JUDGMENT 1. - This appeal is directed against the judgment dated 9.8.79 and the sentence passed on 10.8.79 by the learned Addl. Sessions Judge No. 1, Alwar. Out of the three accused-appellants, Jasram has expired. Accused Kamal Singh has been convicted under section 376 IPC and sentenced to 3 years' rigorous imprisonment and a fine of Rs. 1000/-. In default of payment of fine to further undergo 6 months' rigorous imprisonment. Under Section 342 IPC he has been further convicted and sentenced to 3 months rigorous imprisonment and under section 120B IPC to 1 year's rigorous imprisonment and to pay a fine of Rs. 500/-. Deceased Jasram, appellant, was only convicted under section 120B IPC and sentenced to 1 year's rigorous imprisonment and a fine of Rs. 500/-. In default of payment of fine to further undergo rigorous imprisonment for 3 months. Accused-appellant Radhey Shyam has been convicted under sec. 376 IPC and sentenced to 3 years' rigorous imprisonment and to pay a fine of Rs. 1,000/-. In default of payment of fine to further undergo 6 months' rigorous imprisonment. 2. The prosecution story unfolded during the trial is that Kumari Neelam lodged the FIR on 14th Sept. 1976 at Police Station, Alwar. In the FIR Ex. P. 16, it has been mentioned that accused-appellant Radhey Shyam and Kamal Singh committed rape with her on 9th September 1976 and 10th September 1976. There is an allegation that Kamal Singh and the prosecutrix were exchanging love letters prior to the occurrence. There is a further allegation that accused Jasram told her that she should accompany her and he will arrange the return of the letters addressed to Kamal Singh. Under the impression that Jasram will succeed in the matter of love letters, she went at the residence of Kamal Singh and it is said that Kamal Singh committed the rape and some photographs were taken by the accused Radhey Shyam when Kamal Singh was committing rape with her. She went on that day at her house but kept mum. On the next day she stated that she had been at the Studio of Radhey Shyam accused. Radhey Shyam accused told her that come inside and assured he will return the photos and the negatives. She further states that she paid Rs. 20/- to Radhey Shyam and went inside the Studio in a separate room. On the next day she stated that she had been at the Studio of Radhey Shyam accused. Radhey Shyam accused told her that come inside and assured he will return the photos and the negatives. She further states that she paid Rs. 20/- to Radhey Shyam and went inside the Studio in a separate room. There is an allegation that on 10th September 1976 Radhey Shyam committed the rape with her in the Studio and did not return the photos and the negatives which were taken a day earlier. She has further stated that she informed about the incidents to Kishan Lal, PW 3, who is the friend of his brother. She has further stated that the FIR was lodged on 14th September because her father was not at Alwar. Learned counsel for the accused-appellants has assailed the judgment on the following grounds:- 3. It is an admitted position that she was not minor according to the medical opinion and she was of about 18 years of age. 4. There is no medical evidence to corroborate the commission of sexual intercourse or the rape. 5. The report of the Chemical Examiner also does not support the version of the prosecutrix. It is an admitted position that the love letters were exchanged prior to the occurrence between Kamal Singh and the prosecutrix. They were living in the same premises and they had the opportunity of having love affairs with each other. He submits that at the most even if the submission of the prosecutrix is accepted it may be a case of consent and nothing more. He has also invited my attention to the statement of PW 6, K. K. Sharma, who was the SHO and investigating officer at the relevant time. He has stated that the prosecutrix was not a lady of good character. He has also submitted that the statements of Sushila Devi and Kishan are not trust worthy and they are not consistent with the theory of the prosecution. 6. On the other hand, learned Public Prosecutor has supported the judgment of the trial court and tried to make out a case that the delay in lodging the FIR is not fatal to the case of the prosecution. He submitted that in a case of rape generally the people are reluctant to inform the police, as it may adversely affect the future life of the prosecutrix. He submitted that in a case of rape generally the people are reluctant to inform the police, as it may adversely affect the future life of the prosecutrix. It was also submitted by the Public Prosecutor that no lady will concoct such a theory and expose herself to the society. It was also submitted by the learned Public Prosecutor that there may be exchange of letters between the two, but from the perusal of the letters it seems that it has not reached the stage of having relationship of sexual intercourse. 7. I have heard the rival contentions of both the parties and perused the record of the case. It is an admitted position that the incidents are alleged to have taken place on 9th September 1976 and the F.I.R. has been lodged on 14th September 1976. The second incident are also alleged to have taken place on 10th September that has been reported also as a part of the report. The explanation given by the prosecutrix is that her father was out of station and, as such, the F.I.R. was not lodged. She admits that she has not said to anyone including her mother about the incident of 9th as she was feeling shy in telling the same. However, this fact cannot affect the incident which is said to have taken place at the Studio of Radhey Shyam. P.W. 3, Kishan Kumar has been declared hostile and he does not support the case of the prosecution. Apart from that P.W. 3 Kishan Kumar is not a family member but he is said to be a friend of the brother of prosecutrix. She could have said about the incident to her brother but, instead of narrating the facts to the brother it is not understandable how the prosecutrix will narrate the facts to the friend of the brother she has been examined in the Court and in the police statement it has come that after the rape also she had the opportunity to see Kamal Singh. In her police statement she has stated that she demanded the letters from Kamal Singh also on 12th and Kamal Singh told her that come in the bed room again and they will return the photos and the letters. There was also threat, according to the prosecutrix, that he will publicised the letters and the photos to other people. In her police statement she has stated that she demanded the letters from Kamal Singh also on 12th and Kamal Singh told her that come in the bed room again and they will return the photos and the letters. There was also threat, according to the prosecutrix, that he will publicised the letters and the photos to other people. There is further discrepancy in her statement about the narration of facts to her mother etc. In Ex. D. 1, Part-J. K. there is a further statement of the prosecutrix that her father was not well as such, he was not informed about the incident though he was at home. Thus, there is an inconsistent theory adopted by the prosecutrix in the statements to improve her version and to explain the delay in the matter of lodging the F.I.R. It is true that delay in lodging the F. I. R. is not always fatal, but it is equally true that it may adversely affect the case of the prosecution and the Court will have to examine the record of the case cautiously. There was an exchange of love letters between the two is an admitted position and this continued for a long time prior to the incident. They were living in the nearby house and there was opportunity to meet each other, So, it was arranged by them that the letters will be exchanged near the public tap. This goes to show that there was intimacy between the two. Now, the further question is why she went at the residence of the accused Kamal Singh in the evening. She has admitted that Kamal Singh is living alone. The prosecution version is that the deceased Jasram told her that she will arrange the return of the letters. The question which needs consideration is that how Jasram came to known about the letters which were exchanged between the prosecutrix and the accused Kamal Singh and there is no linking evidence on this point. Apart from that there is one more important factor that no lady will allow other persons to know about the contents of the letters exchanged. In such circumstances, the theory that Jasram told her and believing Jasram she went at the residence of Kamal Singh and Kamal Singh committed rape there, is not believable. Apart from that there is one more important factor that no lady will allow other persons to know about the contents of the letters exchanged. In such circumstances, the theory that Jasram told her and believing Jasram she went at the residence of Kamal Singh and Kamal Singh committed rape there, is not believable. Apart from that there is one important circumstance that the prosecution has come with the case that the photos were taken in nude position as well as in the position of sexual intercourse. No photo or the negative has been recovered by the investigating agency. So, this part of the statement does not inspire confidence and at the most it may be a case of consent and there is no medical evidence to corroborate the testimony of the prosecutrix, and it is not safe to maintain the conviction of the accused Kamal Singh or Jasram on this point. 8. As far as accused Radhey Shyam is concerned there is again a voluntary action of the prosecutrix. She knew that Radhey Shyam had taken nude photos and the photos of intercourse. Without telling anything about the incident, to any one she goes in the morning to the Studio of Radhey Shyam to collect the photos. There is allegation against Radhey Shyam that he committed sexual intercourse in the Studio with her by use of force and, thus, committed rape. May it be true, but one cannot believe that a lady who suffered a day earlier will again voluntarily go at the studio of Radhey Shyam. Apart from that in the day time when the customers come at the shops and there was every likelihood that the customers may see or she may cry and the persons moving on the road may assemble there. This part of the statement about the commission of the rape on the next day by Radhey Shyam is not believable. It is also not supported by any other evidence. The statement of Sukhi Lal cannot be accepted and it is also not consistent with the theory given by the prosecutrix. 9. In the result, the appeal is accepted. The judgment of the trial court is set aside. All the three accused-appellants are acquitted on all counts. Jas ram has died and no order is necessary to be passed about his bail bonds. 9. In the result, the appeal is accepted. The judgment of the trial court is set aside. All the three accused-appellants are acquitted on all counts. Jas ram has died and no order is necessary to be passed about his bail bonds. As far as the other accused are concerned their bail bonds are hereby cancelled and they need not surrender.Appeal allowed. *******