JUDGMENT 1. - This appeal is directed against the judgment dated 31.8.94, passed by the Sessions Judge, Banswara, by which the learned Sessions Judge convicted the accused for the offences under Sections 376 and 342 I.P.C. and sentenced him to four years' rigorous imprisonment and a fine of Rs. 1000/- and in default of payment of fine further to undergo three months' simple imprisonment for the offence under Section 376 I.P.C. and sentenced him to a fine of Rs. 500/- and in default of payment of fine to undergo one month's simple imprisonment for the offence under Section 342 I.P.C. 2. Appellant Shanker was tried by the learned Sessions Judge, Banswara, for the offences under Sections 376 and 342 I.P.C. The case of the prosecution is that on 28.2.93, at about 12.00 in the noon, Smt. Surta - the prosecutrix - had gone to take her bath in a canal. After taking her bath when she was returning to her house and passing through an unhabited house of Dhuliya, the accused came-out from the house of Dhuliya, forcibly caught-hold of her, took her inside the shed (Dhaliya) and committed rape upon her. She raised cries and on hearing her cries, PW 2 Khatu and PW 3 Prabhu came there, who saw the accused-appellant committing rape upon Smt. Surta. Both of them came inside the Shed, caught hold the accused but the accused inflicted injuries to them by a Lathi. When the scuffle was going-on, the mother, brother and the sister of accused-appellant Shanker came there. PW 2 Khatu went to the village to call other persons. As PW 3 Prabhu was all alone there, accused Shanker got himself rescued with the help of his brother and mother and ran away. The prosecution, in support of its case, examined six witnesses. The accused did not examine any witness in his defence. PW 1 Smt. Surta is the victim of the offence, who was ravished by the accused in the shed. PW 2 Khatu and PW 3 Prabhu are the two witnesses, who came at the place of the occurrence on hearing the cries raised by Smt. Surta. PW 4 Dr. Surendra Kumar Bhatnagar was the Medical Jurist posted at Government Hospital, Banswara, who examined the prosecutrix Smt. Surta on 2.3.93. PW 5 Dr. Phool Chand Yadav is the witness who examined the accused-appellant and found him potent. PW 4 Dr. Surendra Kumar Bhatnagar was the Medical Jurist posted at Government Hospital, Banswara, who examined the prosecutrix Smt. Surta on 2.3.93. PW 5 Dr. Phool Chand Yadav is the witness who examined the accused-appellant and found him potent. PW 6 Chandraveer Singh is the investigating officer, who conducted the investigation and filed the challan. 3. It is contended by the learned counsel for the appellant that from the evidence produced by the prosecution, no case against the accused-appellant has been made out and the appellant has been falsely implicated in the case. It has, also, been contended that the F.I.R. in the present case was lodged at Police Station, Danpur, after the delay of about twenty-two hours and this delay in lodging the F.I.R. has not been properly explained by the prosecution. It has, also, been contended that the relations between the complainant party and the accused were strained and the appellant has been falsely implicated in the case. It is further contended that even if some incident took place even then the evidence produced on record show that the prosecutrix appears to be a consenting party and being a major lady of twenty years and as such no offence under Section 376 I.P.C. was committed by the accused. Lastly, it is contended that no offence under Section 342 Indian Penal Code, is made out against the appellant and there was no wrongful confinement of any person. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below. 4. I have considered the submissions made by the learned counsel for the parties and gone through the judgment passed by the Court below and the record of the case. 5. The prosecution case rests upon the statements of three witnesses, viz., PW 1 Smt. Surta the prosecutrix, PW 2 Khatu and PW 3 Prabhu, which is further sought to be corroborated by the medical evidence of PW 4 Dr. Sudhinder Kumar Bhatnagar. PW 1 Smt. Surta has stated that she was returning from the canal after taking her bath. When she reached near the house of Dhuliya, the accused stopped her, caught hold of her, took her inside the shed and committed rape upon her. She raised cries and on hearing her cries, PW 2 Khatu and PW 3 Prabhu came there, who saved her. When she reached near the house of Dhuliya, the accused stopped her, caught hold of her, took her inside the shed and committed rape upon her. She raised cries and on hearing her cries, PW 2 Khatu and PW 3 Prabhu came there, who saved her. Accused Shanker thereafter went away to his house and she returned to her house. She has, also, stated that she lodged the report of the incident at the Police Station on the same day. In the cross-examination, she has stated that the incident took place in the evening near about the Sun set time. She has denied that the incident took place at about 12.00 in the noon. She has, also stated that she did not give this statement to the police that the incident took place at about 12.00 in the noon. She has, also, admitted that the shed where she was ravished by the accused, has no doors and the persons passing through the way can see the person inside the shed. She has, also, stated that it has wrongly been written in her police statement that the accused closed the doors and the fact is that the house had no doors. She has, also, admitted in the cross-examination that a dispute regarding the land is going on between her father, Lala and accused Shanker. She has, also, admitted that she was wearing a Ghagra, which was washed by her on the next day. She has, also, admitted that the bangles, which she was wearing, were broken and the pieces thereof scattered there and she received injuries on her hands and the hips, but no pieces of broken bangles were recovered by the investigating officer. She has, also, stated that she did not give any Ghagra to the police. She has, also, admitted that several persons had gone to the canal for taking their bath. This witness though has stated that the accused took forcibly her into the shed and committed rape upon her, but she has also stated that she was completely naked when the sexual intercourse was committed by the accused on her. The place, where the incident took place, is an open one and the villagers pass through this way and as the shed has no door, therefore, it was not possible for any person to have a sexual intercourse at such a place. The place, where the incident took place, is an open one and the villagers pass through this way and as the shed has no door, therefore, it was not possible for any person to have a sexual intercourse at such a place. The evidence of this witness is not supported by the medical evidence. The doctor has opined that the prosecutrix is habitual of sexual intercourse and her hymen admits two fingers and there was no sign of commitment of recent sexual intercourse with the prosecutrix. The statement of the prosecutrix that the rape was committed by the accused with her or the sexual intercourse was performed by the accused with her without her consent, therefore, does not inspire confidence. 6. The next witness produced by the prosecution is PW 1 Khatu. He has stated that he heard the cries of Smt. Surta, " run...run" and on hearing the same, he reached at the place of the occurrence. The doors of the house was closed. He and Prabhu (PW 3) went inside and saw the accused having sexual intercourse with Smt. Surta and both of them were naked. The prosecutrix was not making any cries. He and Prabhu caught both of them. On enquiry, Smt. Surta informed them that she was caught hold by the accused, forcibly taken inside the shed and the accused committed rape on her. They gave beatings to accused Shanker and thereafter this witness went away. Though in the examination in chief he has stated that the doors of the house were closed but in the cross-examination he has admitted that there was no door to the house. He has, also, admitted that nobody used to reside in the house and the persons sitting in the shed (Tapra) were vigible from out side. He has, also, stated that Smt. Surta and the accused were completely naked and they saw both of them standing out side the shed for about ten minutes. At that time. Smt. Surta was not crying. They were sleeping on the cot lying inside the shed. The bangles of Smt. Surta were broken and she received injuries on her hands. He has, however, denied the fact that there was any dispute between the accused and the complainant party regarding any land. At that time. Smt. Surta was not crying. They were sleeping on the cot lying inside the shed. The bangles of Smt. Surta were broken and she received injuries on her hands. He has, however, denied the fact that there was any dispute between the accused and the complainant party regarding any land. According to this witness, the bangles which were being worn by Smt. Surta, were found broken and she received injuries on her hand but neither any injury on the person of Smt Surta was found nor the pieces of broken bangles were collected by the prosecution. Further, when the prosecutrix was found completely cloth-less, this suggests her consent in the act of commitment of sexual intercourse by the accused with her. The statement of this witness, also, does not inspire any confidence. Similar is the statement of PW 3 Prabhu, who came at the place of the incident after hearing the cries of Smt. Surta. He has admitted in the cross-examination that he and PW 2 Khatu saw the accused and Smt. Surta lying on the cot and having sexual intercourse and they watched it for sometime. They thereafter caught hold of the accused and found that the bangles of Smt. Surta were broken. 7. A close reading of the statement of these three witnesses, therefore, clearly shows that the incident did not take place in the manner suggested by these witnesses. Nobody could have dared to have a sexual intercourse with a young lady of twenty years of age without her consent and that too at the place where the chances of their being seen by the passers by are there. The shed has no doors and the persons inside the shed are vigible from out side. No broken pieces of the bangles were found at the place of the incident. The circumstances do not support the prosecution case. The medical evidence, also, does not support the prosecution case as neither any injury was found on the person of Smt. Surta, though all the three witnesses have specifically stated that the bangles broke and she received injuries on her hands, nor is there any medical evidence suggesting that any recent sexual intercourse was committed with the prosecutrix. No swab was taken from her vaginal canal to substantiate the prosecution case regarding commitment of rape. No swab was taken from her vaginal canal to substantiate the prosecution case regarding commitment of rape. Even otherwise, the prosecutrix was found completely naked at the time of the incident and all her clothes were found put-off, which, also, suggests that she was a consenting party to sexual intercourse. Further, the report of the incident was not lodged on the same day but it was lodged on the next day, though Smt. Surta has stated that the report of the incident was lodged the very day. Of course, in the matter where the chastity of a woman is involved, the family members may be reluctant in lodging the report and make the incident a public one, but that is not the case here. The delay in lodging the report of the incident has not been properly explained in the case. Even the Ghagra, which the prosecutrix was wearing, which could have supported the prosecution case, was washed by.the prosecutrix on the next day. These circumstances raise a suspicion in the prosecution case regarding the commitment of rape by the accused with the prosecutrix and if at all the sexual intercourse took place with the lady then that appears to be a matter of consent by the prosecutrix. The prosecution has, therefore, failed to prove the case against the accused-appellant beyond a reasonable manner of doubt so far as the offence under Section 376 Indian Penal Code is concerned. 8. The next question, which requires consideration is whether the accused wrongfully confined Smt. Surta ? The evidence on this count is, also missing. Smt. Surta appears to be a consenting party and went inside the shed without any force being used by the accused-appellant. The prosecution has, therefore, failed to prove the offence under Section 342 Indian Penal Code against the accused- appellant. 9. To sum up, the prosecution has failed to prove the case against the accused-appellant beyond reasonable manner of doubt so far as the offences under Sections 376 and 342 Indian Penal Code are concerned. The judgment, passed by the learned Sessions Judge, convicting and sentencing the appellant for the aforesaid offences, therefore, deserves to be set-aside. 10. In the result, the appeal filed by accused-appellant Shanker is allowed. The judgment, passed by the learned Sessions Judge, convicting and sentencing the appellant for the aforesaid offences, therefore, deserves to be set-aside. 10. In the result, the appeal filed by accused-appellant Shanker is allowed. The judgment dated 31.8.94, passed by the learned Sessions Judge, Banswara, convicting and sentencing the appellant for the offences under Sections 376 and 342 Indian Penal Code is quashed and set-aside and the appellant is acquitted of both these offences. He is in jail and be released forthwith if not required in any other case.Appeal allowed-Conviction & sentence set aside. *******