- (1.) This appeal is filed by the State of Himachal Pradesh challenging the judgment and order of acquittal passed by the High Court of Himachal Pradesh whereby and whereunder the High Court acquitted the respondent - Suresh Kumar from the charges under Sections 376 of Indian Penal Code (hereinafter referred to as the IPC ) and also under Section 342 IPC.
(2.) Before dealing with the contentions raised on behalf of the parties and in order to appreciate the said contentions it would be necessary to state a few facts leading to registration of the aforesaid criminal case.
(3.) The age of the prosecutrix - Km. Kusum Lata (PW-3) was opined by PW- 7 Dr. Devinder Kaur as between 5 to 12 years on the date of examination i.e. 17.03.2000. Therefore, there is no dispute with regard to the fact that she was minor at the time of commission of alleged offence of rape. The prosecutrix and the accused are the residents of the same village and in fact they were neighbourers. The respondent - accused was about 25 years of age on the date of commission of the alleged crime whereas, as stated hereinbefore, the prosecutrix was a minor on the date of commission of alleged offence of rape. On 15.03.2000, the parents of the prosecutrix, namely, Smt. Shakuntla Devi, PW-5, and Shri Ramesh Chand had gone to the house of maternal uncle of the prosecutrix. On the said fateful day, PW-4, Km. Punam, the elder sister of the prosecutrix, had gone to the jungle to fetch green leaves for the goats leaving behind the prosecutrix along with her two younger brothers, namely, Vicky and Ajesh at their residence. It is alleged that on the said date the accused went to the house of the prosecutrix and took her to his house and after entering his room the accused bolted the door of the room from inside and put the prosecutrix on the cot and switched on the T.V. It is also alleged that thereafter the accused opened the salwar of the prosecutrix and took off his trouser and underwear and thereafter the accused committed rape on the prosecutrix. The prosecutrix stated in her deposition that she wanted to cry and weep but she could not do so because the accused had gagged her mouth. It is also alleged that after committing the rape the respondent-accused gave a currency note of Rs. 5/- and some "shakkar" to the prosecutrix. The prosecutrix ate the said "shakkar" and thereafter she returned home. When PW-4, Km. Punam, the elder sister of the prosecutrix, returned from the forest after collecting the green leave for the goats, prosecutrix narrated the whole incident of rape on her. On 16.03.2000, when parents of the prosecutrix, PW-5, Smt. Shakuntla Devi and Shri Ramesh Chand returned back to their residence at village Sunali, at about 2.30 p.m., the prosecutrix narrated the incident of rape by the accused to them. PW-4, sister of the prosecutrix handed over currency note of Rs. 5/- to her mother Smt. Shakuntla Devi (PW-5) which was given to her by the prosecutrix on the previous day. Thereafter, the parents reported the matter to the Pradhan of the Gram Panchayat, who sent telephonic intimation to the police station. The police reached the village on 16.03.2000 at about 9 p.m. and recorded the statement of the prosecutrix, on the basis of which a case for offence under Sections 376 and 342 IPC was registered.;