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3. Charge for an offence punishable under section 376 of the Penal Code was framed against the accused, to which charge he pleaded not guilty and claimed trial.

4. To substantiate the charge, prosecution has examined Santosh Kumar HC (PW1), Meena (PW2), Arti (PW3), Mukesh Kumar Constable (PW4), Dr. Sakshi Arora (PW5), Harpal Singh HC (PW6), Dr. L. Uprethi (PW7), Veera Sharma ASI (PW8), and Ajay Gupta MM (PW9) in the case.

5. Santosh Kumar HC was working as duty officer on 11.04.2006. He recorded formal FIR, on receipt of rukka from Veera Sharma ASI. He proved copy of FIR as Ex.PW1/A. Mukesh Kumar Constable remained associated in the investigation. He detailed that he ­3­ accompanied ASI Veera Sharma to the spot. They went in search of the accused, who was arrested at a place near Subzi Mandi. Accused was sent to SDN Hospital for medical examination. He brought three parcels from the hospital, which were seized by the investigating officer. Herpal Singh HC was working as mohrer malkhana, who had proved link evidence. Dr. Sakshi Arora had handled Arti in hospital on 11.04.2006. After her general examination, she was referred by her to Dr. Namrata, who conducted her gynaecological examination. She had proved her MLC as Ex.PW5/A. Dr. L. Uprethi had examined skiagram of Arti and opined that she was between 8­9 years of age. Ajay Gupta MM had recorded statement of Arti under section 164 of the Code of Criminal Procedure 1973 (in short the Code). He had proved her statement so recorded as Ex.PW3/B. Veera Sharma ASI had conducted investigation of the case and detailed investigative steps taken by her. She detailed that Arti got her statement recorded, on which case was registered. Accused Luv Kush was arrested by her from Subzi Mandi, Karkardooma, Delhi. He was sent to SDN Hospital for medical examination. Arti was also sent to hospital for medical examination. After conclusion of the evidence, she got the accused challaned. Meena, mother of Arti had testified that Arti came down stairs and lodged a complaint against Luv Kush, saying that Luv Kush ­4­ had sexually defiled her. Arti is the star witness of the prosecution, who narrated facts relating to her sexual exploitation by the accused. She unfolds that the accused had removed her undergarments and had sex with her.

8. Arguments were heard at the bar. Sh. R.K. Pandey, Addl. PP had presented facts on behalf of the state. Sh. B.L. Katiar, Adv. had advanced arguments on behalf of the defence. He has filed written ­5­ submissions too. I have given my careful considerations to the arguments advanced at the bar and cautiously perused the record. My findings on the issues involved in the controversy are as follows.

9. Sh. Katiar had argued that Arti is not a reliable witness. According to him, Arti was sleeping over the roof along with her brother. He agitates that in case Arti was sexually defiled by the accused and she attempted to raise an alarm, in that situation her brother would have certainly come to know about sexual assault on the girl. He argued that no such story has been projected that Sanjay came to know about the incident. He agitates that these facts castigate testimony of Arti. he further argued that facts projected by Smt. Meena are also not reliable. According to him, Meena had a motive to frame the accused in the case, since she had an altercation with him two days prior to the incident. On these counts Sh. Katiar argued that case projected by the prosecution is based on improbable facts. ld. PP dispels facts presented by Sh. Katiar and argued that events unfolded by Arti are worthy of credence. She made a complaint to her mother about her sexual defilement, which fact bring her conduct over the record, which is relevant. He agitates that the prosecution has been able to establish its case against the accused beyond the shadow of reasonable doubts.

17. MLC Ex.PA is not a matter of dispute. It has been opined in this document that there was nothing to suggest that the accused Luv Kush was not capable of sexual intercourse. Consequently, on the strength of document Ex.PA, the prosecution has been able to establish that the accused was competent to have sex. That fact bring a circumstance over the record against the accused.

18. Ossification report Ex.PW7/A has been proved by Dr. L. Uperati. He opined that bone age of Arti was 8­9 years. That fact makes it clear that on the day of incident Arti was a child and not competent to consent for sex. Therefore, it is evident that prosecution has been able to establish that Arti was sexually defiled by the accused on the night of 10.04.2006.

Leniency in punishment has been claimed by Sh. B.L. Katiyar, Advocate, pleading that convict is a young man, aged about 24 years. He further presents that he is the only earning hand to support his old aged mother. According to him, it is first offence committed by the convict. He presents that Court should exercise its discretion in favour of the convict to award him punishment less than the minima provided for the offence.

2. On night intervening 10/11­04­06, Arti, a girl aged about 9 years, was sleeping over the roof of her house. Convict was also sleeping there on the roof. He approached Arti and started caressing her body. He removed her clothes and had sex with her. These facts are apparent that convict had defiled a young girl, aged about 9 years. An alarming offence was committed by the convict. I do not ­17­ find any adequate or special reason to award lesser punishment to convict than the minima provided for the offence. Taking into consideration all these facts, it is hereby ordered that convict shall undergo RI for ten years and to pay a fine of Rs.500/­, since he is a very poor person. In default of payment of fine, he would further undergo RI for two months. He will get benefit of period already undegone in detention during investigation and trial of the case. A copy of judgement and order on sentence be supplied to him free of cost.