(Surinder Singh, J.) - The State has challenged the acquittal of the respondent, for an offence punishable under Section 376 Indian Penal Code, for allegedly committed rape on the prosecutrix, a minor child of aged about five years.

2.The undisputed facts, in short, which emerge from the prosecution evidence, are :-

(i) the mother of the prosecutrix Tara Devi (PW-1) was residing in a rented premises with her children, adjacent to a rented room of the respondent in a three storyed building at Chopal.

(ii) The respondent was studying in plus one and his elder brother was in 10+2. As already stated above, both were residing in the same building in a room adjacent to the room of the complainant.

(iii) Her husband Mehar Singh was employed as clerk in post office, Chopal.

(iv) On 5.5.1991 Mehar Singh the father of the prosecutrix had gone to village Nerwa in connection with some official work.

3.It is alleged that on 5.5.1991 at about 10 a.m. the complainant, Smt. Tara Devi, the mother of the prosecutrix, went to the public water tap, located nearby in the open place to wash the clothes. Her minor son was getting ready for the school. The prosecutrix was playing outside in the compound. The complainant after washing the clothes, returned to her residence. She found the prosecutrix weeping inside. On inquiry the prosecutrix informed her mother (PW1) that the respondent had taken her into his room and was laid on the bed. She was sexually assaulted, which caused bleeding from her private parts; her legs were washed by the respondent. Thereafter she was left in her residence. She (PW-1) was shocked to hear this. She went to the Post Office and narrated about the entire incident to Chand Ram Sub-Postmaster (PW5), who informed her husband telephonically.

4.Mehar Singh (PW-3) returned from village Nerwa around 8 p.m. on the same day. The complainant told the entire story to him and then they went to the police station and filed the written complaint Ex.PA on the basis of which FIR Ex.PW7/A was registered. Head Constable Bhagwan Singh (PW7) visited the spot and prepared the site plan Ex.PW7/A at the instance of the prosecutrix. The respondent was not found there, he was arrested during night from the bushes nearby.

5.The prosecutrix was got medically examined by the police next day i.e. on 6.4.1991 at about 11 a.m. in civil hospital Chopal from Dr. Vijay Thakur (PW-4). He issued the medico-legal certificate Ex.PC qua the prosecutrix. On her examination the Doctor found some injuries on her private parts. Hymen was found ruptured, margins were sagged and index finger could be easily introduced in her private part. Semen could not be detected due to lack of laboratory facility. The clothes were preserved and sent for chemical analysis for detention of semen and blood grouping. The Chemical Analyst found human blood of “Group-A” on her trouser, shirt and Banian but no semen was detected. The Doctor opined that it was a case of penetration and the observations made in the medico-legal certificate were suggestive of sexual intercourse with the prosecutrix.

6.The respondent-accused, after his arrest, was also taken to the hospital on 6.7.1991 at 11.35 a.m. He was medically examined and was found physically fit to perform sexual intercourse. No injury was found on his penis but the smegma was found present on his glans. His jean-pant was handed over to the police. The police sent it, for the chemical examination. It did not contain any blood-stains, but it had semen stains. The report is Ex.PF.

7.On 7.7.1991 respondent-accused is alleged to have made a disclosure statement Ext.PW5/A, regarding his underwear Ex.P4, pursuant to which it was recovered vide recovery memo Ex.PW5/B from the bath-room in the presence of PW-5 Chand Ram Sub-Postmaster and one Shri Jeet Ram, Clerk of Post Office Chopal.

8.When the matter was under investigation and the respondent was in the police custody Shri Hari Singh, unc