JUDGMENT Sanjay Karol, J. 1. Assailing the judgment dated 12.05.2008, passed by learned Sessions Judge, Kullu, H.P. in Sessions Trial No. 22 of 2007, titled as State vs. Surender Kumar Sharma, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. It is the case of prosecution that prosecutrix (PW.2) resides with her mother, Usha Devi (DW.1). After the death of her father, her Uncle (taya) (accused) married her mother. The entire family used to reside in the house constructed by the accused. On 23.11.2006, at about 9.00 PM, while prosecutrix was sleeping, accused, under the influence of liquor, entered her room, and after removing his clothes, tried to open the string of her salwar. When she tried to raise alarm accused gagged her mouth and threatened her of dire consequences. She got scared. Thereafter, after opening the string of her salwar, accused sexually ravished her. Thereafter, prosecutrix immediately rushed and disclosed the incident to her sister Hem Lata (PW.6) and her husband Rahul Sharma (PW.7), who also reside in the second floor of the same building. Rahul Sharma reported the matter to the police. Accordingly FIR No. 625 of 2006, dated 24.11.2006, (Ex. PW.2/A) was registered against the accused at Police Station, Kullu, under the provisions of Sections 376 and 506 of the Indian Penal Code. On 24.11.2006, prosecutrix was got medically examined from Dr. Namrata Vidyarthi (PW.1), who issued MLC (Ex. PW.1/B). On the allegation that at the time of sexual assault, prosecutrix was menstruating and accused, after removing her sanitary pads, cleaned his private part with a towel and that bed sheet was also stained, police recovered such items. Also clothes of accused and slides for smegma along with other seized articles were seized/recovered and sent for chemical analysis and report (Ex. PA) obtained by the police. Investigation revealed complicity of the accused in the alleged crime, hence Challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Sections 376 and 506 of the Indian Penal Code to which he did not plead guilty and claimed trial. 4. In order to establish its case, in all, prosecution examined as many as nine witnesses. 3. Accused was charged for having committed an offence punishable under the provisions of Sections 376 and 506 of the Indian Penal Code to which he did not plead guilty and claimed trial. 4. In order to establish its case, in all, prosecution examined as many as nine witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took up the following defence:- “On 22.11.1998 my younger brother Ravi Kant Sharma expired as he was not financially sound. I got retired from Central Bank of India, Ashoka Hotel Branch New Delhi as Senior Manager on 31.1.1999. My mother Kaushlya Devi used to stay along with my younger brother and therefore after his death my mother had called me to Kullu from Delhi to look after my sister in law and four daughters of my aforesaid younger brother. I also got built a house on the land owned by Usha Devi, who is the mother of the prosecutrix and I used to look after their family since March 1999. I also spent expenditure on the marriages of two elder sisters of the prosecutrix Meenakshi. The prosecutrix on 22.11.2004 went to school from the house and thereafter eloped with one Inderjit Thakur and she started living with him as his concubine for a period of six months and thereafter I got prepared the stamp papers of the marriage of prosecutrix Meenakshi and Inderjit Thakur. After sometime, the prosecutrix left her matrimonial house and came to our house and on 10.12.2005 she lodged F.I.R. U/s 498-A IPC against her husband Inderjit Thakur, her parents in law and sister in law at Police Station, Kullu. When she came to the house of her mother, she developed illicit relations with certain persons, however never approved of her illicit relations. Therefore, the prosecutrix wanted me to turn me out from her house. On 29.7.2006 I married Usha Devi, the mother of the prosecutrix at her (Usha Devi’s) instance. On 1.9.2006 when the mother-in law of Sangita (sister of prosecutrix) expired in Delhi, I alongwith Usha Devi went to Delhi on 11.9.2006 and remained there till 14.9.2006. During the aforesaid period of three days the prosecutrix made telephone calls to certain unknown persons from land-line Phone No. 225972 in the sum of Rs. 900/-. On 1.9.2006 when the mother-in law of Sangita (sister of prosecutrix) expired in Delhi, I alongwith Usha Devi went to Delhi on 11.9.2006 and remained there till 14.9.2006. During the aforesaid period of three days the prosecutrix made telephone calls to certain unknown persons from land-line Phone No. 225972 in the sum of Rs. 900/-. When I asked the prosecutrix Meenakshi about the aforesaid calls then she got offended and threatened me that she would see me. Thereafter, I shifted the prosecutrix from the room of the third storey of the house in question to second storey and also asked her to cook her own food. However, on 22.11.2006 in my absence, she apologized from her mother Usha Devi and requested her to keep her in her house. On this she was kept in the room of the third storey of the house in question and on 23.11.2006 she planted a false case upon me to take revenge from me. On the date of occurrence, I was present alongwith my wife Usha Devi in my room and the prosecutrix was present in her own room.” The accused also examined mother of the prosecutrix, Smt. Usha Sharma (DW.1). 5. Trial Court after appreciating the testimony of the prosecution witnesses acquitted the accused. Hence the present appeal. 6. Having heard learned counsel for the parties as also perused the record, we are of the considered view that no case for interference is made out in the present appeal. 7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredients so as to constitute the charge offence. 8. In Prandas vs. The State, AIR 1954 SC 36 , Constitution Bench of the apex Court, has held as under:- “(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C. to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.C. in an appeal from an order of acquittal has been stated in Sheo Swarup vs. Emperor, AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:- “Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.” 9. It is settled principle of law that testimony of prosecutrix is sufficient enough to convict the accused if it inspires confidence. See – Rajesh Patel vs. State of Jharkhand, (2013) 3 SCC 791 and State of Rajasthan vs. Babu Meena, (2013) 4 SCC 206 . 10. The Court is duty bound to appreciate the evidence in totality of the background of the entire case. It is also settled proposition of law that in case evidence read in its totality and the story projected by the prosecutrix is found to be improbable, her version is liable to be rejected. The apex Court in Narender Kumar vs. State (NCT of Delhi), (2012) 7 SCC 171 , has held as under:- “20. It is also settled proposition of law that in case evidence read in its totality and the story projected by the prosecutrix is found to be improbable, her version is liable to be rejected. The apex Court in Narender Kumar vs. State (NCT of Delhi), (2012) 7 SCC 171 , has held as under:- “20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide – Vimal Suresh Kamble vs. Chaluverapinake Apal S.P. & another, (2003) 3 SCC 175 and Vishnu vs. State of Maharashtra, (2006) 1 SCC 283 . 22. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide – Suresh N. Bhusare & other vs. State of Maharashtra, (1999) 1 SCC 220 . 23. In Jai Krishna Mandal & another vs. State of Jharkhand, (2010) 14 SCC 534 , this Court while dealing with the issue held:- “4. (Vide – Suresh N. Bhusare & other vs. State of Maharashtra, (1999) 1 SCC 220 . 23. In Jai Krishna Mandal & another vs. State of Jharkhand, (2010) 14 SCC 534 , this Court while dealing with the issue held:- “4. The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed.” 24. In Rajoo & other vs. State of Madhya Pradesh, (2008) 15 SCC 133, this Court held: (SCC p. 141, para 10) “10. That ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary.” The court however, further observed:- “11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” 25. In Tameezuddin @ Tammu vs. State (NCT of Delhi), (2009) 15 SCC 566 , this Court held has under:- “9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.” 26. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of easy virtues or a women of loose moral character can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. (Vide – State of Maharashtra & another vs. Madhukar Narayan Mardikar, (1991) 1 SCC 57 ; State of Punjab vs. Gurmit Singh & other, (1996) 2 SCC 384 and State of U.P. vs. Pappu @ Yunus & another, (2005) 3 SCC 594 . 27. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all. 28. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character. 29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide – Tukaram & another vs. State of Maharashtra, (2979) 2 SCC 143 and Uday vs. State of Karnataka, (2003) 4 SCC 46 . There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide – Tukaram & another vs. State of Maharashtra, (2979) 2 SCC 143 and Uday vs. State of Karnataka, (2003) 4 SCC 46 . 30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected. 31. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of.” 11. Dr. Namrata Vidyarthi (PW.1), who first examined the prosecutrix, after considering report of the Chemical Examiner, opined that “In my opinion she was exposed to frequent coitus, but no signs of recent or fresh sexual inter-course were there.” Significantly doctor did not find any marks of injury or violence on the body of the prosecutrix. Dr. Shishupal Singh (PW.3) who examined the accused, on the basis of report of the Forensic Science Laboratory, has opined that no blood/semen was found on penile slide, pubic hair or clothes of the accused. 12. That prosecutrix is a major is not in dispute. It also cannot be disputed that prosecutrix is an able bodied person. She is strong well built and healthy. 13. In the instant case we do not find the testimony of the prosecutrix to be inspiring in confidence at all. There are material contradictions, improvements, exaggerations and embellishments rendering her version to be unreliable and not trustworthy. It also cannot be disputed that prosecutrix is an able bodied person. She is strong well built and healthy. 13. In the instant case we do not find the testimony of the prosecutrix to be inspiring in confidence at all. There are material contradictions, improvements, exaggerations and embellishments rendering her version to be unreliable and not trustworthy. Prosecutrix was confronted with her previous statement/FIR (Ex.PW.2/A) to impeach veracity and discredit her testimony. In Court she states that on 24.11.2006, at about 9.00 PM, accused entered her room, came to her bed and tried to open the string of her salwar. When she tried to raise alarm he gagged her mouth and threatened to kill her. She was scared. Thereafter after opening the string of her salwar accused ravished her. On that day she was menstruating. Accused cleaned his private part with the towel. Her sanitary napkin was also removed. Thereafter accused returned to his room and she went to her sister who was also residing in the same house and narrated the incident to her. In the instant case, we do not find the testimony of the prosecutrix of having been subjected to rape by her step father to be inspiring in confidence at all. She admits that just 15 minutes prior to the incident, her mother had finished her meals and retired to her room and that distance between her room and the room of her mother is just 10 feet. She also admits that doors of the rooms were open. Crucially she states that at the time of crime, light of her room was switched off which version stands materially belied from the contents of FIR (Ex. PW.2/A) with which she was confronted. Be that as it may she states that she would recognize the accused only from his voice as she had covered her face with the quilt. Now this is totally unbelievable. Her own mother was sleeping in the adjoining room and had she raised any alarm or cried for help, it would have definitely attracted attraction. According to this witness, accused was with her for 5-7 minutes. She does not state with what object her mouth was gagged. She wants the Court to believe that she resisted his aggressive acts, yet we do not find any injury on her person. She is an able bodied young lady. According to this witness, accused was with her for 5-7 minutes. She does not state with what object her mouth was gagged. She wants the Court to believe that she resisted his aggressive acts, yet we do not find any injury on her person. She is an able bodied young lady. Accused is an old man of 70 years definitely there would have been some marks of injury on the bodies of either of the person. Noticeably incident took place not in the late hours of night but at about 9.00 PM, when generally all are awake. It is also not her case that she was alone at home. The building was fully occupied. Her sister who was also residing on the second floor of the same building would have heard her cries. Witness admits to have been confronted by the accused for not having satisfactorily replied to the excess calls made by her from the telephone, bill of which was paid by him. Witness also admits this to be a cause of altercation, making the relations so sour that they were not on talking terms. Accused retired as a Manager from a Public Financial Institution and admittedly after retirement he spent his entire retiral benefits on the construction of house which also is in the name of her mother. There is no previous incident of any such kind or evidence of his bad conduct or the drunkenness. 14. Mother of the prosecutrix to some extent has probablized the defence of the accused. In fact prosecutrix admits that against the wishes of her mother, she had got married to a person after running away from home. She was abandoned and returned to stay with her mother. Her father accepted her despite her conduct. 15. We also find testimonies of Hem Lata (PW.6) and Rahul Sharma (PW.7) not to have established the prosecution case any further. Hem Lata admits that prosecutrix was not happy about her mother marrying the accused. Surprisingly she did not confront the accused or report the matter to her mother. According to Mahinder Singh (PW.9), relations between prosecutrix and her mother were cordial, then why is it that she did not either report the incident to her or confront the accused in her presence. Surprisingly she did not confront the accused or report the matter to her mother. According to Mahinder Singh (PW.9), relations between prosecutrix and her mother were cordial, then why is it that she did not either report the incident to her or confront the accused in her presence. We also do not find version of these witnesses to be inspiring in confidence as it has come in the testimony of the Investigating Officer, Mahinder Singh (PW.9) that he visited the spot only in the morning of 24.11.2006 at about 9.35 AM, whereas, according to these witnesses, police reached the spot and conducted necessary investigation in the middle of night. 16. We further find the prosecution not to have established its case even by link evidence. Bed-sheet and towel, allegedly containing blood and semen marks, taken into possession by the police, as per report of the Chemical Analyst, contained no stains of blood or semen. 17. We further find that there is discrepancy with regard to the colour of towel with which accused allegedly wiped his private part. According to the prosecutrix, it was creamish in colour. Whereas, as per report of Chemical Examiner it was light green and white in colour. With regard to the clothes and the used sanitary pad of the prosecutrix, we find that they were not sealed in the presence of the doctor but a Clerk in the office, who was not examined in Court. All this further renders the prosecution story to be doubtful and not proved on record. The genesis of the prosecution story is rendered doubtful. 18. It is one of those unfortunate cases where allegations and counter allegations stand levelled by the daughter against her father, which in fact stand refuted not only by him but mother of the prosecutrix. Past conduct of the prosecutrix, as alleged by the mother, has not weighed with us, in deciding the present case. Duty of the Court, in the given circumstances, becomes all the more onerous. Court is duty bound to separate the grain from the chaff. We must clarify that testimony of mother of the prosecutrix, on relevant fact, which is germane to the issue in question, has not been considered by us, as she has deposed as a defence witness. The present appeal stands decided purely on the basis of testimony of the prosecutrix and the admissions made by her. 19. We must clarify that testimony of mother of the prosecutrix, on relevant fact, which is germane to the issue in question, has not been considered by us, as she has deposed as a defence witness. The present appeal stands decided purely on the basis of testimony of the prosecutrix and the admissions made by her. 19. In view of the improbabilities, contradictions, improvements and discrepancies in the prosecution case coupled with the testimony of witnesses which are absolutely shaky and unreliable, no interference is warranted. 20. The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice. 21. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case. For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.