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2014 DIGILAW 1137 (HP)

Bhupinder Singh v. State of H. P.

2014-08-26

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Justice Rajiv Sharma, J. The appellant-accused has infact filed two appeals against the judgment dated 19.3.2010, bearing Cr. Appeal No. 143 of 2010 and Cr. Appeal No. 490 of 2010. The Registry should not have accepted the second appeal bearing Cr. Appeal No. 490 of 2010, preferred by the same person against the judgment dated 19.3.2010. Cr. Appeal No. 490 of 2010 is thus dismissed, being not maintainable. Cr. Appeal No. 143 of 2010. 2. This appeal has been instituted against the judgment dated 19.3.2010 and consequent order dated 22.3.2010, rendered by the learned Addl. Sessions Judge, Fast Track Court, Hamirpur, in Sessions Trial No. 4 of 2010, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offences under Sections 376, 452 and 323 IPC, has been convicted and sentenced to undergo rigorous imprisonment for a period of six years and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo further simple imprisonment for a period of three months under Section 452 of the IPC and also sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo simple imprisonment for one month under Section 323 of the IPC. He was further convicted under Section 376(1) IPC and sentenced to undergo twelve years rigorous imprisonment with fine of Rs. 10,000/- and in default of payment of fine to further undergo six months simple imprisonment. The sentences were ordered to run concurrently. 3. The case of the prosecution, in a nut shell, is that on 21.8.2009, the prosecutrix (PW-1) was present in her house situated at village Ladyoh. She was all alone in the house at about 9:30/10:00 PM and was watching TV in her bed room. Accused, all of a sudden, entered her room. On asking the purpose of his visit, he gave kick blow and gagged her mouth with Dupatta and put off her salwar and committed rape on her person. The prosecutrix resisted the rape but accused in order to control her body, pushed her, as a result of which, her head struck with the bed. She sustained injuries on her forehead etc. The prosecutrix resisted the rape but accused in order to control her body, pushed her, as a result of which, her head struck with the bed. She sustained injuries on her forehead etc. While committing rape, the volume of the TV was increased by the accused and she fell un-conscious and in the morning of 22.8.2009 at about 8:00 AM, her neighbourer Manorma Devi was called by her and the entire incident was narrated to her. On information given to the police, the spot was inspected and her statement was also recorded, on the basis of which, FIR under Sections 376, 452 and 323 IPC was recorded. The shirt, salwar and dupatta of the prosecutrix was taken into possession in accordance with law alongwith the broken pieces of bangles and hair. The medical examination of the prosecutrix PW-1 was got conducted from lady doctor Rajneesh Thakur, RH Hamirpur. The vaginal slides and swab were also retained for examination by the FSL. These were safely sent to FSL and on receipt of the FSL report, investigation was completed and challan was put up after completing all the codal formalities. 4. The prosecution has examined as many as 13 witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded. The accused has denied that he trespassed into the house of the prosecutrix, voluntarily caused hurt on her person and raped her. According to him, PW-1 had called him to her house and on his knocking the door, PW-1 opened the bolt of the door and he entered the room. Accordingly, PW-4 Manorma Devi had since noticed his entry, PW-1 felt insulted and asked him to leave the spot. The accused has also examined three witnesses in defence. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. 5. We have heard learned counsel for both the sides and gone through the material available on record very carefully. 6. PW-1 has testified that her husband Jagdish Chand resides at village Ladyoh alongwith her son Ajay. Her daughters have already been married. Her son Ajay is also a driver. She is illiterate. Her son Ajay had gone to Shimla and her husband was at Hamirpur. She was watching TV in the first storey of her house. When she was in her bed room, she had bolted her house from inside. Her daughters have already been married. Her son Ajay is also a driver. She is illiterate. Her son Ajay had gone to Shimla and her husband was at Hamirpur. She was watching TV in the first storey of her house. When she was in her bed room, she had bolted her house from inside. She heard sound of knocking and noise on stairs of her house. She opened the door of the house and found that accused Bhupinder was standing outside the door of her room. He is resident of her village. She asked the accused the purpose of visit. Accused replied that he wanted to enter her room. She resisted the entry. However, the accused pushed her and forcibly entered her bedroom and increased the volume of the TV. Accused subjected her to beatings with fist blows and kicks. He also gagged her mouth by thrusting dupatta and despite her resistance, the accused raped her. The accused had forcibly taken control of her body and pin down her. He had sexual intercourse by coming on the top of her body. The accused also scratched her body. Accused torn off her shirt and had put off her salwar. In the process, she suffered injury on her head and left eye. She became unconscious at regained consciousness at about 8/9 AM in the morning. She could not notice as to when the accused had left her room. She was nude. Her salwar was lying under the bed on the floor and the shirt was on the bed. She called her sister-in-law, the adjoining neighbourer, Manorma Devi. She had also telephoned her daughters, husband and other relations. The villagers had also telephoned her son-in-law, other relations and police. The police had recorded her statement. Manorma had narrated the facts to the police as she was not in a position to disclose the facts at that time. According to her, the accused was drunk at that time. In her cross-examination, she admitted that she had worked under NAREGA alongwith the accused at two intervals. She also admitted that work of path under NAREGA scheme was carried out behind her house. She admitted that the house of Manorma adjoins her house. She also admitted that her house is slate-posh and if someone talks loudly from her house, it could be heard by Manorma. She also admitted that there are many houses around her house. She also admitted that work of path under NAREGA scheme was carried out behind her house. She admitted that the house of Manorma adjoins her house. She also admitted that her house is slate-posh and if someone talks loudly from her house, it could be heard by Manorma. She also admitted that there are many houses around her house. The house of Veena is located at a distance of about 60 feet from her house. She also admitted that if someone talks loudly, the sound could be heard in the house of Veena. They have landline telephone connection in their house. She did not know whether on that day, their telephone was in a working condition. Volunteered that, she only used to attend the incoming calls. She had not informed her husband, son and others personally. She is illiterate. According to her, she narrated the incident to Manorma and Manorma further narrated the incident to the police. She had not told any facts to the police. The papers were not read over and explained to her before she appended her signatures. She was not in a fit condition. 7. PW-2 Dr. Rajneesh Thakur, has medically examined the prosecutrix. She issued MLC Ext. PW-2/B. She noticed following injuries on the body of the prosecutrix : “DISCRIPTION OF INJURIES 1. A CLW of size 1 cm x 2 mm x 2 mm present at medial end of left eye brow, vertically placed, clotted blood present around. 2. A reddish bluish contusion present in left infra orbital region of size 5 cm x 2 cm present 3 cm lateral to nasal crest, tenderness present. 3. A linear abrasion 1 cm in length present in middle of breasts over the sternum, 5 cm above. Xiphoid process reddish brownish in colour. No other injury was seen.” According to her opinion, the possibility of sexual intercourse could not be ruled out. She admitted in her cross-examination that injuries No. 1 & 2 were possible by falling from stairs. She has also admitted that on medical examination, there was no injury on private parts. She also admitted that to constitute rape, the ejaculation is not necessary. There were no signs of ejaculation as per the report of FSL. She also admitted that there were also no symptoms of sexual intercourse as per the report of FSL. 8. She has also admitted that on medical examination, there was no injury on private parts. She also admitted that to constitute rape, the ejaculation is not necessary. There were no signs of ejaculation as per the report of FSL. She also admitted that there were also no symptoms of sexual intercourse as per the report of FSL. 8. PW-3 Inder Singh deposed that on 22.8.2009 at about 8:30-9:00 AM, he came to know about the incident. He went to the house of the prosecutrix. In his presence, the police had taken statement of the prosecutrix. The police had collected the bed sheet and pillow cover from the bed room of the prosecutrix. In his cross-examination, he deposed that on receiving the telephone call, he immediately reached the house of the prosecutrix. The prosecutrix was lying on the bed. He did not talk to the prosecutrix. Volunteered that, she was crying in pain and the prosecutrix was talking to some women. Volunteered that, their names were not known to him. He did not know that the prosecutrix was conscious. Further volunteered that, she was crying in pain and was lying on the bed. 9. PW-4 Manorma Devi deposed that their house is situated at a distance of 15 feet from the house of the prosecutrix. On 22.8.2009, at about 8/8:30 AM, the prosecutrix had called her to her house. She narrated to her that “on the previous night, the accused had come and did bad act with her”. She saw injuries on her forehead. She told this fact to Veena Devi, the elder sister-in-law of the prosecutrix. She did not enter into the bed room of the prosecutrix. She did not know who had called the police. In her cross-examination, she deposed that the prosecutrix was fully conscious when she made statement to the police. She admitted that throughout, the prosecutrix was talking to the people, till the departure of the police from the spot. She had not told the police that the accused had committed bad act with her. It was told by prosecutrix to the police. 10. PW-5 Dr. Pankaj Kapoor has examined the accused. He has issued MLC Ext. PW-5/B. 11. PW-6 Parveen Kumar deposed that Veena Devi had telephonically informed him at his village Chamboh that some incident had taken place and he should immediately reach in the house of his in-laws. It was told by prosecutrix to the police. 10. PW-5 Dr. Pankaj Kapoor has examined the accused. He has issued MLC Ext. PW-5/B. 11. PW-6 Parveen Kumar deposed that Veena Devi had telephonically informed him at his village Chamboh that some incident had taken place and he should immediately reach in the house of his in-laws. He hired taxi and reached in his in-law’s house at about 8:00 AM. On reaching, he telephoned the Police Post, Awahdevi that her mother-in-law had been raped. Veena Devi was saying that mother-in-law was raped by Shanichru. He visited PS Bhoranj on 25.8.2009 alongwith his father-in-law Jagdish Chand. The hair of the accused were taken into possession vide seizure memo Ext. PW-6/A. 12. PW-7 Parkash Chand, deposed that he received telephonic call from elder sister-in-law Veena Devi of his sister (prosecutrix) that somebody has injured the prosecutrix. He immediately rushed to the village Ladyoh. He came to know that his sister had been beaten up and raped by Sanichru. Police had reached the spot at about 9:30 AM and inspected the bed room of his sister. The police recovered shirt, dupatta and salwar vide memos Ext. P-1, P-2 and P-3, respectively. The bed sheet was also taken into possession alongwith the broken bangles. These were taken into possession vide seizure memo Ext. PW-1/A. He admitted in his cross-examination that they had decided to make a strong case against the accused so that he could be reformed. He had talked to his sister at about 10:30/11:00 AM. Volunteered that, she was in a semi-conscious state. 13. PW-8 Kamlesh Kumar has taken photographs of the spot vide memos Ext. PW-8/A to Ext. PW-8/D. 14. Statement of PW-9 Const. Mohinder Singh is formal in nature. 15. PW-10 HC Ravinder Kumar, deposed that Inspector Desh Raj SHO PS Bhoranj, on 22.8.2009 had deposited with him in the Malkhana 7 parcels which were duly sealed with seal impression ‘M’ and ‘Aa’ containing double-bed bed sheet, pillow cover, clothes of victim, broken bangles, hairs, under wear of accused, sample of his urethral swab and sample of his pubic hair. ASI Vinod Kumar on 25.8.2009 had deposited with him one parcel with seal impression ‘Aa’ containing sample hair of accused Bhupinder. ASI Vinod Kumar on 25.8.2009 had deposited with him one parcel with seal impression ‘Aa’ containing sample hair of accused Bhupinder. On 27.8.2009, HHC Chuni Lal had brought the samples of vaginal swab and slide with seal impression ‘DHH’ from RH Hamirpur alongwith one sealed envelope addressed to Chemical Examiner, FSL, Junga. The parcel containing the bed sheet, clothes of the prosecutrix, parcel of the hair taken from the spot, parcel of the under garments of accused Buhupinder alongwith the parcel of urethral swab and sample of pubic hair of accused, sample of vaginal swab and slide alongwith the request letter were sent to FSL Junga by him through Const. Vipan Kumar for chemical analysis, vide RC No. 118/09. As long as the case property remained with him, it was not tampered with. ‘Ruka’ mark ‘A’ endorsed by ASI Vinod Kumar was received in the police station at about 11:55 hours through HHC Santosh Kumar, on the basis of which, FIR Ext. PW-10/E was registered. 16. PW-11 Const. Vipan Kumar deposed that MHC Ravinder handed over to him 8 parcels of this case vide RC No. 18/09. He deposited the same at FSL Junga. The parcels remained intact with him. 17. PW-12 Vinod Kumar deposed that on 22.8.2009 at about 9:00 AM. Parveen Kumar telephoned the police post that the prosecutrix was beaten up and raped by Bhupinder alias Shanichru. The information was reduced in daily diary vide Ext. PW-9/A. He reached the spot at about 9:30 AM. The prosecutrix was lying on the bed in the verandah of her house. He recorded her statement under Section 154 Cr.P.C. Ext. PW-12/A. The statement was read over and explained to her and she appended her signatures on the same. The prosecutrix was under shock due to the incident of rape as she was mother of three daughters, therefore, there was delay of about 45 minutes in recording her statement. Bed sheet Ext. P-4 and Pillow cover Ext. P-5, which were blood stained, were taken into possession vide seizure memo Ext. PW-1/B in the presence of witnesses Rajinder Singh and Inder Singh. Clothes of the prosecutrix were also taken into possession vide seizure memo Ext. PW-1/A. Broken bangles and hair were sealed in parcel Ext. P-9 with seal impression ‘M’. Both the parcels were taken into possession vide seizure memo Ext. PW-7/A. He also prepared the spot map Ext. PW-1/B in the presence of witnesses Rajinder Singh and Inder Singh. Clothes of the prosecutrix were also taken into possession vide seizure memo Ext. PW-1/A. Broken bangles and hair were sealed in parcel Ext. P-9 with seal impression ‘M’. Both the parcels were taken into possession vide seizure memo Ext. PW-7/A. He also prepared the spot map Ext. PW-12/B. The prosecutrix was medically examined. The accused was arrested on 22.8.2009 at 4:00 PM. He also got him medically examined at CHC Bhoranj. In his cross-examination, he deposed that when he met the prosecutrix, she was lying in the verandah on bed alongwith other women. He also admitted that the atmosphere at the spot was tense and people were annoyed with the accused. 18. PW-13 Insp. Desh Raj deposed that he prepared the charge sheet as per the investigation and evidence collected by ASI Vinod Kumar. He also visited the spot and brought case property from the spot and deposited the same with the MHC on 22.8.2009. 19. DW-1 Rajinder Singh deposed that he was Up-Pradhan of Gram Panchayat Barara. He was also ward Panch of village Ladyoh. He knew the accused. He reached the place of occurrence at about 7:30 AM. He was informed by Dev Raj SHO. When he reached the spot, Kanta Devi, Manorma and Veena Devi told him that accused Bhupinder Singh had pushed the prosecutrix from the stairs. The prosecutrix had not narrated that the rape was committed on her by the accused. 20. DW-2 Dr. Rajneesh Thakur, has deposed that as per the report of FSL, Ext. PA, there was no semen ejaculation on salwar, dupatta of the prosecutrix and bed sheet and pillow cover sent for chemical examination. 21. The accused has appeared as DW-3. He deposed that the prosecutrix was known to him for the last 18 years. He used to visit the house of the prosecutrix in the presence of her husband Jagdish in order to take liquor with him. He had intimacy with the prosecutrix. He also had physical relations with her. On 21.8.2009, he was called by the prosecutrix to her house. He reached her house on the said date at 8:30 PM and knocked her door. The prosecutrix had opened the door and he entered the room. However, in the meantime, Manorma Devi made a call to the prosecutrix. Manorma Devi resides adjacent to the house of the prosecutrix. On 21.8.2009, he was called by the prosecutrix to her house. He reached her house on the said date at 8:30 PM and knocked her door. The prosecutrix had opened the door and he entered the room. However, in the meantime, Manorma Devi made a call to the prosecutrix. Manorma Devi resides adjacent to the house of the prosecutrix. She asked the prosecutrix as to who had come. The prosecutrix told him to leave her house as it would have brought dishonor to her. The prosecutrix opened the door and he came out and the prosecutrix followed her up to the stairs. She slipped on the stairs and fell down. She suffered injuries on her forehead. He remained in the room of the prosecutrix for 3 minutes. When he left the place, except for PW-4 Manorma Devi, none had seen him. 22. According to ‘ruka’ Ext. PW-12/A, the prosecutrix was all alone in her house. At about 8-9:00 PM, she was watching TV in her bed room. In the meantime, accused all of a sudden came to her house. He kicked her and gagged her mouth with dupatta. He removed her salwar and had sexual intercourse with her. She tried to save herself and in the process, accused pushed her and her head was struck against the bed. She received injury. The accused has also increased the volume of the TV. Thereafter she became un-conscious. She regained consciousness at 8 AM next day and she called her neighbourer Manorma Devi on 22.8.2009. The prosecutrix, while appearing as PW-1 has deposed that her son was working at Hamirpur. Her son had gone to Shimla and her husband was at Hamirpur. She was watching TV in the first storey of her house. She was in her bed room. She had bolted the room from inside. She heard knocking and noise on the stairs of her house. She opened the door and found accused Bhupinder was standing outside the door of her room. On asking the accused, the purpose of his visit to the house he replied “that he wants to enter her room”. She resisted his entry but the accused had pushed her and he forcibly entered the bed room of the prosecutrix and increased the sound of the TV. The accused had also gagged her mouth by thrusting the dupatta. He raped her despite her resistance. She resisted his entry but the accused had pushed her and he forcibly entered the bed room of the prosecutrix and increased the sound of the TV. The accused had also gagged her mouth by thrusting the dupatta. He raped her despite her resistance. There is variance in the contents of ‘ruka’ Ext. PW-12/A vis-à-vis her statement recorded as PW-1. In Ext. PW-12/A, she deposed that she was watching TV at 8-9:00 PM at night in her bed room. Accused, all of a sudden, entered the room and she asked him as to why he has come. Thereafter, she was given kick blow by the accused and she was raped. PW-1, in her statement has deposed that she was watching TV in the first storey. She was in her bed room. She heard sound of knocking and noise on stairs of her house. She opened the door of the house and found accused standing there. According to Ext. PW-12/A, the accused entered the room all of a sudden but while appearing as PW-1 she opened the door when she heard noise from the stairs. 23. PW-1 prosecutrix, has deposed that she narrated the incident to Manorma and Manorma further narrated the incident to the police. She has not told the facts to the police. She has appended her signatures on asking of the police. The contents were not read over and explained to her before she appended her signatures. PW-4 Manorma Devi deposed that on 22.8.2009 at about 8-8:30 AM, the prosecutrix had called her to her house. She told her “ that on previous night, the accused had come and did bad act with her”. She saw injuries on her forehead. She told this fact to Veena Devi, the elder sister-in-law of the prosecutrix. She has admitted in her cross-examination that she did not know what proceedings the police have taken down. According to her, the prosecutrix was fully conscious when she made statement to the police. The prosecutrix was talking to the people. She has not told the police that the accused had done bad act with her. It was prosecutrix who had told the incident to the police. According to her, the prosecutrix was fully conscious when she made statement to the police. The prosecutrix was talking to the people. She has not told the police that the accused had done bad act with her. It was prosecutrix who had told the incident to the police. Further PW-1, as noticed by us above, has categorically admitted in her cross-examination that she has not told any facts to the police and infact narrated the incident to Manorma and Manorma had further narrated the incident to the police. The incident had taken place on 21.8.2009. She further deposed in her cross-examination that house of Manorma (PW-4) adjoins her house. She has admitted that her house is slate posh and if someone talks loudly from her house, it could be heard by Manorma. She has also admitted that there are many houses around her house. In front of her house, there is house of deceased Dalip Singh. The house of Veena Devi is located at a distance of about 60 feet from her house. She is on talking terms with Veena. The prosecutrix, if had raised alarm, PW-4 Manorma Devi and Veena Devi could hear the alarm. The house of deceased Dalip Singh is also in front of the house of the prosecutrix. The police has been informed by PW-6 Parveen Kumar. He is son-in-law of the prosecutrix. According to him, Veena Devi was saying that his mother-in-law was raped by the accused. The prosecutrix has admitted in her cross-examination that the family had a landline telephone in their house. She did not know whether it was in working condition or not. Volunteered that, she only used to receive incoming calls. She admitted that she had personally not telephoned her husband, son and others. If the landline telephone was in the house, her first reaction would have been to inform her husband, son and other relations from the landline phone itself. She only called Manorma Devi to her house. It casts doubt on the version of the case of the prosecution. 24. The prosecutrix was medically examined by PW-2 Dr. Rajneesh Thakur. According to her, the possibility of sexual intercourse could not be ruled out. She has given her final opinion after the receipt of the report of the FSL Ext. PA. We have gone through Ext. PA. Human blood was found on Ext. 1a (salwar, prosecutrix), Ext. 24. The prosecutrix was medically examined by PW-2 Dr. Rajneesh Thakur. According to her, the possibility of sexual intercourse could not be ruled out. She has given her final opinion after the receipt of the report of the FSL Ext. PA. We have gone through Ext. PA. Human blood was found on Ext. 1a (salwar, prosecutrix), Ext. 1c (dupatta, prosecutrix), Ext. 2a (bed sheet) and Ext. 2b ( pillow cover). However, semen was not detected on the exhibits. Blood and semen was not detected on Ext. 1b (shirt, prosecutrix), Ext. 3 (hair lifted from the bed), Ext. 4( head hair, Bhupinder Singh), Ext. 5 (underwear, Bhupinder Singh), Ext. 6 (urethral swab, Bhupinder Singh), Ext. 7 (pubic hair, Bhupinder Singh), Ext. 8a (vaginal slides, prosecutrix) Ext. 8b (pubic hair, prosecutrix) and Ext. 8c (Vaginal swab, prosecutrix). In her cross-examination, PW-2 Dr. Rajneesh Thakur, has admitted that there was no injury on private parts which was suggestive of sexual assault. There were no signs of ejaculation, as per the report of FSL, Ext. PA. There were also no symptoms of sexual intercourse as per the report of FSL. The defence of the accused seems to be probable that he was called by the prosecutrix to her house and his presence was noted by PW-4 Manorma Devi. In ‘ruka’ Ext. PW-12/A, it is stated that the door was open during night when the prosecutrix was watching TV and accused had entered the room all of a sudden. In her statement while appearing as PW-1 in the Court, she deposed that the door was locked and she opened the door. There were many houses near the house of the prosecutrix. The prosecutrix has admitted in her cross-examination that if somebody talks in her house loudly, the same could be heard by Manorma Devi. Similarly, the house of Veena Devi was located at a distance of 60 feet and if somebody talks loudly in the house of the prosecutrix, Veena Devi could also hear the noise. 25. There are no injury marks on the private parts of the prosecutrix. No semen was found on the clothes of the accused. There was no blood and semen detected on vaginal swab of the prosecutrix and on the pubic hair of the prosecutrix. PW-2 Dr. Rajneesh Thakur noticed injuries No. 1 to 3 on the body of the prosecutrix. Dr. There are no injury marks on the private parts of the prosecutrix. No semen was found on the clothes of the accused. There was no blood and semen detected on vaginal swab of the prosecutrix and on the pubic hair of the prosecutrix. PW-2 Dr. Rajneesh Thakur noticed injuries No. 1 to 3 on the body of the prosecutrix. Dr. Rajneesh Thakur (PW-2) had deposed in her cross-examination that injuries No. 1 & 2 were possible by falling from stairs. This is also probablized on the basis of the statement of accused while appearing as DW-3 that when he was leaving the house of the prosecutrix, she slipped and received injuries. Thus the prosecution has failed to prove the charge under Section 323 IPC. 26. According to prosecutrix (PW-1), the papers were not read over and explained to her before she appended her signatures. However, PW-12 ASI Vinod Kumar, has deposed that the statement recorded under Section 154 Cr.P.C. Ext. PW-10/A was read over and explained to the prosecutrix. Thereafter, she appended signatures on the same. According to prosecutrix (PW1), she narrated the incident to Manorma Devi and Manorma Devi has narrated the same to the police. However, PW-12 ASI Vinod Kumar in his cross-examination, deposed that when he met the prosecutrix, she was lying in the verandah on the bed alongwith other women. He denied that he has written Ext. PW-12/A on the version of Manorma Devi. Volunteered that, the prosecutrix had narrated these facts to him. 27. PW-4 Manorma Devi has deposed that prosecutrix was fully conscious when she made statement to the police. She was talking to the people throughout till the departure of the police from the spot. PW-3 Inder Singh deposed that the prosecutrix was crying with pain and was lying on the bed. PW-7 Parkash Chand deposed that the prosecutrix was in semi-conscious state. The prosecution has also failed to prove that the accused had trespassed into the house of the prosecutrix. Moreover, there is variance in the statement of prosecutrix while she appeared as PW1 and ‘ruka’ Ext. PW-12/A, the manner in which the accused has entered the house of the prosecutrix during the night. 28. The prosecution has not led any evidence to prove that the accused has made preparation for causing hurt. Moreover, there is variance in the statement of prosecutrix while she appeared as PW1 and ‘ruka’ Ext. PW-12/A, the manner in which the accused has entered the house of the prosecutrix during the night. 28. The prosecution has not led any evidence to prove that the accused has made preparation for causing hurt. There must be evidence of preparation for causing hurt and when there is no such proof, as in the present case on record, the conviction cannot be sustained under Section 452 IPC. In order to prove charge under Section 452 IPC, the mere house trespass is not material but house trespass proceeded by preparation by the accused for causing hurt is sine qua non. The prosecution has also to prove that the accused had dominant intention to cause hurt while committing house trespass. The accused in the instant case was not found with any weapon etc. 29. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove its case beyond reasonable doubt that the accused has committed rape upon the prosecutrix. The circumstances, noticed by us hereinabove, creates reasonable doubt in the version of prosecution. 30. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 19.3.2010 and consequent order dated 22.3.2010, rendered in Sessions Trial No.4 of 2010, is set aside. Accused is acquitted of the charges framed against him by giving him the benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 31. The Registry is directed to prepare the release warrant of accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.