JUDGMENT 1. - This appeal is directed against the judgment dated 29-4-82 convicting and sentencing the appellants u/Ss. 376 and 323 IPC; for the offence u/S. 376 Nemi Chand has been convicted and sentenced to three years' R.I. and a fine of Rs. 300/- Appellant Tundi was convicted u/S. 323 IPC but was given benefit of Probation. 2. Ramji Lal husband of the prosecutrix Mst. Shanti lodged a written report on 1-9-80 at the Police Station, Hindon alleging that on 12-9-80 in the morning at 8 a. m. when his wife was cutting grass in the field of Kishori, accused Nemi Chand came there and forcibly committed rape on Mst. Shanti. This incident was witnessed by Prabhu, Kishori and Gabru. This incident was narrated to him by his wife and when he was going to report the matter in the Police he was obstructed by Nemi Chand and his companion. On 14-9-80 at 7 a. m. he and his wife Mst. Shanti were going to lodge the report at the Police Station and as soon as they came out from their house, Nemi and other persons surrounded them and gave beating to both of them with lathis. Ramji Lal S/o Ram Singh, Badri and Basanti recused them. On this report a case u/Ss. 376, 341, 147, 323, 149 IPC was registered. After completing the usual investigation the Police submitted challan against 7 persons. 3. The trial Court framed charge against Nemi u/Ss. 376, 147, 323/149, 323 and 341 IPC. Against other accused-persons charge u/Ss. 147, 323, 323/149 and 341 IPC was framed. The accused pleaded not guilty and claimed trial. 4. The prosecution has examined 12 witnesses to establish the case. Mst. Shanti was medically by the doctor Nand Lal Sharma and her medical report is Ex. P7. The injuries of Bholi and Ramcharan were also examined and their injury reports are Ex. P8 and Ex. P9. After concluding the trial Court acquitted 5 accused-persons from all the charges. Appellant Nemi was found guilty of the offence u/S. 376 IPC while the appellant Tundi was found guilty of the offence u/S. 323 IPC only as mentioned above. 5. The learned counsel for the appellants argued that there are two incidents in this matter. One occurred on 12-9-80 and the second occurred on 12-9-80 and the second occurred on 14-9-80. Appellant Nemi was found guilty of the offence u/S. 376 IPC while the appellant Tundi was found guilty of the offence u/S. 323 IPC only as mentioned above. 5. The learned counsel for the appellants argued that there are two incidents in this matter. One occurred on 12-9-80 and the second occurred on 12-9-80 and the second occurred on 14-9-80. The offence of rape was committed on 12-9-80 but the report of rape was lodged on 14-9-80. The delay in lodging the report has been explained in the F.I.R. but when we look at the statement of Ramji Lal (Pw 1) and Mst. Shanti (Pw 2) we find that the delay explained in the report Ex. P. 1 and the delay which has been explained in the statements is contradictory to each other. So the delay as explained by the prosecution is not to be accepted. In this regard I have considered the arguments of both the sides. The rape was committed on 12-9-80 and that very date in the morning the incident was narrated by Mst. Shanti to her husband Ramjilal. They did not report the matter immediately and according to their statements the people of the village tried to pacify the matter, so the explanation given by them that they were obstructed from going to the Police Station is a false explanation. The statement of Mst. Shanti was read over minutely. She was cross-examined at length and from her statement it seems that she is most unreliable witness. She tried to avoid the commission of intercourse while overturning herself twice or thrice or the ground but Nemi put his one hand on the mouth and by the help of his second hand he committed rape. The circumstance that she tried to relieve herself by moving on the ground shows that it was not possible for Nemichand to commit intercourse. Then on hard surface when her clothes were removed and she rolled twice or thrice on the ground it cannot be believed that she will not have any injury on her back or other parts of the body. The medical report Ex. P. 7 does not prove that she received injuries on her person specially in such circumstance when she was forcibly raped by a person and when she tried to rescue herself. According to the doctor's statement Nemi was 22 years of age while Mst. The medical report Ex. P. 7 does not prove that she received injuries on her person specially in such circumstance when she was forcibly raped by a person and when she tried to rescue herself. According to the doctor's statement Nemi was 22 years of age while Mst. Shanti was a lady of 24 years of age. According to the doctor she was a stout lady having good physique so it cannot be believed that she was unable to rescue herself from the clutches of a boy younger to her. Another aspect is that there was no damage to the grass. This is also improbable that when some incident takes place in the field and specially when there was resistance and scuffle in the field, however, there would be no damage to the grass. Some pieces of bangles were recovered from the place of the incident by the Investigating Officer. His statement shows that he did not try to find out whether these pieces of bangles belongs to Mst. Shanti's bangles. Whether the colour of the pieces of the bangles were same to that of the Shanti's bangles. If during this period of scuffle the bangles of Mst. Shanti were broken, there are chances of having some injury on the hand by these broken bangles but that too is not on the hand of Mst. Shanti. Apart from this if we look into the report Ex. P 7 we find that there is no positive opinion that Mst. Shanti was raped or some intercourse was committed with her. She was examined on 14-9-89 i. e. after two days of the commission of this intercourse and the doctor has opined that there was noxsign of fresh intercourse and non-definite opinion about the rape could be given. So the theory of commission of rape or committing the rape is not established and corroborated by the medical evidence. The statements of Mst. Shanti and Kishori also do not establish this offence of commission of intercourse. Kishori is not an eye-witness and he has very specifically stated that he has not seen the commission of intercourse and so is the statement of Prabhu. So these two witnesses have not witnesses the occurrence. So there is no eye-witness to this incident. Kishori and Prabhu are not corroborative witnesses because the statement of Mst. Kishori is not an eye-witness and he has very specifically stated that he has not seen the commission of intercourse and so is the statement of Prabhu. So these two witnesses have not witnesses the occurrence. So there is no eye-witness to this incident. Kishori and Prabhu are not corroborative witnesses because the statement of Mst. Shanti (Pw 2) is so unreliable that the offence of commission of intercourse forcibly by Nemi Chand has not been established at all. The delay in lodging this report itself shows that the story of commission of rape has been concocted by the complainant. 6. Then comes the another incident of 14-9-80. The trial court did not find 5 accused persons guilty of the offence u/Ss. 323, 323/149 and 147 IPC. If the witnesses have been disbelieved for 5 accused-persons I fail to understand what was the reason that the trial Court believed those witnesses so far as accused Tundi is concerned. So the learned trial Court has erred in coming to this finding against Tundi and this fact is also not established beyond reasonable doubt. It might be possible that on 14-9-80 some incident had taken place between the parties but the complainant should come with the clean hands before the Court. She should not have concocted the story of rape and should not have falsely implicated the accused-appellant Nemi. The prosecution has completely failed to establish the case u/S. 376 IPC against Nemi Chand and I have no hesitation to say that this is a complete concocted and a false story. Regarding Section 323 IPC, Tundi is also given benefit of doubt. 7. As a result, the appeal is accepted. Appellant Nemichand is not found guilty of the offence u/S. 376 IPC and his conviction and sentence are set aside. Similarly, Appellant Tundi is also not found guilty of the offence u/S. 323 IPC and he is acquitted of this offence. Both the appellants are on bail. Their bail-bonds are cancelled and they need not surrender.Appeal accepted. *******