of the prosecutrix. The accused is further stated PS: Kapashera State Vs. Ashok to have applied saliva on the private parts of the prosecutrix and accused is further stated to have given money to the prosecutrix. The prosecutrix has further deposed that the accused further directed the prosecutrix not to disclose this fact to her mother (PW­4). A leading question was put to the prosecutrix by Ld. Addl. PP for the State that the accused had put his private parts into her mouth but the prosecutrix admitted that the accused had not put his male organ in her mouth. During cross, this witness struck to her guns and reiterated that accused is the person who had outraged her modesty and committed this incident on that fateful day. This witness has been supported by PW­4 who is not other then the mother of the prosecutrix who had brought the prosecutrix from the room of the accused. Therefore, it is proved on record that the prosecutrix was in the company of accused and she was taken away by her mother from the room of the accused. This witness has further stated that the prosecutrix had narrated the event which took place on that fateful day. Therefore, PW­4 has corroborated the version of PW­6, the prosecutrix. PW­5 is father of the prosecutrix who got the information from his wife and called the police. However in medical evidence, no fresh injury is present on the private parts of the prosecutrix but it is not the case of the prosecution that accused had raped the prosecutrix. Although in the FIR and the statement of the prosecutrix, PW­4 (proved on record as Ex.PW3/A) as well as in the statement of the prosecutrix recorded under section 164 Cr.PC PS: Kapashera State Vs. Ashok (Ex. PW­7/B) is wherein allegation that the accused had put his private parts in the mouth of the prosecutrix but during cross examination, prosecutrix very categorically stated that accused had not put his private parts in her mouth. So in view of the deposition of the prosecutrix which is natural it cannot be inferred that the accused had committed an offence punishable under section 377 IPC and accused is hereby acquitted of the chage under section 377 IPC. But so far the charge under section 367 is concerned, the prosecution has proved on record that the accused had taken the prosecutrix out of her lawful guardianship of her mother in order to subject her to satisfy his unnatural lust. So the accused is hereby convicted under section 367 IPC. The accused had also put his tongue in the mouth of the prosecutrix and applied saliva in the private parts of the prosecutrix, therefore, the accused has outraged the modesty of the prosecutrix and committed an offence under section 354 IPC. So the accused is further convicted under section 354 IPC.