JUDGMENT : Dharam Chand Chaudhary, J. Appellant Rajinder Kumar herein is a convict (hereinafter referred to as the accused). He was booked by the police of Police Station Bharmour, District Chamba for the commission of offence punishable under Sections 376, 420 and 494 IPC vide FIR No. 10/2014 Ext. PW-10/A, with the allegations that he had physical relations with the prosecutrix (name withheld), for the last 3 years. He also belongs to the same area to which the prosecutrix belongs. On 12.1.2014, he brought the prosecutrix to Chamba and booked a room in hotel Ashiana near Sheesh Mahal. He subjected her to sexual intercourse in the said room. On the next day i.e. 13.1.2014, she was brought by him to Dalhousie, where he solemnized Court marriage with her. The prosecutrix had sworn in affidavit Ext. PW- 12/A whereas accused Ext. PW-12/B before the Executive Magistrate Dalhousie in this regard. Thereafter, the accused told the prosecutrix to return to her parental house. She went there and later on contacted him to join his company in the matrimonial home, however, he denied there being any relation with her. On this, with a view to get her name entered in the record of the Gram Panchayat as his wife, she went to the office of Gram Panchayat at Sunhara and asked the Secretary to enter her name being the wife of the accused. The Secretary in turn informed her that the accused is already married with one Kiran Kumari and that the entry to this effect stood already made in the record of the Gram Panchayat on 5.1.2014. 2. On finding that the accused ravished her at the pretext of solemnization of marriage with her and having felt humiliated as well as annoyed with him reported the matter to the Superintendent of Police, Chamba vide complaint Ext. PW-3/A. The complaint so lodged by her was marked to Incharge A.H.T.U/Women Cell Chamba. HC Sunita (PW-9), who conducted preliminary enquiry in the matter and on finding an offence having been committed by the accused punishable under Section 376, 420 and 494 IPC, the complaint was forwarded to PS Bharmour for registration of FIR. 3. The investigation in the matter was conducted by ASI Ram Pal (PW-15). He moved an application Ext. PW-15/A and got the prosecutrix medically examined from PW-14 Dr. Richa Gupta, Medical Officer, Regional Hospital Chamba. 3. The investigation in the matter was conducted by ASI Ram Pal (PW-15). He moved an application Ext. PW-15/A and got the prosecutrix medically examined from PW-14 Dr. Richa Gupta, Medical Officer, Regional Hospital Chamba. The accused was arrested vide arrest memo Ext. PW- 15/B. An application Ext. PW-15/C was moved for his medical examination and the MLC is Ext. PA. PW-15 ASI Ram Pal during the course of investigation visited Ashiana hotel near old bus stand Chamba and prepared the site plan of room No. 104 vide Ext. PW-15/D and PW- 15/E. The identification memos Ext. PW-3/B and PW-15/A were prepared in the presence of witnesses. Bed Sheet Ext. P-3 produced by Bhim Sain (PW-5), was taken into possession vide seizure memo Ext. PW-1/B. The same was sealed in a parcel of cloth Ext. P-2 with seal “R”. The sample of seal Ext. PW-15/F was obtained separately. The visitors’ register of the hotel Ext. P-1 was also seized and taken into possession. On an application Ext. PW-6/A moved to Secretary Gram Panchayat Sunara, abstract of family register Ext. PW-6/B was obtained from its Secretary Roshan Lal (PW-6). The statements of the witnesses, including that of Bhim Singh Ext. PW-15/G were recorded as per their version. On the receipt of the report Ext. PX from the laboratory and on the completion of the investigation, report under Section 173 (2) Cr.P.C. was filed in the trial Court. 4. On perusal of the police report, learned trial Judge proceeded to frame charge for the commission of offence punishable under Sections 376 and 494 IPC against the accused. He was tried for the commission of the offence he allegedly committed, however, convicted only under Section 376 IPC as no case was found to be made out against him for the commission of the offence punishable under Section 494 IPC. 5. On his conviction, the accused has been sentenced and convicted to undergo rigorous imprisonment for a period of seven years and also to pay a sum of Rs. 25,000/- as fine vide judgment dated 23.9.2017 under challenge in this appeal. 6. 5. On his conviction, the accused has been sentenced and convicted to undergo rigorous imprisonment for a period of seven years and also to pay a sum of Rs. 25,000/- as fine vide judgment dated 23.9.2017 under challenge in this appeal. 6. Aggrieved by the findings of conviction recorded against him, he has assailed the legality and validity thereof before this Court in the present appeal on the grounds inter alia that he has been convicted without there being on record cogent and reliable evidence suggesting that he has subjected the prosecutrix to sexual intercourse. The impugned judgment rather is stated to be based upon surmises and conjectures. The own statement of the prosecutrix according to him is full of material contradictions, improvements and omissions which goes to the very root of the case. She herself has contradicted the prosecution case qua the place of occurrence and possession of her clothes after the alleged incident. The medical evidence is suggestive of that she was not subjected to sexual intercourse, however, the same is stated to be erroneously ignored. The prosecution, as such, has failed to prove its case against the accused beyond all reasonable doubt. The findings of conviction as recorded against him are, therefore, stated to be based upon misreading, misconstruction and mis-appreciation of the evidence available on record. 7. The grouse of the accused, therefore, in a nut shell, is that learned trial Court has erroneously relied upon the sole testimony of the prosecutrix which hardly inspires any confidence. The findings of conviction recorded against him are stated to be perverse, hence not legally sustainable. 8. On hearing Mr. Kul Bhushan Khajuria, Advocate, learned defence counsel and Sh. Kunal Thakur, Dy. Advocate General as well as going through the evidence comprising oral as well as documentary, no doubt, the offence the accused allegedly committed is not only heinous but grievous also because if the prosecution story is believed to be true, the accused had developed physical relations with the prosecutrix on the pretext of solemnization of marriage and subjected her to sexual intercourse repeatedly during the period of three years from 12.1.2014, when she was lastly subjected to sexual intercourse by him in room No. 104 in Ashiana Hotel at Chamba. Therefore, though she was subjected to sexual intercourse by him with her consent, however, her consent allegedly was obtained by way of mis-representation. Therefore, though she was subjected to sexual intercourse by him with her consent, however, her consent allegedly was obtained by way of mis-representation. She has been subjected to sexual intercourse in the manner as claimed by the prosecution or not needs adjudication on appreciation of the facts and circumstances of this case and also the evidence available on record. 9. The rival submissions as made takes this Court to the evidence as has come on record of this case, however, before that I deem it appropriate to discuss as to what constitutes the offence punishable under Section 376 IPC in legal parlance. The present in the given facts and circumstances is a case which falls under first and second description to Section 375 IPC. The same reads as follows: “375-Rape. A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First:- Against her will. Secondly:- without her consent. Thirdly:- xxxx Fourthly:- xxxx Fifthly:- xxxx Sixthly:- xxxx Explanation:- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape”. 10. What constitutes consent has been discussed by the Apex Court in Kaini Rajan vs. State of Kerala, JT 2013 (12) SC 538, as follows: “12. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.” 11. The principle settled in the judgment supra, therefore, is that the prosecutrix was a consenting party to the sexual intercourse or not can only be ascertained on careful study of all relevant circumstances. Since the prosecutrix is major i.e. 24 years of age when the accused started assaulting her sexually whereas 26 years the day when lastly subjected to sexual intercourse, therefore, the prosecution is required to plead and prove beyond all reasonable doubt that alleged sexual act with her was committed by the accused against her will and without her consent. 12. Now if coming to the legal principles attracted in a case of this nature, in State of Punjab Vs. Gurmeet Singh and others, AIR 1996 SC 1393 , the Apex Court has held that the own statement of the prosecutrix if inspires confidence is sufficient to bring the guilt home to the accused. The apex Court in order to ensure that an innocent person is not implicated in the commission of an offence of this nature, while taking note of the judgment in Gurmeet Singh’s case supra has however diluted the ratio thereof in Ranjit Hazarika Vs. State of Assam, (1998) 8 SCC 635 and held that the statement of prosecutrix cannot be universally and mechanically applied to the facts of every case of sexual assault, as in its opinion, in such cases, the possibility of false implication can’t also be ruled-out. Similar was the view of the matter taken again by the apex Court in Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and another, (2003) 3 SCC 175 . Similar was the view of the matter taken again by the apex Court in Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and another, (2003) 3 SCC 175 . While placing reliance on this judgment and the law laid down by the Apex Court in the judgment supra, this Court in Criminal Appeal No. 481 of 2009 titled State of Himachal Pradesh V. Negi Ram, decided on 27th May, 2016 has held as under:- “15. Therefore, the legal position as discussed supra makes it crystal clear that irrespective of an offence of this nature not only grievous but heinous also, the Court should not got swayed merely by passion and influence only on account of the offence has been committed against a woman and rather keep in mind the cardinal principle of criminal administration of justice, that an offender has to be believed to be innocent unless and until held guilty by the Court after satisfying its judicial conscience on the basis of given facts and circumstances of each case as well as proper appreciation of the evidence available on record.” 13. Now if coming to the factual matrix and the evidence available on record, the prosecutrix and accused belong to the same area. As per the own admission of the prosecutrix while in the witness box Kiran Kumari, wife of the accused is resident of a place which is at a distance of 4-5 kms. from her house. Not only this, but Sh. Chandu Ram, the father of Kiran Kumari and father-in-law of the accused is none-else but real maternal Uncle of Kaushalya Devi, the mother of the prosecutrix. The prosecutrix has also admitted that her family and family of said Sh. Chandu Ram are in social relations with each other. Her father PW-4 also admits that his wife (Kaushalya Devi) is real niece of Chandu Ram, the father of Kiran Kumari and that his family is in social relations with Chandu Ram. He also admits that they know the place where their relatives are married and that not only the accused but also the parents of his wife Kiran Kumari are residents of the area which falls under his Gram Panchayat. He admits the distance of the house of the accused from that of his house about 1 km. and also that both families were on visiting terms. He admits the distance of the house of the accused from that of his house about 1 km. and also that both families were on visiting terms. While as per the testimony of the prosecutrix in her cross-examination, it is stated that she had not disclosed about her relations with the accused to her relatives or friends, however, her father PW-4 in his cross-examination has admitted that he was aware about the contact of the accused with his daughter (the prosecutrix) for the last one and a half year from the date (20.1.2014), the report was lodged in the Police Station. 14. The evidence having come on record by way of the statements of the prosecutrix and her father leaves no manner of doubt that the prosecutrix and the accused were known to each other and rightly so because they belong to the same place. However, the accused developed physical relations with her and had been subjecting her to sexual intercourse at the pretext that he will solemnize marriage with her is a debatable question. It is not proved whether he had been subjecting her to sexual intercourse for the last two years because she never lodged any report to the police nor raised any hue and cry against such conduct and behaviour of the accused had she been subjected to sexual intercourse without her consent and against her will. 15. Now, if coming to the incident of 12.1.2014 when the accused allegedly subjected her to sexual intercourse in room No. 104 of Hotel Ashiana in Chamba town, this aspect of the prosecution case is not supported by the Manager of the hotel PW-5 Bhim Sain. According to him, neither he booked any room in his name for the stay of the accused and the prosecutrix nor accused contacted him in this regard. The accused, according to him is even not in his relation also. He was allowed to be cross-examined by learned Public Prosecutor and in his statement recorded in his cross-examination, it is admitted that room No. 104 was booked in his name in Hotel Ashiana and that the accused and prosecutrix stayed in the said room on 12.1.2014. This witness, as such, has blown hot and cold in the same breath because in his examination-in-chief he has denied room No. 104 having been booked in his name in hotel Ashiana whereas in his cross-examination stated otherwise. This witness, as such, has blown hot and cold in the same breath because in his examination-in-chief he has denied room No. 104 having been booked in his name in hotel Ashiana whereas in his cross-examination stated otherwise. Since, he also belongs to village Guan, PO Sunara and as the Village and Post Office of the accused is also Sunara, therefore, though the possibility of he having helped the accused in getting the room reserved cannot be ruled out, however, the fact remains that the prosecutrix lived in the company of the accused in her free volition having raised no hue and cry and rather as per her own testimony, she accompanied the accused to the hotel and lived with him there on 12.1.2014. Whether she was subjected to sexual intercourse or not is a question again under consideration on the basis of the evidence available on record. No doubt, the own testimony of the prosecutrix if otherwise inspires confidence is sufficient to bring the guilt home to the accused, however, not in each and every case and particularly in a case of this nature where the accused and the prosecutrix were known to each other for the last 3 years from the day the matter was reported to the police. It is, therefore, difficult to rely upon her own testimony that she was subjected to sexual intercourse during the night intervening 12/13.1.2014 in room No. 104 of hotel Ashiana at Chamba. 16. The another material piece of evidence which could have lended support to this aspect of the matter is the statement of Dr. Richa Gupta (PW-14). According to her, the prosecutrix was brought to the hospital on 21.1.2014 around 3:30 PM. She was medically examined and nothing abnormal was found. No injury or wound was found anywhere on her person whereas secondary sexual character including breasts and pubic hair were found fully developed. On her private parts also, no marks of injury could be noticed, however, hymen was absent and in vagina, two fingers could have been inserted easily. Such physical examination of the prosecutrix by PW-14 Dr. Richa gupta reveals that even if the prosecutrix was subjected to sexual intercourse, it was a consensual act and also that she was habitual to sexual intercourse. Such physical examination of the prosecutrix by PW-14 Dr. Richa gupta reveals that even if the prosecutrix was subjected to sexual intercourse, it was a consensual act and also that she was habitual to sexual intercourse. This witness had preserved pubic hair and vaginal swab as well as the clothes of the prosecutrix worn at the time of her medical examination and the same when chemically analyzed in the laboratory, semen and blood could not be detected thereon except for vaginal swab and her underwear on which the blood though was detected, however, not sufficient for further testing. The report Ext. PX can be relied upon in this regard. No doubt in the opinion of PW-14 Dr. Richa Gupta, there was nothing to suggest that sexual intercourse had not taken place, however, the opinion so given cannot be treated with the so called sexual assault allegedly made during the night intervening 12/13.1.2014. 17. As noticed hereinabove, since the prosecutrix was habitual to sexual intercourse, therefore, the opinion given by the doctor at the most can be seen in that perspective. The present, therefore, is a case where the prosecution has miserably failed to prove that the prosecutrix was subjected to sexual intercourse during the night intervening 12/13.1.2014. 18. Even if it is believed that the accused had physical relations with her for a period over 3 years from the date of registration of the FIR and he had been subjecting her to sexual intercourse, the commission of such an act with her by the accused cannot be said to be against her will and without her consent and rather consensual. When she developed relations with him as per the prosecution case itself, she was 22 years of age. In January, 2014, she was 24 years of age as she disclosed in her affidavit Ext. PW-12/A. At the time of her medical examination also, she has disclosed her age as 24 years. Anyhow, there is no dispute qua her age. She, as such, was major. Not only this, but she is post graduate and as such was well aware of the consequences of her physical relations with the accused. 19. Learned trial Judge while recording the findings of conviction against the accused was swayed only by the prosecution case qua her consent obtained by the accused allegedly on a false pretext i.e. solemnization of marriage with her. 19. Learned trial Judge while recording the findings of conviction against the accused was swayed only by the prosecution case qua her consent obtained by the accused allegedly on a false pretext i.e. solemnization of marriage with her. The prosecutrix though stated so while in the witness box, however, as already held in the given facts and circumstances, particularly that the prosecutrix being a major girl aged 22/24 years of age and also post graduate could have not fallen prey to such assurance given by the accused and even if any such assurance was given to her would have not allowed the accused to subject her to sexual intercourse well before her marriage with him. Interestingly enough, Kiran Kumari, wife of the accused admittedly none else but is in near relation of the prosecutrix being the daughter of real maternal uncle of her mother. The parents of Kiran Kumari are also residents of the area which falls under Gram Panchayat Sunara. Though, the prosecutrix and her father while in the witness box have denied that they were invited by the father of Kiran Kumari to participate in the marriage, however, at the same time they both have stated that the two families were having social relations with each other. The marriage of accused with Kiran Kumari stood already solemnized and it is thereafter, she was entered as the wife of the accused in the record of Gram Panchayat Sunara on 5.1.2014, i.e. well before the alleged incident of sexual assault committed upon the prosecutrix by the accused in room No. 104 of Hotel Ashiana. Otherwise also, nothing is there on record that either of them has deliberated upon marriage with each other. The story of assurances held out to her to solemnize marriage has been disclosed for the first time in the complaint Ext. PW-3/A made to the Superintendent of Police, Chamba. Even if any sexual relations between the accused and the prosecutrix, the same were consensual and in the considered opinion of this Court her consent was not obtained at the pretext of marriage. However, when the accused solemnized marriage with Kiran Kumari, a coloured version has been introduced and an effort also made to solemnize court marriage by the prosecutrix with the accused by way of executing affidavits Ext. PW-12/A and PW-12/B before Tehsildar Dalhousie, District Chamba. However, when the accused solemnized marriage with Kiran Kumari, a coloured version has been introduced and an effort also made to solemnize court marriage by the prosecutrix with the accused by way of executing affidavits Ext. PW-12/A and PW-12/B before Tehsildar Dalhousie, District Chamba. The accused, however, was also married and as such could have not solemnized legal and valid marriage with the prosecutrix. When she came to know about the marriage of the accused, the report should have been lodged by her immediately either on the same day i.e. 12/13.1.2014 and not delayed by 7-8 days i.e. up to 20.1.2014. The report, therefore, came to be lodged after due deliberation and the findings to the contrary recorded by learned trial Court are absolutely wrong. 20. In a case titled Shivashankar @ Shiva vs. State of Karnataka & anr., Cr. Appeal No. 504 of 2018 decided on 6.4.2018, under similar circumstances, when the prosecutrix had been residing with the accused for a period of about 8 years and later on came forward with a complaint that she was subjected to sexual intercourse at the pretext of solemnization of marriage with her by the accused, the Apex Court has held that it was difficult to hold sexual intercourse in the course of relationship which has continued for 8 years as “rape”, especially in the face of the prosecutrix’s own allegation that they lived together as man and wife. Similar is the situation in the case in hand because here also, as per the version of the prosecutrix they were known to each other for the last 3 years and during this period the accused developed sexual relations with her at the pretext of solemnization of marriage. Therefore, the point in issue is squarely covered by the judgment of the Apex Court in Shivshankar’s case cited supra. 21. The Apex Court in Tilak Raj vs. State of Himachal Pradesh (2016) 4 SCC 140 , a case having more or less similar facts has also held as follows: “……..….The evidence as a whole including FIR, testimony of prosecutrix and MLC report prepared by medical practitioner clearly indicate that the story of prosecutrix regarding sexual intercourse on false pretext of marrying her is concocted and not believable. In fact, the said act of the Appellant seems to be consensual in nature. The trial court has rightly held thus:- “23. In fact, the said act of the Appellant seems to be consensual in nature. The trial court has rightly held thus:- “23. If the story set up by the prosecutrix herself in the court is to be believed, it does come to the fore that the two were in a relationship and she well knew that the accused was duping her throughout. Per the prosecutrix, she had not succumbed to the proposal of the accused. Having allowed access to the accused to her residential quarter, so much so, even having allowed him to stay overnight, she knew the likely outcome of her reaction. Seeing the age of the prosecutrix which is around 40 years, it can be easily inferred that she knew what could be the consequences of allowing a male friend into her bed room at night. 24. The entire circumstances discussed above and which have come to the ore from the testimony of none else but the prosecutrix, it cannot be said that the sexual intercourse was without her consent. The act seems to be consensual in nature. 25. It is also not the case that the consent had been given by the prosecutrix believing the accused’s promise to marry her. For, her testimony itself shows that the entire story of marriage has unfolded after 05.01.2010 when the accused was stated to have been summoned to the office of the Dy. S.P. Prior to 05.01.2010, there is nothing on record to show that the accused had been pestering the prosecutrix for any alliance. The prosecutrix has said a line in her examination-in-chief, but her cross- examination shows that no doubt the two were in relationship, but the question of marriage apparently had not been deliberated upon by any of the two. After the sexual contact, come talk about marriage had cropped up between the two. Thus, it also cannot be said that the consent for sexual intercourse had been given by the prosecutrix under some misconception of marriage.” …………….. 22. After the sexual contact, come talk about marriage had cropped up between the two. Thus, it also cannot be said that the consent for sexual intercourse had been given by the prosecutrix under some misconception of marriage.” …………….. 22. Applying the ratio of the judgments ibid in the given facts and circumstances of this case, the present is not a case where the sole testimony of the prosecutrix that she was subjected to sexual intercourse at the pretext of solemnization of marriage with her could have been relied upon to record the findings of conviction or an opinion that the prosecutrix consented for sexual intercourse with the accused on account of misconception of facts could have been formed. Learned trial Court while forming such an opinion has erred legally and also went wrong and rather swayed merely by the fact that the prosecutrix was subjected to sexual intercourse by the accused. The findings of conviction for the commission of offence under Section 376 IPC are, therefore, neither legally nor factually sustainable. 23. Even the medical evidence and the evidence as has come on record by way of scientific investigation as already discussed supra also does not support the case of the prosecution. The evidence having come on record by way of remaining prosecution witnesses, mostly the official, is also of no help to the prosecution for the reason that even if it is believed to be true that the accused has subjected her to sexual intercourse frequently during the period of three years prior to the registration of the FIR against him, such an act was consensual and not against her will and without her consent. 24. The reappraisal of the evidence, as discussed hereinabove and the law laid down by the Apex Court, reveals that the prosecution has failed to prove its case against the accused for the commission of offence punishable under Section 376 IPC beyond all reasonable doubt. Therefore, the findings of conviction and sentence recorded by learned trial Court are neither legally nor factually sustainable. The impugned judgment, as such, deserves to be quashed and set aside whereas the accused acquitted of the charge framed against him under Section 376 IPC also. 25. For all the reasons hereinabove, this appeal succeeds and the same is accordingly allowed. Therefore, the findings of conviction and sentence recorded by learned trial Court are neither legally nor factually sustainable. The impugned judgment, as such, deserves to be quashed and set aside whereas the accused acquitted of the charge framed against him under Section 376 IPC also. 25. For all the reasons hereinabove, this appeal succeeds and the same is accordingly allowed. Consequently, the impugned judgment is quashed and set aside and the accused is acquitted of the charge framed against him under Section 376 IPC. Presently, the accused is serving out sentence, therefore, it is ordered that he be set free forthwith, if not required in any other case.