JUDGMENT : Rajiv Sharma, J. This appeal is instituted against judgment dated 24.12.2011 rendered by learned Additional Sessions Judge-I, Kangra at Dharamshala, HP in Session Case No. 43-J/2010, whereby appellant-accused (hereinafter referred to as 'accused’ for convenience sake), who was charged with and tried for offence under Sections 452 and 376 IPC, has been convicted and sentenced under Section 376 IPC to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo simple imprisonment for six months. Accused has further been sentenced under Section 452 IPC to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo simple imprisonment for one month. The period of judicial custody is to be struck off against the substantive sentence 2. Case of the prosecution, in a nutshell, is that during the midnight of 28/29 February 2010, PW-1 prosecutrix and her daughter PW-6, Salma Bibi were sleeping in their house. Husband of the prosecutrix had gone with the vehicle in which he was a Cleaner. There were no doors or windows in the Kitchen. They were sleeping only with the curtains on the door. At about 12.00 in the midnight, accused trespassed into the kitchen and slept on the bed of the prosecutrix. Thereafter, he gagged the mouth of the prosecutrix with one hand and with the other, broke the string of the Salwar of the prosecutrix and committed rape upon her, against her wish. Prosecutrix got herself released from the clutches of the accused, who fled away and thereafter prosecutrix and her daughter raised hue and cry and came outside and identified accused as Pammi, in the moonlit night. PW-14 Masar Deen and his wife were sleeping in their house and on hearing cries, came outside and found prosecutrix alongwith her daughter Salma there. They were frightened and crying. PW-14 Masar Deen enquired from them why they were crying. Prosecutrix told that accused Pammi son of Chamaru had come to their house and gagged her mouth and committed rape and went upwards. PW-14 Masar Deen took prosecutrix and her daughter to his house. They slept there for the night. Rapat was lodged at Police Post Kotla. FIR was registered at Police Station Jawali. Lady Constable Mamta Sharma also questioned the prosecutrix regarding the incident. PW-14 Masar Deen took prosecutrix and her daughter to his house. They slept there for the night. Rapat was lodged at Police Post Kotla. FIR was registered at Police Station Jawali. Lady Constable Mamta Sharma also questioned the prosecutrix regarding the incident. She took her to CHC Indora for medical examination where PW-7 Dr. Swati, Medical Officer on 1.3.2010 conducted medical examination since no lady doctor was available at SDH Nurpur. Accused was arrested. He was also medically examined. Case property was deposited at the Police Station. It was sent to the FSL. Photographs were also taken of the spot. Investigation was completed and challan was put up in the Court after completing all the codal formalities. 3. Prosecution has examined as many as 16 witnesses to prove its case against the accused. Accused was also examined under Section 313 of the Criminal Procedure Code. Accused was convicted as noticed herein above. Hence, this appeal. 4. Mr. Naveen K. Bhardwaj, Advocate has strenuously argued that the Prosecution has failed to prove its case against the accused. 5. Mr. M.A. Khan, learned Additional Advocate General has supported Judgment dated 24.12.2011. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 deposed that she was married 12 years back to one Saffijat. She had one daughter. She was studying in 3rd Class. Her husband had gone with the vehicle being the Cleaner of said vehicle. He used to remain outside in connection with his work. She, after taking meals had slept in the kitchen. Kitchen had only walls with no doors or windows. There was no electricity connection. It was around 12.00 in the night. Pammi came in the kitchen and slept in her bed. Pammi is resident of their village and she knew him. Accused thereafter gagged her mouth with one hand and with the other, broke the string of her Salwar and committed rape upon her without her consent. She got herself released from the accused. Accused jumped from height. Thereafter, she and her daughter raised hue and cry. Her neighbours Sukhra and Masar Deen came there and she narrated the incident to them. Thereafter, Masar Deen took her and her daughter to their house. She slept in their house during that night. On the next day, Masar Deen sent her to Pradhan Kalu. She narrated the incident to Kalu. Thereafter, she and her daughter raised hue and cry. Her neighbours Sukhra and Masar Deen came there and she narrated the incident to them. Thereafter, Masar Deen took her and her daughter to their house. She slept in their house during that night. On the next day, Masar Deen sent her to Pradhan Kalu. She narrated the incident to Kalu. She made a telephonic call to her husband. She told him about the incident and he told the prosecutrix that he (husband) would be back after 3-4 days. She also met Chamaru Ram, father of the accused and narrated the incident to him, who was outside the STD booth. She was medically checked by lady Doctor. In her cross-examination, she has admitted that she knew accused for the last 5-6 years and she and accused were on talking terms. She further volunteered that accused was having one shop. She also admitted that people used to raise finger on her and accused due to their talking with each other. She admitted that it was dark on the night of incident and she admitted that she did not recognize the person who entered the room but recognized him when she came out. She admitted that her husband had come home after 4-5 days of incident. She also admitted that her husband and accused had a quarrel with each other. 8. PW-2 Kalu Deen deposed that he was Pradhan of Gram Panchayat Rajol. On 1.3.2010, at about 8.30/8.45 am, prosecutrix had come to his house and told that accused Pammi had committed rape upon her. He advised the prosecutrix to report the matter to the police. Police has taken into possession the clothes of the prosecutrix in their presence vide seizure memo Ext. PW-1/A. 9. PW-3 Tarsem Singh deposed that he knew accused Pammi. He was also known as Sanjeev. He also knew Prosecutrix. Both of them were residents of their village. On the next day of the occurrence, he met one K.D. Himachali, Up Pradhan and Sanjeev at 12.30 pm, who told him that accused Pammi had committed rape upon the prosecutrix. Police came to the spot and recorded the statements. 10. PW-4 Dr. Arvind Dhiman has examined the accused. He issued MLC Ext. PW-4/A. 11. PW-6 is the daughter of the prosecutrix. Her statement was recorded without oath. She deposed that her mother was sleeping in the house during the night. Police came to the spot and recorded the statements. 10. PW-4 Dr. Arvind Dhiman has examined the accused. He issued MLC Ext. PW-4/A. 11. PW-6 is the daughter of the prosecutrix. Her statement was recorded without oath. She deposed that her mother was sleeping in the house during the night. There were no doors or windows in the room where they were sleeping. There was only curtain. Pammi came in the room and when her mother cried, Pammi fled. She went outside the room and identified the person as Pammi. In her cross-examination she has admitted that other villagers used to come there and she did not know what they used to talk to her mother. Pammi used to come there. She also admitted that when people used to come she was sent out. 12. PW-7 Dr. Swati has medically examined the prosecutrix. She issued MLC Ext. PW-7/B. According to her, consensual intercourse had recently been committed with the prosecutrix within 24 hours. 13. PW-9, 10 and 11 are formal witnesses. 14. PW-12 Mamta Sharma deposed that the prosecutrix was taken to SDH Nurpur on 1.3.2010. However no lady doctor was available there and she was taken to CHC Indora. She was got medically examined during midnight around 1.30-2.00 am on 2.3.2010. She had questioned the prosecutrix and she told that her husband was out of home for the past many days. She was alone with her daughter on said day. She was raped by accused. She did not raise hue and cry as her mouth was gagged. Therefore, she could not resist his act. In her cross-examination she deposed that the prosecutrix had told her that she was asleep therefore she thought that her husband had come and lateron she came to know that her husband was not there and her mouth was gagged. 15. PW-14 Masar Deen deposed that he and his wife were sleeping in their house and heard voice of a lady. Prosecutrix alongwith her daughter were there and they were frightened and crying. They enquired from then why they were crying. Prosecutrix told him that just now Pammi had come to their house and gagged her mouth and committed rape upon her. He went towards prosecutrix and asked her to accompany him. He asked Salma, what had happened. She was frightened and told him that Pammi Chachu had come. They enquired from then why they were crying. Prosecutrix told him that just now Pammi had come to their house and gagged her mouth and committed rape upon her. He went towards prosecutrix and asked her to accompany him. He asked Salma, what had happened. She was frightened and told him that Pammi Chachu had come. She had seen him running upwards in the moonlight. He took them to his house and they slept there for the night. 16. PW-15 Kasim deposed that the accused took them to his house and got recovered pants, T-shirt from the almirah. Police took into possession the clothes vide seizure memo Ext. PW-15/A. 17. PW-16 Lekh Ram has undertaken the investigation. He testified that on 1.3.2010, he had gone in connection with investigation of case FIR No. 30/10 under Section 498A IPC towards Nagrota Surian. When he was returning, he received a telephonic message from the police Station that some lady had lodged a report. Thereafter, he proceeded to Kotla alongwith one lady constable. Prosecutrix was sent with lady constable Mamta Sharma for medical examination. Prosecutrix was medically examined. Prosecutrix produced her clothes i.e. Salwar, Ext. P1, shirt Ext. P2 and her underwear Ext. P3. These were taken into possession vide seizure memo Ext. PW-1/A. Accused was also examined and MLC Ext. PW-4/A was obtained. In his cross-examination, he has admitted that there are 20-25 houses in the village. Volunteered that village is 60-70 metres above the house of the prosecutrix. Report of the FSL is Ext. PX. 18. What emerges from the statements of witnesses as discussed herein above is that accused has entered the kitchen of the prosecutrix at about 12.00 midnight. He committed rape and ran away. Prosecutrix was medically examined. Accused was also medically examined. According to PW-1, prosecutrix, her husband being a Cleaner was away. She informed her husband. She narrated to him the incident. Her husband told her that he would come back after 3-4 days. Similarly, PW-6 Salma Bibi also deposed that a telephonic call was made to her father. He told that he would come after 2-3 days. Normal behaviour of a husband would have been to come immediately instead of telling his wife that he would come after 3-4 days even after hearing that his wife has been raped. Similarly, PW-6 Salma Bibi also deposed that a telephonic call was made to her father. He told that he would come after 2-3 days. Normal behaviour of a husband would have been to come immediately instead of telling his wife that he would come after 3-4 days even after hearing that his wife has been raped. It has come in the statement of PW-1 that the accused was known to the prosecutrix for the last 5-6 years. Accused was on talking terms with her. People of the area used to raise finger on her and accused Pammi since they were talking with each other. PW-6 Salma Bibi also deposed in her cross-examination that other villagers used to come to their house. Pammi also used to come earlier to their house and when other people used to come to their house and sit, at that time she used to be sent out. PW-12 Mamta Sharma has deposed in her cross-examination that the prosecutrix had told that as she was asleep, she thought her husband had come. Version of the Prosecutrix that she thought accused to be her husband, can not be believed. If husband had come even at night, he would not have gone to sleep immediately and he would have rested for some time and at least he would have taken meals and exchanged pleasantries. Accused used to come to the house of the prosecutrix. He was known to her. Residents of the area also used to raise finger on the prosecutrix for talking with the accused. Thus, possibility of prosecutrix herself calling accused, in view of circumstances narrated herein above, can not be ruled out. It has come in the statement of Dr. Swati PW-7, Medical Officer that intercourse was committed within 24 hours. PW-4 Arvind Dhiman has not noticed any injuries on the private parts of the accused. He has also admitted in his cross-examination that if a person commits rape and he is resisted, accused may suffer injuries on his person. Though the prosecutrix has stated that she tried to save herself but she has not received any injuries. PW-3 Tarsem Singh was told about the incident only by one K.D. Himachali, Up Pradhan. Thus, his version is only a hearsay. It is also not believable that the house of the prosecutrix was without windows and permanent doors. Though the prosecutrix has stated that she tried to save herself but she has not received any injuries. PW-3 Tarsem Singh was told about the incident only by one K.D. Himachali, Up Pradhan. Thus, his version is only a hearsay. It is also not believable that the house of the prosecutrix was without windows and permanent doors. It is also not believable that family of prosecutrix would sleep without windows and doors in the room and kitchen, that too in the winter season. It is duly established from the facts enumerated herein above that it was a consensual act. 19. Accordingly, it is held that the Prosecution has not been able to prove its case beyond all reasonable doubt against the accused for the offence under Sections 452 and 376 IPC. Thus the findings of the learned Sessions Judge convicting the accused for the said offence are liable to be set aside and accused is entitled to be acquitted. Accordingly, the appeal is allowed. Judgment dated 24.12.2011 rendered by learned Additional Sessions Judge-I, Kangra at Dharamshala, HP in Session Case No. 43-J/2010, is set aside. Accused is acquitted of the offence under aforesaid sections, by giving him benefit of doubt. He be released forthwith, if not required in any other case by the Police. Registry is directed to prepare release warrant of the accused and send the same to the Superintendent Jail concerned.