L. RATH, J. ( 1 ) CONVICTION under section 376 I. P. C. and sentence to R. I. of 10 years also under section 354 I. P. C. and sentence to R. I. of 2 years in Sessions Case No. 33190 have made the appellant prefer this appeal from jail. The skeletogenous facts are that the victim lady P. W. I is the wife of the appellant's wifes brotherts son. The appellant had married the sister of P. W. I father-in-law, was his domesticated son-in-law, and was residing in a separate house in the same compound of P. W. ITS house. In the village there are two groups, one of Mirgans and the other of Bhotras. P. W. I, who was a Bhotra girl, had married P. W. 5 who was a Mirgan boy. The appellant who was a Bhotra had married the paternal aunt of P. W. 5. The occurrence alleged against the appellant happened on two days, i. e. on 25. 12. 1989 and 27. 12. 1989. 25. 12. 1989 was a Monday. It is the prosecution case that on the first day of the occurrence the appellant entered inside the house of P. W. 1 during the absence of her husband husbands brother, his wife and son. P. W. I who had stood up on hearing the sounds of forcible breaking open of the bamboo door, was caught hold of by the appellant and he also pulled out the Saree from her rendering her naked and attempted to cohabit with her. P. W. 1 resisted such attempt and pushing the appellant, escaped through the back door of the house to the house of a neighbour P. W. 3 and thereafter they all came to the house. Seeing them the appellant ran away. She informed the matter to her husband next morning and a Panchayat was convened in the village. In the Panchayat the appellant admitted his guilt saying that his objectionable behaviour was because of his having been drunk and begged to be excused. Again on 27. 12. 1989 evening when P. W. I had gone out to ease, the appellant caught hold of her from her back near a tamarind tree and forcibly made her lie down. When she raised protest, the appellant, who had a knife in his hand, threatened her with dire consequences. Again on 27. 12. 1989 evening when P. W. I had gone out to ease, the appellant caught hold of her from her back near a tamarind tree and forcibly made her lie down. When she raised protest, the appellant, who had a knife in his hand, threatened her with dire consequences. He removed her Saree and under-garment, also removed his own clothes and forcibly cohabited with her. Hearing the sounds of P. W. I, P. Ws. 3 and 4 and one Santo Mirgan came there and discovered the appellant on P. W. I, both in a naked condition, and seeing them he ran away naked taking his knife and Lungi with him. The bangles of P. W. I had been broken and she had also sustained injury on her right wrist. The narrated the incident to her husband on his return and on the next day she along with her husband (P. W. 5), and P. Ws. 3 and 4 went to the Out-post and made oral report but no action was taken. Since the police did not take any action, she lodged the complaint before S. D. J. M. on 29. 1. 1990 who took cognizance in the matter and committed the case to the Court of Session. ( 2 ) AT the trial P. W. I in support of her case examined besides herself P. Ws. 3 and 4 as the immediate post-occurrence witnesses and P. W. 5 to whom she narrated the incident P. W. 2 deposed that he had seen the appellant as running away at a distance. The appellant examined the Ward Member of the village, Deenu Bhotra as D. W. I. ( 3 ) READING the evidence of P. Ws. 1, 3 and 4 it is apparent that their evidence is wholly consistent and that the witnesses have stuck to the case as was revealed in the complaint petition. Mr. Acharya, the learned counsel for the appellant does not dispute such fact except pointing out some discrepancies which are minor in nature. But the main plank of his submission is the improbability of the case and the gross delay in filing the complaint without any explanation for the same. Certain admitted features as appear from the prosecution case are that in the village there were two groups as has been seen earlier. But the main plank of his submission is the improbability of the case and the gross delay in filing the complaint without any explanation for the same. Certain admitted features as appear from the prosecution case are that in the village there were two groups as has been seen earlier. The appellant admittedly belonged to Bhotra group whereas P. W. I though a Bhotra girl had been married to a Mirgan man. There was also dispute between the appellant and P. W. ITs husband. D. W. I was the leader of the Bhotra group. There was assault between P. W. ls father-in-law and Bhotra people and hence there was misunderstanding between Bhotras and Mirgans. Admittedly P. W s. 3 and 4 are Mirgans. Another feature is that even though a Panch meeting was held on 26. 12. 1989 yet none of the Panch members have been examined. The complaint having been made little more than a month after the occurrence, there was no medical examination of P. W. I or the appellant. The only evidence regarding the physical violation of P. W. I is the oral evidence of P. Ws. 1,3,4 and 5. It is in this background Mr. Acharya submits that in view of the admitted enmity between the parties not only between different groups but also personally between P. W. 5 and the appellant, it was improbable that the appellant would attempt to commit rape upon P. W. I and accomplish it on the next day even after her complaint before the Panch and that the story on the contrary is a got-up and cooked up one so as to falsely implicate the appellant. ( 4 ) IN this background of facts, the delay in filing the complaint becomes extremely significant. In the complaint petition P. W. I stated that the matter was reported to the police on 28. 12. 1989 at about 11 a. m. and that even Mugh a month has passed on action was taken by the police. Similar was her statement before the learned Sessions Judge. Even so absolutely no steps were taken to call [or the records from the police to substantiate such allegation as to whether actually a report had been made to the police and if so whether that had been registered as an F. I. R. , whether investigation had been taken up and report under section 173, Cr. Even so absolutely no steps were taken to call [or the records from the police to substantiate such allegation as to whether actually a report had been made to the police and if so whether that had been registered as an F. I. R. , whether investigation had been taken up and report under section 173, Cr. P. C. had been submitted. ( 5 ) IN criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. It is for the reason that delay affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be made before the court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the courts always view the allegations with suspicion and look for satisfactory explanation. If so such satisfaction is formed, the delay is treated as fatal to the prosecution case. In Thulia Kali v. The State of Tamil Nadu, the exposition of law in the matter was made by the Supreme Court saying that the delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. In Ram Jag and others v. The State of U. P. the position was explained saying that whether the delay is so long as throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused. On the other hind, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution. The test being applied to the present case, it is seen that there was sufficient motive in the prosecution witnesses to have alleged falsely against the appellant because of the enmity between the parties. On the other hind, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution. The test being applied to the present case, it is seen that there was sufficient motive in the prosecution witnesses to have alleged falsely against the appellant because of the enmity between the parties. ( 6 ) IT is to be seen as to whether the delay in the present case could be said to be fatal to the prosecution. The prosecution has attempted to explain the delay by stating that the matter was reported to the police on 28. 12. 1989 at about 11 a. m. but that the police did not take any action. Such statement can hardly be taken to have explained the delay. It is the simplest of things to contend that the police, though report had been lodged with it, had not taken any steps. But it has to be established by calling for the necessary records from the police to substantiate that in fact a report with the police had been lodged and that the police failed to take up the case. The principle has been statutorily recognised in section 210 of the Code of Criminal Procedure which enjoins upon the Magistrate, when it is made to appear before him either during the inquiry or the trial of a complaint, that a complaint before the police is pending investigation in the same matter, he is to stop the proceeding in the complaint case and is to call for a report from the police. After the report is received from the police, he is to take up the matter together and if cognizance has been taken on the police report, he is to try the complaint case along with the G. R. case as if both the cases are instituted upon police report. The aim of the provision is to safeguard the interest of the accused from unnecessary harassment. The provisions of section 210, Cr. P. C. are mandatory in nature as has been held in Santosh Kumar Sahu v. M. Prakash Dora and others and Bhupendra Singh and others v. Mandeep Kaur and another. It may be that noncompliance of the provisions of section 210, Cr. P. C. is not ipso facto fatal to the prosecution because of the provision of section 465, Cr. P. C. are mandatory in nature as has been held in Santosh Kumar Sahu v. M. Prakash Dora and others and Bhupendra Singh and others v. Mandeep Kaur and another. It may be that noncompliance of the provisions of section 210, Cr. P. C. is not ipso facto fatal to the prosecution because of the provision of section 465, Cr. P. C. unless error, omission or irregularity has also caused the failure of justice and in determining the fact whether there is a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. I am not expressing any opinion here in that regard. But even applying the very same principles it is seen that in fact the appellant was in fact prejudiced because of the non-production of the records from the police. That delay in filing the complaint because of police inaction has to be explained by calling for the records from the police was explained by the Apex Court in Khedu Mohton and others v. State of Bihar where the Court took exception to the facts that the complaint lodged with the police had not been summoned or proved, no satisfactory proof of any such complaint had been adduced before the Court, and none of the documents as would have become available under section 173, Cr. P. C. had also been brought on record. ( 7 ) IN that view of the matter, lam constrained to hold in the background of the case that delay in the present case has fatally affected the prosecution and hence the prosecution has to be thrown out as not genuine. ( 8 ) IN the result, the appeal is allowed. The judgment of conviction and sentence passed against the appellant is set aside. The appellant be set at liberty forthwith. Appeal allowed. .