JUDGMENT 1. - These appeals are directed against the judgment dated 9th October, 1987, passed by the learned Additional Sessions Judge, Baran, Distt. Kota, in Sessions Case No. 132/1985, whereby learn d Addl. Sessions Judge, convicted and sentenced the accused appellants as under:- 1. Chhitar. Convicted u/s. 376 IPC 7 years r. i. and a fine of Rs. 500/- in default of payment of fine 2 months imprisonment 2. Mangia convicted u/ss 376/109 IPC 7 years r. i. and a fine of Rs. 500/- in default of payment of fine two months further imprisonment Accused Tufan has been aquitted by the learned Addl Sessions Judge. 2. The prosecution story in brief is stated in the first information report Ex I P 12, lodged by the prosecutrix, P.W.7, Smt. Kamla, that on the intervening night of 30th September & 1st October 1985, she was going with accused Mangilal, to see Tojaji ka-khal at Chhabra. She was sitting on the back scat of cycle which was driven by Mangilal. She has further stated that on the other cycle which was driven by Chhitar his sister Dhapu and his wife were sitting and the other third cycle was driven by one Tufan, She has further stated that Mangilal, took her in a nala Accused Chhitar also came there and he committed rape with her She has further stated that Tufan also came there and he set on her breast. She further states that she become un-conscious. She was taken from the place of occurrence by some one. She further states that she has come to lodge the F.I.R. after arrival of her brother-in-law Sheonath. She is 20 years old married lady. 3. On the basis of the F.I.R. investigation was started. Dr. Tiwari, Asslt, Chemical Examiner, examined the cloths of the prosecutrix which were forwarded by the police. On examination of the `ghaghra it was found stained with semen. She was examined by the medical jurist on 2nd October, 1985, at 9.30 p.m. The Doctor Mahtndra P.W. 9 has opined that sexual intercourse has been committed forcefully with the prosecutrix She is a married lady and is habitual of sexual intercourse. The duration of injuries was show as 24 to 48 hours. 4. Mr. Jain, learned counsel for the appellants has assailed the testimony of prosecutrix Kamla P.W. 7. The duration of injuries was show as 24 to 48 hours. 4. Mr. Jain, learned counsel for the appellants has assailed the testimony of prosecutrix Kamla P.W. 7. Prosecutrix Kamla, has appeared in the witness box and stated that wife of accused Mangilal is her sister in relation and she came there to see her. She further states that she sat on the back seat of Mangilals cycle and left for Chhabra. She further states that they were accompanied by Chitar and two ladies were also seated on the cycle of accused Chitar, one lady was his wife and another one was his sister. She further states that accused Tufan, also accompanied them. She further states that two ladies were dropped at a distance by Chhitar Mangia, Mangilal, threatened her with knife and took her to `Nala. She further states that Tufan, also threatened her with chain of cycle. She further states that 3 accused persons committed rape with her thrice and she sustained injuries on her person. She further states that one person came on the spot hearing hue and cry. She further states that she was left alone after committing rape and she went on foot towards her village. She further stares that at Chhabra, she saw her husband and informed him about the incident which took place with her She further states that after sometime she met with her brother-in-law Sheonath and informed him about the incident. She further states that after meeting with her husband and her brother-in-law Sheonath, she lodged the fir. P 12 Thus, the statements given in the Court by the prosecutrix is not only inconsistent with material particulars but also in-consistent with the theory given in the F.I.R. In the F.I.R. she has stated that accused Chhitar, has only committed sexual intercourse with her forcefully there is no allegation of sexual inter courts against accused Mangia and Tufan. In the statements made in the court by the prosecutrix in which she stated that each of the accused committed rape thrice with her but in the fir. she has stated that only accused Chhitar, committed rape with her. 5. In the statements made in the court by the prosecutrix in which she stated that each of the accused committed rape thrice with her but in the fir. she has stated that only accused Chhitar, committed rape with her. 5. The second inconsistency argued by the learned counsel for the appellants is that in the F.I.R. it has been mentioned that the incident took-place on the intervening night of 30.9,1985 or 1st October, 198On the other hand, learned P.P. states that from the perusal of the F.I.R. it appears that by mistake the Investigating Officer has mentioned the time as 30th Sept, and 1st Oct., 1985 but the incident might have taken-place on the intervening night of 1st and 2nd Oct., 1985. This argument made by the learned P.P. is accepted then the medical evidence submitted by the prosecution goes against the case of the prosecution. In the medical report the duration of injuries has been shown 24 to 48 hours. Thus, the submission of the learned P.P. cannot be accepted on this count and there is no mistake of the Investigating Officer, in mentioning the time of the incident. 6. The question now remains for determination is that why the f i.r was lodged after 44 hours of the occurrence. The prosecutrix herself has stated that in the very night she left on foot and reach to Chhabra. and informed her husband who was present there and also informed her brother in-law Sheonath, The very fact is this that police station, itself is at Chhabrand the F.I.R. could have been lodged immediately at police station, Chhabra, just after the occurrence, why the matter was delayed and on this point, Public Prosecutor, could not explain the reason of delay in lodging the f. i. r. It will not be out of place here to mention that the prosecutrix herself has stated that while going on cycle she fell down from the cycle and she was in mensis and she further states that she also informed Dhapu wife of Mangilal, about the incident that Chhitar, committed rape with her when his wife was also with him. There may be some exception but this is not a case of exception and no explanation is forthcoming where Chhitar, left two ladies one was his wife and another one was his sister who accompanied there while they were going to see the' Tejaji-ka-khel. There may be some exception but this is not a case of exception and no explanation is forthcoming where Chhitar, left two ladies one was his wife and another one was his sister who accompanied there while they were going to see the' Tejaji-ka-khel. Now the question remains for consideration is this that whether a wife will allow her husband to commit sexual intercourse with the prosecutrix when the sister of accused is also present. P.W. 2, Monan, has been examined as a prosecution witness and he has stated that accused Mangilal, @ Mangia, was committing rape with her when he reached on the spot and he has I also stated that accused Chhitar and Tufan, were present there. He has been confronted with the police statement which is Ex D1 and he has denied this part of the statement and there is no reference of Ex D1. The statements of this witness has been examined and recorded under section 161 of the Cr. P.C. on 6.10.1985, i.e. after 5 days of the occurrence, this is also a very relevant factor. Apart from that Mohan. P. W. 2, is relevant to the prosecutrix and there is also an allegation that there is a dispute between sheonath and the accused persons and the litigation is going on between them. P.W. 2. Monan. is the younger brother of sheonath Therefore, it is very difficult to rely the testimony of Mohan. The people some-times try to make out the case of rape when they have strained relationship. The injuries sustained by the prosecutrix which are shown in the medical report may be sustained by her even in the case of sexual intercourse with consent. Therefore, these injuries t which are sustained by the prosecutrix are not sufficient for the purpose of saying g that the rape has been committed with her The inconsistencies parts as referred above also creates suspicion in the mind of the Court about the truthfulness of Kamla Prosecutrix In the Court prosecutrix, involves all the 3 accused persons and alleged that all the 3 persons committed rape with her without her consent thrice where as in the FiR she states that only accused Chhitar, committed rape with her. The second part of the case also creates suspicion in the mind of the Court that how a married lady will sit on the back seat of the cycle and how she will leave in night for seeing the khel of Tejaji, at Chhabra. There is a further point which goes in favour of the defence is that accused Chhitar, left for seeing the khal alongwith two ladies one of them his wife and another one is his sister, and they both were placed near the place of incident and ordinarily, one will not dare to commit sexual intercourse particularly rape when the wife of accused or his sister is present with him. This also goes against the case of prosecution and that there number of other persons were also with them. In such circumstances, I am of the view, that the prosecution has failed to prove its case. 7. In the result, both these appeals filed by the accused appellants are accepted. The judgment of the court-below is set-aside. Both the accused namely Mangilal @ Mangia s/o. Girdhari and accused Chhitar son of Bhagchand, are acquitted and they both should be released forthwith as they both are in jail, if not required in any other case. *******