JUDGMENT : Tarlok Singh Chauhan, J. Aggrieved by the acquittal of the respondent for the commission of offence punishable under Sections 376 and 506 of the Indian Penal Code (hereinafter referred to as the ‘IPC’), the State has filed the instant appeal. 2. Case of the prosecution is that on 22.5.2012 around 2:15 p.m. at place Tandla, Tehsil and District Kullu, in absence of the husband, who had gone to Kullu in connection with work and the children of the prosecutrix, who were in school, the respondent came to the house of the prosecutrix. After asking the respondent to sit outside the house, the prosecutrix went inside the room to bring glass of water to the respondent and the moment she entered inside the room, the respondent also followed her inside the room and after bolting the room from inside, he caught hold the prosecutrix and brought her to the bed and asked the prosecutrix that in case, she raised alarm he would kill her. The respondent opened the salwar of the prosecutrix and committed rape upon her. After committing the offence, the respondent fled away from the spot, however, left his mobile inside. While leaving the place of occurrence, the respondent again threatened the prosecutrix that in case she disclosed about the occurrence to any person, then, he would kill her. Due to the fear, the prosecutrix did not disclose about the occurrence to any member of her family. It was after seeing the prosecutrix under stress, her husband asked the prosecutrix about the reason thereof and she disclosed about the occurrence to her husband as well as to her Jeth Aile Ram (brother-in-law). Only thereafter, the matter was reported by the prosecutrix to the police and FIR Ext.PW-1/A came to be registered against the respondent. 3. The case was Investigated by SI Gambhir Chand, who moved an application Ext.PW-9/A for getting the prosecutrix medically examined and consequently, she was medically examined by PW-9 Dr. Neeru Pandit Kapoor and the MLR of the prosecutrix was obtained. PW-9 also preserved four vaginal smear slides of the prosecutrix and sealed the same and handed over to the police for chemical examination. 4. Neeru Pandit Kapoor and the MLR of the prosecutrix was obtained. PW-9 also preserved four vaginal smear slides of the prosecutrix and sealed the same and handed over to the police for chemical examination. 4. On 28.5.2012, upon the identification of the prosecutrix, the Investigating Officer prepared the spot map Ext.PW-13/A. During investigation, the prosecutrix produced mobile phone of the respondent, which was taken into possession vide memo Ext.PW-1/C and the same was sealed in a parcel. On the same day, the Investigator also took bed sheet Ext.P-3 and Salwar Ext. P-4 into possession through recovery memo Ext. PW-1/B that were produced by the prosecutrix. The photography and videography of the spot was also conducted vide photographs Ext. PA-1 to Ext. PA-10 and CD Ext. PA-11. 5. On 02.06.2012, the respondent was arrested and thereafter the Investigator moved an application Ext.PW-2/A before the Medical Officer for conducting the medical examination of the respondent and the respondent was medically examined by PW-2 Dr. Rakesh Thakur, who found the respondent to be fit to perform sexual act and issued MLR Ext. PW-2/B. 6. The investigator also deposited the sealed parcel of case property with the MHC duly sealed with seal 'T' who sent the same to the chemical examiner and also obtained the DNA profile Ext.PW-13/B and reports Ext.PW-13/C and Ext.PW- 13/E, respectively. The sample of seal ‘T’ was obtained on a piece of cloth as Ext.PW-13/D. 7. The Investigator also recorded the statements of witnesses under Section 161 Cr.P.C. He also obtained copies of Malkhana register and R.C. The Investigator also signed FTA cards of both the respondent as well as the prosecutrix Ext.PW-13/F and Ext.PW-13/G, respectively. He also obtained e-mail sent from S.P office to Reliance Communications and reply to the e-mail Ext.PW-5/A of phone No.98178-12137 issued to respondent and also collected copy of receipt Ext.PW- 7/A from PW-7 Aman Deep, who sold the mobile to the respondent. 8. After completion of the investigation, final report was presented in the Court, upon which, cognizance was taken and the respondent was charge sheeted for the offence punishable under Sections 376 & 506 IPC to which, he pleaded not guilty and claimed to be tried. 9. In order to substantiate its case, the prosecution examined as many as 13 witnesses. 10. After completion of the investigation, final report was presented in the Court, upon which, cognizance was taken and the respondent was charge sheeted for the offence punishable under Sections 376 & 506 IPC to which, he pleaded not guilty and claimed to be tried. 9. In order to substantiate its case, the prosecution examined as many as 13 witnesses. 10. On closure of prosecution evidence, the respondent was examined under Section 313 Cr.P.C., in which, he denied all the allegations and pleaded himself to be innocent and falsely implicated. The respondent led evidence in defence and examined DW-1 Tikam Ram. 11. The learned Special Judge after recording the evidence and evaluating the same gave as many as eight reasons for acquittal of the respondent, constraining the State to file the instant appeal. 12. We have given our thoughtful consideration to the submissions made at the Bar and have also gone through the judgment of the learned trial Court as well as the evidence on record. 13. The prosecutrix appeared as PW-1 in the witness box, who testified on oath about the story as set-out hereinabove. Therefore, it is not necessary to reproduce the same. Adverting to the cross-examination, the prosecutrix admitted the fact about the death of one Govind Ram in the village on 22.05.2012 i.e. the date of incident and admitted that his body was brought to his house. But she did not know that the body was brought at around 12/1.00 p.m. She feigned ignorance about the fact that respondent along-with his family members attended the cremation of Govind Ram, but denied that respondent remained in the cremation ground till 4.30 p.m. She also denied that on the day of occurrence her husband was in the house. PW1 denied that she was having friendship with the respondent and even the mobile phone of the respondent was with her and she had been giving missed calls to him. PW1 also denied that she was compelling the respondent to marry her. PW1 also denied that she used to call respondent in the rest house, but feigned ignorance that her husband and her father-in-law were not having good relations with respondent Dhale Ram. PW1 denied that she lodged false case against the respondent at the instance of her husband and father-in-law. She also denied that the respondent neither entered into her house nor committed sexual intercourse with her against her will. PW1 denied that she lodged false case against the respondent at the instance of her husband and father-in-law. She also denied that the respondent neither entered into her house nor committed sexual intercourse with her against her will. 14. PW-3 Dhani Ram, is the husband of the prosecutrix. However, since his testimony is based entirely on hearsay, or what his wife told him i.e. prosecutrix, therefore, the same is not admissible in evidence. 15. PW-4 Nokhu Ram proved seizure memo Ext. PW- 1/B vide which bed sheet Ext.P-3 and Salwar Ext.P-4 were seized by the police and also proved seizure memo Ext. PW-1/C through which Nokia mobile phone Ext. P-6 was seized by the police. In cross-examination, he admitted that prosecutrix is his sister, but denied that due to his family relations, he has made a false statement in the Court 16. PW-5 Sumit Kumar, Nodal Officer, proved e-mail Ext.PW-5/A and stated that phone No.98178-12135 was issued to the respondent. 17. PW-7 Aman Deep tested on oath that he sold one mobile phone Nokia to Dhalek Ram through a receipt, copy of which is Ext.PW-7/A. 18. PW-10 Dev Raj proved seizure memo Ext.PW-10/A which bears his signature and also bears signature of one Dhani Ram. 19. PW-2 Dr. Rakesh Thakur opined that the respondent was capable of performing sexual act. 20. PW-9 Dr. Neeru Pandit Kapoor opined as under:- “On examination She was conscious co-operative and answering queries. General Physical Examination 1. No marks of injury anywhere on the body. 2. Axillary and pubic hairs present, black, no matting. cut and preserved for chemical examination. 2. Breasts developed, brown areola. Local Examination 1. No marks of injury seen on external genitalia; 2. Labia majora nor covering labia minora; 3. Hymen old, healed tags present; 4. P/V- introitus admits two fingers easily-Uterus anti-verted multiparous firm, mobile, fornices clear.” PW9 further deposed that four vaginal smear slides made from posterior fornix were sealed for chemical examination. She further opined that the patient was exposed to frequent coitus and even after chemical examiner's report final opinion remained the same. As per chemical examiner's report, blood traces were found on vaginal slides, but no semen was found on pubic hairs. She proved MLC Ext.PW- 9/B which bears her signature. In cross-examination by defence, she admitted that there were no struggle marks on the body of victim. 21. As per chemical examiner's report, blood traces were found on vaginal slides, but no semen was found on pubic hairs. She proved MLC Ext.PW- 9/B which bears her signature. In cross-examination by defence, she admitted that there were no struggle marks on the body of victim. 21. PW-6 HC Ram Krishan proved the abstracts of registers Ext.PW-6/A and Ext.PW-6/B by stating that HHC Uttam had deposited two sealed parcels with him regarding which he made entries in the register, the abstract of which is Ext.PW-1/C. He further stated that on 30.5.2012 he sent two sealed parcels through Constable Lalit Chandel to RFSL Gutkar Mandi, vide R.C. No 121/2012, copy of which is Ext.PW-6/D. PW6 further deposed that on 6.6.2012, he sent three sealed parcels to RFSL Gutkar, Mandi through Constable Ramesh Kumar vide R.C. No 130/2012, c??? of which is Ext.PW-6/E. Lastly, he stated that on 07.11.2012, he sent four sealed parcels through Constable Sangat Ram vide RC No. 256/2012, copy of which is Ext.PW-6/F to FSL Junga, who handed over receipt to him on his return and the case property remained in his possession. 22. PW-8 Constable Ramesh Lal stated on oath about the manner in which on 6.6.2012, MHC Ram Krishan handed over three parcels vide R.C Ext.PW-6/E to him, which he deposited at RFSL Gutkar on the same day and handed over the receipt to MHC on his return. 23. PW-11 Constable Lalit Chandel testified on oath and stated about the manner in which he deposited the sample at RFSL Gutkar and on his return he handed over the receipt to MHC. 24. PW-12 Constable Sangat Ram testified on oath, and stated about the manner in which the parcels were handed over by MHC Ram Krishan to him which were deposited by him at FSL Junga on 8.11.2012. 25. PW-13 is the Investigating Officer, SI Gambhir Chand, who testified on oath and stated about the manner in which he investigated the case. He further deposed that he moved an application Ext. PW-9/A for getting the prosecutrix medically examined and, obtained MLR of the prosecutrix. On 28.5.2012, upon the identification of prosecutrix, he prepared spot map Ext. PW-13/A. He-also identified bed sheet Ext.P-3. Salwar Ext. P-4 and mobile Ext.P-6 which were taken in possession by him. PW-13 further deposed that during investigation, he signed FTA cards of both accused and the prosecutrix Ext.PW-13/F and Ext.PW-13/G respectively. On 28.5.2012, upon the identification of prosecutrix, he prepared spot map Ext. PW-13/A. He-also identified bed sheet Ext.P-3. Salwar Ext. P-4 and mobile Ext.P-6 which were taken in possession by him. PW-13 further deposed that during investigation, he signed FTA cards of both accused and the prosecutrix Ext.PW-13/F and Ext.PW-13/G respectively. In cross-examination, he admitted that on 22.05.2012 Govind Ram died, but feigned ignorance if his last rites were performed uptil 4:00 PM. He admitted that he had not collected the blood samples of Ses Ram and his son Dhani Ram for DNA profiling. He also denied that a false case had been registered against the respondent. 26. DW-1 Tikam Ram examined by the respondent as his defence witness had testified on oath that on 22.5.2012 his real brother Govind Ram died at Kullu hospital whose dead body was brought to road head at 9:00 AM in the morning and his last rites were performed in the cremation ground and the respondent remained with him from 11:00 a.m to 4:00 p.m. at cremation ground. In cross-examination, he denied that they were free after doing all the rituals till 12:00 noon. He also denied that respondent had gone from cremation ground at 12:00 noon and thereafter he committed rape on the prosecutrix. He also denied that he was making a false statement. 27. As observed above, the learned trial Court has given as many as eight reasons to acquit the respondent. Therefore, this Court is essentially required to weigh the reasons given by the learned trial Court, more particularly, the one discarding the testimony of the prosecutrix, because it is vehemently argued by Mr. I.N. Mehta, learned Senior Additional Advocate General that the findings recorded by the Court below are perverse. CONDUCT OF THE PROSECUTRIX i). The learned trial Court has held the conduct of the prosecutrix fairly propounded to be unbelievable because it has specifically come in the testimony of the prosecutrix that the place where the prosecutrix was residing is surrounded by other houses and one path is also leading to ‘Bouri’ from the backside of her house and on the day of alleged occurrence i.e. 22.05.2012, the people initially attended the cremation of Govind Ram, but then, majority of them came back to the village at about 12.00 noon. ii). ii). It needs to be observed that this Court can take judicial notice that in this region of the State, it is only the men folk, who attend the cremation, while the ladies and girls remain at home and why no hue and cry was made by the prosecutrix, given the fact that DW-1 Tikkam Ram has stated on oath that the respondent was with him on the date of alleged incident from 11.00 a.m. to 4.00 p.m. DELAY IN LODGING OF FIR iii). The alleged incident had taken place on 22.5.2012, yet the matter was not reported till 26.05.2012, even to her husband till 26.05.2012, who was working at a distance of stone throw at Kullu. The prosecutrix made no endeavour to contact her husband on that day telephonically or disclosed to him about the incident and waited for four days. No doubt, the prosecutrix has stated that due to threatening to kill her by the respondent, she did not disclose about the occurrence to anyone, but such explanation in the peculiar facts and circumstances, cannot be accepted. After all, if she could disclose the incident after four days, so could she had disclosed the same on the first day and earlier also, given the fact that the prosecutrix was a major. MEDICAL EVIDENCE NOT SUPPORTING THE PROSECUTION iv). Learned trial Court has held the medical evidence to be not supporting the case of the prosecution and rightly so, because the salwar, bed sheet and other material that was taken into possession and sent for chemical and other scientific examination did not connect the respondent with the commission of offence. Even the DNA profile report Ext.PW- 13/B clearly indicated that the DNA profile obtained from Ext.P-5 (blood sample of FTA card of the prosecutrix) and other profiles/components do not match with the DNA profile obtained from Ext.P-4 (blood sample on FTA card of the respondent). It was opined in the DNA profile as under:- “a) A mixed Y-STR DNA profile was obtained from Ex-3a (bed sheet) from which one major profile/component could be identified and this profile does not match with the Y-STR DNA profile obtained from Exhibit-4) (blood sample on FTA card, Dhale Ram).” b) Similarly, the RFSL report Ext.PW-13/C qua samples of pubic hair, semen etc. of respondent also indicate that the blood and semen was not found on pubic hair as well as underwear of the respondent, though there was human semen available on the same and hair found in the Exibhit-1 (pubic hair of the respondent) were identified as human pubic hair which were different from the Exhibit-2b (pubic hair of the prosecutrix). Another report Ext.PW-13/E further indicates that blood and semen was not found on pubic hair and salwar of the prosecutrix by stating that blood was not found on bed sheet, though human semen was found over it. Thus, from the aforesaid reports as well as DNA profile, it is clear that neither the blood sample nor the semen sample of the respondent could be connected with the samples obtained from the bed sheet and salwar belonging to the prosecutrix, given the fact that the prosecutrix is a married woman and residing in the house.” v). Another factor which weighed with the learned trial Court to acquit the respondent is that there were no injuries and struggle marks on the body of the prosecutrix, as stated by PW-9 Dr. Neeru Pandit Kapoor. Even though the circumstances that there were no injury or struggle marks on the body itself is not a ground to acquit the respondent, but when considered with all the cumulative and attending circumstances, no fault can be found with such finding. PROSECUTION NOT ABLE TO PROVE/CONNECT THE MOBILE PHONE WITH THE RESPONDENT vi. The learned trial Court has held that the prosecution has not been able to prove beyond reasonable doubt that mobile No.98178-12137, which was produced by the prosecutrix belonged to the respondent. According to Mr.Mehta, learned Senior Additional Advocate General these findings are totally perverse as it has been duly proved in the statements of PW-5 and PW-7 that the mobile phone belonged to the respondent. vii. Adverting to the testimony of PW-5 Sumit Kumar, he has stated that he was posted as Nodal Officer Reliance at Chandigarh for the last four months. He has further stated that he received one e-mail from the S.P. office, Kullu and in reply thereto, he had sent an e-mail Ext.PW-5/A. He has further stated that phone No.98178-12135 was issued to Dhale Ram. viii. As regards the testimony of PW-7, he stated that he was running a shop in the name and style of Aman Electronics at Akhara Bazar, Kullu. viii. As regards the testimony of PW-7, he stated that he was running a shop in the name and style of Aman Electronics at Akhara Bazar, Kullu. On 23.09.2011, he sold one Nokia phone to one Dhalek Ram at the price of Rs.1250/-. He supplied the photocopy of the receipt of the phone to the police and produced the original receipt book and the relevant copy of receipt as Ext.PW-7/A. ix. It would be noticed that PW-7 has specifically stated that he had not sold the phone to the respondent Dhale Ram but to one Dhalek Ram. The receipt Ext.PW-7/A produced by him states something else, as the same reveals that it has been issued in the name of one D.R. Bhaskar, that too, by making cutting and over writing on the same. Therefore, the same in no manner can be said to be recovered from the respondent. x. What is more shocking is that this receipt mentions IEMI number, yet the investigating agency made no effort to find the IEMI number which would mean to draw an adverse inference against the prosecution. Apart from that there is nothing on record to show that the respondent is also known as D.R. Bhaskar or the respondent is also known as Dhalek Ram. PARTIES NOT STRANGERS xi. Learned trial Court has rightly concluded that the initial story as set out by the prosecutrix was that the respondent was a stranger and she went to bring a glass of water under the impression that the respondent was a guest, but this story of the prosecution has been completely demolished and falsified by mark ‘X’ which is the copy of compromise entered into between the parties. About six months prior to the alleged incident, wherein the husband of the prosecutrix and the respondent had agreed that the respondent would not talk to the prosecutrix nor he would come to the house of the prosecutrix. The learned trial Court has rightly concluded that even though this compromise has not been proved on record in accordance with law by exhibiting the same, but none of the parties has even denied the existence of such compromise. NON-DISCLOSURE OF THE INCIDENT FOR FOUR DAYS xii. The learned trial Court has rightly concluded that even though this compromise has not been proved on record in accordance with law by exhibiting the same, but none of the parties has even denied the existence of such compromise. NON-DISCLOSURE OF THE INCIDENT FOR FOUR DAYS xii. Even though, the learned trial Court has again reiterated and commented upon the conduct of the prosecutrix that as to why she had not reported the matter, given the fact that relations between the prosecutrix and the family of the respondent were far from being cordial, as would be evident from mark ‘X’. The prosecutrix ought to have reported the matter promptly or at least within a reasonable time even if she had to consult her husband and other family members. 28. This Court is not inclined to interfere with the findings arrived at by the learned trial Court, given the fact that the State was not in a position to show any evidence worth the name to take contrary view in the matter than the one taken by the learned trial Court. 29. The State has miserably failed to establish that the approach of the trial Court is vitiated by some manifest or illegal error and the decision of the learned trial Court is against the material and evidence available on record. 30. In this view of the matter, we are in agreement with the reasons recorded by the learned trial Court in acquitting the respondent and in our considered opinion, the impugned judgment is just, legal and proper, therefore, the same warrants no interference by this Court. 31. Consequently, there is no merit in the instant appeal and the same is accordingly dismissed. 32. Record be sent down.