JUDGMENT Surinder Singh, J. The appellant was charge sheeted, tried and convicted for the offence punishable under Sections 376 and Section 452 Indian Penal Code as such sentenced to under rigorous imprisonment for a period of 5 years and to pay a fine of Rs.1000/- under Section 376 Indian Penal Code and six months for the offence punishable under Section 452 Indian Penal Code by the learned trial Court. Both the sentences were ordered to run concurrently. In default of payment of fine, the appellant, hereinafter referred to as “the accused” was further sentenced to undergo simple imprisonment for a period of one month by giving set-off of pre-trial and under trial period of detention under Section 428 of the Code of Criminal Procedure. 2. Feeling aggrieved, accused filed the present appeal. 3. Prosecution case, as emerges from the evidence on record can be stated thus. The prosecutrix (49) is a married woman having two married daughters and an adult son studying in the College residing with his maternal uncle in New Shimla.(ii)The prosecutrix was residing in her village along with her husband, a beldar in I and PH Department.(iii)It is alleged that on 8.2.2011, in the evening around 7 p.m. she was alone in the house. On the day, he after the duty hours had gone to attend the marriage of the daughter of his God- sister in village Barog. (iv)Finding the prosecutrix alone, around 7.30 p.m. the accused, who was her neigbour knocked at the kitchen door and made forcible entry inside and starting molesting her. She could not resist his advances because she had suffered a fracture of her back bone earlier. The accused threw her on the floor of the kitchen, took off her trouser, undergarments and committed rape on her. Though, she raised hue and cry yet no one came to her rescue, as the door was closed from inside. It is also alleged that her bangles got broken. (v)Next morning, prosecutrix made a complaint to PW3 Smt. Gita Devi. Her husband (PW2) visited his house in the morning. He hurriedly took meal and left for his duty but she did not make any complaint to him.(vi)Later around 10/11 a.m., he (PW2) contacted the prosecutrix and enquired about the smell of alcohol in the kitchen he noticed while taking food. Her husband (PW2) visited his house in the morning. He hurriedly took meal and left for his duty but she did not make any complaint to him.(vi)Later around 10/11 a.m., he (PW2) contacted the prosecutrix and enquired about the smell of alcohol in the kitchen he noticed while taking food. Then she informed that on the previous evening accused trespassed into her kitchen and committed rape on her.(vii)On receiving this information, her husband went to police station to report the matter. He along with police visited the spot, recorded statement of the prosecutrix under Section 154 of the Code of Criminal Procedure (Ext. PW1/A) and took into possession broken bangles vide memo Ext. PW1/B. She also produced her own bangles which she was wearing and were made into a parcel and sent for forensic science examination. 4. The prosecutrix was got medically examined by the police from PW17 Dr. Renu Sharma, on 9.2.20 1 1. She noticed that the prosecutrix had kyphosis of lumbsacral spine (old injury). She did not notice any other injury over any part of her body. She took into possession Salwar Ext.P3, Shirt Ext. P4, Shawl Ext. P5 and Inner Ext.P6 and also preserved pubic hair and nail clippings along with vaginal smear, her under garments and blood sample. 5. The forensic examination reports Ext. PX revealed that the pieces of the bangles were different from the bangles produced by the prosecutrix. However, another report Ext.PY revealed about the presence of blood and human semens on the vaginal slides of the prosecutrix. On the basis of the said report, the doctor aforesaid opined that there was nothing to suggest that the sexual intercourse had not taken place. 6. The police had also prepared the site plan of the place of the alleged incident Ext. PW15/C and the accused after his arrest was got medically examined. His MLC is Ext. PW4/B. He was found fit to perform sexual intercourse. 7.After completing instigation, the challan was presented in the Court for the trial of the accused. The accused was accordingly charge sheeted for the offences aforesaid to which he denied. 8. To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the code of Criminal Procedure. He denied the circumstances which were found attendant upon him and pleaded innocence as also the false implication in the case. The accused was accordingly charge sheeted for the offences aforesaid to which he denied. 8. To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the code of Criminal Procedure. He denied the circumstances which were found attendant upon him and pleaded innocence as also the false implication in the case. When called upon to enter into his defence, he did not lead any evidence in defence. 9. At the end of the trial he was convicted and sentenced as aforesaid. 10.Shri M.L. Brakta, learned counsel for the accused forcefully argued that from the evidence on record, itself the prosecution story is improbable, as the prosecutrix did not inform her husband immediately after the alleged incident and it was only at the behest of her husband on his inquisitive inquiry made telephonically regarding the smell of alcohol in the kitchen to which he noticed. It is also argued that he took food in the kitchen and did not notice any broken bangles and the broken pieces of bangles which were alleged to have been recovered are manipulated and also drew my attention to the statement of PW3 Smt. Gita Devi. Neither the clothes of the prosecutrix were torn nor there was evidence of any injury. It is argued that otherwise also the circumstances point out towards consensual intercourse. 11. Contrary Shri P.M. Negi, learned Deputy Advocate General while supporting the impugned judgment of conviction and sentence argued that the above alleged discrepancies are of minor nature and too much importance cannot be attached to it. He referred to the statements (PW3) Smt. Gita Devi and husband of the prosecutrix PW2, coupled with the fact that the semens were found on the vaginal swabs indicative of the fact that it was a case of rape having been committed by the accused. Therefore, no interference is called for. 12. I have given my thoughtful consideration to the rival contentions of the parties and have cautiously and carefully gone through the evidence on record. 13. The statement of the prosecutrix and her conduct, in the instant case, require proper and deep scrutiny. Admittedly, her husband returned in the morning to his house, took food in the kitchen and left for his duty. But surprisingly the prosecutrix did not narrate the incident to him. 13. The statement of the prosecutrix and her conduct, in the instant case, require proper and deep scrutiny. Admittedly, her husband returned in the morning to his house, took food in the kitchen and left for his duty. But surprisingly the prosecutrix did not narrate the incident to him. She as well as her husband, both were having mobile phones with them. She also did not narrate about the incident to him on her phone immediately after the alleged occurrence. But she stated about it when she was contacted by her husband around 11 am on her mobile phone and enquired about the alcoholic smell to which he noticed in the kitchen while taking food. It was in reply to that query that she revealed about the incident to her husband. 14.She further stated that she did not suffer any mark of abrasion and bruise when the accused had committed crime and also her clothes were not torn. She denied that she had been meeting the accused several times prior to the incident and also that her husband was suspecting her for infidelity. But however, admitted that the wife of accused had charged her with objectionable activity with her husband-accused some days prior to the day of incident. 15. PW2 the husband of the prosecutrix stated that in the morning he returned to his house, took food in the kitchen hurriedly and left for his duty. Around 10/11 a.m. he contacted his wife on telephone and inquired about the smell of alcohol present in the kitchen, then she revealed him about the incident. He left for the police station and apprised the police. The police visited his house and recorded the statement of the prosecutrix and she also produced bangles Ext.P2 to the police which were sealed. According to him, his wife did not inform him in the morning on account of fear but the prosecutrix did not say so. However, in cross examination, he (PW2) stated that the recovery memo Ext. PW1/B and all other papers were prepared in the police station and not on the spot. He also stated that he did not notice pieces of the broken bangles in the kitchen at the time of taking food. He further stated that he as well as the accused was in visiting terms for the last 25 years. PW1/B and all other papers were prepared in the police station and not on the spot. He also stated that he did not notice pieces of the broken bangles in the kitchen at the time of taking food. He further stated that he as well as the accused was in visiting terms for the last 25 years. He denied that he had been entertaining a doubt about the character of his wife and suspecting her relationship with the accused. 16. PW3 Smt. Gita Devi stated that she had seen the accused visiting the house of the prosecutrix. In the morning around 8 a.m., the prosecutrix told her that the accused had molested her. Her husband was not in the house. In cross examination, she stated that the broken pieces of the bangles were not taken by the police in her presence from the kitchen of the prosecutrix. 17. On the critical examination of the aforesaid evidence, I do not find it a case of rape as alleged for more than one reason. Firstly, that the prosecutrix as well her husband both were having mobile phones with them. The incident in question had taken place in the evening around 7.30 p.m. She could have made the complaint to her husband. Secondly, as per PW3 she had seen the accused visiting the house of the prosecutrix and in the morning the prosecutrix also informed Smt. Gita Devi (PW3) about the molestation but did not say about the rape. Thirdly, her husband (PW2) visited the house in the morning but even at that time, she had ample opportunity to make the complaint about the incident to her husband but she did not choose to do so. It was only on the roving inquiry by PW2 on telephone when he suspected something because of alcoholic smell in the kitchen. Apprehending that truth might have surfaced, the prosecutrix imputed the allegation of rape on the accused. To me it appears from the evidence of PW3 Smt. Gita Devi that he had noticed the accused visiting the house of the prosecutrix. The prosecutrix must have felt that she would get exposed, she alleged molestation as per her complaint to Smt. Gita Devi but later alleged rape when asked by her husband in the manner aforesaid. To me it appears from the evidence of PW3 Smt. Gita Devi that he had noticed the accused visiting the house of the prosecutrix. The prosecutrix must have felt that she would get exposed, she alleged molestation as per her complaint to Smt. Gita Devi but later alleged rape when asked by her husband in the manner aforesaid. Fourthly, the presence of the semens in the vaginal smear is meaningless in the present case as the circumstances on record are also suggestive of tacit consent pointing out towards the consensual intercourse. 18. Therefore, on the close scrutiny of the aforesaid evidence, I do not find it a case of worth inspiring confidence on the basis of the statement of the prosecutrix. As such the accused is acquitted by giving him the benefit of doubt. Consequently the appeal is allowed and the judgment of conviction and sentence is hereby set aside. 19. The accused is undergoing sentence, hebe released forthwith, if not required in any other case. The Registry is directed to issue the release warrant to the Superintendent of Jail concerned.