Judgment Mohd. Yamin, J.-This jail appeal was preferred by the appellant from jail and amicus curiae was appointed by this Court. 2. Appellant-Tulsi Ram was convicted for offences under Sections 376 and 342, IPC by learned Additional Sessions Judge No. 2, Chittaurgarh on 13-4-1998. He was sentenced to seven years’ simple imprisonment with a fine of Rs. 200/-and in default to undergo one month’s simple imprisonment. He was sentenced to one month’s simple imprisonment with a fine of Rs. 100/-and in default to undergo 15 days simple imprisonment for offence under Section 342, IPC. It was ordered that both the substantive sentences shall run concurrently. Aggrieved by this conviction and sentence he preferred this appeal. 3. Briefly stated, on 30-10-1996 Sayri reported to Station House Officer, Bhensroadgarh that on 29-10-1996 she had gone to the field of her brother in order to dig peanuts. She worked there up to 5-6 O’clock. She was returning to Ladpura and when she reached near the field of Bhanwarlal, appellant suddenly pounched upon her and caught hold. She wanted to cry but her mouth was gagged. Appellant lifted her and took to the place near the field of Bhanwarlal under a tree. He threatened her that if she made hue and cry she would be killed. Then the appellant committed rape with her. She was kept by the appellant for whole of night and during this period the appellant committed rape twice. The semen of the appellant spoiled her ‘ghaghra’ and ‘lugri.’ Appellant had tied her hands with her ‘lugri.’ In the morning he went away to wash his face, then Sayri ran away to the field of her in-laws. The elder brother of her father-in-law Shankar and his son Shambhu were present who untied her hands and also took out the ‘lugri’ from her mouth. Then she narrated the whole story to them. Shambhu went to Gopalpura and brought her brother Shyama whom the story was narrated. She came to Gopalpura with her brother Shyama and narrated the story to her parents. Then a report was lodged at police station Bhensroadgarh where a case under Sections 376 and 342, IPC was registered, investigated and then the appellant was challenged. Learned Magistrate having jurisdiction committed the case to the learned Sessions Judge who framed charges under Ss. 376 and 342, IPC against the appellant, read them over and explained. Then a report was lodged at police station Bhensroadgarh where a case under Sections 376 and 342, IPC was registered, investigated and then the appellant was challenged. Learned Magistrate having jurisdiction committed the case to the learned Sessions Judge who framed charges under Ss. 376 and 342, IPC against the appellant, read them over and explained. The appellant denied his indictment and claimed trial. Prosecution examined 21 witnesses in support; of its case. Then the appellant was examined under Section 313, CrPC Learned Sessions Judge, after hearing both the parties, convicted and sentenced the appellant as stated above. 4. I have heard the learned amicus curiae for the appellant as well as learned Public Prosecutor at length and have gone through the record. 5. Learned amicus curiae for the appellant submitted that Sayri is a married lady who was deserted by her husband, that the story is cooked up as the evidence indicates that there was an element of consent, that there was delay in lodging the first information report and that witness Shankar does not corroborate the prosecutrix. He submitted that the prosecution was not able to prove its case beyond doubt and the conviction of the appellant has been wrongly recorded. He submitted that though Exhibit P/21 mentions that semen was found on ‘ghaghra’ but the semen was not compared with the semen of the appellant and, therefore, it cannot be said that the semen found on the ‘ghaghra’ of Smt. Sayri was of the appellant. 6. On the other hand learned Public Proscutor tried to support the Judgment of the learned Sessions Judge. 7. It is Smt. Sayri who is the most important witness in this case, she is aged 20-22 years. She has stated that when she was going back to her in-laws, the appellant caught hold of her. He tied her hands with her ‘lugri’ and then after raising her ‘ghaghra’ committed rape with her. It was the time of sunset. She stated that in the morning when appellant went to wash his face she ran away. According to her the appellant had committed sexual intercourse with her twice or thrice during the night. The report Exhibit P/4 was lodged at the police station which mentions that after catching hold of the prosecutrix in her arms, the appellant put her ‘lugri’ in her mouth and then took her near Khala. According to her the appellant had committed sexual intercourse with her twice or thrice during the night. The report Exhibit P/4 was lodged at the police station which mentions that after catching hold of the prosecutrix in her arms, the appellant put her ‘lugri’ in her mouth and then took her near Khala. The report further mentions that she cried then the appellant tied her hands with the same ‘lugra.’ However, when she came in the witness-box she gave the version in the examination-in-chief that the appellant had gagged her mouth and also had tied her hands. She admitted in the cross-examination that she knew the appellant from before and his field was situated on the other side of Khala. She states that there was only one ‘lugra’ a part of which was used for gagging her mouth and other part was used for lying her hands. But this story of gagging the mouth as well as tying the hands by same ‘lugra’ is unbelievable as it was not possible because the ‘lugra’ could not have been used in such a way. It was suggested to her in the cross-examination that she was having relations with the appellant from before for last 5 or 7 years, but she denied it. She is not able to say as to where she stayed for whole of night and in case in open in the khala then how did she pass the whole night in the end of month of October, 1996 when the weather had changed and winter was set in. Learned Counsel submitted that she was having good relations with appellant. This appears to be correct as PW. 7 Mst. Dhapu, who is her mother, has stated that Sayri was married to Dhanna who had left her. But PW. 16 Kishan says that Sayri was his wife. Statement of Sayri regarding rape does not inspire confidence. PW.17-Dr. Hemlata Bhatnagar examined her and found that Smt. Sayri was habituated to sexual intercourse. She did not give any opinion about rape till the report of chemical examiner was received as vaginal swab was taken and was sent to the chemical examiner. Her report Exhibit P110 does not state any mark of physical violence to her. PW.17-Dr. Hemlata Bhatnagar examined her and found that Smt. Sayri was habituated to sexual intercourse. She did not give any opinion about rape till the report of chemical examiner was received as vaginal swab was taken and was sent to the chemical examiner. Her report Exhibit P110 does not state any mark of physical violence to her. Report of chemical examiner Exhibit P121 is available on record which mentions that vaginal smear was consumed during the examination, therefore, there is no evidence about presence of spermtoza in the vaginal smear. It may also be stated that though ‘ghaghra’ of Smt. Sayri is said to have spots of human semen as per report but the semen has not been compared with the semen of the accused-appellant. In Emperor v. Jalal, 1930 (31) CriLJ 784, it was held that the semen detected on the garments of the lady should be compared with the semen of the accused. This has not been done in the case in hand. In another case Vijayan v. State, 1993 CriLJ 2364, Madras High Court held that when the result of grouping test of semen was inconclusive, the accused could not be convicted. So presence of semen on the ‘ghaghra’ of Sayri is not the proof of rape committed by the appellant. 8. When it is alleged that Sayri was having relations with the appellant from before, it cannot be said that if the sexual intercourse was done by the appellant with Sayri it was so done without her consent. Sayri PW. 6 has stated that her husband was one Kishna. PW. 16 Kishan Lal has stated that Sayri was his wife and she did not return in the evening and he presumed that she had stayed with her parents. He went to the house of parents of Sayri where she told him that the appellant had committed rape with her. It is very strange that when Kishan Lal reached to her parents’ house he found that Sayri was asleep and her hands were found tied with her ‘lugra.’ It was so at about 11.00 a.m. inthe morning of 30-11-1996. 9. Thereport was lodged with a considerable delay. Sayri PW. 6 has stated that she had gone to Ladpura early in the morning and met her brother Bheru, Shyama and her father whom she narrated the story. But this does not appear to be correct because PW. 9. Thereport was lodged with a considerable delay. Sayri PW. 6 has stated that she had gone to Ladpura early in the morning and met her brother Bheru, Shyama and her father whom she narrated the story. But this does not appear to be correct because PW. 1 Sawa, who is the father of Smt. Sayri, has stated that it was Shyama, his son, who told about the incident to him. Shambhu told him that the hands of Smt. Sayri were tied with ‘lugra’ which he untied. Then Sayri was brought by Shambhu from Ladpura to Gopalpura where she narrated the story to her father. So Sawa had come to know about the incident from Shambhu and Shyama. PW. 4 Shankar has stated that Sayri came to his field. Shambhu was present and Sayri started weeping. Shambhu inquired from her whom she told that the appellant had committed rape with her. The witness has further stated that when Sayri came, her hands were tied with her ‘lugra’ and she was weeping. It was Shambhu who untied her hands. Brother of Smt. Sayri Shyama came and took her. He admitted in the cross-examination that Sayri did not tell about the rape to him. He thus does not support Sayri. But his statement to the effect that the hands of Sayri were tied with her ‘lugri’ in the morning when she came, is unbelievable as it was not possible. She might have got it done in order to show her chastity and people to believe that she was raped. 10. PW. 14-Shambhu has stated that Sayri was the wife of his wife’s brother. He stated that Sayri came in the morning when he found that her hands were tied with her ‘lugri.’ She told that the appellant had committed rape and had kept her for whole of night. He went to call the father of girl and in the way Shyama met her and told that she may be brought to her parents. His statement is that the hands of Sayri were tied with ‘lugri’ when she came to the field at Ladpura is a cock and bull story and the same cannot be believed. Sayri was with the appellant for whole of night. I have already stated that it was not possible to put the same ‘lugri’ in her mouth and tie her hands with it. Sayri was with the appellant for whole of night. I have already stated that it was not possible to put the same ‘lugri’ in her mouth and tie her hands with it. If it was done so in the beginning, it was not possible to have continued till the morning. The possibility of tying the hands again in the morning in order to show her chastity, Smt. Sayri might have done so herself or got it done from the appellant though the matter was of her consent. However, so far as delay is concerned, it appears quite natural in this case as all the persons collected with the parents of Smt. Sayri and then report was lodged after due consultation. 11. PW. 15 Shyama stated that Shambhu met him in the way and told that his sister Smt. Sayri was caught by the appellant. Then he brought Sayri who told that the appellant committed sexual intercourse with her. He stated that he went to the police station at about 11.00 a.m. along with other persons but the report mentions that it was lodged at 4.00 PM The witness is illiterate one and might not be having sense of time. However, from the statement of Kishanlal PW. 16 it is found that he reached Gopalpura at 11.00 a.m. and found that his wife was asleep. It was not possible to report unless the husband of Sayri was consulted. Investigating Officer PW. 20 Aziz Mohd. has stated that the report was lodged at 4.00 PM at police station Bhensroadgarh. In my view the report is not inordinately delayed. But it appears that Smt. Sayri cooked up the story of rape though there are indications and the evidence speaks volumes of the consent of Smt. Sayri. 12. In view of above discussion, the conviction of the appellant for the offence cannot be sustained. He deserves acquittal. 13. Consequently, the appeal succeeds. Accused-appellant-Tulsi Ram is acquitted from the charges of Sections 376 and 342, IPC He is in custody and shall be released forthwith from jail if not required in any other case.