Consent of the prosecutrix is a crucial factor in determining the guilt of the accused in cases of alleged kidnapping and rape.

1. - The appellant ('the accused' for short) was charged and tried by the learned Special Judge, SC/ST Atrocities Cases, Hanumangarh in Sessions Case No.17 of 2002 for commission of the offences punishable under Sections 366, 376 of the Indian Penal Code ('IPC' for short) and under Section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the Atrocities Act' for short) on the accusation that on 16.10.2001 at about 4 PM when Shilo d/o Pala Ram, aged about 15 years, who belongs to Scheduled Caste, went to the shop for purchasing household articles, he had forcibly kidnapped her and thereafter committed rape upon her without her will and wish.

2. At the end of the trial, the accused was found guilty of the charge levelled against him therefore vide judgment and order dated 26.04.2005 he was convicted and sentenced as under:

3. The accused aggrieved by the judgment and order of conviction and sentence, has filed instant appeal with the aid of Section 374 of the Code of Criminal Procedure, 1973 ('the Code' for short).

4. Since the facts of the case have been detailed in the judgment of the trial court, it is not necessary for us to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed in this appeal, as disclosed from the FIR and unfolded during the trial, are as under:

5. On 19.10.2001 at about 4.30 p.m., complainant Sahi Ram submitted a written report before Police Station Sangria wherein he stated that his brother is having two sons and two daughters and all are minor and Shilo @ Sulochna d/o Pala Ram, aged about 15 years, went from the house on 16.10.2001 at about 4 p.m for purchasing household articles but didnt return back. They, therefore, searched for her but could not find her and later on came to know that Balkaran Singh had taken Shilo alongwith him. On the basis of this report Ex.P.5, FIR No.594/2001 (Ex.P/6) was registered at Police Station, Sangria for the offence under section 363, 366 IPC.

6. During the course of investigation, Shilo was recovered on 12.01.2002 from Punjab, who was sent for medical examination and her statement was recorded and on the basis of her statement the investigating officer added offence under section 376 IPC. Accused was arrested on 12.01.2002 and after receipt of the medical and x-ray reports determining the age of the prosecutrix, chargesheet was filed against accused before the ACJM, Sangria. As the offences under Section 376 IPC and the Atrocities Act are exclusively triable by the Court of Sessions, the learned Addl. Chief Judicial Magistrate committed the case to the Court of Sessions, Hanumangarh. Since the prosecutrix belongs to Scheduled Caste, the case was transferred to Special Judge, SC/ST (Prevention of Atrocities) Cases Court, Hanumangarh.

7. The learned Special Judge, SC/ST (Prevention of Atrocities) Cases Court, Hanumangarh (trial Court, for short), to whom the case was made over for trial, framed charge against the accused for commission of the offences under Sections 366, 376 IPC and Section 3 (2) (v) of the Atrocities Act. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried and thereupon the trial Court put him to trial in Special Case No.17 of 2002.

8. To prove the culpability of the accused, the prosecution has examined as many as 9 witnesses and relied upon their oral testimony. They are as under: