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4. The prosecution had alleged that - the prosecutrix is a small girl, aged about 5/6 years. On 21.10.2007 at about 6:00 P.M., she was standing near the main entrance of her house. It is alleged that the Pankaj Chaudhary, (son of the landlord‟s brother) was sitting in the staircase. He asked the prosecutrix to go upstairs. She followed his instructions and he followed her to the first floor. The Appellant removed the prosecutrix‟s pant (trousers) as well as his own pant. He laid the prosecutrix on the floor and struck her vagina with his private part. The prosecution version is that the Appellant also struck the prosecutrix‟s anus with his private part. The prosecutrix cried with pain. The Appellant scolded her and threatened her that if she would disclose the incident, she would be killed. It is alleged that the prosecutrix went down stairs. She was in a lot of pain and, narrated the entire incident to her mother PW-5 Smt. Rakhi Bisht. PW-5 called prosecutrix‟s father PW-1 Mukesh Singh Bisht and informed him about the offence committed by the Appellant Pankaj Chaudhary against the prosecutrix.

5. On the next day the police was informed. The Statement of the prosecutrix Ex.PW-3/A was recorded by Inspector Alka Azad, who made her endorsement for registration of a case under Section 376/377 and 506 IPC.

6. The prosecutrix was medically examined. PW-4 Dr. Subodh on local examination found no mark of injury all over the body. The doctor found "redness present around hymen, hymen intact".

7. During investigation statement of the prosecution under Section 164 Cr.P.C. was recorded by the Metropolitan Magistrate wherein the prosecutrix did not state about the thrusting of the private part against her‟s, rather, she deposed that the Appellant "started moving his front portion of legs (action only). phir usne mere aage peeche (ek toilet karne wali jagah v ek potty karne wali jagah mein ungli maarne laga)" He then put his finger in prosecutrix‟s vagina and anus."

"To constitute offence under section 376 or 377 IPC Penetration with the private part into vagina or anus is essential. Here PW-3 deposed in the court as well s stated to the police that accused had struck his private part to her vagina as well as anus Doctor had also not found anything by which it can be said that accused has succeeded in penetrating the vagina or anus. Therefore, from the above evidence on record, it is evident that the prosecution has not succeeded in proving its case u/s 377/ 376 IPC as charged. Rather than, prosecution has succeeded to prove that the accused had attempted to commit rape as well as attempt to commit incarnal intercourse from his private part by strucking to the vagina as well as to the anus of the prosecutrix. Therefore, I hold the accused guilty of the offence u/s 376/ 377/ 511 IPC."

Now the court had already satisfied by putting certain questions to the „A‟, a child witness of age of 6 years that she can understand questions. She has enough intelligent to depose the fact about the incident which has happened upon her.

Now, what „A‟ has deposed is that at the time of incident she used to study in class 1st in Mother Mary Public school. At about 6 pm when she was standing at the main gate of the house, Pankaj Bhaiya was found standing at the step of staircase. Pankaj Bhaiya had asked her to come at first floor. She came at the first floor as per instructions of Pankaj Bhaiya and he had followed her. There was none other person present at first floor. Thereafter Pankaj Bhaiya had removed her pant and removed also his pant. Thereafter Pankaj Bhaiya had asked her to lie down on the floor and thereafter Pankaj Bhaiya had caused injury from his private part to her anus as well as vagina. She cried thereafter Pankaj Bhaiya pressed her mouth and hold her waist from other hand. Thereafter Pankaj Bhaiya had threatened her that if she disclose the fact to anybody then he would kill her. Thereafter after wearing her she came down by running to her mother and apprised her mother about the pain in her anus as well as vagina.