(Sanjay Karol, J.) - The present appeal arises out of the judgment dated 26.2.2001 passed by the Sessions Judge, Kinnaur Sessions Division, Rampur Bushahr, H.P. in Sessions Trial No. 11 of 1999, titled as State v. Vinesh Kumar, convicting the accused for the offence punishable under Sections 376 and 342 I.P.C. and sentencing him to undergo rigorous imprisonment for 5 years and fine of Rs. 1000/- under Section 376 IPC and rigorous imprisonment for 6 months under Section 342 IPC. In default of payment of fine of Rs. 1000/- to further undergo sentence of simple imprisonment of six months.

2. In view of the ratio of law laid down by the Apex Court in Om Parkash v. State of H.P., reported in 2006(9) SCC 787, the name of prosecutrix is described as victim and the appellant-accused is hereinafter referred to as the accused in the judgment.

3. Shri Tarsem Lal, as tenant of Smt. Sheela Devi used to reside in one room apartment along with the victim (his wife) and two minor children at a place known as Chuhabagh (Khaneri), Police Station, Rampur, District Shimla. As tenant, accused also used to reside in the adjacent room and they shared a common bathroom.

4. Sh. Tarsem Lal a street hawker earned his livelihood by sale of tea. He and the victim, married in 1994 were having two small children aged 3-1/2 years and 1-1/2 years respectively.

5. On 12.5.1998 at about 1.00 p.m., after giving bath to one of her children in the verandah of the building, when the victim was entering her room to heat up the water to give bath to another child, the accused caught hold of her from her arm and forcibly took her to the bathroom. There he laid the victim on the ground and after forcibly opening the string of her salwar and removing his pant committed sexual intercourse with her without her consent and against her will. She cried for help but none turned to rescue her as none of the neighbours was present and her house was situated at a level below the National Highway-22 from where no one could see or hear her cries. Thereafter, the accused bolted the bathroom door from outside and opened the same and released the victim from wrongful confinement only after about 30 to 35 minutes of the incident. Thereafter, the accused immediately fled away from the spot.

6. The victim came out of the bathroom and since her clothes were smeared with dirt, she changed them and dipped her shirt Ex.P-5 and Salwar Ext.P-6 in a bucket of water for washing and immediately after searching her husband informed him of the occurrence of the incident. Thereafter, Shri Tarsem Lal searched for the accused everywhere and finally went to the Himachal Road Transport Corporation Workshop at Rampur, where the accused was employed as a Mechanic. Having found the accused there, Tarsem Lal was prevented by the accused and others workmen from entering the Workshop. Thereafter, both the victim and he rushed to the police station to report the matter. On their way they also met Shri Padam Dass (PW-5) who was also informed of the incident and the matter was finally reported to the police at Police Station, Rampur, F.I.R. No. 103/98 dated 15.5.1998 (Ext.PW-3/A) was registered with the Police Station, Rampur under Section 376 IPC against the accused. The police machinery was set in motion and Inspector Jagdish Chand (PW-8) took up the case for investigation and the victim was got medically examined through Doctor P.R. Chauhan, (PW-1), M.O. R.H. Rampur. On 12.5.1998 at about 6.15 p.m., the vaginal swab Ext.P-2 and underwear Ext.P-1 of the victim were taken into possession and sealed in separate parcels. The accused was arrested and got medically examined on 13.5.1998 at about 10.30 a.m. from Dr. Anupam Gupta (PW-2) and as per M.L.R. Ext.PW-2/B, he was found capable of committing sexual intercourse. Even his underwear Ex.P-3 was sealed and taken into possession. During investigation, broken pieces of bangles of the victim Ex.P-4 were taken into possession vide