JUDGEMENT Surjit Singh, J.: Appellant Vijay Kumar alias Viju has been convicted of offences, punishable under Sections 452, 376 and 506 of the Indian Penal Code and sentenced to undergo seven years rigorous imprisonment and to pay fine of Rs.5,000/- for the offence under Section 376 of the Indian Penal Code, to undergo rigorous imprisonment for two years and to pay fine of Rs.3000/- in respect of the offence, under Section 452 of the Indian Penal Code and to undergo rigorous imprisonment for three years and to pay fine of Rs.3000/- in respect of the offence under Section 506 of the Indian Penal Code, by the trial Court. He is aggrieved by his conviction and sentence. So he has preferred this appeal. 2. First, the prosecution case may be summed up. In a village in the District of Hamirpur there lives a married woman N. Her husband is employed at Delhi. She has two children, the eldest being a son aged 6 years. On the night intervening 2nd and 3rd of November, 2002, she was asleep in her house in the village alongwith her children when she heard a knock at her door, but did not open it. Soon the door was pushed with force and it got opened. The appellant, whom the lady recognized (because he had been visiting her mothers sister, living in the same village) entered the room. He forced himself on to the lady. When she tried to raise alarm and put up resistance, he threatened that he was having knife with him and would kill her and her children. Then, he committed rape on the lady. She became unconscious and regained consciousness next morning when the rays of sun entered the room and she felt the heat and light. She found that she was without her Salwar. She wore the Salwar and went to the house of one Kamla, Member Gram Panchayat, and narrated the incident to her. Said Kamla took her to her Mousis (mothers sister) house, who also lives in the same village. The name of that Mousi of the lady (prosecutrix) is Sandhya. Sandhyas husband and son then went in search of the appellant. They spotted him in a nearby village Patnoun and gave him a thrashing. 3. Bachiter Singh, Pardhan of the Panchayat, saw the appellant being beaten up by Sandhyas husband and son. The name of that Mousi of the lady (prosecutrix) is Sandhya. Sandhyas husband and son then went in search of the appellant. They spotted him in a nearby village Patnoun and gave him a thrashing. 3. Bachiter Singh, Pardhan of the Panchayat, saw the appellant being beaten up by Sandhyas husband and son. He intervened and asked as to what had happened. They asked the Pardhan to accompany them to their village and he would be apprised of the cause of their giving beating to the appellant. The Pardhan then went with the husband and the son of Sandhya Devi. The Pardhan was told by those persons that the appellant had committed the offences of house trespass and rape on the previous night. The Pardhan informed the police telephonically. After some-time the S.H.O. of the concerned Police Station, accompanied by some other police officials, reached the village of the prosecutrix and recorded her statement, under Section 154 of the Code of Criminal Procedure. 4. The prosecutrix was got medically examined. Her Salwar, Kamij and Dupatta were taken into possession. Underwear of the appellant was also seized. The aforesaid clothes of the prosecutrix and the underwear of the appellant were sent to the Chemical Examiner and those articles were found to bear stains of human semen. Slides of vaginal smear of the prosecutrix were also prepared and sent to the forensic science laboratory and human semen was noticed in the vaginal smear during laboratory test. The spot was inspected. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation, report under Section 173 of the Code of Criminal Procedure was filed in the Court of the concerned Magistrate, who, after complying with the requirement of Section 207 of the Code of Criminal Procedure, committed the case to the Sessions Court. The case was assigned by the Sessions Court to the learned Additional Sessions Judge (Presiding Officer, Fast Track Court) for trial. The later mentioned Court, after charging the appellant with the aforesaid offences, proceeded to try him and ultimately convicted and sentenced him as aforesaid. 5. The appellants grievance is that the evidence on record does not prove the charge. The case was assigned by the Sessions Court to the learned Additional Sessions Judge (Presiding Officer, Fast Track Court) for trial. The later mentioned Court, after charging the appellant with the aforesaid offences, proceeded to try him and ultimately convicted and sentenced him as aforesaid. 5. The appellants grievance is that the evidence on record does not prove the charge. The learned counsel, representing the appellant, argued that from the evidence on record it was clearly made out that tNs is a case of consensual intercourse, but it appears that some-one came to know of the same or saw the appellant entering or leaving the house of the prosecutrix and fearing that she would get exposed, the prosecutrix lodged a false report that she had been raped. 6. I have read the evidence with the assistance of the learned counsel for the appellant as also the learned Deputy Advocate General. I feel inclined to accept the submission of the learned counsel for the appellant, for the reasons stated hereinafter. 7. The testimony of the prosecutrix, which she made as PW-1, does not inspire confidence. It is unnatural, improbable and also self-contradictory. She testified that her house is at a lonely place and that she lives in that house along-with her two minor children, the eldest of them being a male aged 6 years only. She further stated that on the relevant night around midnight, the appellant entered her house through the door and she recognized him in the night of a low- voltage electric bulb when was already switched on. She also stated that the appellant gagged her and then raped her and threatened that in case she raised alarm, she and her children would be done to death. Further, she stated that because of the aforesaid incident and the sexual intercourse without tier consent, she become unconscious and when she regained consciousness after the sun arise, she found that she was naked in the lower part of her body and then she wore her Salwar and went to the house of one Kamla Devi, living in the same village, and narrated the incident to her. She further stated that said Kamla Devi took her to the house of her Mousi Sandhya Devi and she narrated the incident to her Mousi also. Further, she stated that to the police she made statement Ext. PW-1/A narrating the details of the incident. She further stated that said Kamla Devi took her to the house of her Mousi Sandhya Devi and she narrated the incident to her Mousi also. Further, she stated that to the police she made statement Ext. PW-1/A narrating the details of the incident. 8. In the cross-examination, she stated that the appellant had told that he was carrying a knife and would stab her and her children. When questioned whether the door had been bolted from inside or not, she said that it had been bolted. When further questioned as to how the door got opened, when it was bolted from inside, she stated that when the appellant banged it, it opened. At the same time she stated that the bolt did not get broken. 9. It is not the case of the prosecution that the door or the bolt had been damaged due to the alleged force used for the appellant. The Investigating Officer got the room photographed. One of the photographs, i.e. Ext. PW-12/C, shows that the bolt was horizontally fitted. One of the witnesses, namely PW-5 Gian Chand, the Masar of the prosecutrix, stated that the prosecutrix had told him that the bolt got slipped when the appellant banged the door. It is not believable that horizontally fitted bolt would get slipped when banged or pushed with force. Slipping of the bolt may take place when it is vertically fitted and its knob is not turned sideways. 10. PW-10 Bachiter Singh, Pardhan of the Gram Panchayat, who visited the spot in the company of the appellant, has stated that one cannot enter the house of the prosecutrix if its door is bolted from inside, unless it is unbolted or it is kicked with considerable force which would lead to the breaking of the door. In the present case, as already noticed, neither the door not the bolt was found broken or even damaged. Further-more, if the door was banged, as stated by the prosecutrix, her children were likely to get awake. 11. It has also come in the evidence of the prosecution itself that nothing in the room of the prosecutrix, where the rape was allegedly committed, was found undisturbed and everything was in order. Reference may be made in this behalf to the testimony of PW-10 Bachiter Singh, Pardhan of the Panchayat, as also photograph Ext. PW-12/C-5. 11. It has also come in the evidence of the prosecution itself that nothing in the room of the prosecutrix, where the rape was allegedly committed, was found undisturbed and everything was in order. Reference may be made in this behalf to the testimony of PW-10 Bachiter Singh, Pardhan of the Panchayat, as also photograph Ext. PW-12/C-5. This fact gives a lie to the statement of the prosecutrix, made in the course of cross-examination, that she had a scuffle with the appellant before the committed rape on her. The absence of injuries on the person of the prosecutrix also belies her version that she had struggled and put up resistance to save her honour. 12. The prosecutrix has stated that before the appellant entered her room, he gave a knock at the door. She was questioned why did not she raise alarm when there was a knock at her door at an odd hour of the night. She simply stated that she did not raise any alarm but offered no explanation. It was then suggested to her that the house of her husbands elder brother was close to her house. She denied the suggestion and stated that it was at a distance of 25-30 yards. Perhaps of saying that the distance was 25 to 30 yards, she wanted to convey that even if she would have raised alarm, her husbands brother would not have heard the same. At the same time, she specifically stated that there was no lady at the house of her husbands brother and so she did not raise the alarm. The fact is that the house of her husbands brother is adjacent to her house, as is clear from the testimony of the Investigating Officer, namely PW-12 Inspector Bakshi Ram, as also the site plan prepared by him, which is Ext. PW-12/D. 13. The testimony of the prosecutrix that she became unconscious when the appellant committed the alleged crime of rape, also does not inspire confidence. At one stage she says that she became unconscious because the appellant had committed sexual intercourse with her against her will. It appears that after making this statement, she realized, that the same may not be believed and so at another stage she changed the stand and testified that when-ever she has sexual intercourse, even with her husband, she becomes unconscious. This is not believable. It appears that after making this statement, she realized, that the same may not be believed and so at another stage she changed the stand and testified that when-ever she has sexual intercourse, even with her husband, she becomes unconscious. This is not believable. She is mother of two children. She has admitted that deliveries were normal both the time. The doctor, who conducted her medico legal examination, namely PW-4 Dr. Sunita Galoda, did not find any thing during the course of the medical examination, suggesting that she has aversion to sexual intercourse or sexual intercourse with her can make her unconscious. In the medico legal certificate Ext. Pw-4/B also, no abnormality o the genital parts of the prosecutrix has been noticed. 14. Prosecutions version that the prosecutrix, on regaining consciousness on the next following morning, went to the house of Kamla Devi (PW-2), member of Gram Pahchayat and narrated the incident her and Kamla took her to her Mousi Sandhya Devis house, also does not inspire confidence. In the examination-in-chief, the prosecutrix stated that she went to the house of Kamla Devi, who took her to the house of Sandhya Devi, but in the cross-examination, she stated that when she got up in the morning, she straight way went to the house of her Mousi Sandhya Devi. PW-2 Kamla Devi says that the prosecutrix come to her house at 8.00 a.m. on 3.11.2002 and narrated the incident to her upon which she took her to her Mousi Sandhya Devis house and that Roshan Lai and Bachiter Singh, the husband and the son, respectively, of Sandhya Devi, were there at the time. Now, if the prosecutrix had gone to Kamla Devis house at 8.a.m., as per Kamla Devis own statement and then the prosecutrix narrated the incident to her, the prosecutrix could not have reached the house of Sandhya Devi before 8.00 a.m. But, Sandhya Devi (PW-3) says that the prosecutrix was brought to her house by Kamla Devi at 7.30 a.m. and that thereafter when she was informed about the incident in the presence of her husband Roshan Lai and son Bachiter Singh, her husband went to report the matter to the Pardhan of the Panchayat and the police 15. The statement of Sandhya Devi that at 7.30 a.m. the prosecutrix was brought to her place by Kamla Devi and the incident was narrated to her in the presence of her husband and the son, is further contradicted by the testimony of PW-10 Bachiter Sing, Pardhan of Gram Panchayat, Patnoun. The witness stated that on 3.11.2002 around 7.00 a.m. when he was present near Government High School, Patnoun in the company of his brother and one lady, he saw Roshan Lai (Husband of PW-3 Sandhya Devi), Bachiter Singh (son of PW-3 Sandhya Devi) and Gian Chand. PW-5 (husband of Pw-2 Kamla Devi) giving beating to the appellant. He sated hat Roshan Lal, Bachiter Singh and Gian Chand had come in a Jeep. He further stated that when he intervened and asked why the appellant was being beaten up, Gian Chand and Bachiter Singh asked him to accompany them to their village and when he went to their village Badedu, he saw that several persons, both men and women, had gathered at the house of Sandhya Devi and on seeing the appellant, they took off their shoes with a view to giving a beating to the appellant but he intervened. He stated that he was informed by the villagers that the appellant had visited a girl of their village during the night and had raped her and when he asked the appellant if the accusation was correct, he admitted to having gone to the house of the prosecutrix and having sexual intercourse with her and also told that earlier also he had been to her house on several occasions. He sated that he informed the police telephonically as the atmosphere was highly charged. 16. Now, what he reported to the police on telephone, was entered in the Roinamcha vide entry No.5, copy whereof is Ext. PW-112/A. He informed the police that in village Patnoun a girl had been beaten up and she was lying unconscious. The witness was specifically asked in the cross-examination. If this was the information which he had given to the police. He did not deny it categorically but stated that he did not recollect what information was given by him. Pw-12 Inspector Bakshi Ram Stated that this was the information which was received at the police station and it had been correctly entered in the Roinamcha. There is no reason to disbelieve his testimony. He did not deny it categorically but stated that he did not recollect what information was given by him. Pw-12 Inspector Bakshi Ram Stated that this was the information which was received at the police station and it had been correctly entered in the Roinamcha. There is no reason to disbelieve his testimony. From a reading of Ext. PW 12/A, it appears that the prosecutrix had also been beaten up by the villagers or at least by one of them and if she was beaten up, that implies that she was also to blame for the immoral act. 17. The testimony of the Pardhan of the Panchayat (PW-10) Bachiter Singh further indicates that the appellant had visited the prosecutrix with her approval. He has stated hat when the appellant was taken to the village of the prosecutrix from Patnoun and the residents that village took off their shoes to give beating to him, he asked them why they were preparing to give him shoe beating and upon that they told that the appellant had visited a girl of their village. These words "visited a girl of their village" are of considerable significance. The villagers did not say that the appellant forcibly entered the house of the prosecutrix by banging the door. The aforesaid words clearly suggest that the appellant went to the prosecutrixs house in a pre-arranged manner. 18. Again, PW-10 Bachiter Singh, Pardhan of the Panchayat has proved the version which the appellant gave to him on the spot. This version could not be said to be cooked up or fabricated. He told PW-10 Bachiter Singh, per latters testimony, that he had gone to the house of the prosecutrix and had sexual intercourse with her and that on earlier occasions also he had been visiting her. 19. PW-12 Inspector Bakshi ram, Investigating Officer of the case, h as stated that the story of the prosecution that she was raped at knife point, was found to be untenable in the course of the investigation and that is why no knife could be recovered. 20. 19. PW-12 Inspector Bakshi ram, Investigating Officer of the case, h as stated that the story of the prosecution that she was raped at knife point, was found to be untenable in the course of the investigation and that is why no knife could be recovered. 20. The Honble Supreme Court in State of Rajasthan vs. Kishan Lai, [2002 SCC (Cri.) 1149], disbelieved the testimony of the prosecutrix, a married woman that she had been raped because she did not raise any alram to attract the attention of her brother-in-law and his wife, who were sleeping 20-25 feet away, she did not offer any resistance while having sexual intercourse with the accused and the knife, which the accused allegedly-brandished to threaten the prosecutrix had not been recovered and acquitted the accused of the charge of rape. 21. The re-appraisal of the prosecution evidence, as done hereinabove, indicates that this is not a case of sexual intercourse without the consent or against the will of the woman. It appears that the lady was a consenting party. In any case, the testimony of the lady does not inspire confidence, as demonstrated hereinabove, so the same cannot from the basis for the conviction of the appellant for offences of rape, house trespass and criminal intimidation, unless corroborated. In this view of the matter , I draw support form the above referred to judgment of the Honble Supreme Court. Consequently, the appeal is accepted, the conviction and the sentence of the appellant for the offences under Sections 376, 452 and 506 of the Indian Penal Code are set aside and he is acquitted. -